SQE1 - Solicitors Qualifying Examination Part 1 The Law of Tort Questions and Answers — Questions and Answers
Question 1: A courier, employed by a delivery company, gets into an argument with a customer on their doorstep about a delivery instruction. The argument escalates, and the courier, feeling insulted, follows the customer into their garden and assaults them. The customer sues the delivery company on the basis of vicarious liability. Based on the precedent in *Mohamud v WM Morrison Supermarkets plc*, is the company likely to be held vicariously liable?
- No, because the assault was an intentional criminal act, not a negligent one.
- No, because the courier was acting outside the scope of his duties, which were limited to delivering parcels at the door.
- Yes, because the assault arose from an interaction that was directly within the courier's field of activities, which is interacting with customers. (Correct answer)
- Yes, but only if the company had failed to carry out adequate background checks on the courier before employing him.
Correct answer: Yes, because the assault arose from an interaction that was directly within the courier's field of activities, which is interacting with customers.
The Supreme Court in *Mohamud v WM Morrison Supermarkets plc* established a two-stage test for vicarious liability: 1) Is the relationship one of employment or akin to employment? 2) Is the tort sufficiently closely connected with the employment? In *Mohamud*, an employee's assault on a customer, which started at his kiosk and continued on the forecourt, was deemed to be within the 'field of activities' assigned to him (attending to customers). The courier's argument and subsequent assault originated from his authorised duty of customer interaction, creating a sufficient connection to make the employer liable, even though the act itself was a gross abuse of his position. [3, 19, 42] The other options are incorrect as vicarious liability can apply to intentional torts, the 'field of activities' can be broadly interpreted, and the liability is strict, not dependent on the employer's own negligence.
Question 2: Which of the following statements most accurately compares the duty of care owed by an occupier under the Occupiers' Liability Act 1957 (to lawful visitors) and the Occupiers' Liability Act 1984 (to trespassers)?
- The 1957 Act imposes a duty to ensure visitors are completely safe, whereas the 1984 Act imposes a duty to warn of obvious dangers.
- Both Acts impose the same 'common duty of care', but the 1984 Act allows for this duty to be more easily discharged through warnings.
- The 1957 Act allows for claims for property damage, while the 1984 Act restricts claims to death and personal injury only. (Correct answer)
- A duty under the 1957 Act is owed automatically to all lawful visitors, whereas a duty under the 1984 Act is only owed for dangers the occupier created deliberately to harm trespassers.
Correct answer: The 1957 Act allows for claims for property damage, while the 1984 Act restricts claims to death and personal injury only.
The Occupiers' Liability Act 1957 provides that the common duty of care extends to keeping the visitor and their property reasonably safe. [6] In contrast, the Occupiers' Liability Act 1984, which governs the duty to non-visitors (trespassers), explicitly states that the duty is in respect of death or personal injury and does not extend to damage to property. [8, 12] The other options are incorrect. The 1957 Act requires reasonable safety, not complete safety. The duties under the two acts are different; the duty to a trespasser only arises if specific conditions regarding the occupier's knowledge of the danger and the trespasser's presence are met. [10, 21] The duty under the 1984 Act is not restricted to deliberately created dangers.
Question 3: A restaurant diner posts a negative online review stating, 'In my opinion, the chef at this restaurant has no talent. The steak I ate last night was tough and flavourless, which an honest person would say is evidence of this.' The restaurant owner sues the diner for defamation. Which defence under the Defamation Act 2013 is the diner most likely to rely on?
- Truth
- Honest Opinion (Correct answer)
- Public Interest
- Absolute Privilege
Correct answer: Honest Opinion
The defence of Honest Opinion, under section 3 of the Defamation Act 2013, is the most appropriate defence. [14, 23] This defence requires three conditions to be met: (1) the statement must be one of opinion, not fact; (2) the statement must indicate the basis of the opinion; and (3) an honest person could have held that opinion based on a fact that existed at the time. [5, 18] The diner's statement is framed as an opinion ('In my opinion...') and provides the basis for it (the tough steak). The 'Truth' defence would be difficult as 'no talent' is a subjective judgment, not a provable fact. 'Public Interest' is unlikely to apply to a simple restaurant review, and 'Absolute Privilege' applies to specific situations like parliamentary or court proceedings.
Question 4: In a claim for private nuisance, a court will assess whether the defendant's use of their land constitutes an 'unreasonable interference' with the claimant's enjoyment of their land. Which of the following factors is the court LEAST likely to consider relevant in this assessment?
- The duration and frequency of the interference.
- The character of the neighbourhood or 'locality'.
- Whether the defendant acted with malice.
- The financial resources of the defendant. (Correct answer)
Correct answer: The financial resources of the defendant.
When determining if an interference is unreasonable in private nuisance, courts consider several factors, including the locality (what is a nuisance in a quiet residential area may not be in an industrial one), the duration and frequency of the act, the sensitivity of the claimant, and the presence of malice on the part of the defendant. [28, 30] However, the defendant's financial resources or ability to pay damages is not a factor in determining whether their actions constitute a nuisance in the first place. The assessment is based on the nature and impact of the interference itself, not the defendant's wealth.
Question 5: In a personal injury claim, damages are often categorised as either general or special. Which of the following would be classified as special damages?
- Compensation for the physical pain and suffering caused by the injury.
- Compensation for the loss of enjoyment of a hobby, such as playing a sport.
- The cost of prescription medication and physiotherapy incurred up to the date of the trial. (Correct answer)
- Damages for the psychological impact, such as post-traumatic stress disorder.
Correct answer: The cost of prescription medication and physiotherapy incurred up to the date of the trial.
Special damages are awarded for a claimant's quantifiable financial losses that have been incurred up to the date of trial. [48] These are losses that can be precisely calculated, such as medical expenses, travel costs for appointments, and loss of past earnings. [29, 40] General damages, on the other hand, are for non-quantifiable losses like pain, suffering, loss of amenity (enjoyment of life), and psychological harm, which are assessed by the court based on judicial guidelines. [25, 47]
Question 6: A premature baby suffers blindness. A junior doctor's negligence meant the baby received excessive oxygen at one point, which is a known potential cause of the condition. However, there were four other non-negligent potential causes related to the premature birth. The claimant cannot prove on the balance of probabilities that the negligent oxygen administration was the specific cause. What is the likely outcome regarding causation, based on the principle in *Wilsher v Essex Area Health Authority*?
- The claimant will succeed because the doctor's negligence materially increased the risk of the harm occurring.
- The claimant will fail because they cannot prove, on the balance of probabilities, that 'but for' the negligence, the harm would not have occurred. (Correct answer)
- The burden of proof will reverse, requiring the hospital to prove their negligence did not cause the blindness.
- The court will apportion liability between the negligent cause and the non-negligent causes.
Correct answer: The claimant will fail because they cannot prove, on the balance of probabilities, that 'but for' the negligence, the harm would not have occurred.
The case of *Wilsher v Essex Area Health Authority* established that where there are several distinct potential causes of an injury, the claimant must still prove on the balance of probabilities that the defendant's negligence was the cause. [2, 9, 20] The 'but for' test applies. [27, 37] The House of Lords held that the 'material increase in risk' argument (from *McGhee*) does not apply in cases with multiple different causal agents. [9, 26] Therefore, as the claimant cannot establish that the negligence was the operative cause over the other four possibilities, the claim for causation will fail. The burden of proof does not reverse in such circumstances.
SQE1 - Solicitors Qualifying Examination Part 1 The Law of Tort Questions and Answers
A courier, employed by a delivery company, gets into an argument with a customer on their doorstep about a delivery instruction.
The argument escalates, and the courier, feeling insulted, follows the customer into their garden and assaults them.
The customer sues the delivery company on the basis of vicarious liability.
Based on the precedent in *Mohamud v WM Morrison Supermarkets plc*, is the company likely to be held vicariously liable?