Tort SBAQ's Flashcards
Select which one or more of the following is or are TRUE.
A. The reasonable man test involves assessing risk on the one hand balanced against the practicality of taking the precaution.
B. The reasonable man should never take into account the cost of taking precautions.
C. Children can be expected to be less careful than adults.
D. Learner drivers are expected to exercise the same standard of care as experienced drivers.
E. Doctors can escape liability if they can show there is an established body of medical opinion that would approve of that practice.
A, C, D, and E are all true. B is false.
A is true and B is false as shown in Latimer v A.E.C Ltd [1953].
C is true as seen in Mullin v Richards [1998].
D is true as shown in Nettleship v Weston [1971].
E is true as shown in Bolam v Friern Hospital Management Committee [1957].
Is the following statement TRUE or FALSE? A defendant who complies with the accepted practice in their trade or profession will always escape liability in negligence.
The statement is FALSE.
Compliance with an accepted trade practice is strong evidence that a defendant has not been negligent, but it is not conclusive. The practice itself may be a negligent one.
The claimant owns property which is next to a cinema. The defendants have commenced work on the cinema, but leave the building locked and unattended at night. Vandals broke in and started a large fire which extensive damage to the claimant’s property.
Why do the defendants not owe the claimant a duty of care in negligence?
A. Because the general rule is that there is no duty of care owed for omissions.
B. Because the duty on an occupier would be too wide if it was held responsible for damage caused to neighbouring property by third parties entering the occupier’s property.
C. Because the claimant’s damage was caused by the defendants’ failure to act and the defendants had no control over the vandals.
D. Because the defendants are not at fault as they did not start the fire.
E. Because there is never a duty of care owed by a defendant to a claimant for the actions of third parties.
Option C is correct
- defendants can be liable for their omissions if they have a positive duty to exercise control over third parties but this principle does not apply to the facts of the claimant’s case. The defendants were not in a special (proximate) relationship with the vandals and would not be expected to exercise control over them.
A solicitor client’s clients have been diagnosed with a type of mouth cancer, after receiving tooth implants.
The manufacturer has admitted that a duty of care was owed to the solicitor’s clients but denies that it is in breach of their duty of care.
what must the solicitor’s clients must prove on the facts in order to establish that the manufacturer has breached its duty of care?
A. That it would be fair, just and reasonable for the manufacturer to be held liable.
B. That the manufacturer knew of the risk of mouth cancer from the dental implants when they were produced.
C. That there is a foreseeable risk of mouth cancer from using the dental inserts.
D. That the manufacturer fell below the standard of the reasonable dental implant manufacturer.
E. That there was a foreseeable risk of mouth cancer from using the dental implants when the implants were produced.
Option E is correct
because the test to be applied is whether the risk of injury is foreseeable in the light of knowledge available to the defendant at the time of the event ie when the dental implants were produced (Roe v Ministry of Health [1954] 2 QB 66).
Which ONE OR MORE of the following is or are TRUE?
A. A claimant will always have their damages reduced if the defendant can show the claimant has failed to take care for their own safety.
B. The court, at a defendant’s request, will always consider whether the claimant’s own lack of care has contributed to their injuries.
C. Contributory negligence is governed by statute.
D. Contributory negligence requires a causal link between the claimant’s carelessness and the actual cause of the accident.
B and C are true.
A is false. Damages will not always be reduced. For example, there must be a causal link with the harm suffered.
B is true. The court will always consider this.
C is true. The relevant statute is the Law Reform (Contributory Negligence) Act 1945.
D is false. There must be a link between the carelessness of the claimant and the harm the claimant has suffered.
A claimant suffered a badly broken arm while driving a motorbike. The defendant was driving a car and pulled out of side road into the path of the claimant’s motorbike. The claimant feared that the car would hit their motorbike. In order to avoid this, they swerved quickly and lost control of the motorbike. They broke their arm in the falling from the motorbike. In fact, the defendant car driver managed to swerve around the claimant’s motorbike and avoided a collision.
Which of the following statements best explains how the claimant will be able to show that the fact that they fell off the motorbike did not act as an intervening act that broke the chain of causation?
A. Because the claimant’s act was entirely reasonable in the circumstances that they were in at the time.
B. Because the claimant’s act ought to have been foreseen by the defendant as a likely consequence of their negligence.
C. Because the claimant’s act caused an injury that was reasonably foreseeable.
D. Because the claimant’s act caused an injury of a type that was reasonably foreseeable, even if the precise way it happened was not foreseeable.
E. Because the claimant’s act caused an injury of a type that was reasonably foreseeable, even if the precise extent of the injury was not foreseeable.
Option A is correct – the test that is applied for when the act of the claimant themselves may be an intervening act and break the chain of causation is whether their act was entirely reasonable in the circumstances that they were in at the time.
Option B is wrong as it is the test that is applied when the negligent act of a third party may break the chain of causation.
Option C is wrong as this is the basic rule for remoteness of damage from The Wagon Mound.
Option D is incorrect as this is the ‘similar in type’ rule for remoteness.
Option E is incorrect as this is the ‘egg-shell skull’ rule for remoteness.
Hannah owns a pottery business. Due to the negligence of contractors working locally, the supply of electricity to Hannah’s pottery is cut off for 15 hours. Hannah consequently loses the pottery which was being fired in the kilns at the time, together with the profits she would have made on the pottery and is unable to fire any more pottery until the power is restored.
Which one of the following statements is CORRECT?
A. Hannah can recover for the damaged pottery, the resulting lost profits and the loss of profits on the other pottery she was unable to fire until the power was restored.
B. Hannah can only recover for the damage to the pottery as the other losses are pure economic losses.
C. Hannah cannot recover for any of her losses as the contractors did not owe her any duty of care.
D. Hannah can recover for the damaged pottery and the resulting lost profits. She cannot, however, recover for the loss of profits on the other pottery she was unable to fire since this is pure economic loss.
D is the correct answer.
The damage to the pottery is physical damage and the loss of profit on it is directly consequential on the physical damage – both are, therefore, recoverable. The loss of profits for the 15 hours is not consequential on any physical damage and is, therefore, pure economic loss and not recoverable.
Look at the case of Spartan Steel & Alloys Ltd v Martin.
Assume that a coach carrying a load of passengers is involved in a road accident caused by the negligence of a car driver.
In which ONE of the following claims is it NOT necessary to apply the special rules for pure psychiatric harm?
A. Graham Crosby, the coach driver, suffers a heart attack brought on by the shock of the accident
B. Penny Brown, a passenger on the coach, suffers mild cuts and bruises, and as a result later develops a fear of travelling by coach.
C. Paul Dobson, a passenger on the coach, is not physically injured but later develops a fear of travelling by coach.
D. Jean Smith, the mother of one of the passengers, collapses with shock on hearing of the accident and then suffers from migraines for several weeks afterwards
The correct answer is B.
Penny Brown has not suffered from pure psychiatric harm. Her fear of travelling by coach is consequential psychiatric harm, following from her physical injury of cuts and bruises. Therefore, it is not necessary to apply the special rules for pure psychiatric harm to her claim. The usual rules for duty of care will apply. Under the usual rules for duty of care, Penny will be owed a duty of care by the car driver, as this is an established duty situation.
All the claims other than that of Penny Brown do involve pure psychiatric harm because, in each of those cases, the injury suffered was caused without any physical impact on the claimant.
Is the following statement true or false?
In any claim to recover damages for pure psychiatric harm caused, the nature of the psychiatric injury must be:
Caused by a sudden shock, and
Amount to a medically recognised illness
The statement is true.
Consider the following facts:
Harold Smith is carefully driving along a road when a car driven by Brian Jones pulls out of a side street at excessive speed and collides with Harold’s car. Harold is killed. The following people all suffer psychiatric harm as a result:
Harold’s wife, who was standing at a nearby bus stop waiting for Harold to pick her up and witnessed the whole accident.
A lady standing next to Harold’s wife at the bus stop, who also witnessed the whole accident.
Harold’s mother, who is told of the accident on the telephone.
Is it TRUE OR FALSE to say that Harold’s wife, the lady at the bus stop, and Harold’s mother are all secondary victims of Brian’s negligence?
This statement is true.
They are all classed as secondary victims. However, Brian does not owe a duty of care to all secondary victims. So, the next question you would need to consider would be – when is a secondary victim owed a duty of care?
Which ONE OR MORE of the following is/are NOT pure economic losses?
A. The cost of acquiring a defective product
B. Damage caused to other property by a defective product
C. Financial loss suffered without any physical impact on the claimant or their property
D. The claimant’s loss of earnings following an injury caused by the defendant
The correct answers are B and D.
These items are not pure economic losses.Where a defective product causes damage to other property that damage is not pure economic loss.
A loss of earnings following an injury is not pure economic loss. Such loss of earnings is consequential economic loss – following from the physical injury suffered by the claimant.
In contrast, the cost of acquiring a defective product, and financial loss suffered without any physical impact on the claimant or their property, are both correctly described as pure economic loss.
A solicitor has been instructed by a mother and daughter for advice on potential claims that they may have against a cosmetic surgeon. The mother received cosmetic filler treatment to her face in preparation for the daughter’s wedding.
This went wrong and caused substantial swelling and pain to her face. As a result of the treatment the mother was unable to work for three months. The mother is a presenter on an online shopping channel and has lost a significant amount of income.
The daughter felt that she had no choice but to cancel the wedding because her mother would have been unable to attend. The daughter has lost a substantial amount of money as a consequence of this.
Which of the following statements best explains whether the clients would be compensated for their financial losses if the cosmetic surgeons negligence is proven to have caused their loss?
A. Neither the mother nor the daughter would receive compensation for their financial losses because they have suffered pure economic loss.
B. Both the mother and the daughter would receive compensation for their financial losses because there is an established duty of care between doctors and patients.
C. Only the mother would receive compensation for her financial losses because they are owed a duty of care for their pure economic loss. The daughter would not be owed a duty of care for her pure economic loss because there was not a ‘special relationship’ between her and the surgeon.
D. Only the mother would receive compensation for her financial losses because there is an established duty of care between doctors and patients. The daughter’s loss is too remote.
E. Only the mother would receive compensation for her financial losses because there is an established duty of care between doctors and patients. The daughter would not be owed a duty of care for her pure economic loss because there was not a ‘special relationship’ between her and the surgeon.
E is the correct answer.
A is wrong because the mother would be compensated for her financial loss as her lost income is consequential on her personal injury ie it is not pure economic loss. It is correct, however, that the daughter has suffered pure economic loss (PEL) and that she would not be compensated for this (see further below).
B is wrong because, while there is an established duty of care between doctors and their patients, this would not assist the daughter as she is not a patient of the surgeon. It is also wrong because the daughter has suffered PEL. The established duty of care is only relevant for personal injury or property damage and not for PEL.
C is incorrect as the mother has not suffered PEL. It is correct, however, that the daughter would not be owed a duty of care for her pure economic loss because there was not a ‘special relationship’ between her and the surgeon. She would not satisfy the test for a ‘special relationship’ from Hedley Byrne v Heller (as expanded upon in Caparo v Dickman).
D is wrong because the daughter would not be owed a duty of care for her PEL. Their claim would therefore fail at the duty of care stage and the question of remoteness is, therefore, irrelevant.
A solicitor is instructed by a client who wishes to bring a claim in negligence for substantial losses arising from an investment they have made in buy-to-let properties. The client had asked a friend, who is an estate agent, to advise on suitable purchases.
The client had no knowledge of the risks involved in buying properties for letting and had made it clear that they would be relying on their friend’s skill and judgment.
The client’s friend recommended buying two houses near to a university with the stated aim that the houses would convert into separate lettings for multiple occupation by students. The client bought the houses on the basis of the friend’s recommendation.
The client later discovered that the houses were unsuitable for multiple occupation and has suffered a substantial loss of income from the houses as a result. The client now wishes to recoup these losses from their friend.
Which of the following statements best explains whether your client is owed a duty of care by their former friend?
A. No, because there can never be a duty of care in respect of negligent advice given in a social situation.
B. No, because your client has suffered pure economic loss.
C. Yes, because the former friend had assumed a responsibility to the client and it was reasonable for the client to rely on the former friend for advice.
D. Yes, because the former friend had assumed a responsibility to the client and the former friend did not exclude their liability by way of a disclaimer.
E. Yes, because it was reasonable for the client to rely on the former friend for advice and the former friend did not exclude their liability by way of a disclaimer.
C is correct
it correctly states the two parts of the test for a duty of care to be owed for negligent statements.
A is incorrect because, while it is generally true that there is no duty of care in respect of advice given in a social situation, there are exceptions (as per Chaudhry v Prabhakar [1989] 1 WLR 29).
B is incorrect because, while it is true that there is generally no duty of care for pure economic loss, there are exceptions- in particular for negligent statements (as per Hedley Byrne v Heller & Partners Ltd [1964] AC 465).
D is incorrect as, while an assumption of responsibility is one element of when a ‘special relationship’ may give rise to a duty of care for negligent statements, it must also be reasonable for the claimant to rely on the defendant for advice. Also, the fact that there may or may not have been a disclaimer of liability is not relevant to whether a duty of care was owed.
E is incorrect for similar reasons to D, the difference being that there must also be an assumption of responsibility by the defendant to the claimant.
The duty which an employer owes to employees is said to be non-delegable.
Which ONE of the following BEST explains the meaning of non-delegable in this context?
A. The employer is responsible for all harm suffered.
B. The employer has the burden of proving that reasonable care was taken.
C. The employer has a duty to see that reasonable care is taken.
D. The employer is responsible even if reasonable care has been taken.
The correct answer is C.
The statement which best describes the non-delegable nature of the employer’s duty is: the employer has a duty to see that reasonable care is taken.
The employer can delegate a task to another person but cannot delegate the duty of care. So, if the person to whom the task is delegated fails to take reasonable care for the safety of the employer’s employees, the employer will be in breach of duty.
Provided reasonable care has been taken, the employer will not be in breach of duty. The burden of proving lack of reasonable care remains with the claimant employee.
Which one of the following alternatives correctly describes when breach of the employer’s instructions will put an employee outside the course of their employment?
A. When the instructions relate to the manner in which the employee performs their job
B. When the instructions relate to the scope of the employee’s job.
The correct answer is B.
Breach of the employer’s instructions will only put the employee outside the course of their employment when the instructions relate to the scope of the employee’s job.
A company asks a local window cleaner to clean the windows of the company’s three-floor office building. The window cleaner is an independent contractor. Whilst the window cleaner is cleaning the windows on the top floor of the building, he negligently drops a metal bucket which is full of water. As the metal bucket falls towards the ground, it hits the hand of a woman who is standing on the pavement beneath. The impact breaks the woman’s thumb. The woman is one of the company’s employees.
Which of the following statements best describes whether the employee can successfully claim damages for her broken thumb from her employer?
A. No, because an employer can only be liable in respect of the negligence of its own employees. An employer cannot be liable in respect of the negligence of independent contractors.
B. No, because it was entirely reasonable for the employer to pay an independent contractor to clean the windows.
C. No, because the harm suffered by the employee was too remote.
D. Yes, because the employer has breached the personal non-delegable duty that it owes to its employee.
E. Yes, because the employer owes an established duty of care to each of its employees.
Option D is correct.
Options D and E are both true, but D is the better answer. The employer’s personal non-delegable duty is to ensure that reasonable care is taken. Reasonable care was not taken by the independent contractor and the employer, therefore, has breached the personal non-delegable duty that it owes to its employee. The employer is thus liable in respect of the negligence of the independent contractor (Wilsons & Clyde Coal Co Ltd v English [1937])
Option A refers to vicarious liability. In this scenario the employer is personally liable (primary liability).
Option B is wrong because the fact that it was entirely reasonable for the employer to pay an independent contractor to clean the windows is irrelevant.
Option C is wrong because the harm suffered by the employee was harm of a reasonably foreseeable kind and hence not too remote (The Wagon Mound (No 1) [1961]).
