TORT DA Flashcards
An 8-year-old girl visited the local library with her mother. She went to the children’s section of the library and saw a book on the top shelf of one of the bookcases. Her mother had gone off to get a cup of coffee. The girl climbed onto the bookcase to reach for the book, and the bookcase gave way and fell on her. She injured her hand.
Will she be successful in a claim against the local library?A. No, the library can reasonably expect the mother would look after her child.
B. No, the fault lies with the mother for leaving her child unaccompanied.
C. Yes, the library has fallen below the standard of care of a reasonable occupier.
D. Yes, the library has a duty to take reasonable steps to ensure the safety of their visitors and this duty is higher for children.
E. Provided that the mother thought that it was fine for the child to climb on the bookshelf, then the claim will be unsuccessful.
Answer: D. First, check what Act applies: OLA 57 as the girl is a visitor. There is a duty of care to make sure visitors are reasonably safe. The standard is that of a reasonable occupier: to take reasonable steps to ensure visitors are safe from any dangers on the premises. The standard is higher for children: this means the occupier should take extra steps. But if a parent thinks it is okay, likely it is okay. But this isn’t the case on the facts or on an objective assessment: a parent would not think it is fine for books to be so high up for young children, and the bookcase likely should have been strengthened. If the mother had been at the scene, it is likely she would not have allowed this. The mother not being there is not a defence: reasonableness is required, which is not met.
A man bought a hot coffee from his local café. When he tried to drink the coffee, he burnt his tongue because the coffee was so hot. He wants to sue the café on the grounds that the coffee served to him was too hot and the lid which came with the cup came off too easily.
Will he be successful if he made a claim against the café under the Consumer Protection Act 1987?
A. Yes, the café is only the supplier of the coffee, not the manufacturer.
B. Yes, the coffee is defective.
C. Yes, there were no warnings on the coffee cups.
D. Yes, strict liability operates.
E. No, the coffee and coffee cups are not defective.
Answer: E. This is based on an actual case – a customer burned themselves on a McDonald’s coffee. The test under CPA 87 is what consumers generally expect from a product. If a product is below that expectation, it is defective. While warnings can provide a defence/get-out/allow for standards to be met, here they aren’t necessary in this case because coffee is such a common product. But notice how on coffee cups nowadays there is a warning that they are hot? That is because of this case – it provides a bit of extra cover for businesses. So, in this scenario, the man purchased a hot coffee from a local café and burnt his tongue when he tried to drink it because the coffee was too hot. He wants to sue the café, claiming that the coffee being too hot and the lid coming off too easily are grounds for a claim under the Consumer Protection Act 1987 (CPA 1987). Under the CPA 1987, a product is considered defective if it does not provide the level of safety that a person is generally entitled to expect.
A woman is attending a gig given by a stand-up comedian. She is a big fan of this comedian and gets right up to the edge of the stage so that she can hear him perform. The lights, which were negligently installed by the light fitters for the theatre earlier that day, fall on the comedian, killing him instantly. The woman is unhurt but is overcome with grief at witnessing the comedian’s death and has nightmares about it often.
Will the woman be able to make a successful claim against the light fitters?
A. Yes, this kind of event would affect someone of “ordinary fortitude”.
B. Yes, she is a primary victim.
C. No, she has not suffered sufficient loss or injury.
D. No, she has not suffered from a recognised mental illness.
E. No, she assumed the risk of such an incident.
Answer: D. Grief and nightmares are not enough: you can only claim for PPH if you suffer from a recognised mental illness. In this scenario, the woman attends a gig and witnesses the tragic death of the comedian due to the lights falling on him. While she experiences grief and nightmares as a result of witnessing the incident, it is stated that she has not suffered a recognized mental illness. To make a successful claim for psychological harm, it is generally required to demonstrate that a recognized psychiatric illness or condition has been suffered as a result of the incident. The grief and nightmares experienced by the woman, while understandable and distressing, may not meet the threshold of a recognised mental illness. Without meeting this requirement, it is unlikely that she would be able to make a successful claim against the light fitters.
A woman decided to use her small plot of land in her city’s suburbs as a llama farm. She buys about 15 llamas and puts them in her small field, which she encloses with a small wooden fence. The suburb the woman lives in contains a lot of young boys and, due to the pandemic, many of them are not at school during the day. One day, a local boy smashes down the wooden fence and lets all the llamas out. The llamas trample all over the gardens of the woman’s neighbours, causing significant damage.
Will the neighbours be successful in a claim in tort against the woman?
A. No, the boy let the llamas escape, not the woman.
B. No, there is no duty of care.
C. Yes, the woman has breached her duty as a reasonably competent llama farmer.
D. Yes, under the tort of Rylands v Fletcher.
E. No, the woman will be able to raise the defence of an act of a third party.
Answer: D. A claim of negligence could be made but is not the best one to make as we have to prove fault (breach of duty) on the woman’s behalf, which could be tricky on the facts as we don’t know what the fence was actually like or what constitutes a breach. We can use Rylands v Fletcher. All the criteria are met – the use of a llama farm is likely extraordinary and unusual. Act of third-party defence unlikely to apply as it is not completely unforeseeable – the woman knew or ought to have known boys were milling about who could have been mischievous. It is likely the neighbours will be successful as the llamas escaped from the woman’s land, caused damage that would be a reasonably foreseeable result of their escape, and it was unusual to have them on the land in the first place. In this scenario, the woman chose to establish a llama farm on her small plot of land in a suburban area. By doing so, she introduced a potential risk of harm, as llamas are not commonly found in such settings. When the llamas escaped due to the boy breaking down the fence, they caused damage to the neighbours’ gardens. Given that the damage was a reasonably foreseeable consequence of the llamas escaping, it is likely that the neighbours would be successful in a claim against the woman for the damage caused by the llamas. The defence of an act of a third party would be less likely to succeed in this case, as the woman’s decision to keep llamas on her land contributed to the situation that allowed the llamas to escape and cause damage.
A man bought shares in a small start-up company that is developing artificial intelligence software for law firms. He had spoken to his friend who was an accountant for the company and had prepared a financial report for the directors. She agreed to show it to him “as a mate”. The report showed the company was financially strong. The report was in fact not entirely correct as the friend had missed the company’s most recent balance sheet. The company was worthless. The man is now suing the friend.
Will the man be successful in a claim against the friend?
A. No, the friend excluded any liability.
B. No, the defence of consent applies.
C. Yes, the friend was negligence.
D. No, the friend was not working in a professional context but only providing friendly advice.
E. No, it was unreasonable to rely on the report and there is no relationship of trust and confidence.
Answer: E. The best and most comprehensive answer. This is a negligent misstatement issue – the misstatement being in the report. For a duty to be owed under NM, we have to cover the three principles: special relationship; voluntary assumption of risk and reasonable reliance. Because this is between mates, and the friend explicitly says so, there is unlikely to be a trust relationship, which is normally found in business contexts. And reliance is likely unreasonable – the report was not prepared for the man but for someone else for what could have been a different purpose.
During the Covid-19 pandemic, there was a rush to produce vaccines. A pharmaceutical company based in Leeds produced a new vaccine in the form of a pill for ease of distribution. They distributed the pill. The pill did undergo all medical trials before distribution and was deemed safe when produced, but it turned out later that it caused a strange side-effect of defects in users’ hearts. A woman suffered from this side effect after using the pill. She has brought a case against the company, claiming that a research scientist working alone in Norway published a paper before the distribution warning of the heart defects risk.
Will the company likely be liable under the Consumer Protection Act 1987?
A. No, the developmental risks defence applies.
B. Yes, the developmental risks defence does not apply.
Yes, there is a defect.
D. No, the company undertook trials of the pill and gave all due care and attention to make sure the pill was up to standard.
E. Yes, because of strict liability.
Answer: A. The starting point is: the pill is defective: it falls below what a consumer is entitled to when it comes to taking the pill. A consumer would be entitled to expect that the pill would not cause such defects. What’s more, the amount of care and trials undertaken re the pill is irrelevant: the CPA operates on strict liability. As long as there is a defect in the product, and there is causation (which there appears to be here), then you have liability. But the developmental risks defence allows the company to say that at the time of distribution and production, they did not know about the risk of the heart defect. The paper published by the scientist is likely not accessible: it is not a paper published by a professional body or university. If such a paper were accessible, then the company would be deemed to know about it. But they had no knowledge that this was a side effect at the time of distribution so can raise this defence as a defence to the defect.
A woman operates a reservoir on behalf of a company. Due to heavy rainfall, the reservoir became overflooded. The dams could not hold the reservoir completely back and the water escaped and flooded a farm. The farmer has lost all her crops.
Will the farmer likely be successful in a claim under Rylands v Fletcher?
A. Yes, she has suffered property damage and consequential economic loss.
B. Yes, water escaped from the company’s land which has caused reasonably foreseeable damage.
C. No, the use of a reservoir is not an extraordinary or unusual use of land.
D. No, the overflowing of the water is an Act of God.
E. Yes, she owns her farm, meaning has a property interest.
Answer: C. Remember: this is a high bar: use of the land must be extraordinary and unusual. Reservoir uses (especially in agricultural areas in the countryside) are not unusual. Act of God defence won’t apply as heavy rain is reasonably foreseeable as would be the effect that would have on the reservoir. The farmer should make a claim of negligence against the company for not having adequate dam defences.
Two women are both pilots. At their local airfield, they decided to get drunk one night in their bedroom. One then thought it would be a good idea to fly the plane, saying that, although she was drunk, she would probably be okay as she had been doing it for years. The other thought this was a great idea. Both got in the plane, but as they were taking off the pilot crashed into one of the air-hangers. The passenger seriously injured her head and is claiming against the pilot who flew the plane.
Will the passenger’s claim against the pilot be successful?
A. Yes, as the defence of consent cannot be used under section 149 Road Traffic Act 1988.
B. No, as the pilot will be able to raise the defence of contributory negligence.
C. No, the defence of consent applies
D. Yes, the defence of consent cannot apply.
E. No, the defence of illegality applies.
Answer: C. RTA 1988 doesn’t apply as this is a plane incident. The passenger was fully aware of the risk and got in regardless – she herself is a pilot and she knew that the pilot was drunk. The passenger is not so drunk as to not comprehend the risk – she would have to have had no control of her mental faculties for this to apply and we don’t have the evidence for this. Illegality is unlikely – the illegal act is more the context for the tort, rather than a central element. If they were stealing the plane, this would be different as that is the purpose of their action when the tort takes place. Also, public policy reasons – the court is unlikely to let them off scot-free for the sake of illegality.
A farmer introduced a large number of cattle onto his field. The field had previously been used for crops so was not used for cattle. The cattle caused soil deposits to build up on the edge of the field. These spilled onto the neighbour’s field, damaging his crops.
Can the neighbour make a claim under the tort of Rylands v Fletcher?
A. No, the cattle did not escape.
B. Yes, they have suffered damage as a result of the soil escaping onto their field.
C. No, the Act of God defence applies.
D. Yes, the cattle have been the direct result of the damage caused to their crops.
E. No, as the tort does not cover physical damage to property.
Answer: A. Under R v F, it must be the thing that you bring onto your land that escapes. The cattle are brought on, but it is not that that has escaped. The neighbour may have to make a standard claim of negligence.
A school took a group of schoolchildren out on a school trip. The school was in dire financial straits and had not carried out proper maintenance on the minibus. On the way to the destination, the minibus breaks failed, and it crashed into the side of the road and overturned. A pedestrian was hit by the bus. He hurt his shoulder badly. A week ago, he had just had an operation on his shoulder, and it was very weak. As a result of the accident, the shoulder has been permanently damaged.
Will the school be liable for the pedestrian’s shoulder?
A. Yes, but only for the original shoulder injury.
B. No, only the driver will be liable.
C. No, but they will have liability for any pure psychiatric harm.
D. Yes, for the full extent of the shoulder injury.
E. No, there is no duty of care.
Correct
Answer: D. This is the egg-shell rule. As long as the original injury is reasonably foreseeable, the defendant is liable for the full extent of any loss caused by the original injury. In this scenario, a school took a group of schoolchildren on a trip using a minibus that had not undergone proper maintenance due to the school’s dire financial situation. While en route to the destination, the minibus experienced brake failure, causing it to crash into the side of the road and overturn. Unfortunately, a pedestrian was hit by the bus, resulting in a serious shoulder injury. It is stated that the pedestrian had recently undergone a shoulder operation, and his shoulder was weak at the time of the accident. To establish liability, we need to consider the concept of foreseeability and the duty of care owed by the school to the pedestrian. The school had a duty of care to ensure the safety of the schoolchildren and others affected by their actions, including pedestrians. The fact that the minibus was not properly maintained indicates negligence on the part of the school. In this case, it can be argued that the school should have reasonably foreseen the possibility of an accident due to the inadequate maintenance of the minibus. The school’s failure to maintain the minibus, resulting in brake failure, directly led to the accident and the pedestrian’s shoulder injury. Regarding the extent of liability, the principle of taking the victim as they are applies. Even though the pedestrian had a weak shoulder due to a recent operation, the school is still responsible for the full extent of the shoulder injury caused by the accident. The school’s negligence created a situation where the pedestrian’s weakened shoulder was subjected to further damage. Therefore, the school will be liable for the full extent of the shoulder injury suffered by the pedestrian. The school’s duty of care and their failure to properly maintain the minibus, leading to the accident, make them responsible for the foreseeable consequences of their negligence, including the aggravated injury to the pedestrian’s shoulder. Note: duty automatically established under RTA 1988.
A woman works at a car charging site. A customer in the charging area asks the woman for help. The woman tries to show the customer how to charge the car, but in the process badly scratches and damages the body of the vehicle. The customer wants to sue the woman’s employer.
Will the employer be liable to the customer?
A. No, the woman is acting outside her employment.
B. No, the employer did not consent to the woman’s actions.
C. Yes, the woman did not receive adequate training.
D. Yes, the negligence was committed in the course of employment.
E. Yes, as the woman is its employee.
Answer: D. The best answer for this vicarious liability question. Three stages: employer-employee (we are told this), a tort (negligence) and in the course of employment. The woman does this at the garage while doing her job, and presumably helping customers would be expected of her employer. VL is satisfied.
A woman goes to the hospital for a standard health check-up. While she is there, the doctor realises that she has late-stage thyroid cancer. The doctor decides not to treat her as she has read in a small medical journal published in Ghana that leaving thyroid cancer may allow it to heal itself with little to no pain to the patient. The woman died 3 weeks later from the cancer.
Has the doctor fallen below the standard of care?
A. No, the doctor followed a professional body of opinion.
B. Yes, the doctor has a special relationship with the woman.
C. Yes, that of a reasonably competent doctor.
D. Yes, that of a reasonably competent person.
E. No, for public policy reasons.
Correct
Answer: C. When you are dealing with a professional or someone skilled, like a doctor, the standard is that of a reasonably competent person in that job, so a reasonably competent doctor. By not performing the treatment, the doctor has fallen below that standard. The reasonable body of opinion excuse doesn’t apply because it is an opinion that is very minor. Therefore, in this scenario, the doctor’s decision not to treat late-stage thyroid cancer based on a small medical journal published in Ghana appears to deviate from the standard of care expected of a reasonable doctor. The fact that the doctor relied on a relatively obscure medical source that goes against widely accepted medical practices suggests a departure from the expected standard. In the absence of compelling evidence or consensus supporting the decision to withhold treatment, it is likely that a reasonable doctor would have opted to treat the cancer given its late-stage and potential for harm to the patient. Note: the question is on standard of care: it is implied a duty is established so you do not need to worry about public policy.
Two men had had a few drinks at the pub. One offered to drive the other home, saying that he was probably under the limit and would be able to drive despite having had a few drinks. While driving, he swerved to avoid a badger and crashed into a tree. The passenger seriously injured his arm. An ambulance took him to hospital. The doctor disagreed with the paramedics’ opinion that the passenger’s arm was fractured and gave him some antibiotics. This meant the passenger’s arm suffered further damage from the delay in being assessed. The passenger’s arm is now paralysed.
Who is likely liable for the passenger’s injury to his arm?
A. Both the driver and the doctor.
B. The paramedic.
C. The doctor.
D. The driver.
E. None – defence of consent applies.
Incorrect
Answer: A. Both the driver and the doctor have acted negligently. We cannot use the but for test, as it is too difficult to know for certain which one was more likely to be the cause. We therefore use the material contribution test. Both have materially contributed to the same injury. As a result, there can be no break of the chain because both are cumulative factual causes of the harm. Also, a doctor’s actions will not break the chain unless they are extreme or palpably wrong, which is not the case here, they are just negligent – note you also need to consider the public policy elements of this question; the court is unlikely to let the driver off completely and to impose liability completely on the doctor. Both are joint and severally liable. The defence of consent won’t work because of s149 RTA 1988.
Answer: A. Both the driver and the doctor have acted negligently. We cannot use the but for test, as it is too difficult to know for certain which one was more likely to be the cause. We therefore use the material contribution test. Both have materially contributed to the same injury. As a result, there can be no break of the chain because both are cumulative factual causes of the harm. Also, a doctor’s actions will not break the chain unless they are extreme or palpably wrong, which is not the case here, they are just negligent – note you also need to consider the public policy elements of this question; the court is unlikely to let the driver off completely and to impose liability completely on the doctor. Both are joint and severally liable. The defence of consent won’t work because of s149 RTA 1988.
A woman was experiencing serious head pain at home during the pandemic. She called an ambulance as she was frightened of going to the hospital herself in case she caught Covid-19. It was icy and cold outside. The ambulance arrived and took the woman to the hospital. On the way, it was driving far too quickly in the icy conditions against the professional ambulance driving guidelines. It skidded on the icy road and crashed. A second ambulance had to arrive and take the woman to hospital. The woman was an hour late to the hospital. She underwent treatment but was told that she would never make a full recovery. Had she been treated earlier she would have had successful treatment.
What is the most likely cause of the woman’s loss?
A. The weather.
B. The first ambulance.
C. The hospital.
D. The woman herself.
E. None – no claim can be established.
Correct
Answer: B. Firstly the negligence. Likely here as the ambulance “skidded”, showing that it was driving too quickly. As the roads were icy, it is likely the driver ought to have foreseen that driving too quickly would cause injury. Duty and breach can be established. The causation: what the question is actually asking. Factual caution is likely: on the facts, there are no other reasons for the delay and the ambulance is the one that caused the delay: but for the delay, the woman would have been treated successfully. Legal causation is satisfied here as well. There is no intervening act because there is no act that comes in after the ambulance’s negligence: the ambulance slips on the ice because it is driving too quickly. It is not the ice that causes the delay, and there is no weather act that causes further delay after the negligent act (therefore intervening). Also, the ice would be reasonably foreseeable to the ambulance driver due to the cold weather conditions.
A local amateur football game is being streamed online. While the game was going on, the groundskeeper was mowing the grass in the next-door field. He loses control of the vehicle, and it goes onto the football pitch, maiming the players. A spectator was watching the game live on the live stream in which his sister was playing. He sees the event and the injuries and rushes to the pitch which is 5 minutes down the road. Once there, he sees that his sister’s body is mangled up with the guts pouring out of her chest. The spectator develops post-traumatic stress disorder.
Will the spectator be successful in any claim in tort?
A. No, he did not actually witness the football match or the injuries.
B. No, the groundskeeper was not operating in the course of employment.
C. No, he has not actually witnessed the event or the immediate aftermath.
D. Yes, he is likely a secondary victim.
E. No, there is no close connection.
Answer: D. The spectator will be a secondary victim as he is not in the danger zone to be a primary and has merely witnessed the event. However, he has not actually witnessed the incident. But you can witness the immediate aftermath. This is likely the case here as he is only 5 minutes later, and the sister is seriously injured still. He will satisfy the secondary victim criteria provided that the close connection is proven – remember, this is not presumed for siblings. In this scenario, the spectator witnesses the immediate aftermath of a horrifying incident where his sister, who was playing in the football match, sustains severe injuries as a result of the groundskeeper losing control of his vehicle and entering the pitch. The spectator rushes to the scene and witnesses the graphic and traumatic sight of his sister’s injuries. As a result, he develops post-traumatic stress disorder (PTSD). To make a successful claim as a secondary victim, the spectator would generally need to meet certain criteria, such as being closely connected to the person involved in the incident, witnessing the event or its immediate aftermath, and suffering a recognized psychiatric illness as a result. In this case, the spectator meets the criteria of witnessing the immediate aftermath of the incident, being closely connected to his sister, and developing PTSD as a recognized psychiatric illness.
