Tort Flashcards
A client, the owner of a small garage, seeks advice about whether he may seek damages from highway contractors who negligently cut the power supply to numerous properties whilst working on roadworks outside his property. The power supply was not reconnected for 48 hours. As a result, the client had to turn away three customers and lost approximately £5,000 in profit.
What advice should the solicitor give the client about his entitlement to claim damages?
a) The client may seek damages in negligence from the highway contractors for his resulting lost profit as he was owed a duty of care that was breached, and which caused the loss.
b) The client may not seek damages in negligence from the highway contractors as the cutting of the power supply did not cause damage to the client’s property.
c) The client may not seek damages in negligence from the highway contractors, but may seek damages in public nuisance as the cutting of the power supply unlawfully interfered with his property.
d) The client may seek damages for private nuisance as the cutting of the power supply caused him a personal loss.
e) The client may not seek damages in negligence against the highway contractors as a duty of care cannot be owed to the public at large.
B - This follows the case of Spartan Steel & Alloys Ltd v Martin [1973], which provides that a claim cannot be made for economic loss resulting from damage to property belonging to a third party.
A shop owner has received a letter of claim from solicitors representing a pedestrian. Whilst walking on the pavement owned by the highway authority, the pedestrian was injured when a window awning, affixed to a shop and protruding out onto the pavement, fell and hit her head. The shop owner seeks advice and tells his solicitor that, although he owns the premises, they had stood empty for over three years and, as he rarely visited the premises, he had no knowledge that the awning might fall.
What is the correct advice for the solicitor to give as to what possible liability, if any, the client has to the pedestrian?
a) The client may be liable in nuisance, negligence, under the rule in Rylands v Fletcher and under the Occupiers’ Liability Act 1957.
b) The client is not liable as he was not in occupation and did not know of, and had no reason to know, that the awning might fall.
c) The client is strictly liable under the rule in Rylands v Fletcher as the erection of any building on land is a non-natural use and the client is liable for damage which is the natural consequence of any escape from it.
d) The client may be liable in nuisance, but only if he knew or ought to have known of the danger, and may be liable in negligence, but only if breach of duty is established.
e) The client is not liable as the accident arose on the pavement that was owned by the highway authority who owe a duty to those injured on the highway from premises adjoining or abutting the highway.
D - The client may be liable in nuisance if owing to want of repair the awning fell but it depends on whether he knew or ought to have known of the danger (Wringe v Cohen [1940]). It seems likely that he ought to have known and inspected a vacant property frequently for possible signs of decay in the fabric of the building (contrast Noble v Harrison [1926] and Mint v Good [1951]). Similarly, the client may be liable in negligence as a duty of care would apply under the principle in Donoghue v Stevenson [1932], which may have been breached if the security of the awning had not been checked for a while which seems likely.
A client, who has just opened a factory employing 20 staff, seeks advice about restricting liability for the actions of her employees. She is concerned that despite instructions to the contrary, and training given in how to do the job properly, staff employed on stock control duties race each other down the wide aisles on the stand-on trucks provided for moving heavy stock around the factory floor. She wishes formally to prohibit this activity, described as “horseplay”.
What is the best advice to give the client to respond to her concerns about her liability for the actions of her employees in these circumstances?
a) She should formally prohibit the class of act which is the subject of her concern and, by so doing, prevent any liability arising from future misuse of the trucks.
b) The client need not prohibit the activity as no liability would arise for the actions of the employees should misuse of the trucks cause injury, as they would be acting on a frolic of their own.
c) The client should prohibit the activity and provide within each employment contract a clause excluding liability for any injury arising from misuse of the trucks.
d) The client will not be liable for malperformance of a task properly allocated to employees where training has been given and employees have been instructed not to engage in horseplay.
e) The client should formally prohibit the activity but it will not prevent liability arising should future misuse of the trucks cause injury.
E - If an injury arises to someone from misuse of the trucks in the way described, then the accident may still be held to be in the course of employment even if expressly forbidden. CPR v Lockhart [1942] and Limpus v London General Omnibus Co [1862] refer to wrongful, improper and unauthorised modes of doing what an employee was authorised to do (approved in Lister v Hesley Hall Ltd [2001] and Mr AM Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11). It would be sensible for the client formally to prohibit the activity to allay any suggestion of being complicit in or condoning the activity.
In a claim arising from a road traffic collision, a solicitor has received a defence which raises contributory negligence against her client, the claimant. The collision took place during the course of the claimant’s employment on a farm. Although all employees had been told not to do so, the claimant stood on the back of a tow bar attached to a tractor being driven by a fellow employee. The tractor was then driven a short distance onto the public highway to gain access to a field. A collision occurred when a car was driven negligently into the rear of the tractor and caused the claimant to sustain serious injuries to his legs.
Ignoring that volenti might also be argued, what is the correct advice for the solicitor to give her client with regard to the argument of contributory negligence raised in the defence?
a) The claimant has not caused or contributed to a foreseeable injury to himself as a result of standing on the tow bar as but for the negligence of the car driver he would not have been injured.
b) The claimant will not be found to be contributorily negligent as the employer will be vicariously liable for the negligence of the tractor driver in which circumstances they cannot raise contributory negligence as an issue given that the claimant was injured during the course of his employment.
c) The claimant is likely to be found to be contributorily negligent for injuries and loss sustained as standing on the tow bar exposed him to a broad risk and his damages will be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.
d) There is no contributory negligence as the claimant neither caused nor contributed to the accident which resulted in his injuries.
e) The claimant will be found to have contributed to the injuries by reason that but for him standing on the tow bar the injuries would not have occurred.
C - The facts here follow the case of Jones v Livox Quarries Ltd [1952] 2 QB 608. See s1(1) and 4 of the Law Reform (Contributory Negligence) Act 1945. In Jones, the Court of Appeal held that although the most obvious danger of standing on the tow bar was falling off, which was likely to cause injury, nonetheless the claimant on the facts should bear some responsibility for his injuries as a consequence of him exposing himself to a broad risk by standing on the tow bar and therefore his conduct contributed to his damage. The claimant’s lack of care was a contributory factor to his damage. Here, the advice should be that the claimant’s damages will be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.
A client’s shop premises have been destroyed by an electrical fire originating from the neighbouring premises rented by a tyre-fitting service. At those premises, the tyres were stored in quantity, and were a known fire hazard as they could burn rapidly. There is no evidence that the fire arose as a result of a negligent failure to maintain the electrical system or any negligence in failing to prevent its spread. The solicitor has advised the client that he has a claim in negligence and under the rule in Rylands v Fletcher, which imposes strict liability in these circumstances. The solicitor has written a letter of claim to the defendant including a cause of action under Rylands v Fletcher, but has received a robust denial of liability on the grounds that the rule does not apply on the facts.
Was the solicitor correct to advise as he did?
a) No, as there is no evidence of negligence in either the way in which the fire started or in failing to prevent its spread which would otherwise substantiate the claim.
b) Yes, as the tyres caught fire on the defendant’s premises and the fire escaped from there to the client’s premises.
c) Yes, as all conditions for operation of the rule are present and it applies even where the defendant is not the owner of the premises but is renting them.
d) No, as there has been no escape of a dangerous thing and there is no evidence of negligence which would otherwise substantiate a claim.
e) Yes, as the storage of tyres, a known fire hazard, was a non-natural use of land and the defendant is liable for the reasonably foreseeable consequences flowing from that.
D - It is an essential requirement of the rule in Rylands v Fletcher (1868) LR 3 HL 330, 339, that the defendant has brought some exceptionally dangerous ‘thing’ onto its land and that ‘thing’ must escape causing damage. In Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248, the tyres (which were classed as the ‘thing’) were stored but they were not found to be exceptionally dangerous or mischievous and in any event they did not escape. It was the fire, fuelled by the tyres, which escaped—the tyres remained burning on the defendant’s premises. However, the fire had not been brought onto the premises. Therefore, the claim based on Rylands v Fletcher failed. It was also noted that a commercial activity such as described was not a non-natural use of the land for the purposes of the rule. In any event, where a fire is not started deliberately and there has been no failing in preventing its spread, there would be a defence available to the defendant under s86 of the Fires Prevention (Metropolis) Act 1774. As the client’s claim also appears to have no foundation in negligence, the client ought properly be advised in his best interests not to pursue the claim.
A client was seriously injured when the steering mechanism of his bicycle failed, causing him to lose control and ride into a ditch. The bicycle had been bought new from a reputable dealer 12 months prior to the accident and had been serviced at the dealer six months prior to the accident when no problems were found. The client denies that he had done anything to the bicycle himself by way of repair or maintenance or that he had been involved in any accident with the bicycle which had caused it to become damaged. The only explanation seems to be that the bicycle was defective when it was bought.
What is the most accurate advice to give to the client with regard to the liability, if any, of the dealer?
a) The dealer is strictly liable under the statutory provisions of the Consumer Protection Act 1987 to which there are no defences.
b) Providing impossible causes are eliminated, the remaining explanation, even if improbable, must be accepted by the court as the cause of the accident.
c) The dealer will be found liable in negligence as a duty of care can be established which has been breached, evidenced by the failure of the steering mechanism and which caused the client’s accident and injury.
d) There is no basis upon which the claim can proceed against the dealer, as the supplier of the bicycle, and it must proceed against the producers.
e) The dealer may be held strictly liable provided the client proves causation.
E - The Consumer Protection Act 1987 applies here. Whilst there is provision for strict liability (s2(1)), causation must be proved by the claimant on the balance of probabilities. The facts of this case follow those of Love v Halfords Ltd [2014] EWHC 1057 (QB) in which the claim failed as the claimant could not establish causation under the Act. The failing of the steering mechanism was found to be the result of an event which had bent the mechanism, and which had then been straightened, rather than there being a defect in the bicycle itself at the point of supply (the relevant time).
An instructor at an outdoor activity day is demonstrating abseiling down a cliff face. The instructor is lowered down a rope from the top of the cliff to the bottom. The person lowering the instructor does not set up the lowering winch properly causing it to become stuck, trapping the instructor halfway down the cliff face but causing no injuries. While the instructor is waiting to be rescued, a spectator loses control of a drone which crashes into the instructor, causing a severe head injury.
Which of the following provides the best advice to give the instructor as to who may be liable for his injuries?
a) The person lowering the instructor was too far away from the instructor meaning there was insufficient proximity for them to owe a duty of care for the injuries caused by the drone.
b) It was not reasonably foreseeable that the breach of the person lowering the instructor could lead to a drone crash, so the damage caused by the drone is too remote.
c) The instructor caused or contributed to his own head injury as a result of their own actions in taking part in the activity and cannot pursue a claim for damages.
d) The person lowering the instructor is likely to have breached their duty of care to the instructor but the spectator’s intervening act of losing control of the drone was not reasonably foreseeable and broke the chain of causation leading to injury.
e). The instructor assumed the risk of injury by agreeing to participate in a dangerous activity and therefore cannot hold any person liable for his injuries however caused.
D - The setting up of the winch improperly trapped the instructor but did not directly cause the head injury. The spectator’s loss of control of the drone is an independent intervening act that directly caused the injury, breaking the chain of causation from the initial negligence.
A solicitor is advising in a fatal accident claim. The survivor tells the solicitor that she had been living with the deceased for 12 months and was living with them immediately before their death. The deceased survived three weeks following the car accident before he died as a result of the injuries sustained. The survivor was financially dependent on the deceased and wishes to bring a claim in negligence against the other driver involved in the car accident. The survivor is named as executor in the deceased’s will.
Which of the following statements provides the correct advice to give the survivor as to what claims she is entitled to bring?
a) The survivor can make a claim for dependency as she was living with the deceased immediately before his death and had cohabited for 12 months; she is also entitled to make a claim for the statutory bereavement award; she may bring a claim for the benefit of the deceased’s estate provided she is named as a beneficiary in the will.
b) The survivor can make a claim for dependency as she was living with the deceased immediately before his death but is not entitled to make a claim either for the statutory bereavement award or for the benefit of the deceased’s estate unless she is named as a beneficiary in the will.
c) The survivor is entitled to bring a claim for damages for the benefit of the deceased’s estate; the statutory bereavement award, and also dependency damages because they were living together immediately before the accident, and she was financially dependent on the deceased.
d) The survivor can claim the bereavement award if she can prove that she was emotionally impacted by being either a primary or secondary victim as a result of the car accident.
e). The survivor can bring a claim for the benefit of the deceased’s estate but is not entitled to bring any claim for dependency or for the statutory bereavement award.
E
A solicitor is advising her client who was involved in a car accident and has brought a claim against the other driver involved. The solicitor is preparing to negotiate a settlement of the claim. The client accepts that he was driving at 40 mph in a 30 mph zone in wet weather and failed to brake in time to avoid the collision. The other driver admits to driving negligently by turning right and across the client’s lane. The client was not wearing a seat belt which caused him to suffer serious head injuries when his head struck the car’s windscreen.
What is the best advice for the solicitor to give the client about the probability of a finding of contributory negligence should the claim proceed to trial?
a) The client cannot be found contributorily negligent as the other driver admits to driving negligently.
b) The client’s contributory negligence both in causing or contributing to the accident and to the cause, nature and extent of his injuries is likely to result in a finding of 100% contributory negligence.
c) The client may be found contributorily negligent in respect of both causing or contributing to the accident; and for the cause, nature and extent of the injuries sustained, which will reduce his damages by at least 25%.
d) Any finding of contributory negligence will be limited to 25% which is the maximum reduction permitted where the claimant admits to not wearing their seatbelt.
e) The client will avoid any reduction in damages provided the other driver is found to be entirely at fault for the accident.
C The Law Reform (Contributory Negligence) Act 1945 provides that “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”; Froom v Butcher [1976] QB 286 provides guidance on how damages might be reduced when a claimant fails to wear a seat belt and refers to a 25% reduction if wearing a seat belt would have prevented the injury entirely or 15% reduction if wearing a seat belt would have reduced the severity of the injuries. Here, as the claimant appears to have caused or contributed both to the accident as well as the extent of his injuries, it is likely that damages would be reduced by at least 25%.
A solicitor is advising a client who was injured when visiting a public park managed by the local council. The park features a rewilding area with natural stone pathways, one of which is often wet and covered with algae due to its proximity to a fountain. The client noticed that the pathway was slimy and wet due to the algae but walked on it anyway. She slipped and broke her ankle and now wishes to bring a claim against the council alleging that the council failed to warn her of the danger posed by the algae-covered pathway.
How should the solicitor advise the client in respect of the likelihood of a finding of liability against the council?
a) The council is likely to be found liable because they failed to provide a warning sign specifically about the algae on the pathway.
b) The council is likely to be found liable because the algae on the pathway posed a hidden danger such that the premises were not reasonably safe for visitors to use.
c) The council will be found liable because the presence of algae constitutes a breach of their duty to ensure all areas of the park are safe for visitors.
d) The council is unlikely to be found liable because the client admits that she noticed the algae was slimy and wet and could foresee that it would be slippery.
e). The council is unlikely to be found liable providing they can show that they had taken all reasonable steps to ensure the pathway was safe.
D - The scope of the occupiers’ duty under Section 2(2) OLA 1957 is to take such care as is reasonable to see that the visitor will be reasonably safe; not the premises. It would be unduly onerous to ensure that the premises were free of all risks. The fall occurred in a rewilding area of the park. Although the pathway was not reasonably safe, the risk was obvious. In Staples v West Dorset District Council, the court held on appeal that there is no duty to warn against obvious risks. Since the client noticed the algae and understood the risk, the council is unlikely to be found liable under Section 2(4) of the Occupiers’ Liability Act 1957 as there is no duty to warn of dangers which are obvious. NB: the arguments as to liability may be different had a child been injured as the occupier must be prepared for children to be less careful adults Section 2(3) OLA.
CPA ; Limits on type of damage for which a claim can be brought.
Sum to be awarded excluding interest needs to exceed £275.
Can’t claim for damage to property unless property is ordinarily intended for private use occupation or consumption and intended by the person suffering the loss or damage many for his own private use occupation or consumption. SP loses suffered by businesses are unlikely to be recoverable.
Also loss of product itself is not recoverable.
CPA ; Defences
Defect did not exist in product at relevant time
The state of scientific technical knowledge at the time was not that a producer of products of the same description might be expected to have discovered the defect if it had existed in his products while under his control.
CPA ; Limitation
3 yrs from date of injury or date of knowledge, long stop of 10 years after product put into circulation by the defendant.
OLA 1957v 1984 what loss can you claim for
1957: PI and Property Damage.
1984: Only PI.
OLA 1957 how to discharge duty through warnings
Clear warning making clear what the danger is, where it is and how to avoid it. Very obvious dangers may not need warnings e.g. algae
