Tort MCQS Flashcards
Which seminal case established the general principle that that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure someone who is so closely and directly affected by your act that you ought reasonably to have them in mind when considering how to act?
A) Caparo Industries v Dickman
B) Cassidy v Ministry of Health
C) Watson v British Boxing Board of Control
D) Robinson v Chief Constable of West Yorkshire Police
E) Donoghue v Stevenson
E) Donoghue v Stevenson
(This case established an important principle, but later case law now provides a better indication as to how you should determine whether a duty of care is owed. The other cases listed are important cases in relation to duty of care, but are not cases that established the principle set out in the question)
The foreseeability of harm is very often part of the test for a duty of care. It is sometimes said that the test of foreseeability is ‘objective’. This means we ask:
A) What a reasonable person could have been expected to foresee
B) What the claimant foresaw
C) What a reasonable person would consider appropriate circumstances to impose a duty
D) What the defendant foresaw
A) What a reasonable person could have been expected to foresee
(This is what we mean when we say that the test of foreseeability is objective.
To consider what the defendant (or indeed the claimant) foresaw would be to adopt a subjective test – to look at what the subjects themselves (the defendant or claimant) foresaw. This is not correct.
To consider what a reasonable person would consider appropriate circumstances to impose a duty would be an ‘objective’ test, but it throws out the idea of foreseeability all together. This is not how the court approaches the question of whether to impose a duty)
In Caparo Industries v Dickman Lord Bridge indicated that the necessary ingredients in a situation giving rise to a duty of care are:
A) Foreseeability of damage, a relationship of proximity between the parties, and that it be economically productive to impose a duty
B) Knowledge of the likelihood of harm, a relationship of proximity between the parties, and that it be fair, just and reasonable to impose a duty
C) Foreseeability of damage, an assumption of duty by one party to the other, and that it be fair, just and reasonable to impose a duty
D) Foreseeability of damage, a relationship of proximity between the parties, and that it be fair, just and reasonable to impose a duty
D) Foreseeability of damage, a relationship of proximity between the parties, and that it be fair, just and reasonable to impose a duty
(This is what the case established, but it is important to note that Lord Bridge went on to explain that these three ingredients are ‘little more than convenient labels to attach to the features of different situations which the law recognises pragmatically as giving rise to a duty of care.’ The idea of an ‘assumption of duty’ is not something that Lord Bridge articulated in Caparo Industries v Dickman, although it can be relevant to whether a duty is owed in some circumstances. It is not necessary that the defendant knows that harm is likely before a duty is owed – it might be enough that it is foreseeable, even if unlikely. It is not necessary that it be economically productive to impose a duty, but the court will consider the economic effects of imposing a duty when deciding whether to impose one. Revisit the part of this element relating to Caparo Industries v Dickman)
Liability for omissions: the general rule is that…
A) …liability is imposed on a failure to act on the same principles as it is imposed in relation to acts
B) …no liability is imposed on a mere failure to act
B) …no liability is imposed on a mere failure to act
(Correct. This is the general rule (Smith v Littlewoods Organisation Limited [[1987] AC 241), but of course there are many exceptions)
Reeves v Commissioner of Police for the Metropolis [1999] 3 All ER 897 held that the police had a duty to take action (ie to avoid omissions) to protect a prisoner’s health, including protecting him from self-harm, because…
A) The police had a high degree of control over the defendant
B) The defendant was a vulnerable person at significant risk of harm
C) Statute imposed such a duty
D) The police were in a relevant contractual relationship with the defendant
A) The police had a high degree of control over the defendant
(This is the correct answer. The other answers are incorrect. Whilst statutes can require action and this can give rise to a duty in tort, this is not at the heart of this particular case. Similarly, a tortious duty to act can arise from a contractual relationship, but this was not relevant in this case – there was no contract between police and prisoner. The defendant may indeed have been vulnerable, but this is not really the important point in the case. Had the defendant been vulnerable but not in the police’s control, it is unlikely that they would have had the same duty to act)
Which of the following has a positive duty to respond to emergency calls?
A) The ambulance service
B) The fire service
C) The police
A) The ambulance service
(Correct. The ambulance service has a positive duty to respond to emergency calls. The answering by the service of a call creates sufficient proximity between the caller and the service. Note, however, that even though the service has a duty to respond, it will not necessarily breach that duty if it responds late due to the unavailability of ambulances. The other answers are incorrect. Neither the police nor the fire service owe a duty to respond to emergency calls: but if they do respond, they may well be under a duty not to make the situation worse)
In the case of Stansbie v Troman the defendant decorator owed the claimant a duty of care for failing to secure the claimant’s property, which allowed for a third party to break in and commit a burglary. On what basis did the defendant (Troman) owe the claimant (Stansbie) a duty of care?
A) There was sufficient proximity between the claimant and defendant because the defendant knew the claimant – he was working in the claimant’s property
B) There was sufficient proximity between the claimant and defendant because of the contractual relationship between the parties. In addition, the defendant created the danger by failing to secure the property
C) There was sufficient proximity because the claimant was an identifiable victim at risk of damage over and above the public at large
D) The defendant had assumed responsibility for the claimant’s welfare
B) There was sufficient proximity between the claimant and defendant because of the contractual relationship between the parties. In addition, the defendant created the danger by failing to secure the property
(Correct. Two of the exceptions to the general rule in relation to acts of third parties were satisfied and so the courts held that a duty of care was owed (sufficient proximity between the parties and creation of the danger))
The police are transporting two dangerous criminals in a police van to be interviewed about a recent murder. The criminals escape from the van and seriously injure a passer-by in the process.
Which of the following statements is most accurate in relation to whether a duty of care is owed by the police to the passer-by?
A) It is likely a duty of care would be owed. The criminals were under the care and control of the police at the time the passer-by was injured, and the passer-by was an identifiable member of a small group at risk over and above the public at large
B) It is unlikely a duty of care would be owed. The criminals were not under the care and control of the police at the time the passer-by was injured, and the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group
C) It is unlikely a duty of care would be owed. Whilst the criminals were under the care and control of the police at the time the passer-by was injured, the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group
D) It is likely a duty of care would be owed. The criminals were under the care and control of the police at the time the passer-by was injured, and the police assume responsibility for the safety of the public
C) It is unlikely a duty of care would be owed. Whilst the criminals were under the care and control of the police at the time the passer-by was injured, the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group
(Correct. There appears to be sufficient proximity between the police (defendant) and criminals (third party) but not between the police (defendant) and passer-by (claimant))
The general rule is that there is no duty owed for a failure to prevent a third-party causing harm. However, there are a number of exceptions to this rule which are:
A) There is sufficient proximity between the defendant and claimant; and
There is sufficient proximity between the defendant and third party; and
The defendant created the danger; and
The risk was on the defendant’s premises.
B) Where there is statutory duty.
Where there is contractual duty.
Where the defendant has sufficient control over the claimant.
Where the defendant creates the risk.
C) There is sufficient proximity between the defendant and claimant; and/or
There is sufficient proximity between the defendant and third party; and/or
The defendant created the danger; and/or
The risk was on the defendant’s premises.
D) Where the defendant assumes responsibility for the claimant.
Where the defendant has sufficient control over the claimant.
Where the defendant creates the risk.
C) There is sufficient proximity between the defendant and claimant; and/or
There is sufficient proximity between the defendant and third party; and/or
The defendant created the danger; and/or
The risk was on the defendant’s premises.
(Correct. These are the four exceptions to the general rule)
A public body has a power to repair a highway. It fails to do so, and a cyclist suffers an injury as a result. Which of the following is the best way to analyse whether the public body owes a duty of care?
A) The public body will owe a duty of care to repair the highway because it had a power to repair the highway, and the failure to do so would foreseeably cause injury
B) The public body is likely to owe a duty to repair the highway because choosing not to do so was an act which would foreseeably cause injury
C) The public body is unlikely to owe a duty to repair the highway unless the normal principles applying to individuals would suggest liability for omitting to do so
C) The public body is unlikely to owe a duty to repair the highway unless the normal principles applying to individuals would suggest liability for omitting to do so.
(This is the correct answer. The other answers are incorrect. The case of CN and GN v Poole Borough Council [2019] UKSC 25 makes clear that when looking at omissions, the usual law applying to individuals would again apply, and it would be very hard to argue that because a public body has a duty or power to act in a particular area, that a failure to act would give rise to a duty in negligence.
For this reason, it would be wrong to say that the public body will owe a duty of care to repair the highway because it had a power to do so.
It would be wrong to say that not repairing the highway is an act. It is an omission)
We often talk about ‘policy considerations’ in various contexts, including when considering whether a public body should owe a duty of care. When we talk about the ‘floodgates’ policy consideration, we mean concern that…
A) … imposing a duty of care would lead to a release of money to successful claimants in a way that would make it difficult for the claimants to manage that money
B) … imposing a duty of care would lead to so many claims that the public body might be financially or practically overwhelmed
C) … imposing a duty of care would lead to a significant increase in the number of claims against the public body
D) …imposing a duty of care now would help to avoid undesirable practices by the public body in the future
B) … imposing a duty of care would lead to so many claims that the public body might be financially or practically overwhelmed
When considering whether public bodies owe a duty of care, the starting point should be…
A) …to apply the same principles that are applicable to private individuals
B) …to find precedents that concern public bodies, and to apply those
C) …that public bodies do not owe a duty of care, other than in exceptional circumstances
D) …to apply principles of public law
A) …to apply the same principles that are applicable to private individuals
(Correct. This should be your starting point.
For this reason, it would be wrong to start with precedents that concern public bodies, as this would be to take too restrictive an approach. It is wrong to say that public bodies owe a duty of care only in exceptional circumstances, because the starting point is that they owe a duty when a private individual would. Public law and the law of tort are two separate things, and are best considered separately)
Blyth v Birmingham Waterworks tells us that a defendant must….
A) …behave to the best of their abilities
B) … act as a prudent and reasonable person would
C) …avoid causing harm to those to whom they owe a duty
B) … act as a prudent and reasonable person would
(This is the general rule that a defendant must behave as a reasonable person would in all the circumstances)
Which seminal case established that the standard of care expected of someone working in a professional capacity is that “of the ordinary reasonable man exercising and professing to have that special skill”.
A) Roberts v Ramsbottom
B) Mullin v Richards
C) Bolam v Friern Hospital Management Committee
D) Caparo Industries v Dickman
C) Bolam v Friern Hospital Management Committee
The most important thing to learn from Nettleship v Weston is that:
A) No allowance is made for the fact that someone is learning to do something when determining the standard of care they are required to meet
B) A person will be required to meet the standard appropriate for the act they are carrying out
C) A person will be required to act with all reasonable care and skill
B) A person will be required to meet the standard appropriate for the act they are carrying out
(In Nettleship v Weston the court held that a learner driver was required to meet the standard of the ordinarily competent driver. No allowance was made for her lack of driving experience)
If a defendant was to be able to show that he or she acted in accordance with usual or common practice, this would…
A) …not be relevant when determining breach
B) …make it less likely that the defendant breached his or her duty
C) …show that the defendant did not breach its duty
B) …make it less likely that the defendant breached his or her duty
(Well done. This would help the defendant, but it is still possible that a defendant has been negligent even if acting in accordance with usual or common practice, for example if the common practice was illogical: see Re Herald of Free Enterprise)
In which one of the following cases was the defendant held to have fallen below the required standard of care?
A) Watson v BBBC
B) Bolton v Stone
C) Latimer v AEC Ltd
D) Mullin v Richards
A) Watson v BBBC
(Correct. The Court of Appeal concluded that the defendant had fallen below the standard of care expected in this case)
Which of the following best expresses the meaning of the ‘state of the art’ defence?
A) The courts must assess the defendant’s actions against the best practice (‘state of the art’ practice) in the particular field / profession concerned
B) The defendant will have a defence to a claim if there were others in the field / profession acting as it did
C) The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach
C) The courts must assess the defendant’s actions against the knowledge in the profession and/or accepted practice at the time of the alleged breach
(Well done. It is wrong to say that the courts must assess the defendant’s actions against the best practice, because a defendant is not expected to be a ‘paragon of circumspection’ ie as cautious possible. It is wrong to say that the defendant will have a defence to a claim if there were others in the field / profession acting as it did, because compliance with usual / common practice alone will not prevent a defendant from being in breach, although it is a relevant consideration)
When determining if there has been a breach of duty, you must first ascertain the standard of care, and secondly ascertain if the defendant has fallen below that standard. Which of the following statements is correct in relation to those issues?
A) Ascertaining the standard of care is a question of fact, ascertaining whether the defendant has fallen below it is a question of law
B) Ascertaining the standard of care is a question of law, ascertaining whether the defendant has fallen below it is a question of fact
C) Ascertaining the standard of care and ascertaining whether the defendant has fallen below it are both questions of fact
D) Ascertaining the standard of care and ascertaining whether the defendant has fallen below it are both questions of law
B) Ascertaining the standard of care is a question of law, ascertaining whether the defendant has fallen below it is a question of fact
(Well done. This means that when considering whether the defendant has fallen below a given standard of care, precedents can give you useful principles, but each case will turn on its facts)
According to the case of Bolam v Friern HA, which of the following best describes the test for determining whether the defendant has fallen below the professional standard of care?
A) A professional is not guilty of negligence if they followed common practice in their particular field
B) A professional is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art
C) A professional is not guilty of negligence if another professional in their field supports the practice they adopted
B) A professional is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art
An approach will be in accordance with a responsible body of opinion if:
A) It is not possible to say a specific percentage would constitute a responsible body of opinion
B) At least 1 per cent of professionals in the field concerned have that opinion
C) At least 10 per cent of professionals in the field concerned have that opinion
D) At least 50 per cent of professionals in the field concerned have that opinion
A) It is not possible to say a specific percentage would constitute a responsible body of opinion
(Well done. The answers which give a specific percentage are wrong for two reasons. Firstly, the courts have not fixed a percentage on ‘responsible body’. Secondly, whatever percentage of people hold an opinion, the court must separately consider whether that opinion is responsible. Even in a professional context, the court can find a common professional practice to be negligent)
Which of the following best summarises the key learning point from Montgomery v Lanarkshire Health Board?
A) Medical professionals are generally obliged to advise patients on those material risks and alternative treatments in a manner consistent with a responsible body of medical opinion
B) Medical professionals are generally obliged to advise patients on all risks and alternative treatments
C) Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments
D) Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments in any areas which the patient has expressed an interest in
C) Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments
(Well done. This is exactly what the court said. When it comes to advising in relation to risks, the court has determined what approach a medical professional should take, rather than leaving this to the medical professionals to determine: it is not enough to act in a manner consistent with a responsible body of medical opinion. It is probably true that a medical professional must advise in relation to areas the patient has expressed an interest in, but this alone would not be sufficient. A medical professional is not obliged to advise on all risks and alternative treatments – this would impose too great a burden on medical professionals and would be unhelpful for patients)
Which of the following sentences correctly sets out that the ‘but for’ test is satisfied?
A) But for the defendant’s breach, the claimant would not have suffered their loss at that time and in that way
B) But for the claimant’s loss, the claimant would not succeed in the tort of general negligence
C) But for the defendant’s breach, the claimant would have suffered their loss at that time and in that way
D) But for the defendant’s duty, the claimant would not have suffered their loss at that time and in that way
E) But for the defendant’s duty, the claimant would have suffered their loss at that time and in that way
A) But for the defendant’s breach, the claimant would not have suffered their loss at that time and in that way
(This is the correct answer. In order to establish factual causation, the claimant must prove on the balance of probabilities, that if it were not for the defendant’s breach, they would not have suffered their loss at that time and in that way)
A patient was in hospital being treated for heart disease. A nurse misread the consultant’s notes and negligently prescribed the patient incorrect medication (the breach). The patient suffered from a cardiac arrest and subsequent brain damage. Medical evidence suggests that the cardiac arrest was caused by either the heart disease or the breach. Which of the following is most accurate in relation to the ‘but for’ test?
A) The ‘but for’ test is satisfied as there is a 50 per cent chance that the breach caused the patient’s loss
B) The ‘but for’ test is satisfied as the breach was one of the causes of the patient’s loss
C) The ‘but for’ test cannot be satisfied as there are two equally probable causes of the patient’s loss
D) The ‘but for’ test cannot be satisfied as the patient would have suffered the loss irrespective of the breach
E) The ‘but for’ test cannot be satisfied as there is more than one potential cause of the patient’s loss
C) The ‘but for’ test cannot be satisfied as there are two equally probable causes of the patient’s loss
(This is the correct answer. In order to satisfy the ‘but for’ test, the claimant must prove that there is a greater than 50 cent chance that the breach caused their loss. The patient cannot only prove that there was a 50 per cent chance. Factual causation fails. See Wilsher)
A patient undergoes an operation on their face that carries a 5% risk of causing permanent scarring. The risk materialises. The surgeon did not inform the patient of the risk prior to the operation.
Which of the following statements is most accurate in relation to factual causation?
A) Factual causation is satisfied if the patient can show that they would have deferred the operation had they been told of the risk
B) Factual causation is satisfied if the patient can show that they would not have had the operation or would have deferred the operation to a later date had they been told of the risk
C) Factual causation is not satisfied as the patient consented to the operation
D) Factual causation is not satisfied as there was only a 5% risk of the scarring
E) Factual causation is satisfied if the patient can show that they would not have had the operation had they been told of the risk
B) Factual causation is satisfied if the patient can show that they would not have had the operation or would have deferred the operation to a later date had they been told of the risk
(This is the correct answer. In clinical negligence cases where the breach is a failure to advise on risk, the claimant must prove on the balance of probabilities that they would not have gone ahead with the treatment had they been informed of the risks. If they cannot do this, they can still satisfy factual causation if they can prove on the balance of probabilities that they would have deferred the treatment had they been informed of the risks. The rationale behind this being that ‘but for’ the doctor’s negligent failure to warn the claimant of the risk, the actual injury would not have occurred when it did and the chance of it occurring on a subsequent occasion (if the claimant had chosen to have the operation at a later date) was small.)
A patient attends their doctor with chest pain. The doctor briefly examines the patient and tells them to stay in the waiting room, where the patient has a heart attack and dies. Medical evidence suggests that if the doctor had treated the patient properly, there was a 45% chance of living.
Which of the following statements is correct in relation to the ‘but for’ test?
A) The ‘but for’ test is not satisfied as there was not a 100 per cent chance that the patient would have lived without the breach
B) The ‘but for’ test is not satisfied as there was a 45 per cent chance the patient would have died without the breach
C) The ‘but for’ test is satisfied as there was a 45 per cent chance the patient would have lived were it not for the breach
D) The ‘but for’ test is satisfied as there was only a 55 per cent chance the patient would have lived without the breach
E) The ‘but for’ test is not satisfied as there was a 55 per cent chance the patient would have died without the breach
E) The ‘but for’ test is not satisfied as there was a 55 per cent chance the patient would have died without the breach
(This is the correct answer. In order to establish factual causation, the claimant must prove on the balance of probabilities, that if it were not for the defendant’s breach, they would not have suffered their loss at that time and in that way. The patient in this scenario cannot do this. On the balance of probabilities, if it were not for the doctor’s breach, they would have died anyway)
Which of the following most accurately explains when the courts might apply the material contribution test and what the claimant must prove in order to satisfy the test?
A) The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a significant contribution to their loss
B) The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the breach increased the risk of the loss. The claimant must prove that the breach made a more than negligible contribution to their loss
C) The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a greater than 50 per cent contribution to their loss
D) The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted independently to cause the loss. The claimant must prove that the breach made a more than negligible contribution to their loss
E) The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a more than negligible contribution to their loss
E) The court might apply the material contribution test where there is more than one potential cause of the claimant’s loss, and the causes have acted together to cause the loss. The claimant must prove that the breach made a more than negligible contribution to their loss
(This is the correct answer. See Bonnington for an illustration of the material contribution test being applied in practice)
Which of the following most accurately explains when the courts might apply the material increase in risk test and what the claimant must prove in order to satisfy the test?
A) The court might apply the material increase in risk test to industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than de minimus contribution to the risk
B) The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a more than negligible contribution to their loss
C) The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than 50% contribution to the risk
D) The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than de minimus contribution to the risk
E) The court might apply the material increase in risk test to industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a significant contribution to the risk
D) The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than de minimus contribution to the risk
(This is the correct answer. See McGhee v National Coal Board [1973] 1 WLR 1 (HL) which established and applied this test)
A patient visits A&E with severe stomach pain. After a five hour delay, they are seen by a doctor and diagnosed with appendicitis. The patient requires immediate surgery, but just before the surgery begins, their appendix ruptures. In the course of the surgery, visible signs of infection are found in the patients body and medical evidence suggests they may have been there for some time. Medical evidence also suggests that the appendicitis and the delay contributed to the rupture and infection.
Which of the following statements is most accurate in relation to factual causation?
A) Factual causation fails as it could have been the appendicitis alone, not the delay, that caused the rupture and infection
B) Given the appendicitis and delay contributed to the rupture and infection, the material contribution test is satisfied
C) There is a greater chance that the delay caused the rupture and infection than the appendicitis alone so factual causation is satisfied
D) The delay materially increased the risk of rupture and infection meaning factual causation is satisfied
E) Factual causation cannot be established as it cannot be shown that ‘but for’ the breach (the delay) the patient would not have suffered a rupture and infection
B) Given the appendicitis and delay contributed to the rupture and infection, the material contribution test is satisfied
(This is the correct answer. This is a case where medical science cannot establish the probability that ‘but for’ an act of negligence (the delay) the rupture and infection would not have happened. However, it can establish that the contribution of the delay was more than negligible (therefore the material contribution test is satisfied) (Bailey v Ministry of Defence [2008] EWCA Civ 883). Medical evidence established that the delay and appendicitis together caused the rupture and infection)
**Which of the following best describes apportionment?*
A) Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability between the various defendants reflecting the respective fault of each defendant
B) Where there are multiple tortious factors at play, the courts will rely on apportionment to establish factual causation and divide liability between the various defendants
C) Where there are multiple tortious factors at play, the courts will rely on apportionment to establish factual causation and divide liability between the various defendants and claimant
D) Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability equally amongst the various defendants
E) Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability between the various defendants and claimant reflecting the respective fault of each claimant
A) Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability between the various defendants reflecting the respective fault of each defendant
(This is the correct answer. Apportionment is a calculation applied once factual causation has been established)
What was a key difference between Baker and Jobling that might help to explain the contrasting decisions?
A) In Baker there were two tortious events and in Jobling there was a tort followed by a natural event
B) In Baker the second defendant could be found whereas in Jobling the second defendant could not be found
C) In Jobling there were two tortious events and in Baker there was a tort followed by a natural event
D) In Baker the second defendant could not be found whereas in Jobling the second defendant could be found
A) In Baker there were two tortious events and in Jobling there was a tort followed by a natural event
(This is the correct answer. In Jobling, the further back injury would have happened anyway, whether the claimant was injured or not. This was not the case in Baker)
A claimant suffered a serious arm injury at work due to their employer’s negligence and was signed off work for four months. Two months after the accident at work, the claimant was diagnosed with arthritis in the same arm and had to stop working completely. The arthritis was entirely unconnected with the accident at work and/or the injury that resulted.
Which of the following best describes the employer’s liability for the claimant’s losses?
A) The employer will be liable for all of the claimant’s losses even past the point of the arthritis
B) The employer will be liable for all the claimant’s losses because a defendant is liable for any losses that occur after their breach
C) The employer will be liable for all the claimant’s losses if the second defendant cannot be found
D) The employer will not be liable for any of the claimant’s losses as the claimant would have suffered arthritis in any event
E) The employer will be liable for the claimant’s losses up until the point that the arthritis developed
E) The employer will be liable for the claimant’s losses up until the point that the arthritis developed
(This is the correct answer. Here we are dealing with a tort (employer’s negligence) followed by a natural event (arthritis) and Jobling tells us that under such circumstances the defendant is only liable up to the natural event)
Which of the following lists most accurately the correct types of novus actus interveniens?
A) Acts of claimant; acts of God; and acts of defendant
B) Acts of claimant; acts of God; and acts of medical negligence
C) Acts of claimant; acts of third parties; acts of medical negligence; and acts of defendant
D) Acts of claimant; acts of God; acts of third parties; and acts of defendant
E) Acts of claimant; acts of God; and acts of third parties
E) Acts of claimant; acts of God; and acts of third parties
(This is the correct answer. These are the three types of novus actus interveniens)
Which of the following statements is most accurate in relation to the legal test for an act of claimant?
A) The act of claimant must be highly unreasonable in order to break the chain of causation
B) The act of claimant must be unreasonable and unforeseeable in order to break the chain of causation
C) The act of claimant must be grossly negligent in order to break the chain of causation
D) The act of claimant must be unforeseeable in order to break the chain of causation
E) The act of claimant must be unreasonable in order to break the chain of causation
A) The act of claimant must be highly unreasonable in order to break the chain of causation
(This is the correct answer. See case law eg McKew v Holland)
A cyclist negligently collides with a pedestrian who was crossing the road. The pedestrian falls and injures their leg. A passer-by attempts to help the pedestrian and when moving the pedestrian from the road to the pavement, drops the pedestrian. The pedestrian hits their head and suffers a head injury. Which of the following is most accurate in relation to the passer-by’s actions?
A) The act of the passer-by was unreasonable and therefore breaks the chain of causation between the cyclist’s breach and pedestrian’s head injury. The cyclist will only be liable for the pedestrian’s head injury
B) The act of the passer-by was unforeseeable and therefore breaks the chain of causation between the cyclist’s breach and pedestrian’s head injury. The cyclist will only be liable for the pedestrian’s leg injury
C) The act of the passer-by was unforeseeable and therefore breaks the chain of causation between the cyclists’ s breach and pedestrian’s leg injury. The cyclist will not be liable for any of the pedestrian’s injuries
D) The act of the passer-by was foreseeable and does not therefore break the chain of causation between the cyclist’s breach and the pedestrian’s head injury. The cyclist will be liable for the pedestrian’s leg and head injury
E) The act of the passer-by was foreseeable and does not therefore break the chain of causation between the cyclist’s breach and the pedestrian’s leg injury. The cyclist will only be liable for the pedestrian’s leg injury
D) The act of the passer-by was foreseeable and does not therefore break the chain of causation between the cyclist’s breach and the pedestrian’s head injury. The cyclist will be liable for the pedestrian’s leg and head injury
(This is the correct answer. An act of a third party (here, the passer-by) will only break the chain of causation between the first defendant’s breach and the claimant’s loss if its is highly unforeseeable (something very unlikely to happen as a result of the defendant’s breach). Here, it is foreseeable that a third party would try and help the injured pedestrian and as a result could make the pedestrian’s injuries worse)
The current test for remoteness in general negligence claims comes from which one of the following cases?
A) The Wagon Mound (No1)
B) Caparo v Dickman
C) Tremain v Pike
A) The Wagon Mound (No1)
(Well done. The Wagon Mound (No1) is the authority for the current test)
Which one of the following is a correct summary of the thin skull rule from Smith v Leech Brain?
A) The defendant must take their victim as they find them, regardless of whether the injury suffered during the act is more than expected
B) The defendant must take their victim as they find them, regardless of any pre-existing illness
C) The defendant must pay additional damages where the victim has a skull injury
D) The defendant need only pay damages up to the amount a reasonable person would have suffered but not any additional damage which arises from the victim’s thin skull
E) The defendant will pay less damages if the victim has a thin skull
B) The defendant must take their victim as they find them, regardless of any pre-existing illness
Larry, a model, suffers facial injuries as a result of falling from a theme park ride. The theme park had negligently failed to install appropriate safety measures. Larry is taken to hospital where a surgeon operates on his face. Larry has an allergic reaction to the anaesthetic and suffers additional nerve damage. Larry is unable to accept any modelling work for six months. Which of the following is most accurate in relation to remoteness?
A) Both Larry’s personal injury and the consequential economic loss were reasonably foreseeable consequences of the breach
B) Neither Larry’s personal injury nor the consequential economic loss were reasonably foreseeable consequences of the breach
C) Larry’s personal injury was a reasonably foreseeable consequence of the breach but the consequential economic loss was not
D) Larry’s consequential economic loss was a reasonably foreseeable consequence of the breach but the personal injury was not
E) Larry’s personal injury and consequential economic loss were reasonably foreseeable consequences of the breach but he has acted unreasonably so the losses will be too remote
A) Both Larry’s personal injury and the consequential economic loss were reasonably foreseeable consequences of the breach
(Well done. The facial injuries and nerve damage are a reasonably foreseeable consequence of the breach (personal injury is a single indivisible type of harm – Page v Smith) and it is reasonably foreseeable that, as a result of personal injury, a victim may not be able to work for a period of time)
Which of the following is not one of the four elements which the defendant must show to establish the defence of consent?
A) The claimant could have benefitted from the risks, or avoided a loss
B) The claimant had capacity to give valid consent to the risks
C) The claimant had full knowledge of the nature and extent of the risks
D) The claimant’s agreement to the risk was voluntary
E) The claimant agreed to the risk of injury
A) The claimant could have benefitted from the risks, or avoided a loss
(Well done. This is not part of the defence. The other things listed are part of the defence)
To establish the defence of consent, a defendant must show that the claimant consented to the risk concerned ‘voluntarily’. When considering whether an employee’s consent is voluntary…
A) …it is not possible to establish that an employee consented to risks when it comes to a claim against the employer
B) …it will be hard but not impossible for an employer to rely on the defence of consent when faced with an employee’s claim
C) …an employee will have consented to risks that it was fully informed of when choosing to start / continue working
B) …it will be hard but not impossible for an employer to rely on the defence of consent when faced with an employee’s claim
(It would be wrong to say that ‘…an employee will have consented to risks that it was fully informed of when choosing to start / continue working’ because Smith v Charles Baker & Sons makes clear that the requirement of voluntary consent is in addition to knowledge of the risk. Employees who know of the risks of their jobs are not necessarily voluntarily running those risks, since they may have little real option if they wish to keep their job)
Which of the following is authority for the proposition that whether the claimant had full knowledge of the nature and extent of the risks is a subjective test, not a question of what the reasonable claimant would have known?
A) Reeves v Commissioner of Police for the Metropolis
B) Nettleship v Weston
C) Smith v Charles Baker & Sons
D) Morris v Murray
D) Morris v Murray
To establish the defence of contributory negligence, the defendant must show:
A) (a) The claimant breached a duty owed to the defendant; and (b) this failure contributed to the claimant’s damage
B) (a) The claimant failed to take reasonable steps for their own safety; and (b) this failure contributed to the accident happening
C) (a) The claimant failed to take reasonable steps for their own safety; and (b) this failure contributed to the claimant’s damage
D) (a) The claimant breached a duty owed to the defendant; and (b) this failure contributed to the accident happening
C) (a) The claimant failed to take reasonable steps for their own safety; and (b) this failure contributed to the claimant’s damage
(Correct. See Jones v Livox)
Where the defence of contributory negligence has been established…
A) …damages are reduced by 50%
B) …damages are reduced by 25%
C) …damages are reduced by a percentage which is just and equitable considering the number of parties who contributed to the injury
D) …the claim fails
E) …damages are reduced by a percentage which is just and equitable considering both the claimant’s and defendant’s culpability
E) …damages are reduced by a percentage which is just and equitable considering both the claimant’s and defendant’s culpability
(Well done. Whilst percentages of 50% / 25% will be appropriate in certain cases, there is no set rule. The number of parties who contributed to the injury is not the best way to approach the relevant question)
Pete, a passenger on Saraf’s motorbike, refuses to wear a helmet and is seriously injured when Saraf’s negligent driving leads to a crash. Which one of the following is correct?
A) Pete has been contributorily negligent and s1(1) Law Repeal (Contributory Negligence) Act 1945 will apply
B) Pete has been contributorily negligent and s1(1) Law Reform (Contributory Negligence) Act 1945 will apply
C) Pete has been contributorily negligent and s1(1) Law Reform (Contributory Negligence) Act 1946 will apply
D) Pete has been contributorily negligent and s1(1) Law Repeal (Contributory Negligence) Act 1946 will apply
B) Pete has been contributorily negligent and s1(1) Law Reform (Contributory Negligence) Act 1945 will apply
(Correct. Section 1(1) Law Reform (Contributory Negligence) Act 1945 will apply.)
The defence of illegality is also known as:
A) Ex turpi causa non oritur actio
B) Volenti non fit injuria
A) Ex turpi causa non oritur actio
(Well done! This translates approximately to ‘no action may be based on an illegal cause’, as it is another way of referring to the defence of illegality.
Volenti non fit injuria is another way of referring to the defence of consent)
If the claimant has committed an illegal (or grossly immoral) act, the next part of the test is to consider the three considerations identified in Patel v Mirza in order to determine whether allowing the claim would harm the integrity of the legal system. Which of the following is not one of the three considerations as set out in that case?
A) The underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim
B) Any other relevant public policy on which the denial of the claim may have an impact
C) Whether the claimant’s claim is founded upon their own criminal or immoral act
D) Whether denial of the claim would be a proportionate response to the illegality.
C) Whether the claimant’s claim is founded upon their own criminal or immoral act
(Well done. Prior to Patel v Mirza it was generally thought that the defence only arises if the facts which give rise to the claim are inextricably linked with the criminal activity. The court made clear that that was no longer the test, but this is still likely to be a relevant consideration when considering proportionality. The other three answers are the three considerations identified in Patel v Mirza)
Which of the following best expresses the first part of the two-part approach that we recommend in considering the defence of illegality?
A) Has the claimant committed an illegal (or grossly immoral) act?
B) Has the claimant committed a tort?
C) Has the defendant committed a tort?
D) Has the claimant committed an illegal act?
E) Has the defendant committed an illegal (or grossly immoral) act?
A) Has the claimant committed an illegal (or grossly immoral) act?
(Well done. Whilst in almost all cases the defence involves illegality, it appears that gross immorality may also allow the defence to be raised.
It is neither necessary, nor sufficient, that the claimant has committed a tort.
It is true that unless the defendant had committed a tort, you would not be looking at defences at all: but the defendant committing a tort is not part of the defence itself. The illegality must be on the part of the claimant)
Which of the following is NOT one of the elements which the defendant must show to establish the defence of necessity?
A) The claimant was acting in an emergency
B) The defendant was not at fault in causing the emergency
C) The defendant was acting in an emergency
A) The claimant was acting in an emergency
(Well done. This is not part of the defence. The other things listed are part of the defence)
A captain of a ship negligently hits a large rock which damages the ship. As a result, to prevent the ship from sinking, the captain has to discharge some oil into the sea. The oil damages the claimant’s shoreline.
Which of the following is most accurate in relation to whether the captain can rely on the defence of necessity in a negligence claim brought by the claimant?
A) The defence of necessity will not succeed. The captain may have been acting in an emergency when discharging the oil, but this need to act arose out of the captain’s own negligence
B) The defence of necessity will succeed. Whenever a defendant acts to save life, this will act as complete defence to any negligence claim
C) The defence of necessity will succeed. The captain was acting in an emergency when discharging the oil
D) The defence of necessity will not succeed. The captain was not acting in an emergency when discharging the oil
A) The defence of necessity will not succeed. The captain may have been acting in an emergency when discharging the oil, but this need to act arose out of the captain’s own negligence
(Correct. In order to succeed with the defence of necessity, the defendant must prove that they:
Were acting in an emergency to prevent harm to the claimant, a third party and/or the defendant themselves; and
Were not at fault in causing the emergency.
Whilst the captain can satisfy step 1, they cannot satisfy step 2 – the captain’s acts caused the emergency)
Which of the following is correct in relation to step one of the legal test for necessity, that the defendant was acting in an emergency to prevent death or serious injury?
A) The test is subjective; that defendant must believe at the time of the negligence that it was necessary to act to prevent death or serious injury
B) The test is subjective; that defendant must believe by the time of the trial that it was necessary to act to prevent death or serious injury
C) The test is objective; a reasonable person would have believed at the time of the negligence that it was necessary to act to prevent death or serious injury
D) The test is objective; a reasonable person would have believed by the time of the trial that it was necessary to act to prevent death or serious injury
A) The test is subjective; that defendant must believe at the time of the negligence that it was necessary to act to prevent death or serious injury
A captain of a ship negligently hits a large rock which damages the ship. As a result, to prevent the ship from sinking, the captain has to discharge some oil into the sea. The oil damages the claimant’s shoreline.
Which of the following is most accurate in relation to whether the captain can rely on the defence of necessity in a negligence claim brought by the claimant?
A) The defence of necessity will succeed. The captain was acting in an emergency when discharging the oil
B) The defence of necessity will not succeed. The captain was not acting in an emergency when discharging the oil
C) The defence of necessity will not succeed. The captain may have been acting in an emergency when discharging the oil, but this need to act arose out of the captain’s own negligence
D) The defence of necessity will succeed. Whenever a defendant acts to save life, this will act as complete defence to any negligence claim
C) The defence of necessity will not succeed. The captain may have been acting in an emergency when discharging the oil, but this need to act arose out of the captain’s own negligence
(Correct. In order to succeed with the defence of necessity, the defendant must prove that they:
Were acting in an emergency to prevent harm to the claimant, a third party and/or the defendant themselves; and
Were not at fault in causing the emergency.
Whilst the captain can satisfy step 1, they cannot satisfy step 2 – the captain’s acts caused the emergency)
Which one of the below correctly describes the position in relation to damages following death?
A) The estate of the deceased may bring a claim for losses suffered by the deceased under the Fatal Accidents Act 1976
B) Only spouses of the deceased may bring a claim (under the Fatal Accidents Act 1976)
C) The estate of the deceased may bring a claim for losses suffered by the deceased under the Law Reform (Miscellaneous Provisions) Act 1934
D) It is not possible to claim for damages following death because the deceased cannot bring the claim, and no-one can bring it on their behalf
E) Only parents of the deceased may bring a claim (under the Fatal Accidents Act 1976)
C) The estate of the deceased may bring a claim for losses suffered by the deceased under the Law Reform (Miscellaneous Provisions) Act 193
(Well done. The damages in relation to the losses suffered by the deceased will be calculated on the same basis as a normal personal injury award. Remember that certain dependants of the deceased may also bring a claim under the Fatal Accidents Act 1976 – this includes both parents and spouses (and potentially some other categories of dependants))
The aim of damages in the law of tort is to…
A) …. restore to the claimant any benefit obtained from the defendant
B) … put the claimant in the position they were in prior to their engagement / interaction with the defendant
C) … put the claimant in the position they would have been in but for the defendant’s tortious act
D) … award fair compensation for the harm caused to the claimant
C) … put the claimant in the position they would have been in but for the defendant’s tortious act
(Well done. Whilst it is fair to say that damages aim to award fair compensation, this is too vague to be a good summary of the aim of damages in the law of tort. The aim of damages may often mean that the damages put the claimant in the position they were in prior to their engagement / interaction with the defendant, but this is not always the case, and this is not the best way of explaining the aim of the damages in the law of tort. It would be wrong to say that the aim is to restore to the claimant any benefit obtained from the defendant. In many cases that would lead to no damages at all, as often the defendant does not benefit at all from (for example) its negligence)
Which of the following is not an example of special damages?
A) Loss of future earnings
B) The cost of medical care already incurred before trial
C) The value of a mobile phone damaged in an accident
D) The cost of repairing a car before trial
A) Loss of future earnings
(Correct. This would be general damages, because it cannot be specifically proven. The others are all good examples of special damages)
This element was about…
A) …how the law of negligence applies to determine when an employer is responsible for the negligence of an employee
B) …the duties which employees owe to others
C) …how the law of negligence applies to the relationship between employer and employee
D) …the duties which an employer owes to an employee
C) …how the law of negligence applies to the relationship between employer and employee
(Well done. This element was not about when an employer is responsible for the negligence of an employee – that is the topic of vicarious liability, which is something different. It would be too broad to say this element was about the duties which an employer owes to an employee – this element focused only on the law of negligence, not (for example) duties imposed by statute. This element was not concerned with duties which employees owe to others)
Which of the following is not part of the employer’s duty owed to its employees according to the traditional formulation in Wilsons and Clyde Coal Ltd v English?
A) Safe systems of work, with adequate supervision and instruction
B) Safe place of work/premises, including safe access and way out
C) Safe transport to and from a place of work
D) Safe and competent employees
E) Safe and proper plant and equipment
C) Safe transport to and from a place of work
(Well done. An employer does not generally have a duty to provide safe transport to and from work (certainly in relation to travel to the usual place of work). An employer does have a duty to provide the other things listed)
Which of the following is the best authority for the proposition that an employer owes a duty to provide a safe place of work even in relation to premises which are not the employer’s own premises?
A) Latimer v AEC
B) Wilson v Tyneside Cleaning Co
C) Wilsons and Clyde Coal Ltd v English
D) Bux v Slough Metals
B) Wilson v Tyneside Cleaning Co
The duty imposed on employers is ‘non-delegable’, meaning…
A) The employer can delegate performance of the duty but will still be liable if it is breached
B) The employer cannot argue that an employee has consented to the risk of negligence
C) The employer cannot delegate performance of the duty
D) The employer cannot delegate liability for breach nor performance of the duty
A) The employer can delegate performance of the duty but will still be liable if it is breached
Which one of the following is not one of the three elements that must be shown to establish that Party B is vicariously liable for a tort committed by Party A?
A) Party A is an employee of Party B, or failing that, Party A is in a relationship akin to employment with Party B
B) The tort was committed in the course of Party A’s employment / quasi-employment
C) A tort has been committed by Party A
D) Party A’s actions were authorised by Party B, or were an unauthorised way of doing something authorised by Party B
D) Party A’s actions were authorised by Party B, or were an unauthorised way of doing something authorised by Party B
(Well done. This IS NOT one of the three elements that must be shown to establish that Party B is vicariously liable for a tort committed by Party A. This idea used to be an important part of showing that a tort was committed in the course of Party A’s employment, but a different approach is now taken, following Lister v Hesley Hall)
The defendant who is vicariously liable incurs what is called ‘strict liability’, meaning…
A) …they have fallen below the required standard but not caused any damage
B) …they are presumed liable unless they can show they have met the required standard
C) …they are liable even though they are not at fault
D) …they have been held to (and fallen below) a higher than usual standard of care
C) …they are liable even though they are not at fault
(Well done. This is the right answer. Vicarious liability has nothing to do with standard of care, presumptions in relation to liability nor whether any damage has been caused)
Lister v Hesley Hall established that a tort will be ‘in the course of employment’…
A) …if the tort was committed during the employee’s working hours and/or on the employer’s premises or other agreed workplace
B) …if there is a sufficiently close connection between the employee’s tort and the role he / she is employed to do
C) …if the employee’s employment gave the employee the opportunity to commit the tort
D) …if the tort was an ‘accidental’ tort (such as negligence) rather than an ‘intentional’ tort (such as assault or battery)
B) …if there is a sufficiently close connection between the employee’s tort and the role he / she is employed to do
(Well done. This is the ratio of Lister v Hesley Hall. Whilst the tort taking place in working hours or on the employer’s premises is highly likely to be relevant in showing a close connection between tort and employment, neither is necessary. Similarly, the employee’s employment giving the opportunity to commit the tort might suggest the tort was committed in the course of employment, but it is neither conclusive, nor necessary)
Tom works as a gym instructor at a gym called ‘Fighting Fit’. His contract states that he is self-employed. He wears a Fighting Fit uniform and is paid a monthly salary for working set hours each week. If Tom is unable to work due to illness, he arranges a substitute gym instructor, selected from a bank of agency workers who are pre-approved by Fighting Fit. Which one of the following correctly describes whether Tom is an employee of Fighting Fit or not?
A) Tom is likely to be an employee because he is paid a monthly salary and pay is the most important indicative factor to determining employment status
B) Tom will not be an employee of Fighting Fit because his contract clearly states that he is self-employed
C) Tom will not be an employee of Fighting Fit because he is able to arrange for a substitute to work in his place
D) Tom is likely to be an employee of Fighting Fit because the label given to the working arrangement in the contract is irrelevant and would be ignored by a court
E) Tom is likely to be an employee because the arrangement satisfies the Ready Mixed Concrete v Minister of Pensions test
E) Tom is likely to be an employee because the arrangement satisfies the Ready Mixed Concrete v Minister of Pensions test
(Well done. Tom is paid a salary and there is mutuality of obligations as he is required to work set hours. Fighting Fit have a significant degree of control over Tom and provide him with a uniform. The fact that the contract states he is self-employed (the ‘label’ given to the relationship) does not necessarily mean that he is, but it is a relevant consideration. Being able to send a substitute does suggest Tom is self-employed, but much less so where Tom can only select a substitute from a pre-approved bank of workers. Pay alone is relevant but not decisive)
The general rule when one employer ‘lends’ an employee (X) to another employer is that…
A) …both employers are jointly and severally liable for any torts committed by X in the course of employment
B) …the first employer remains vicariously liable for any torts committed by X in the course of employment
C) …the second employer is vicariously liable for any torts committed by X in the course of employment
B) …the first employer remains vicariously liable for any torts committed by X in the course of employment
(Well done - see Mersey Docks and Harbour Board v Coggins and Griffiths. Dual liability can arise, but it is the exception rather than the rule – see Viasystems Ltd v Thermal Transfer Ltd)
Barclays Bank Plc v Various Claimants considered which type of relationships would or would not be ‘akin to employment’ in the context of vicarious liability. How did that case describe the type of party that would definitely not be in a relationship akin to employment?
A) Someone who is clearly carrying on their own independent business
B) Someone who has some control over their own work independent of the alleged employer
C) Someone who is paying their own taxes and National Insurance
A) Someone who is clearly carrying on their own independent business
(Well done. The other two answers are wrong. A party might have some control over their own work and/or pay their own income tax / National Insurance, but still be in a relationship akin to employment)
A witness sees the immediate aftermath of a car accident and sees someone screaming in pain and covered in blood. As a result, the witness develops post-traumatic stress disorder. Which of the following is correct?
A) The witness is an actual victim
B) The witness is not a secondary victim as they did not witness the accident
C) The witness is a secondary victim
D) The witness is a bystander and is therefore a primary victim
E) The witness is a primary victim
C) The witness is a secondary victim
(This is the correct answer. The witness has suffered psychiatric harm due to fear for someone else’s safety. They witnessed the immediate aftermath of the traumatic event but were not in the foreseeable range of physical injury)
A neighbour notices their elderly neighbour’s house is on fire. Despite all the smoke, the neighbour can just about see that their elderly neighbour is fast asleep downstairs. The neighbour breaks into the house to rescue the elderly neighbour. Following the rescue, the neighbour suffers respiratory failure due to inhalation of smoke and also suffers clinical depression. Which of the following is correct?
A) The neighbour is a primary victim
B) The neighbour is a rescuer and is therefore a primary victim
C) The neighbour is a secondary victim
D) The neighbour is a rescuer and is therefore a secondary victim
E) The neighbour is an actual victim
Correct
This is the correct answer. The neighbour is an actual victim as they have suffered physical injury (respiratory failure) as well as psychiatric harm.
E) The neighbour is an actual victim
(This is the correct answer. The neighbour is an actual victim as they have suffered physical injury (respiratory failure) as well as psychiatric harm)
The organisers of a rugby match negligently let too many people into the stadium and people start getting crushed against the barriers. The rugby match is being broadcast live on television and although individuals cannot be identified, those watching on television can see that some people are being crushed against the barrier. A mother is watching the game on television and knows her son is at the game. Following the event, the mother suffers from post-traumatic stress disorder.
Which of the following is correct?
A) The mother is an actual victim. It will be hard for the mother’s claim to succeed as the courts will be concerned about opening the floodgates and crushing liability
B) The mother is a primary victim because her son was at the event. It will be hard for her claim to succeed as the courts will be concerned about opening the floodgates and crushing liability
C) The mother is a secondary victim. It will be hard for the mother’s claim to succeed as the courts will be concerned about opening the floodgates and crushing liability
D) The mother is a primary victim. It will be hard for her claim to succeed as the courts will be concerned about opening the floodgates and crushing liability
E) The mother is a secondary victim because she saw the event on television. It will be hard for her claim to succeed as the courts will be concerned about opening the floodgates and crushing liability
C) The mother is a secondary victim. It will be hard for the mother’s claim to succeed as the courts will be concerned about opening the floodgates and crushing liability
(This is the correct answer. The mother is a secondary victim as she has suffered psychiatric harm as a result of being in fear for someone else’s safety.
It is hard for secondary victim claims to succeed. Some of the policy reasons behind this include fear of the floodgates opening and crushing liability. For example, if the mother were able to claim against the organisers, this would lead to a significant increase in the class of claimants who could recover for psychiatric harm (i.e. anyone who witnesses a traumatic event on television and suffers psychiatric harm). This in turn would lead to crushing liability on behalf of the defendant who could be faced with thousands of claims)
An elderly woman got trapped in an overcrowded lift for three hours. In the lift she became upset and tearful as a result of being trapped. Following the incident, the elderly woman had difficulty sleeping and suffered nightmares for several days. Which of the following is correct?
A) As an actual victim, the woman is likely to succeed in claiming for upset and nightmares
B) The woman can claim for her tearfulness and upset but not the nightmares
C) As a primary victim, the woman is likely to succeed in claiming damages for upset and nightmares
D) The woman can claim for her nightmares but not her tearfulness and upset
E) It is very unlikely the woman can claim damages for upset and nightmares
E) It is very unlikely the woman can claim damages for upset and nightmares.
(This is the correct answer. Claimants can only recover damages for medically recognised psychiatric harm. It is highly unlikely that upset and nightmares will be recognised as psychiatric harm. This reaction would be a normal emotion in the face of an unpleasant experience)
A man notices his elderly neighbour’s house is on fire. Despite all the smoke, he can just about see that his neighbour is fast asleep downstairs. The man breaks into the house to rescue his neighbour. Following the rescue, he suffers clinical depression. It transpires that the neighbour’s electrician negligently started the fire. Which of the following is correct?
A) The man is a rescuer and could therefore be owed a duty of care
B) A duty of care could be owed as psychiatric injury was reasonably foreseeable as a result of the defendant’s negligence
C) A duty of care would not be owed as physical injury was not reasonably foreseeable as a result of the defendant’s negligence
D) A duty of care would not be owed as psychiatric injury was not reasonably foreseeable as a result of the defendant’s negligence
E) A duty of care could be owed as physical injury was reasonably foreseeable as a result of the defendant’s negligence
E) A duty of care could be owed as physical injury was reasonably foreseeable as a result of the defendant’s negligence
(This is the correct answer. It is reasonably foreseeable to an electrician that if they negligently start a fire in someone’s house, somebody could suffer physical injury. As the ‘rescuer’ is a primary victim, only physical injury needs to be foreseeable not psychiatric injury in order to establish a duty of care)
