Tort SBAQ's

Question 1

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.

Answer 1

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].

Question 2

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.

Answer 2

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.

Question 3

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.

Answer 3

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.

Question 4

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.

Answer 4

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).

Question 5

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.

Answer 5

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.

Question 6

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.

Answer 6

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.

Question 7

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.

Answer 7

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.

Question 8

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

Answer 8

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.

Question 9

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

Answer 9

The statement is true.

Question 10

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?

Answer 10

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?

Question 11

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

Answer 11

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.

Question 12

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.

Answer 12

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.

Question 13

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.

Answer 13

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.

Question 14

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.

Answer 14

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.

Question 15

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.

Answer 15

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.

Question 16

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.

Answer 16

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]).

Question 17

Which ONE OR MORE of the following correctly describe the duty owed by an occupier of premises to their lawful visitors?

A. The same duty common to all visitors.

B. A duty to take reasonable care to see that visitors are reasonably safe.

C. A duty to ensure that visitors do not suffer injury on the premises.

Answer 17

The correct answers are A and B.

An occupier owes the same duty common to all visitors.
That is, a duty to take reasonable care to see that visitors are reasonably safe.

(It would not be correct to only say that the duty is to ensure that visitors do not suffer injury, as the duty is not absolute, it is to take reasonable care).

Question 18

Which ONE OR MORE of the following requirements must be satisfied before an occupier owes a duty of care to a trespasser?

A. The occupier must be aware of the danger or have reasonable grounds to believe that it exists.

B. The occupier must know, or have reasonable grounds to believe, that the trespasser is in the area of danger, or may come into the area.

C. The risk is one against which the occupier might reasonably be expected to offer protection.

D. The occupier must have failed to take reasonable care to see that the trespasser does not suffer injury by reason of the danger.

Answer 18

The correct answers are A, B and C.

These are all pre­conditions which must be satisfied before the duty of care arises.

Failure by the occupier to take reasonable care relates to breach of the duty once it has arisen.

Question 19

A specialist carpenter is employed by a man to carry out repairs to a wooden floor and wooden staircase in one of the rooms of the man’s house. During the repair work the room in question is closed off by a door on which the man has put a prominent notice reading “Keep Out”.

Which of the following persons is most likely to be able to make a claim for damages against the man under the Occupiers’ Liability Act 1957?

A. The man’s teenage son who enters the room and is injured when he falls through a rotten floorboard.

B. The specialist carpenter who is injured by a splinter when repairing one of the wooden floorboards.

C. A visitor to the man’s house who, after the work to the floor is completed and visually inspected by the man, enters the room with permission and is injured when one of the new floorboards gives way.

D. A visitor to the man’s house who slips on some wood floor treatment oil which the specialist carpenter has spilt in the corridor outside the room.

E. A friend of the man who, after the work to the staircase is completed is injured when sliding down the new wooden bannister.

Answer 19

Option D is the best answer.

Although the wood floor treatment oil was spilt by the specialist carpenter this is something the man could easily have checked. So not clearing away the spill or warning the visitor about it in some way is likely to be a breach of his duty as occupier to his visitor.

Options A and E are wrong because a person who exceeds the scope of their permission (either geographical or by purpose) is not a visitor and so not covered by the common duty of care under the OLA 1957. Accordingly neither of the persons in Options A and E would fall under the OLA 1957.

Options B and C are wrong because although the man would owe a duty of care to the persons in Options B and C, the man is unlikely to have breached that duty. For Option B the person injured enters in the course of his calling and should guard against risks incidental to that calling (s2(3)(b) OLA 1957). For Option C the injury appears to be due to the specialist carpenter’s faulty repair work. Provided it was reasonable for the man to have used a contractor carpenter and he checked the carpenter he chose was competent, the man is unlikely to be in breach of duty as the man visually inspected the work but the load bearing adequacy of a floorboard would not be expected to be checked (s2(4)(b) OLA 1957).

Question 20

The manufacturer of a product is liable in NEGLIGENCE if damage is caused by a defect in a product.

Is this statement True of False?

Answer 20

The statement is false.

Case law has established the circumstances in which the manufacturer of a product owes a duty of care to the end consumer.

For a successful claim in negligence it is not sufficient to show that damage was caused by a defective product.

The claimant would also need to prove breach of duty – by showing that the manufacturer fell below a reasonable standard of care

Question 21

Is the following statement TRUE OR FALSE?

Under the Consumer Protection Act 1987 a manufacturer will always be liable when a product causes harm.

Answer 21

The statement is false.

For a successful claim under the CPA it is not sufficient to show that the product caused harm.

The claimant must show that the product was defective, as defined in the Act.

Also, a manufacturer would not be liable if one of the available defences under the Act could be established.

Question 22

Is the following statement true or false?

Loss to business property can only be recovered under the Consumer Protection Act 1987 if it is more than £275 in value.

Answer 22

The statement is false.

Loss to business property cannot be recovered under the Act at all!

It is in relation to private property that there is a minimum value of £275.

Question 23

Pamela has her boiler serviced by a firm of heating engineers. The service is carried out negligently and Pamela suffers injury when the boiler subsequently explodes.

Which ONE of the following statements is CORRECT?

A. Pamela could sue the firm of heating engineers under the Consumer Protection Act 1987.

B. Pamela could only sue the firm of heating engineers in contract.

C. Pamela could only sue the firm of heating engineers in the tort of negligence.

D. Pamela could sue the firm of heating engineers in both contract and the tort of negligence.

Answer 23

D is the correct answer.

Pamela has engaged the firm to carry out a service for her and that service has been performed negligently.

Pamela could sue the firm of heating engineers in contract and in the tort of negligence. A repairer can constitute a “manufacturer” and owe a duty of care in negligence.

The repairers are not, however, a potential defendant under the CPA.

Question 24

A claimant decides to purchase a novelty unicorn design hot water bottle from a local shop. She fills it with hot water in accordance with the instructions on the label, from the manufacturer. The claimant is distracted by her phone ringing and quickly closes the bottle. She has not removed any air from the bottle before closing it, which she should have done. She falls asleep and inadvertently rolls onto the bottle, causing it to burst. Unfortunately she sustains serious scalding burns to her body as a result. It becomes apparent that the bottle had a faulty seal and the buildup of air caused the bottle to burst more easily. This problem could only have been identified upon use.

How should a solicitor advise the claimant?

A. The claimant will have a potential claim under the Consumer Protection Act 1987 (‘CPA’) against the shop and the manufacturer of the water bottle. Both the shop and the manufacturer could raise the partial defence of contributory negligence against the claimant.

B. The claimant will have a potential contractual claim against the shop and a possible claim against the manufacturer under the CPA. The manufacturer cannot raise the partial defence of contributory negligence against the claimant under the CPA.

C. The claimant will have a potential claim in negligence against the manufacturer, on the basis that it failed in its duty to act as a reasonable manufacturer. The manufacturer will successfully argue that the problem with the seal should have been identified by the shop.

D. The claimant will have a potential claim under both the CPA and in negligence against the manufacturer. Under both claims the manufacturer could raise the defence of contributory negligence against the claimant.

E. The claimant will not have any potential claims against either the shop or the manufacturer as it was clearly her own actions which caused her injury.

Answer 24

Option D is correct.

The claimant will have a potential claim under both the CPA and in negligence against the manufacturer. Under both claims the manufacturer could raise the defence of contributory negligence against the claimant.

Option A is wrong because whilst the manufacturer would be a producer so a claim under the CPA would be possible, the shop is unlikely to be a ‘forgetful supplier’. There is therefore no claim against the shop under the CPA.

Option B is wrong because the manufacturer could potentially raise the partial defence of contributory negligence against the claimant as she did not attempt to remove the air from the water bottle once she filled it and also, she rolled on to it.

Option C is wrong because the problem with the water bottle could only be identified upon use. Therefore, the manufacturer will not be able to argue that the problem with the seal should have been identified by the shop.

Option E wrong as there was clearly a defect with the water bottle which made it unsafe. The claimant will therefore have potential claims.

Question 25

A solicitor is instructed by a manufacturer of exercise bikes. They have been notified of a claim by a customer. The details of the claim are that the customer bought one of the top of the range exercise bikes from a sports shop that has subsequently ceased trading. They took the bike home, opened the packaging that the bike was supplied in by the manufacturer and read the instruction booklet carefully before using it for the first time. The customer is a professional violinist and decided to practise their violin at the same time as trying out the exercise bike. After a couple of minutes the seat post on the bike collapsed. The customer fell off the bike, broke their arm, smashed their glasses worth £150, and caused extensive damage to their very expensive violin. The customer wants compensation for all these losses and also the cost of a replacement bike. The customer has had the bike inspected by an expert who believes that the seat post collapsed due to insufficient welding on the bike. The expert believes that this defect would not have been apparent on a visual inspection of the bike.

All the manufacturer’s products are sold subject to an exclusion of liability clause for all losses, howsoever caused.

Which of the following statements best explains whether the manufacturer may be liable for the customer’s losses in negligence?

A. No, because the manufacturer did not owe a duty of care to the customer. The duty of care was owed by the sports shop.

B. No, because the customer will not be able to prove breach of duty of care by the manufacturer.

C. No, because the manufacturer will be able to rely on its exclusion of liability for all the customer’s losses.

D. Yes, because the customer is likely to succeed in proving liability for all their losses except the cost of the bike.

E. Yes, because the customer is likely to succeed in proving liability for all their losses except the cost of the replacement bike and the damage to the very expensive violin.

Answer 25

E is the correct answer.

A is wrong because the duty of care will be owed by the manufacturer. Shops and other suppliers will rarely owe a duty of care in negligence to their customers. The exception to this is where the shop is expected to carry out an intermediate examination of the goods. There is nothing to suggest that the manufacturer expected the sports shop to do this. In fact, the bike appears to have been supplied in packaging by the manufacturer and, according to the expert, an inspection of the bike would not have revealed the defect in any event.

B is wrong because, on the facts given, it cannot be said that the customer will definitely not be able to prove breach of duty. There are facts on which the court can base its inference of breach of duty ie an expert who believes that the seat post collapsed due to insufficient welding on the bike. The court will infer breach of duty unless the manufacturer can rebut the inference of breach of duty by proving that the defect was not due to the defendant’s lack of care but to some later problem, for example the claimant’s own misuse of the product. This is unlikely to be the case on the facts. If the bike had been safe then the claimant’s actions would probably not have been unreasonable - just a little unusual.

C is wrong because the manufacturer cannot exclude liability for the personal injury due to the Consumer Rights Act 2015 and they will only be able to exclude liability for the other losses if the exclusion is deemed fair under the Act.

D is incorrect, because, while the customer may succeed in negligence for all their losses excluding the cost of the bike (as it is pure economic loss), a court may consider that the damage to the violin is too remote. It may not be reasonably foreseeable that a person would be playing a violin on an an exercise bike.

Question 26

A solicitor is instructed by a manufacturer of exercise bikes. They have been notified of a claim by a customer. The details of the claim are that the customer bought an exercise bike from a sports shop. They took the bike home, opened the packaging that the bike was supplied in by the manufacturer and read the instruction booklet carefully before using it for the first time. After a couple of minutes the seat post on the bike collapsed. The customer fell off the bike, broke their arm, and smashed their glasses worth £150. They also caused extensive damage to their very expensive violin that was near the bike at the time. The customer is a professional violinist and wants compensation for all these losses, their income lost as a result of not being able to play the violin and the cost of a replacement bike.
The manufacturer has made thousands of this particular exercise bike without any complaints of this nature. They have investigated their production records and are confident that they are not at fault in any way.

All the manufacturer’s products are sold subject to an exclusion of liability clause for all losses, howsoever caused.

Which of the following statements best explains whether the manufacturer may be liable for the customer’s losses under the Consumer Protection Act 1987?

A. Yes, because the manufacturer will probably be held liable for all the losses except the cost of the replacement bike and the cost of the glasses.

B. Yes, because the manufacturer will probably be held liable, but only for the personal injury and the customer’s lost income.

C. No, because the customer should be bringing a claim against the sports shop in contract.

D. No, because the manufacturer will be able to rely on its exclusion of liability for all the customer’s losses if the clause is fair.

E. No, because the customer will not be able to prove that the manufacturer was at fault.

Answer 26

B is the correct answer.

The customer suffered ‘damage’ for the purposes of the CPA 1987 as they have broken their arm, and their consequential lost earnings, due to their inability to play the violin with a broken arm. They will not be able to claim for the cost of repairing or replacing the bike as damage to the defective product itself is excluded by the Act. Neither will they be able to recover the cost of the damaged violin if it is regarded as ‘business’ property. The cost of replacement glasses will not be recoverable as they are worth less than £275. The customer’s recoverable losses were caused by a ‘defect’ as the safety of the bike was not such as persons generally were entitled to expect in all the circumstances. The bike is clearly a ‘product’ for the purposes of the CPA 1987. The customer will be able to claim against the manufacturer of the bike as the producer of the product.

A is incorrect as it fails to consider that the violin will not be recoverable as it is business property.

C is wrong because, while the customer would also have a claim in contract against the shop, this does not mean that the customer is barred from bringing an alternative claim against the manufacturer under the CPA 1987 and/or negligence.

D is wrong because it is not possible to exclude liability under the CPA 1987; the question of whether the exclusion is fair is irrelevant.

E is wrong because liability under the CPA 1987 is strict. It is irrelevant, therefore, that the manufacturer may have evidence that they are not at fault (subject to the defence that the defect did not exist when the defendant supplied the product).

Question 27

Which ONE of the following statements is INCORRECT?

A. A lodger cannot sue in private nuisance.

B. A member of the owner’s family cannot sue in private nuisance.

C. A tenant cannot sue in private nuisance.

D. The owner’s husband or wife cannot sue in private nuisance.

E. A landlord can only sue in private nuisance if the interference is likely to cause permanent damage to the property.

Answer 27

Well done. The correct answer is C. A tenant can sue in private nuisance as they have the necessary proprietary interest.

Question 28

The test for remoteness of damage in the tort of private nuisance requires the damage to be of a reasonably foreseeable type.

Is this statement TRUE or FALSE?

Answer 28

The statement is true.

The damage must be of a foreseeable type. In other words, the same test applies as in negligence.

Question 29

Which one of the following statements on trespass to land is INCORRECT?

A. A tenant can sue in trespass to land.

B. An owner-occupier can sue in trespass to land.

C. A lodger can sue in trespass to land.

D. A squatter can sometimes sue for trespass to land.

Answer 29

C is the correct answer.

A lodger cannot sue in trespass to land because they do not have possession of the land. All the other persons do have possession rights including a squatter who has a better right to possession than anyone apart from the legal owner and (if any) earlier squatters.

Question 30

Is the following statement true or false?

In trespass to land the courts apply the same test for remoteness of damage as in negligence and private nuisance.

Answer 30

The statement is false.

The test for remoteness in trespass to land is the direct consequences test from the case Re Polemis. Under this test the defendant is liable for all the direct consequences of his tort even if unforeseeable. This is more onerous to the defendant than the Wagon Mound test.

Question 31

A sewage plant operates a site near to a residential area. It has recently obtained planning permission to extend the plant, despite the villagers campaigning against it. The new plant extension has doubled the capacity to carry out processing on the site. This has resulted in dirty fumes drifting over gardens, noise from trucks operating on the site which happens over 24 hours and smells from waste which is awaiting processing invading homes. Chemicals are also leaking from one of the waste holding sites through the soil and into neighbouring gardens, causing the soil to become polluted as a result and plants and trees dying.

A solicitor has been asked to give advice to one of the residents in relation to them bringing a private nuisance claim.

What advice should the solicitor give?

A. The character of the neighbourhood is relevant in respect of all of the complaints.

B. The court will consider the abnormal sensitivity of the client in determining whether there is a nuisance.

C. Anyone living in a property can bring a claim in private nuisance.

D. Public benefit will be a relevant factor considered by the court in determining whether there is a nuisance.

E. The court will attempt to balance the interests of all parties.

Answer 31

Option E is the correct answer because not one relevant factor is conclusive, the court attempts to balance interests, and all relevant factors will be taken into account in reaching a decision on lawfulness.

Option A is wrong because the character of the neighbourhood will be relevant with the noise, fumes and smells, but not relevant with the property damage.

Option B is wrong because the court will look at the impact of the normal user of neighbouring land and ignore any abnormal sensitivity of a claimant in determining whether there is a nuisance.

Option C is wrong because to be able to sue in private nuisance a claimant must have a proprietary interest in the land.

Option D is wrong because public benefit is not usually a relevant factor in deciding whether the defendant’s use is unreasonable, it is more relevant when considering remedies.

Question 32

A solicitor is instructed by a client who bought a house located in a rural location 6 months ago. A cement factory is near to the client’s house. Heavy lorries regularly arrive and leave during the day and night via a public road, making it difficult for the client to sleep at night.

The client has complained to the factory owner. The factory owner has responded that the factory has been operating for 25 years in the same location and that the client should not have bought their house near a factory if they are a light sleeper. The factory owner has also confirmed that their lorries are fitted with the best noise reduction mechanisms that are available on the market.

Which of the following statements best explains whether the client may have a claim in tort against the factory owner?

A. Yes, because the client will be able to pursue a claim in public nuisance because the lorries are using a public road.

B. Yes, because the client will be able to pursue a claim in private nuisance because the noise from the lorries is substantial and unreasonable.

C. Yes, because the factory is a non-natural use of land in a rural location.

D. No, because the factory was already operating before the client moved to the area.

E. No, because the factory owner has taken reasonable care to ensure that the noise from the lorries is kept to a minimum level.

Answer 32

B is the correct answer. The noise from the lorries may be a substantial and unreasonable interference with the claimant’s use of their land. The fact that the noise is at night and in a rural location would indicate that the claimant would have a claim in private nuisance.

A is incorrect because there is nothing to suggest that the noise from the lorries affects a ‘class of Her Majesty’s subjects’ ie a sufficient number of members of the public. Public nuisance is primarily concerned with protecting public rights and the fact that the lorries are using a public road is only incidental to the interference with the client’s private right to be able to use and enjoy their land.

C is incorrect because a non-natural use of land is only one element of the rule in Rylands v Fletcher. The other requirements are not satisfied on these facts as there has not been an escape of anything likely to cause damage to the claimant’s land. In fact, it is unlikely that this is a non-natural use of land in any event. A cement factory is not an extraordinary or unusual use of land, even in a rural location.

E is wrong because private nuisance is not based upon proving that the defendant has not taken reasonable care. Private nuisance is concerned with whether the consequences of the defendant’s use of their land is unlawful in that it causes a substantial and unreasonable interference with the claimant’s use of their land.

Question 33

A solicitor is instructed by the manufacturer of explosives used in the mining industry. A relatively minor explosion at the client’s factory scattered debris over the trading estate situated next door to their factory. Fortunately, no one was injured. However, the client has been contacted by one potential claimant. They are the owner of one of the businesses on the trading estate who are looking to claim for the cost of damage to the roof of their warehouse.

An expert has investigated the cause of the explosion and they have advised that the client was not to blame for the explosion.

Which of the following statements best explains whether the client may be liable in tort for the damage to the warehouse roof?

A. No, because the incident was an isolated event.

B. No, because the explosion was not the client’s fault.

C. Yes, because the warehouse owner has suffered particular harm over and above the harm suffered by the public at large.

D. Yes, because the client’s use of their land was non-natural and the debris caused foreseeable damage.

E. Yes, because property damage is always an unlawful interference with the use and enjoyment of land.

Answer 33

D is the correct answer.

The manufacture of explosives is likely to be held to be a non-natural use of land. The debris from the explosives has ‘escaped’ and caused foreseeable harm to the warehouse owner.

A is wrong because the torts of public nuisance and the rule in Rylands v Fletcher can be used by claimants where there have been ‘one-off’ or isolated events. It is correct, however, that private nuisance does not usually cover isolated events.

B is wrong because private nuisance, public nuisance and the rule in Rylands v Fletcher do not depend upon the need to prove that the defendant was at fault i.e. that they did not exercise reasonable care. Liability under the rule in Rylands v Fletcher is strict. Liability under both private nuisance and public nuisance is concerned with whether the defendant’s conduct is unreasonable because it causes an unreasonable interference with the claimant’s rights.

C is incorrect because, while it seems that the warehouse owner is the only person to have suffered harm, there is nothing to suggest that the public has been affected. A claim in public nuisance is not, therefore, appropriate on these facts.

E is incorrect because property damage is not always an unlawful interference with the use and enjoyment of land. It is correct that an interference which causes physical damage to the claimant’s land is likely to be considered excessive. However, this does not apply if the damage is only trivial. In any event, private nuisance is not the appropriate tort for isolated events.

Question 34

A solicitor is instructed by a client arising from the following incident. The client’s next door neighbour employed a building contractor to dig into the foundations of their home to create a basement in their property. Despite carrying out all the normal surveys and investigations, the neighbour’s building contractor disrupted a Roman sewer that was not shown on any charts or surveys. This caused the busy road outside the client’s home to collapse. The road was closed for 12 weeks while remedial works were carried out, causing traffic to be diverted around the client’s village.

The client was injured as she was crossing the road when the road collapsed. She fell into part of the hole in the road, breaking her leg.

Which of the following statements best explains whether the client may have a claim in tort against the building contractor?

A. Yes, because the building contractor has caused a substantial and unreasonable interference with the client’s use and enjoyment of their land.

B. Yes, because the client owns their property and they have suffered particular harm over and above the harm suffered by the public as a whole.

C. Yes, because the client has suffered particular harm over and above the harm suffered by the public as a whole.

D. No, because the building contractor carried out all the normal surveys and investigations and the client suffered a personal injury.

E. No, because the harm suffered by the client was not reasonably foreseeable.

Answer 34

C is the correct answer. The client will have an action in public nuisance because the public right to use the highway has been affected and the client has suffered particular harm ie the personal injury.

A is incorrect because there is nothing on the facts to suggest that the client’s use and enjoyment of their land has been interfered with (the interference is with the use of a public road). In any event, the client’s personal injury is not a type of harm that is recoverable in private nuisance.

B is incorrect as an action in public nuisance does not depend upon the client having a proprietary interest in the land affected (it is a requirement for private nuisance and the rule in Rylands v Fletcher). In any event, the fact that the client owns their property is irrelevant as the land interfered with is a public road.

D is wrong because the fact that the building contractor used reasonable care is not relevant for the torts of private nuisance, the rule in Rylands v Fletcher and public nuisance. Also, while it is correct that personal injury is not a type of harm recoverable in private nuisance and the rule in Rylands v Fletcher, it is recoverable in public nuisance.

E is wrong because, while it is correct that reasonable foreseeability of the harm suffered is an element of private nuisance and the rule in Rylands v Fletcher, it is not a requirement in public nuisance.

Question 35

Which ONE OR MORE of the following are examples of general damages?

A. Damages for pain and suffering

B. Damages for loss of earnings up to the date of trial / settlement

C. Damages for loss of future earnings

D. Damages for future loss of dependency

Answer 35

The correct answers are A, C and D.

General damages are those which cannot be precisely calculated. So, this covers damages for pain and suffering, future loss of earnings and future loss of dependency. The claimant’s lawyer can prepare a calculation predicting expected future loss of earnings or dependency, but the amount to be awarded must still be assessed by the judge (or on settlement).

By contrast, special damages are those which can be precisely calculated. So, this would cover lost earnings up to the date of trial / settlement.

Question 36

Darren is injured in an accident at work caused by his employer’s negligence. He is absent from work for six weeks. He is unable to cook for himself or do other household chores because of the injury, so his mother Miranda helps him out. She is not put to any financial loss as she is retired.

Is the following statement true or false?

Miranda will be able to bring a claim for the time she has spent looking after Darren.

Answer 36

The statement is false.

Darren will include the cost of care as part of his claim. Miranda cannot make a separate claim herself.

Question 37

Which ONE of the following statements about the claim on behalf of a deceased claimant’s estate is CORRECT?

A. The claim will compensate the dependants of the deceased for the losses incurred during the deceased’s period of survival.

B. The claim will compensates the deceased’s estate for the deceased’s loss of earnings after the deceased died.

C. The claim compensates the dependants of the deceased for their losses from the date of death.

D. The claim compensates the deceased’s estate for the losses incurred during the survival period.

Answer 37

D is the correct answer.

A and C are incorrect as these statement cover claims that dependants can bring and not the claim on behalf of the deceased’s estate.

B is incorrect as the claim on behalf of the deceased’s estate only compensates for loss of earnings during the survival period between the tort and death.

Question 38

Ben was killed due to the defendant’s negligence. He leaves a wife, Sarah, and a child, Sam. Ben was the breadwinner. Sam is 19 and Ben was supporting him through university. Ben was also in business with his brother Jon. Jon thinks he will have to close down the business because of Ben’s death.

Which ONE OR MORE of the following statements are correct?

A. Sarah will be able to claim for loss of dependency for the period up to Ben’s retirement age.

B Sam will be able to claim for loss of dependency for the period up to Ben’s retirement age.

C. Jon will not be able to claim for loss of dependency.

D. Sam will be able to claim damages for bereavement

Answer 38

Answers A and C are correct.

Sarah will be able to claim for loss of dependency for the period up to Ben’s retirement age as that is the likely period of loss.

Sam will not be able to claim for loss of dependency for the period up to Ben’s retirement age as once he has left university and is working as he will no longer be dependent on Ben.

Sam will not be able to claim bereavement damages. Only Sarah will have this claim.

Jon will not be able to claim for loss of dependency as the loss results from a business relationship.

Question 39

A client instructs a solicitor following a road traffic accident involving their spouse. The client’s spouse suffered injuries from the accident, survived for a period of two months but then died as a result of their injuries. The client alleges that the road traffic accident occurred as a result of another driver’s negligence. At the time of the accident the client’s spouse worked as a managing director of a large supermarket chain. The client is the sole beneficiary under their spouse’s will. The reasonable funeral expenses have been paid by the estate.

Which one of the following options correctly describes the damages recoverable by the client in the event that they establish the other driver was negligent?

A. Under the Law Reform (Miscellaneous Provisions) Act 1934 the client will be entitled to receive a bereavement award.

B. Under the Law Reform (Miscellaneous Provisions) Act 1934 the client will be entitled to recover damages for their loss of dependency.

C. Under the Law Reform (Miscellaneous Provisions) Act 1934 the client will be entitled to recover, on behalf of her husband’s estate, damages for the pain, suffering and loss of amenity suffered by their spouse during the two month survival period.

D. Under the Fatal Accidents Act 1976 the client will be entitled to recover their spouse’s funeral expenses.

E. Under the Fatal Accidents Act 1976 the client will be entitled to recover compensation for property belonging to their spouse which was destroyed during the road traffic accident.

Answer 39

Option C is correct

because under the Law Reform (Miscellaneous Provisions) Act 1934 the client will be entitled to recover, on behalf of her husband’s estate, damages for the pain, suffering and loss of amenity suffered by their spouse during the two month survival period.

Option A is wrong because a bereavement award is recoverable by the spouse of the deceased under the Fatal Accidents Act 1976, not under the Law Reform (Miscellaneous Provisions) Act 1934.

Option B is wrong because loss of dependency is recoverable under the Fatal Accidents Act 1976, not under the Law Reform (Miscellaneous Provisions) Act 1934.

Option D is wrong because where funeral expenses are reasonable in amount and paid by the estate, they are recoverable under the Law Reform (Miscellaneous Provisions) Act 1934 and not under the Fatal Accidents Act 1976.

Option E is wrong because the client will be entitled to recover, on behalf of her husband’s estate, compensation for property belonging to their spouse which was destroyed during the road traffic accident under the Law Reform (Miscellaneous Provisions) Act 1934 not under the Fatal Accidents Act 1976.

Question 40

A young child is injured while visiting a cinema with her parents by slipping on a wet
floor inside the entrance to the cinema.
Which statement best describes whether the child will be owed a duty of care
by the cinema owner?

A. The child will be owed a duty of care if the cinema owner had reasonable
grounds to believe that the floor was wet and slippery.

B. The child will be owed a duty of care because she was injured due to the wet
and slippery floor.

C. The child will be owed a duty of care because the cinema owner knew that
children would be using the cinema.

D. The child will not be owed a duty of care because she should have been
supervised by her parents.

E. The child will be owed a duty of care if it was reasonable for the cinema owner
to offer some protection against slipping on the wet floor.

Answer 40

B is the correct answer. The child was a visitor who was injured due to the state of
the premises and is automatically owed a duty of care under OLA 1957.

Options A, C and E are incorrect because these are conditions on imposing a duty of care for injuries to trespassers under OLA 1984.

Option D is incorrect because whether the child should have been supervised by her parents is a breach of duty issue.

Question 41

A motorist parked their car on a bend of a road where parking was prohibited, to
briefly take a call on a mobile phone. The motorist is guilty of a traffic offence by
parking in this area. The defendant, who had been drinking excessive amounts of
alcohol, drove his car at speed around the bend and collided with the motorist’s car,
being unable to stop in time, causing it serious damage.

In a claim by the motorist in negligence against the defendant which of the
following best describes the operation of the defence of illegality?

A. The defence of illegality is not available for traffic offences.

B. The defence of illegality is not available for incidents involving cars driven or
parked on the road due to statute.

C. As a matter of public policy, the courts will use the defence of illegality to deprive the motorist of a remedy against the defendant to reinforce the
importance of parking laws.

D. As the damage to the motorist’s car does not arise directly out of the illegal activity, the defence of illegality will not apply here.

E. As the motorist is guilty of a traffic offence and the damage to the car occurs when the vehicle is parked illegally, the defence of illegality would operate to
deny the motorist a claim.

Answer 41

Option D is the correct answer. As a defence, illegality requires a close connection
between the claimant’s wrongdoing and their loss so that the damage arises directly
out of the illegal activity in such a way that it would be contrary to public policy to allow the claimant a remedy. This is not the case on the facts.

Option A is wrong as it is too general a statement.

Option B is wrong. The reference to statute in this option might be a reference to section 149 Road Traffic Act 1988. This provides that the fact that a passenger in a
car has willingly accepted the risk of negligence on the part of the driver does not negate the driver’s liability to the passenger. As such, this statutory provision relates
to the defence of consent rather than illegality.

Options C and E are wrong as the defence of illegality would not arise on these facts
for the reasons discussed in option

D. These options do not accurately reflect the scope of the defence.

Question 42

An employee is injured at work when the wiring of a neon sign advertising the employer’s business failed and set fire to their hair. The sign had been set up by a local firm of electricians and was not secured properly. The employer had carefully considered the references provided by the local firm of electricians.

What advice is the injured employee’s solicitor most likely to give to the employee?

A. The employee may sue the employer in negligence and as an occupier under the Occupiers’ Liability Act 1957.

B. The employee may sue the employer in negligence only.
selected

C. The employee may not sue the employer in negligence as the employer had taken reasonable care in selecting the local firm.

D. The employee may sue the employer in negligence but not as an occupier under the Occupier’s liability Act 1957.

E. The employee may only sue the employer as an occupier under the Occupiers’ Liability Act 1957.

Answer 42

Option A is the correct answer.

Option B is wrong because the employee’s status is both an employee and a visitor under the OLA 1957.

Option C is wrong because the duty of care of an employer is non delegable and the fault of the local firm is therefore attributed to the employer.

Option D is wrong because the employee’s status is both an employee and a visitor and as such a duty of care would be owed under the OLA 1987.

Option E is wrong because the employer’s duty of care is non-delegable and therefore the fault of the local firm will be attributed to the employer.

Question 43

An employee who cannot read suffers skin irritation at work as he fails to wear protective gloves when working with a new chemical which is a skin irritant. His employer provided online training for all employees about the dangers of the new chemical and has put written notices up warning employees to wear gloves. The employer also instructed their foreman to check all employees were wearing gloves when working with the new chemical but the foreman failed to carry out that instruction.

Which of the following statements best describes whether the employee can potentially bring a claim for his skin irritation against his employer?

A. The employee will not have a claim as his employer is not in breach of their duty to him as they have provided adequate training and cannot be expected to know the employee is unable to read.

B. The employee will not have a claim. Although the employer has a duty to provide a safe system of work, they have reasonably delegated the performance of that duty to the foreman.

C. The employee will have a claim. The employer is in breach of their duty to provide a safe system of work as they should anticipate some employees may be unable to read and so provide alternative training. Their duty is also non-delegable so entrusting enforcement to the foreman will not prevent the employer being in breach of duty.
selected

D. The employee will not have a claim as the employer has acted reasonably and is not in breach of any duty owed to the employee.

E. The employee will have a claim as the duty owed by the employer is interpreted strictly by the courts.

Answer 43

Option C is the correct answer because the duty owed by an employer is a duty to take reasonable care, taking into account foreseeable risks. As it is foreseeable that some workers may not be able to read, providing only written training and warnings is likely to breach the duty to provide a safe system of work. This duty is also non-delegable (Wilsons & Clyde Coal Ltd v English [1938] AC 57) and so the employer will still be in breach of its duty if the foreman fails to enforce the wearing of gloves.

Option A is wrong because the standard of care expected of the employer will reflect foreseeable risk and it is foreseeable that not all employees can read.

Option B is wrong because the duty is non-delegable.

Option D is wrong because the employer is likely to be in breach of their duty as discussed above.

Option E is wrong because although the duty is strictly interpreted in that it is non-delegable, it remains a duty to take reasonable care. The employer is not therefore strictly liable.

Question 43

A man is injured at work. A forklift truck driver drives into an over-stacked shelving unit, causing it to fall onto the man’s foot. The man is wearing steel toe capped boots supplied by his employers.

The warehouse foreman was aware that the shelving was over-stacked. Although he had not done anything about it, he had cordoned off the area.

The forklift truck driver was driving the forklift for the first time. He had only started at the warehouse the week before and had received no training on how to operate it.

Which of the following statements best describes which common law duty the man’s employers have breached?

A. The duty to take reasonable steps to provide a safe place of work
selected

B. The duty to take reasonable steps to provide competent staff.

C. The duty to take reasonable steps to provide adequate equipment.

D. The duty to take reasonable steps to provide warning notices.

E. The absolute duty to ensure the safety of employees.

Answer 43

Option B is the best answer because the forklift truck driver is not competent. In not training the forklift truck driver or supervising him on the first time of driving it the man’s employer has not provided competent staff. Arguably leaving the shelves over-stacked shows that the supervisor is also lacking competence. Wilsons & Clyde Coal Co Ltd v English [1937] 3 All ER 628.

Option A is wrong because steps had been taken to cordon the area off around the over-stacked shelves.

Option C is wrong because adequate equipment has been provided.

Option D is wrong because the injury was not caused because of the lack of warning notices. Provision of warning notices is part of the safe system of work.

Option E is wrong because the duty is not an absolute one. It is a duty to take reasonable care.

Question 44

The claimant is employed by a bottle making factory as a machine operator. His employer has a number of machines which were recently serviced by a local contractor who negligently failed to identify a clear mechanical fault with the machine the claimant operated. As a result of this, the claimant cut his arm in the machine and damaged his shirt.

After the claimant had left the factory (after being treated by a first aider) he was knocked over by a lorry being negligently driven by an employee of a drinks supplier who was collecting bottles. The claimant suffered a broken ankle, needed hospital treatment and has had time off work.

Which of the following best describes who the claimant can pursue in tort?

A. The local contractor and the claimant’s employer.

B. The claimant’s employer, the local contractor, the lorry driver and the drinks supplier.

C. The claimant’s employer.

D. The local contractor and the drinks supplier.

E. The lorry driver, the claimant’s employer and the drinks supplier.

Answer 44

Option B is the best answer because the employer will be liable to the claimant in negligence for the cut arm as, although they have delegated the servicing of the machine to a local contractor, the employer’s duty is non-delegable. The contractor’s breach will place the employer in breach of duty. The local contractor will also be liable as they owe a duty to take reasonable care to avoid harm to those who can reasonably be expected to be affected by their work. The claimant is knocked down outside the factory so that incident is outside the scope of his employer’s duty to him. His claim for the broken ankle will be against the lorry driver in negligence. The drinks supplier will be vicariously liable for the actions of their employee driver.

Option A is wrong because it does not cover the claim for the broken ankle.

Option C is wrong because the claimant’s employer is not the only potential defendant.

Option D is wrong because it does not refer to the claimant’s employer or the lorry driver.

Option E is wrong because the claimant has a cause of action in tort against the local contractor on the facts.

Question 45

A woman’s employer carried out a risk assessment at their factory. The risk assessment indicated that single-use disposable gloves should be provided to all employees who handle a cleaning product that is known to be a cause of eczema.

Disposable gloves were regularly provided to employees for a short time after the risk assessment. However, the supply of gloves to employees was subsequently restricted by the employer because it decided that costs could be reduced by staff reusing the disposable gloves. Employees complained that the disposable gloves tended to rip and tear when they were taken off but the employer ignored the employees concerns.

A statutory regulation (the Regulation) states: ‘Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work…’

The woman handled the cleaning product regularly at work and has now contracted eczema.

Which statement best describes the potential claims in tort that the woman may be able to bring against her employer to obtain compensation for her eczema?

A. The woman cannot rely on the Regulation to bring a claim for breach of statutory duty. However, the breach of the Regulation can be relied on by the woman to prove breach of the employer’s duty in negligence.

B. The woman should rely on the Regulation to bring a claim for breach of statutory duty rather than negligence because the woman will not be required to prove a lack of reasonable care by her employer. Her employer will be strictly liable for their failure to comply with the Regulation.

C. The woman cannot rely on the Regulation to bring a claim for breach of statutory duty. Her claim in negligence is unlikely to be successful because her employer is entitled to consider the cost and practicality of providing the gloves.

D. The woman should not bring a claim for breach of statutory duty because her employer has complied with the Regulation by providing gloves to the employees. Her claim in negligence is also unlikely to be successful because her employer has complied with the Regulation.

E. The woman should rely on the Regulation to bring claims for both breach of statutory duty and for breach of the duty of care she is owed by her employer in negligence.

Answer 45

A is the correct answer. Breaches of statutory health and safety regulations cannot be relied upon by employees as the basis for a claim for breach of statutory duty (s.47 Health and Safety at Work … Act 1974). However, the content of such regulations will be relevant is assessing breach of duty in negligence. Here, while gloves were provided to staff, they were not suitable because staff were expected to reuse damaged gloves. A reasonable employer would have complied with the Regulation and the woman’s employer is likely to be found to have breached their duty of care.

B is wrong because the Regulation cannot be relied upon for a claim for breach of statutory duty. While it is correct that the wording of the Regulation does not require fault by the employer (‘shall ensure that suitable personal protective equipment is provided’), the claim in negligence does require the woman to prove a lack of reasonable care i.e. fault.

C is wrong because the cost and practicality of precautions is only one factor when considering whether an employer has breached their duty of care in negligence. The courts would also consider the magnitude of the risk to be prevented and the obligation imposed by the Regulation. It is likely, therefore, that the employer would be found liable in negligence if the employee can prove causation.

D is wrong because the Regulation cannot be relied upon for a claim for breach of statutory duty. In addition, the wording of the Regulation requires the employer to provide suitable gloves. The employer has not, therefore, complied with the Regulation.

E is wrong because the woman can only bring a claim in negligence.

Question 46

An employer’s duty to its employees is personal and non-delegable.

Which of the following best explains what this means?

A. The employer cannot delegate any of its responsibilities to a contractor.

B. The employer is held legally responsible for the harm caused by its employees.

C. The employer is held legally responsible when a contractor it employed is negligent.

D. The employer will have to pay any compensation personally rather than its insurance company.

E. The employer will have to fund the compensation paid by the contractor to the injured employee.

Answer 46

Option C is the correct answer.

Option A is wrong because the employer is free to delegate its responsibilities and tasks to contractors but the employer must ensure that the tasks are not performed negligently and as such remains legal responsible in the event that they are.

Option B is wrong because this is not an explanation of the nature of the employer’s duty towards its employees. An employer may be held vicariously liable for the torts of an employee in certain circumstances, however. (see Vicarious Liability chapter)

Option D is wrong because employer’s liability insurance is there precisely to fund any compensation an employer may have to pay.

Option E is wrong because the injured employee will make a claim against the employer. The employer then may seek to recover from the contractor any amount paid to the injured employee.

Question 47

An employee is employed in a paint factory. He recently suffered lung damage caused by inhalation of fumes when a fellow employee misread the amount of toner to be added to the paint and added ten times the correct amount. This started a chemical reaction in the paint which filled the factory with fumes. These fumes caused severe lung damage to the employee.

The employer always imposed strict safety precautions to prevent such incidents and has provided all employees with extensive training. However, on this occasion the precautions were not taken as the fellow employee was in a hurry and did not read the instructions. Both employees have excellent disciplinary records and are usually very careful.

Will the injured employee be able to claim damages from the employer?

A. Yes, because the employer breached its absolute duty to ensure a safe system of work and supervision.

B. No, because the employer had no reason to suspect that the fellow employee would do something dangerous and so has taken reasonable care.

C. Yes, because the employer failed to take reasonable steps to provide competent fellow staff.

D. No, because the employees had all received training and that is sufficient to show that reasonable care has been taken.

E. Yes, because the employer was under a duty to provide safe premises and breached this as the factory was filled with fumes.

Answer 47

Option B is the correct answer because we are told that the employee was usually very careful but here had added too much toner because he was rushing. We are also told the employer always imposed strict safety precautions to prevent such incidents and has provided all employees with extensive training. The employer has therefore taken reasonable care as in Wilsons & Clyde Coal Co Ltd v English [1937] 3 All ER 628.

Option A is wrong because the employer had trained the employees and imposed strict safety precautions. The duty is to take reasonable care to provide a safe system of work and supervision.

Option C is wrong because there was nothing to suggest that the fellow employee was known to the employer to be problematic. The employee has an excellent disciplinary record and is usually very careful.

Option D is wrong because the provision of training is only part of the safe system of work.

Option E is wrong because the premises themselves were safe, although an activity conducted on the premises caused harm.

Question 48

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.
selected

E. Yes, because the employer owes an established duty of care to each of its employees.

Answer 48

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] 3 All ER 628)

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] 1 All ER 404).

Question 49

A man goes to a hospital’s Accident and Emergency department complaining of chest pains. He is discharged without being admitted to hospital.

One hour after returning home, the man collapses and dies after suffering from a heart attack. This is witnessed by his elderly aunt. The man was 47 years old and had lived with his aunt since his mother’s death when he was he was aged 17.

The aunt is now suffering from clinical depression due to the shock caused by her nephew’s death.

Is it likely that the hospital will owe a duty of care to the man’s aunt in negligence?

A. No, because it would not be fair, just or reasonable to impose a duty of care on the hospital.

B. No, because the aunt was never at risk of a physical injury.

C. No, because the aunt - nephew relationship is not within the category of close-relationships of love and affection.

D. Yes, because the man and his aunt were in a close-relationship of love and affection.

E. Yes, because the hospital owed the man an established duty of care.

Answer 49

D is the correct answer. The aunt has suffered pure psychiatric harm (PPH) and must, therefore satisfy the Alcock test. The main issue on these facts is whether she would satisfy the necessary proximity of relationship. While the aunt-nephew is not within the types of presumed close -relationship of love and affection (e.g. mother-son), the facts indicate that they are in such a relationship. C is therefore wrong.

A is wrong because the Caparo factors are not relevant in determining whether a duty of care is owed for PPH.

B is wrong because, under the Alcock test, PH and not physical harm needs to be foreseeable.

E is wrong because the established duty the hospital owed the man is not relevant to whether the aunt is owed a duty of care.

Question 50

A solicitor has been instructed by two shareholders: a man and a woman. They were both attending the company annual general meeting when a car driver lost control of their vehicle and crashed into the queue of people waiting to get into the meeting. The man was in the queue. He suffered a minor injury to his shoulder but has also been diagnosed with post-traumatic stress disorder (PTSD). The woman was on the other side of the road at the time and saw the accident take place. She has also been diagnosed with PTSD.

Which of the following statements best explains whether the clients would be compensated for their PTSD if the car driver’s negligence was proven to have caused their loss?

A. Neither the man nor the woman would receive compensation for their PTSD because they have suffered pure psychological harm.

B. Both the man and the woman would receive compensation for their PTSD because there is an established duty of care between road users and pedestrians.

C. Only the man would receive compensation for their PTSD because he is owed a duty of care for his pure psychological harm as he is a primary victim. The woman would not be owed a duty of care for her pure psychological harm as she is neither a primary victim nor a secondary victim.

D. Only the man would receive compensation for their PTSD because there is an established duty of care between road users and pedestrians. However, the woman would not be owed a duty of care for their pure psychological harm as she is neither a primary victim nor a secondary victim

E. Only the man would receive compensation for their PTSD because there is an established duty of care between road users and pedestrians. However, the woman’s PTSD is too remote.

Answer 50

Option D is correct.

Option A is wrong because the older man has not suffered pure psychological harm (PPH) as his PTSD has been caused by a physical impact. His PTSD would be compensated for as part of the pain and suffering for the physical injury. It is correct, however, the younger woman has suffered PPH and that she would not be compensated for this (see further below).

Option B is wrong because, while there is an established duty of care between road users and pedestrians, this would not assist the younger woman as she has suffered PPH. The established duty is only relevant for personal injury or property damage and not for PPH.

Option C is wrong because the older man has not suffered PPH. He is owed a duty of care because he has suffered a physical injury and the established duty of care between road users and pedestrians applies. His PTSD would be covered under this established duty and the older man would not have to rely on the special rules that apply for PPH. (The test for a primary victim (PV) only applies for PPH, ie psychological harm without physical impact.) It is correct, however, that the younger woman would not be owed a duty of care for her PPH as she is neither a PV nor a secondary victim (SV). She was not a PV as she was not in the ‘danger zone’ when the car crashed. There is also nothing on the facts to suggest that she had a close relationship of love and affection with any person who was physically endangered by the car driver. She would not, therefore, be classed as a SV as she would not satisfy all the Alcock control mechanisms.

Option E is wrong because the younger woman would not be owed a duty of care for her PTSD. The claim would therefore fail at the duty of care stage and the question of remoteness is, therefore, irrelevant.

Question 51

A father was not present at the birth of his first child. Unknown to him his child had suffered negligent complications during her birth. Upon visiting the hospital 2 hours after the birth, the receptionist silently escorted him to the special care baby unit. He saw his child with drips and monitors attached to her, and then he witnessed her suffer a convulsion. Thereafter, he suffered flashback and nightmares and was diagnosed with post-traumatic stress disorder.

Which option best identifies whether a claim by the father will be successful?

A. The father will have a successful claim for psychiatric harm because he has developed a recognised psychiatric condition as a result of witnessing a sudden shocking event (the convulsion) happen to his child, in the immediate aftermath of the negligence, with his own unaided senses.

B. The father will have a successful claim for psychiatric harm because he has developed a recognised psychiatric condition, which was caused by a violent assault upon the senses (the convulsion), and he falls within a class of claimants who are presumed to have ties of close love and affection.

C. The father will not have a successful claim in negligence as he did not witness the negligence which occurred during the birth. He was not proximate in time and space to the incident which caused the baby to suffer the convulsion.
selected

D. The father will not have a successful claim because the reasonable person when being escorted into the special care baby unit would appreciate that he may see his child connected to machines and drips and that the child may be unwell and therefore this cannot constitute a singular horrifying event.

E. The father will not have a successful claim in negligence as two hours is too long a period of time to constitute him being there in the immediate aftermath of the negligence.

Answer 51

Option A is correct because the father has a claim in negligence as a secondary victim against the Hospital Trust. The elements to be established are set out in Alcock v. Chief Constable of South Yorkshire [1991] 4 All ER 907 (1) the claimant must have suffered a recognised psychiatric illness which would have been foreseeable in a person of ordinary fortitude – this is established (2) the incident must constitute a sudden shocking event, or violent assault on the senses, it must be sufficiently horrifying, a gradual appreciation is not sufficient – the convulsion satisfies this criteria (3) he must have close ties of love and affection with the primary victim, this is assumed between a parent and child. (4) he must have been proximate in time and space to the accident or its immediate aftermath, he is likely to be deemed to have witnessed the immediate aftermath (5) he must have had a direct appreciation of the accident or immediate aftermath with his own unaided senses which of course he did.

B is wrong because it does not reference all of the necessary elements for a claim to be successful, it only references 3 of the above named elements.

C is wrong because it is likely that the father would be deemed to have been there in the immediate aftermath as in McLoughlin v. O’Brian [1982] 2 All ER 298. Further there is a growing body of cases in the area of clinical negligence stating that the victim needn’t be proximate to the negligence itself but the consequences of it Paul & Paul v. Royal Wolverhampton NHS Trust [2020] EWCH 1415 (QB).

D is wrong because witnessing a baby, with no prior knowledge of any medical condition, suffering a convulsions as a result of negligence is likely to constitute a sudden shocking horrifying event, North Glamorgan NHS Trust v. Walters [2002] EWCA Civ 1792, [2003] PIQR P16, whereas seeing a loved one, in a known hospital setting, with a known condition, provokes an expectation of seeing ‘machines and drips’ and is unlikely to be sufficiently horrifying Liverpool Women’s Hospital NHS Foundation Trust v. Ronayne [2015] EWCA Civ 588.

E is wrong because it is likely that the father would be deemed to have been there in the immediate aftermath as in McLoughlin v. O’Brian [1982] HL where the mother was present at the hospital two hours after the negligent accident occurred.

Question 52

After a long and meticulous tendering process, an employer chose an independent contractor to clean its laboratory.

An employee is injured due to slipping on part of the laboratory floor that had not been properly cleaned. The accident occurred because the independent contractor had instructed its staff to use a lower quality cleaning product than the one detailed in the contract it had with the employer. The employer was unaware of this fact.

Is the claim that the employee has brought against their employer in tort likely to succeed?

A. Yes, because the independent contractor has failed to take reasonable care.

B. Yes, because the employer is vicariously liable for the negligence of the independent contractor.

C. No, because the employer took reasonable care in selecting the independent contractor.

D. No, because the employer was not aware that the independent contractor had used a lower standard cleaning product.

E. No, because the employer cannot be held vicariously liable for the acts of the independent contractor.

Answer 52

A is the correct answer. The employer’s duty to provide a safe workplace is non-delegable. The practical effect of this is that the employer will be liable if reasonable care has not been taken ie they may have delegated the task of cleaning to the contractor but they cannot delegate responsibility for carrying out the task negligently. This responsibility is not eliminated by the employer taking reasonable care in the selection of the contractor or a reasonable belief that the contractor was competent. Options C and D are therefore wrong.

Option B is wrong because an employer cannot be held vicariously liable for the actions of an independent contractor (Barclays Bank v Various Claimants [2020]). While option E is correct in this regard, it is wrong overall because it fails to take account of the personal liability of the employer in negligence.

Question 53

A client arrives slightly drunk at a bar. He has a row with one of the doormen who is employed by the bar owner. One hour later the doorman’s shift finishes. He waits outside the club until the client comes out. The doorman punches the client and causes him very serious injury.

Which of the following statements best explains any liability in respect of the client’s injury?

A. The client should sue the doorman as this was an intentional act for which the bar owner can never be held vicariously liable.

B. The client should sue the doorman and the bar owner on the basis that there was a close connection between his employment and the punch so the bar owner is likely to be vicariously liable.

C. The client should sue the doorman and the bar owner on the basis that the bar owner should be vicariously liable for the criminal actions of his employees.

D. The client should sue the doorman because the bar owner received no benefit from the doorman’s actions and therefore cannot be vicariously liable.

E. The client should sue the doorman as the incident happened outside the doorman’s place of employment and outside working hours so the bar owner can never be vicariously liable.

Answer 53

Option B is the best answer because an employer can be liable for any tort committed by an employee in the course of their employment. The test applied when an intentional act has been committed by an employee is whether there is a sufficiently close connection between the tortious act and the employee’s employment (Lister v Hesley Hall Ltd [2001] 2 All ER 769). Arguably this is the case here as the facts are similar to Mattis v Pollock [2003] EWCA Civ 887.

Option A is wrong because an employer can be vicariously liable for an intentional act.

Option C is wrong because this is not the correct test for vicarious liability.

Option D is wrong because the employer can be liable regardless of whether they have derived any benefit from the employee’s actions.

Option E is wrong because an employer can be held vicariously liable for acts carried out by its employees even if they take place outside of normal working hours and the normal place of work, provided there is a sufficiently close connection with the employee’s employment (see Lister, above).

Question 54

A solicitor is instructed by a homeware store in relation to a claim for damages for personal injury that one of its customers is bringing against it.

One of the homeware’s employees was employed to collect up shopping trolleys from the homeware store’s car park. As the employee was pushing a long row of trolleys they lost control of them. They crashed into a car owned by the customer’s son.

The customer of the homeware store witnessed these events. They went to the store manager and reported what they had seen, making it clear that the accident was the employee’s fault. The employee overheard this conversation and became very angry. As the customer left the store the employee followed them out and attacked them in the car park. The employee pushed the customer violently causing them to fall to the floor, breaking the customer’s jaw.

Which of the following statements best explains whether the homeware store will be vicariously liable for the injury to the customer?

A. Yes, because the employee committed a tort during the course of their employment; there was a sufficiently close connection between the employee’s job and the tort they committed to make it fair and just for the employer to be held liable for the employee’s actions.

B. Yes, because the employee committed a tort during the course of their employment; there was a sufficiently close connection between the employee’s job and the tort they committed.

C. No, because, while the employee committed the tort during the course of their employment, the employee’s actions were intentional and employers can only be held vicariously liable for the negligent acts of their employees.

D. No, because the employee committed an intentional tort which did not benefit the employer’s business and it would not be fair or just to impose liability on the employer.

E. No, because, while the employee committed the tort during the course of their employment, it would not be fair or just to hold the employer vicariously liable for an act which did not benefit the employer’s business.

Answer 54

Option A is the correct answer as it sets out all the elements that are required before an employer will be held vicariously liable for the intentional acts of their employees.

Option B is wrong as it omits the element of the ‘course of employment’ requirement that it must be fair and just to impose liability on the employer.

Option C is wrong because an employer will be held liable for any torts committed by their employees during the course of their employment. This includes intentional torts (in this case, the tort of trespass to the person).

Option D is wrong because it is not a requirement that the tort must benefit the employer’s business. Employers can be vicariously liable for employees’ intentional torts that only benefit the employees as long as the tort is carried out during the course of their employment.

Option E is wrong for the same reason as option D. In addition, if the employee did act in the course of their employment, then it will have been decided that it was fair and just to impose liability on the employer as this is an element of the course of employment requirement.

Question 55

A solicitor’s client is an elderly woman who lives a supervised living facility for elderly people with mobility issues.

Next to the facility is a fish & chip shop run by a couple and their adult son (the Owner).

Residents at the facility form a large part of the shop customers and your client is a regular on Fridays when the shop is extremely busy. The floor of the shop is covered by old linoleum tiles.

The recent weather has been non-stop heavy rain.

Last Friday, another rainy day, the solicitor’s client entered the shop for her usual order when she slipped on the wet floor and broke her hip.

The Owner stated that all three of them were busy dealing with customers and could not both serve and mop the floor being such a small business.

They were planning on installing non-slip tiles when their income would permit but had not been able to afford it yet.

Which of the following statements best describes a court’s approach to breach of duty by the Owner?

A. The Owner’s standard of care will be compared to that of the reasonable shop owner with the same financial ability. Since the cost of taking precaution was too high, the owner would not be found to be in breach.

B. The Owner’s standard of care will be compared to that of the reasonable shop owner in the circumstances. Since the circumstances were that the floor was slippery floor because of a natural occurrence, the Owner would not be found to be in breach.

C. The Owner’s standard of care will be compared to that of the reasonable shop owner in the circumstances. Since the circumstances were that there was an obviously foreseeable risk of harm to an elderly person, the Owner would be found to be in breach.

D. The Owner’s standard of care will be compared to that of the reasonable shop owner in the circumstances. Since in the circumstances there was a foreseeable risk of serious harm the cost of taking precautions does not prevent the Owner from being in breach.

E. The Owner’s standard of care will be compared to that of the reasonable shop owner in the circumstances. Since the fish & chip shop has great social value to the locals, the Owner would not be found to be in breach.

Answer 55

Option D is the correct answer. The court will balance the factors and since the risk of the accident was high (Bolton v Stone) and the seriousness of the harm was potentially serious due to the cross-section of customers (Paris v Stepney BC), lack of financial means does not preclude breach. Unlike in Latimer v AEC Ltd, the defendant did not take all reasonable precautions. Here at the very least, regular mopping should have occurred regardless of how busy the shop was.

Option A is wrong because financial ability is considered as part of the circumstances to weigh the risks involved, not as a feature of the reasonable person.

Option B is wrong because the reason for the risk here was failure to keep the floor dry and not the rainfall.

Option C is wrong because likelihood of harm is only one of the factors to be considered alongside others.

Option E is wrong because the social value relates to the nature of the risk taken not to the nature of the business or activities in which the defendant engages.

Question 56

A solicitor is instructed by a client who is claiming damages for her broken leg which she suffered when she recently attended an art gallery. The client had purchased a ticket to enter the gallery. Whilst at the gallery the client walked through a hallway having read the notice at the entrance door of the hallway which said “Beware, uneven floor tiles”. The client broke her leg when she tripped over an uneven floor tile in the hallway.

Does the occupier of the art gallery owe a duty of care to the client in respect of her injuries?

A. Yes, because the occupier is aware of the danger, knew that others might come within the vicinity of the danger and the risk of injury is one they ought reasonably to have offered protection against.

B. Yes, because under statute a duty of care is owed by occupiers to visitors of their premises to ensure their visitors are reasonably safe.
selected

C. No, because the client knew of the danger and voluntarily agreed to the risk of injury when she entered the hallway.

D. No, because the client has suffered injuries as a result of her own activity rather than because of the state of the premises.

E. No, because the warning of the danger at the entrance of the hallway enabled the visitor to be reasonably safe.

Answer 56

Option B is correct. Under the Occupiers’ Liability Act 1957 the occupier of premises owes a duty of care to their visitors to ensure they are reasonably safe. Here the client is a visitor as she had express permission to enter the gallery when she purchased a ticket.

Option A is wrong. These are the requirements that need to be satisfied to establish a duty of care is owed by an occupier to a non-visitor to their premises. On the facts the client is a visitor.

Option C is wrong. These requirements need to be established for the defence of volenti to apply whereas the question is asking about duty of care,

Option D is wrong because on the facts the client has suffered injuries as a result of the state of the premises ie the uneven floor tiles rather than as a result of their own activity.

Option E is wrong because the warning is relevant to the issue of breach of duty of care whereas the question is asking about the existence of the duty of care.