SQE1 Tort

Tort · Duty of care

Constable Reid was chasing a shoplifter through a crowded market. He tackled the suspect carelessly, and both men fell against a stall. Parts of the stall collapsed and injured Mrs Idowu, a stallholder. She sues the chief constable. The chief constable argues that police owe no duty of care to members of the public when carrying out arrests, for policy reasons. Which of the following is the best analysis?

1. There is no duty, because the police have a general immunity from negligence claims when making arrests.
2. There is a duty only if Mrs Idowu shows that the Caparo three-stage test is satisfied on these facts.
3. The police owe a duty to take reasonable care not to cause foreseeable physical injury by their own positive acts, as any other person would.
4. There is a duty only if the police had assumed responsibility for her safety before the arrest.
5. There is no duty, because the harm was caused by the shoplifter's wrongdoing and not by the police.

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Answer: C. A person owes a duty of care to take reasonable care not to cause foreseeable physical injury by positive acts. The Supreme Court in Robinson v Chief Constable of West Yorkshire Police held that the police are subject to the ordinary law of negligence in this respect. The Caparo test is not a universal three-stage test to be applied afresh. Courts follow established categories and develop the law incrementally by analogy. Immunity and the policy concerns in Hill v Chief Constable of West Yorkshire relate to failures to protect the public from third parties, which are omissions. Constable Reid's careless tackle was a positive act. The tempting answer is that police have immunity. That is not the law.

Robinson v Chief Constable of West Yorkshire [2018] UKSC 4; Caparo Industries plc v Dickman [1990] 2 AC 605

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Tort · Duty of care: omissions and third parties

Calder Developments Ltd owned an empty warehouse awaiting demolition. It had locked the doors and fixed the fence. It had never had any trespassers, vandalism or fires on site. One night, unknown intruders broke in and started a fire. The fire spread to the neighbouring premises of Pip's Bakery, which was destroyed. Pip's Bakery sues Calder, arguing that an owner of land is liable for any fire that begins there. Which of the following is the best analysis?

1. Calder is liable, because an occupier is strictly liable for fire spreading from its land.
2. Calder is liable, because it created the danger by leaving the building empty.
3. Calder is not liable only because the intruders' crime breaks the chain of causation in every case.
4. Calder is liable, because a neighbour is always owed a duty to protect against every foreseeable risk.
5. Calder is unlikely to be liable, because there is generally no duty to prevent third parties causing harm unless the owner knew or should have known of a real risk.

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Answer: E. The law does not generally impose a duty to prevent harm caused by the deliberate acts of third parties. In Smith v Littlewoods Organisation, owners of an empty cinema were not liable for fire started by vandals that spread to neighbouring property, because they had no knowledge of the risk of such an act and no previous warning. A duty may arise where the defendant creates the danger or has control and knowledge of a real risk (Home Office v Dorset Yacht; Lord Goff in Smith). Calder had secured the building and had no history of trespass or fire. The tempting answer is that occupiers are liable for fires on their land. Ordinary fire liability depends on negligence and on duty.

Smith v Littlewoods Organisation Ltd [1987] AC 241; Home Office v Dorset Yacht Co Ltd [1970] AC 1004

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Tort · Breach of duty: standard of care

Lucas, a learner driver in his first week of lessons, was driving on a quiet road with his instructor, Mrs Fry, in the passenger seat. He failed to brake in time and struck Kamal, a pedestrian on a crossing, causing a broken leg. Lucas's solicitor says that Lucas should be judged against the standard of a beginner and so was not negligent. Which of the following is the best statement of the standard of care?

1. Lucas is judged against the standard of a reasonable learner driver at the same stage of lessons.
2. Lucas is judged against the standard of the reasonably competent and experienced driver, whatever his own experience.
3. Lucas is judged against the standard of a reasonable person who does not hold a driving licence.
4. Lucas is judged against the standard of his driving instructor, who was responsible for supervising him.
5. Lucas is judged against a lower standard if he shows that he did his personal best.

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Answer: B. The standard of care in negligence is objective: the reasonable person in the defendant's position. For driving, Nettleship v Weston held that a learner driver is judged against the standard of a reasonably competent and experienced driver. Road users are entitled to expect the same safe driving, and liability is not reduced because of inexperience. Lucas therefore breached his duty if a competent driver would have braked in time. Kamal is not concerned with Lucas's skill. The tempting answer is a lower standard for learners. The law refuses this because the test protects other road users, and compulsory insurance means the loss is usually met by the insurer.

Nettleship v Weston [1971] 2 QB 691

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Tort · Causation

Sunita attended A&E at 8 pm complaining of severe vomiting after drinking tea at work. The duty doctor, without examining her, sent her home. Sunita died at 2 am from arsenic poisoning. Expert evidence is that, even if the doctor had examined her and given the correct treatment at once, she would have died at the same time because the antidote could not have been given in time. Her husband sues the hospital in negligence. Which of the following is the likely outcome?

1. The claim fails on causation, because Sunita would have died anyway and the breach made no difference.
2. The claim succeeds, because the doctor owed a duty and breached it by failing to examine Sunita.
3. The claim succeeds in part, because the doctor's breach materially contributed to the death.
4. The claim succeeds, because the hospital caused a loss of a chance of survival.
5. The claim fails, because a doctor can never be liable for a failure to examine.

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Answer: A. The claimant must prove on the balance of probabilities that the defendant's breach caused the damage. The primary test is the but for test: would the harm have occurred but for the breach? In Barnett v Chelsea and Kensington HMC, hospital staff negligently failed to examine a man who had arsenic poisoning, but he would have died anyway, so the claim failed. Here, the evidence shows Sunita would have died at the same time with proper treatment. The breach made no difference. The tempting answer is that the duty and breach settle liability. Causation is a separate element and can defeat the claim.

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428

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Tort · Causation: material increase in risk

Mr Hollis developed mesothelioma at age 70. In his working life he was negligently exposed to asbestos dust by three different employers, each for several years. Mesothelioma can be triggered by a single fibre, and medical science cannot show which employer's exposure caused the disease. Two of the employers are still solvent. Mr Hollis sues them. They argue that he cannot satisfy the but for test against either one. Which of the following is the best analysis?

1. The claim fails, because he cannot prove on the balance of probabilities which employer caused the disease.
2. The claim succeeds only against the employer with the longest exposure, as that is the most probable cause.
3. The claim succeeds only for a share of damages, proportionate to each employer's exposure, and the claimant bears any shortfall.
4. The Fairchild exception applies, and each responsible employer may be liable for the whole damage, subject to contribution between them.
5. The claim succeeds against both employers because the but for test is never applied to industrial disease.

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Answer: D. Normally the claimant must prove causation on the balance of probabilities by the but for test. In Fairchild v Glenhaven Funeral Services, the House of Lords created an exception for mesothelioma, where a defendant who negligently exposed the claimant to asbestos and materially increased the risk of the disease is liable even if the claimant cannot show which exposure caused it. Section 3 of the Compensation Act 2006 reversed the effect of Barker v Corus and makes each responsible person liable for the whole damage, with the right to claim contribution from the others. Mr Hollis may therefore recover in full from either solvent employer. The tempting answer is that he must fail on the but for test. The exception was created because of the evidential impossibility.

Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; Compensation Act 2006, s 3

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Tort · Remoteness of damage

Moira worked in a foundry. Her employer negligently failed to provide a visor, and a splash of molten metal burned her lip. The burn was a foreseeable injury. Unknown to anyone, she had a dormant pre-cancerous condition in the lip tissue. The burn triggered it, she developed cancer, and she died three years later. Her employer argues that cancer was not a foreseeable result of a burn. Which of the following is the best analysis?

1. The employer is liable only for the burn, because the cancer was a different and unforeseeable type of harm.
2. The employer is not liable for anything, because the cancer was a novus actus interveniens.
3. The employer is liable for the cancer only if the specific condition was known to the employer.
4. The employer is liable for the cancer, because a foreseeable type of harm occurred and the defendant takes the claimant as found.
5. The employer is liable for the cancer, because remoteness does not apply to personal injury cases.

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Answer: D. Damage must not be too remote. Under The Wagon Mound (No 1), the claimant recovers for damage of a type that was reasonably foreseeable. Once a type of harm is foreseeable, the defendant is liable for its full extent, and takes the victim as found (the eggshell skull rule). In Smith v Leech Brain, a burn on the lip from molten metal triggered cancer in a man with a latent predisposition, and the employer was liable for his death. Moira's employer could foresee a burn. It need not have foreseen the cancer or her susceptibility. The tempting answer is to separate the cancer as a new type of harm. The courts treat it as a consequence of the foreseeable burn.

Overseas Tankship (UK) Ltd v Morts Dock (The Wagon Mound) (No 1) [1961] AC 388; Smith v Leech Brain & Co Ltd [1962] 2 QB 405

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Tort · Causation: novus actus interveniens

Gareth's leg was negligently injured in a collision caused by Neville. As a result, the leg would sometimes give way without warning. Two weeks later, Gareth, who knew this, went down a steep flight of steps without a handrail while carrying his child. His leg gave way, and to avoid dropping the child, he jumped and broke his ankle. Neville accepts liability for the first injury. Which of the following is the best analysis of the ankle injury?

1. Neville is probably not liable, because Gareth's unreasonable conduct was a new intervening act that broke the chain of causation.
2. Neville is liable, because the ankle injury would not have happened but for the original collision.
3. Neville is liable, because a defendant is liable for all injuries following from his tort.
4. Neville is liable for the ankle, but damages are reduced by contributory negligence only.
5. Neville is not liable, because the original leg injury had already healed.

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Answer: A. Causation requires both factual causation (but for) and legal causation. A claimant's later act can break the chain if it is so unreasonable as to be a new cause of the further damage (novus actus interveniens). In McKew v Holland & Hannen & Cubitt, the claimant's leg, weakened by the defendant's negligence, gave way as he went down steep stairs without a handrail, holding a child. He jumped and was injured. The House of Lords held that his conduct was unreasonable and broke the chain. Gareth's facts are similar. The tempting answer is that the original collision caused everything. Where the claimant's later conduct is unreasonable, the court treats it as the cause of the additional injury.

McKew v Holland & Hannen & Cubitt (Scotland) Ltd [1969] 3 All ER 1621

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Tort · Contributory negligence

Jonas, a front-seat passenger, was not wearing his seat belt when a car driven by Tilly collided with another vehicle because Tilly was negligent. Jonas suffered head injuries that the medical evidence says would have been less severe, but not wholly prevented, if he had worn the belt. His damages are assessed at £80,000 before any reduction. Which of the following is the likely outcome?

1. His damages will be reduced by 25%, because the failure to wear a belt always attracts that reduction.
2. His damages will not be reduced, because failing to wear a belt is not fault if the driver was negligent.
3. His claim will fail, because he consented to the risk by not wearing a belt.
4. His damages will be reduced by 50%, because both parties' fault was equal.
5. His damages will probably be reduced by about 15%, to £68,000, under the Law Reform (Contributory Negligence) Act 1945.

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Answer: E. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, where the claimant's damage is partly the result of their own fault, damages are reduced to the extent the court thinks just and equitable. In Froom v Butcher, the Court of Appeal gave guidelines for seat belt cases: a 25% reduction if wearing the belt would have prevented the injury altogether, and 15% if it would have made it less severe. Jonas's injuries would have been lessened. A 15% deduction reduces £80,000 to £68,000. The tempting answer is 25%. That applies only where the belt would have wholly prevented the injury.

Law Reform (Contributory Negligence) Act 1945, s 1(1); Froom v Butcher [1976] QB 286

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Tort · Defences: volenti non fit injuria

Dara and Ellis spent an evening drinking together at a pub. Ellis said he had drunk far too much to drive. Dara, knowing this, accepted a lift home. Ellis drove negligently and crashed, and Dara suffered serious injuries. Ellis's insurer relies on the defence of volenti non fit injuria. Which of the following is the best analysis?

1. Volenti is available because Dara knew the driver was drunk and chose to travel.
2. Volenti is available, because Dara had accepted a risk of injury by drinking with the driver.
3. Volenti is not available against a passenger in a motor vehicle, but the court may reduce damages for contributory negligence.
4. Volenti is not available, and no deduction for contributory negligence can be made against a passenger.
5. Volenti is available, but only if Dara signed a written waiver before getting in the car.

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Answer: C. Volenti non fit injuria is a complete defence where the claimant freely and fully accepted the risk of harm. However, section 149 of the Road Traffic Act 1988 provides that the fact that a passenger agreed to the risk of negligence by the driver does not make volenti a defence where compulsory motor insurance applies. Contributory negligence remains available under the 1945 Act. In Owens v Brimmell, a passenger who drank with the driver and travelled with him was found 20% contributorily negligent. The tempting answer is volenti, since Dara knew Ellis was drunk. Statute removes that defence for passengers, but Dara may still lose part of his damages.

Road Traffic Act 1988, s 149; Law Reform (Contributory Negligence) Act 1945, s 1(1); Owens v Brimmell [1977] QB 859

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Tort · Psychiatric harm: secondary victims

Hanna's 8-year-old daughter was struck by a car at a school crossing, 3 miles from Hanna's home. A neighbour phoned Hanna, who ran to the scene and arrived 20 minutes later. The girl was still trapped under the car, bleeding and in pain, and Hanna stayed with her until the ambulance arrived. The girl survived. Hanna later developed post-traumatic stress disorder (PTSD), diagnosed by a psychiatrist. The driver was negligent. Which of the following is the best analysis of Hanna's claim?

1. Hanna cannot recover, because she did not see the accident itself with her own unaided senses.
2. Hanna can probably recover as a secondary victim, because she was close in love, arrived in the immediate aftermath, and perceived it with her own senses.
3. Hanna cannot recover, because the driver owed no duty to someone outside the zone of physical danger.
4. Hanna can recover without further proof, because PTSD is a physical injury under the law.
5. Hanna cannot recover, because a recognised psychiatric illness must arise from shock at witnessing death.

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Answer: B. A secondary victim, who is not in physical danger, must show a recognised psychiatric illness and satisfy the control mechanisms in Alcock v Chief Constable of South Yorkshire Police: a close tie of love and affection (presumed for parent and child), proximity in time and space to the accident or its immediate aftermath, and perception by the claimant's own unaided senses. McLoughlin v O'Brian extended proximity to the immediate aftermath, and Paul v Royal Wolverhampton NHS Foundation Trust confirmed that witnessing an accident or its immediate aftermath is the key requirement. Hanna arrived within 20 minutes and saw her trapped, injured child at the scene, so the claim is strong. The tempting answer is that she must see the accident itself. Alcock and McLoughlin allow the immediate aftermath.

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; McLoughlin v O'Brian [1983] 1 AC 410; Paul v Royal Wolverhampton NHS Foundation Trust [2024] UKSC 1

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Tort · Economic loss

A roadworks contractor negligently drove a digger through an electricity cable owned by the network operator. Power to the nearby Tyne Foundry Ltd failed for 14 hours. Metal in the foundry's furnace solidified and was ruined, costing £4,000, with £1,800 of profit lost on that batch. During the outage the foundry could have produced four more batches, losing a further £9,000 of profit. Tyne Foundry has no contract with the contractor. Which of the following is the best statement of what Tyne Foundry can recover in negligence?

1. All £14,800, because all of the loss was foreseeable.
2. Only £4,000, because lost profit is never recoverable in negligence.
3. Nothing, because the cable was owned by the network operator and not by Tyne Foundry.
4. £9,000 only, because lost profit is the main measure of loss in negligence.
5. £5,800 for the damage to its metal and the profit on that batch, but not the £9,000 of pure economic loss.

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Answer: E. In negligence, a claimant can recover for physical damage to their own property and for economic loss consequent on that damage. Pure economic loss, which is not linked to damage to the claimant's own property or person, is generally not recoverable, except in recognised categories such as negligent misstatement or assumption of responsibility. In Spartan Steel & Alloys v Martin & Co (Contractors), the Court of Appeal allowed recovery for the damaged melt and profit on it, but not for profit lost on other melts when power was off. The foundry's loss of £5,800 relates to its own property. The extra £9,000 is pure economic loss. The tempting answer is that all foreseeable loss is recoverable, which would ignore the exclusionary rule.

Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27

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Tort · Negligent misstatement

Priya bought a modest two-bedroom terraced house for £210,000, using a mortgage from Fenland Bank. The bank instructed Walsh & Co, surveyors, to value the house. Walsh & Co negligently overlooked serious structural movement. The mortgage offer told Priya that the bank would obtain a valuation, and that Priya could rely on it. She did not commission her own survey. The valuation report said it was 'for the bank only and given without responsibility to the applicant'. Priya has sued Walsh & Co. Which of the following is the best analysis?

1. No duty is owed to Priya, because Walsh & Co contracted only with the bank.
2. A duty is likely to be owed to Priya, and the disclaimer is a consumer notice that binds her only if it is fair under the Consumer Rights Act 2015, which it is unlikely to be.
3. A duty is owed, and the disclaimer is irrelevant because disclaimers can never apply to negligent misstatement.
4. No duty is owed, because the disclaimer shows that Walsh & Co did not assume responsibility.
5. A duty is owed only if Priya had paid Walsh & Co a fee directly.

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Answer: B. A person who gives advice or information may owe a duty in tort to someone who reasonably relies on it, where responsibility is assumed (Hedley Byrne v Heller). In Smith v Eric S Bush, the House of Lords held that a surveyor who values a modest house for a lender owes a duty to the purchaser who relies on the valuation instead of commissioning their own survey, because the surveyor knows this is likely. That case held the disclaimer unreasonable under UCTA 1977. Today a notice by a trader that purports to restrict its liability to a consumer is a consumer notice under the Consumer Rights Act 2015 (s 61), and it is not binding if it is unfair (s 62). The reasoning in Smith suggests this disclaimer is unfair. The tempting answer is that the disclaimer prevents any duty. It is subject to the statutory fairness test.

Smith v Eric S Bush [1990] 1 AC 831; Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; Consumer Rights Act 2015, ss 61, 62

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Tort · Duty of care: auditors

Trent was already a shareholder in Pelham Retail plc. He read the audited annual accounts, which negligently overstated profits, and used them to decide to buy more shares at a high price. The shares fell sharply when the true position emerged. Trent sues the auditors in negligence for his loss. The auditors accept they were negligent in the audit. Which of the following is the best analysis?

1. The auditors probably owe no duty to Trent for his share purchase, because their statutory duty runs to shareholders as a body, not for individual investment decisions.
2. The auditors owe him a duty, because he was a shareholder and so a foreseeable user of the accounts.
3. The auditors owe him a duty, because any person who foreseeably reads audited accounts can sue.
4. The auditors owe no duty to anyone, because audit reports are protected by statutory immunity.
5. The auditors owe him a duty only if he bought the shares in the reasonable expectation that he would be a member of the company.

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Answer: A. In Caparo Industries v Dickman, the House of Lords held that auditors preparing statutory accounts owe a duty to the company, and to the shareholders as a body, so that they can exercise their governance functions. The auditors did not owe a duty to investors, or to existing shareholders, in respect of individual decisions to buy more shares. Foreseeability, proximity and fair, just and reasonable considerations must all be satisfied. The statutory purpose of the audit does not extend that far. Trent's loss arose from an investment decision. He is therefore unlikely to succeed. The tempting answer is that foreseeable reliance creates a duty. Caparo rejected that approach for auditors.

Caparo Industries plc v Dickman [1990] 2 AC 605; Companies Act 2006, s 495

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Tort · Occupiers' liability: independent contractors

Ravenhill Hotel Ltd used a well-known lift company, Liftright Ltd, to maintain its passenger lift. Ravenhill checked that Liftright was properly qualified and insured and kept its inspection certificates. Two weeks after a service visit, the lift dropped suddenly and injured a guest, Mr Seth. An engineer's report found that Liftright's technician had carelessly reassembled a brake component. Ravenhill had no technical means of spotting the fault. Which of the following is the best analysis of the hotel's liability under the Occupiers' Liability Act 1957?

1. The hotel is liable, because the common duty of care is a non-delegable duty to visitors.
2. The hotel is liable, because it is vicariously liable for any contractor working on its premises.
3. The hotel is not liable, because Mr Seth, as a paying guest, cannot sue the occupier in tort.
4. The hotel is probably not liable, because it acted reasonably in entrusting technical work to a competent contractor and took reasonable steps to check it.
5. The hotel is not liable only if it had put up a warning sign about the lift.

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Answer: D. An occupier owes the common duty of care to visitors under section 2(2) of the Occupiers' Liability Act 1957. Where damage is caused by the faulty work of an independent contractor, section 2(4)(b) provides that the occupier is not liable if it was reasonable to entrust the work to a contractor, the occupier took reasonable care to see that the contractor was competent, and, where reasonable, checked that the work was properly done. For technical work such as lift maintenance, the occupier cannot normally check the detail (Haseldine v Daw). Ravenhill selected a qualified, insured contractor and kept certificates. Mr Seth's claim lies mainly against Liftright. The tempting answer is that occupiers cannot delegate the duty. The Act says they can in these cases.

Occupiers' Liability Act 1957, ss 2(2), 2(4)(b); Haseldine v CA Daw & Son Ltd [1941] 2 KB 343

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Tort · Occupiers' liability: children and warnings

Greenbank Garden Centre runs a supervised children's play area where parents may leave children aged three to eight while they shop. An open ornamental pond is next to the play area. A sign beside the pond reads, 'Danger: deep water.' The pond has no fence. A four-year-old, Ollie, left in the play area by his mother, wandered to the pond and fell in, suffering brain injury from near drowning. The centre says that the sign was a sufficient warning. Which of the following is the best analysis?

1. The centre is not in breach, because a warning always discharges the occupier's duty under the 1957 Act.
2. The centre is not in breach, because Ollie's mother remained responsible for supervising him.
3. The centre is in breach, because the 1957 Act imposes strict liability when a child is injured.
4. The centre is probably in breach, because a warning discharges the duty only if it makes the visitor reasonably safe, and a small child cannot read or understand it.
5. The centre is not in breach, because a child under five is a trespasser on any unfenced part of the premises.

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Answer: D. Under the Occupiers' Liability Act 1957, section 2(3)(a), an occupier must be prepared for children to be less careful than adults. Section 2(4)(a) provides that a warning does not absolve the occupier unless in all the circumstances it was enough to enable the visitor to be reasonably safe. A written warning does nothing for a four-year-old who cannot read. The centre invited parents to leave small children in its play area, right beside an unfenced deep pond, so it cannot say it relied on parents to supervise. A fence or other physical barrier would probably be a reasonable step. The tempting answer is that a warning always suffices. Section 2(4)(a) prevents that.

Occupiers' Liability Act 1957, ss 2(3)(a), 2(4)(a)

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Tort · Occupiers' liability: trespassers

Sweetman Ltd owned a derelict factory next to a housing estate. It knew that the skylight panels were rotten, and over the previous year, staff had twice seen teenagers climbing over the fence to play inside. Sweetman did nothing about the roof. Dev, aged 14, climbed the fence one evening, stepped onto a skylight and fell 6 metres, suffering serious injuries. Which of the following is the best analysis under the Occupiers' Liability Act 1984?

1. A duty may be owed to Dev as a trespasser, because Sweetman knew of the danger, knew that trespassers might come, and the risk was one against which it could be expected to offer protection.
2. No duty is owed to Dev, because trespassers are never owed a duty of care under the 1984 Act.
3. A duty is owed to Dev under the Occupiers' Liability Act 1957, because he was a child.
4. A duty is owed to Dev only if he had been invited to enter the factory.
5. No duty is owed to Dev, because he voluntarily climbed onto the skylight.

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Answer: A. The Occupiers' Liability Act 1984 governs duties to persons other than visitors, including trespassers. Under section 1(3), a duty is owed if the occupier (a) is aware of the danger or has reasonable grounds to believe it exists, (b) knows or has reasonable grounds to believe the other is in the vicinity or may come into it, and (c) the risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer some protection. Section 1(4) then requires reasonable care to see that the person does not suffer injury. Sweetman knew about the roof and the previous trespassers. The tempting answer is that trespassers are never owed a duty. That was the old law, replaced by the 1984 Act.

Occupiers' Liability Act 1984, s 1(1), (3), (4)

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Tort · Non-delegable duty

A local authority maintained primary school, Oakfield Primary, took a class of seven-year-olds to a public swimming pool as part of the curriculum, in school hours. The lesson was taught by an instructor and a lifeguard employed by an independent company contracted by the school. A pupil, Maya, was found submerged in the pool because of the lifeguard's carelessness and suffered brain injury. The school says that it chose a competent contractor and was not itself negligent. Which of the following is the best analysis?

1. The school is not liable, because it is never liable for the negligence of an independent contractor.
2. The school is liable only if it can be shown to be vicariously liable for the lifeguard as its employee.
3. The school is not liable, because the Occupiers' Liability Act 1957 applies only to premises that the occupier controls.
4. The school is liable only if the parents had expressly asked it to take responsibility for swimming.
5. The school probably owes a non-delegable duty to ensure reasonable care is taken of pupils during school activities, so it is liable for the contractor's negligence.

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Answer: E. A defendant is not normally liable for the negligence of an independent contractor. An exception is a non-delegable duty. In Woodland v Essex County Council, the Supreme Court held that a school owes a non-delegable duty to its pupils to ensure that reasonable care is taken of them during school activities, including swimming lessons run by independent contractors. The features are: a claimant who is a child or otherwise vulnerable, an existing relationship placing the claimant in the defendant's care, no control by the claimant over how the duty is performed, and delegation of an integral part of the defendant's function to the contractor, who is negligent in performing it. The school therefore remains liable. The tempting answer is that choosing a competent contractor is enough. That works for ordinary duties, not for non-delegable ones.

Woodland v Essex County Council [2013] UKSC 66

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Tort · Vicarious liability: course of employment

Zenith Venues Ltd employs doormen to keep order at its nightclub. Callum, a doorman, was told by his manager to remove a customer, Ben, from the club for being rowdy. Callum followed Ben out onto the pavement, swore at him and punched him in a rage, breaking his jaw. Zenith says an assault is not part of a doorman's job and that it forbade violence. Which of the following is the best analysis?

1. Zenith is not liable, because employers are never liable for intentional torts.
2. Zenith is not liable, because the assault was outside the scope of the job as it was expressly prohibited.
3. Zenith is likely to be vicariously liable, because there was a close connection between what Callum was employed to do and the assault.
4. Zenith is liable only if it was negligent in hiring Callum.
5. Zenith is not liable, because the assault happened outside the nightclub's premises.

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Answer: C. An employer is vicariously liable for torts committed by an employee in the course of employment. The test has two stages: a relationship of employment (or akin to it), and a sufficiently close connection between the wrongdoing and the field of activities entrusted to the employee, such that it is fair and just to impose liability. In Mohamud v WM Morrison Supermarkets plc, a petrol station employee who assaulted a customer after telling him to keep away was acting in the field of his job. Callum was told to remove Ben, and the assault followed directly. A prohibition on violence does not defeat liability. The tempting answer is that intentional torts fall outside employment. The law does not support that.

Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11; Lister v Hesley Hall Ltd [2001] UKHL 22

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Tort · Vicarious liability: independent contractors

Corvus Ltd, an employer, arranged for all its new starters to have a medical examination by Dr Imani, a self-employed doctor who ran her own practice, took other clients, had her own insurance and was paid per examination. During one examination, Dr Imani sexually assaulted a new starter, Jess. Jess sues Corvus on the basis that it is vicariously liable. Which of the following is the best analysis?

1. Corvus is liable, because the assault happened during an examination that it arranged.
2. Corvus is probably not vicariously liable, because Dr Imani was in business on her own account and her work was not an integral part of Corvus's business.
3. Corvus is liable, because all those who work for a business are treated as its employees for vicarious liability.
4. Corvus is liable, because it has a non-delegable duty to protect all employees from deliberate harm.
5. Corvus is not liable only because sexual assault is never within the course of any engagement.

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Answer: B. Vicarious liability needs, first, a relationship of employment or one akin to it. In Various Claimants v Barclays Bank plc, the Supreme Court held that a bank was not vicariously liable for sexual assaults by a doctor who carried out medical examinations for it, because he was in business on his own account, with his own patients and insurance, and was not integrated into the bank's business. The relevant question is whether the individual carries on business on their own account, not whether work is useful or important to the defendant. Dr Imani's position is the same. The tempting answer is that anyone doing work for a business is its agent. The Supreme Court rejected that broad approach.

Various Claimants v Barclays Bank plc [2020] UKSC 13

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Tort · Private nuisance: standing

Mrs Obi owns and lives in a freehold house. Her adult son, Chidi, lives with her rent-free as a family member, and his partner Lena lives there too. For several months, strong chemical fumes from the neighbouring Ashby Plating works have drifted into the house every evening, making all three unwell and unable to enjoy the home. Which of the following is the best statement of who can sue in private nuisance?

1. Mrs Obi, Chidi and Lena can all sue, because each suffered substantial interference with enjoyment of the home.
2. Only Chidi can sue, because adult family members have the strongest personal interest in the damage.
3. Mrs Obi can sue, but Chidi and Lena cannot, because private nuisance protects only those with a right to exclusive possession or another interest in land.
4. None of them can sue, because the fumes caused only personal discomfort and not damage to land.
5. Mrs Obi can sue only if she shows that Ashby Plating acted maliciously.

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Answer: C. Private nuisance is a tort against land. It protects the use and enjoyment of land by unlawful and unreasonable interference. In Hunter v Canary Wharf Ltd, the House of Lords held that only those with a right to the land, such as the owner or a tenant with exclusive possession, can sue. Family members and guests with no such interest cannot, though they may have other claims, for example in negligence for personal injury. Mrs Obi owns the house, so she can sue for the loss of amenity, which can also affect the damages. Chidi and Lena have no proprietary interest. The tempting answer is that everyone harmed at the house can sue. Hunter rejected that wider approach.

Hunter v Canary Wharf Ltd [1997] AC 655

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