tort barbi mct
QUESTION AFQ040 [duty of care]
The claimant was crossing the road at a pedestrian crossing when she was struck by a
car driven by the defendant. The defendant was a learner driver, taking his first lesson
under the supervision of an instructor.
In a claim by the pedestrian against the driver, which of the following statements is
correct? correct answers d) The driver will succeed in defending the claim if he met the
standard of care to be expected of a reasonable qualified driver.
(D) The driver will succeed under the conditions stated in choice (D). The pedestrian will
make her claim in the tort of negligence. She needs to show that the defendant owed
her a duty of care, that the duty was breached, and that the breach caused her damage.
To establish breach, the pedestrian needs to show that the driver fell below a
reasonable standard of care. So, if the driver did meet the standard of care to be
expected of a reasonable qualified driver, breach will not be established, and the driver
will succeed in defending the claim.
A landowner managed his very large garden and opened it to the public so that they
could view the plants. Pursuant to this permission, a lady entered the garden and
walked round to look at the plants. Unfortunately, she slipped on a moss-covered
pathway. She fell and broke her wrist. She also damaged her expensive camera in the
fall. She seeks damages for the harm suffered, alleging that the slippery moss should
have been cleared from the pathway.
Which of the following statements best describes the duty owed by the owner of the
garden to the lady who fell? correct answers (A) The landowner owes the lady a duty to
take reasonable care to see that she will be reasonably safe in using the premises for
the permitted purpose.
(E) The landowner owes the lady the duty owed to lawful visitors. The landowner has
control over the garden and so is the occupier. The lady who fell entered the garden
with permission and so is a lawful visitor. The damage was caused by the state of the
premises. Hence, the duty of the occupier to his lawful visitors in respect of damage
caused by the state of the premises is governed by the Occupiers' Liability Act 1957. It
is a duty to take reasonable care to see that the visitor will be reasonably safe in using
the premises for the permitted purpose.
A man was sitting in his garden next to a busy motorway. He saw a heavy goods
vehicle stop on the road because its load had caught fire. Although his garden hose was
within reach, he did not get up to help put out the fire because he reasonably feared that
the vehicle's fuel tank might explode. So he did nothing, and the vehicle, and its load of
goods, were totally destroyed. The owner of the vehicle has been informed of the man's
conduct and is angry that the man did nothing to help prevent the owner's loss.
, If the owner makes a claim in the tort of negligence against the man, which of the
following statements best explains the likely outcome? correct answers )The owner
could not make a successful claim because the man did not owe any duty of care to the
owner in respect of his failure to act.
(D) The owner could not make a successful claim against the man. In the tort of
negligence, the general rule is that no duty of care is owed in respect of an omission to
act (subject to exceptions which are not relevant on the facts of the question).
A hiker in an isolated area encountered a cross-country horse rider who had broken her
leg. The hiker created a makeshift sled and began pulling the rider to the nearest road.
The hiker decided to take a short cut across an icy pond even though he knew that the
ice was thin and there was an alternate route. As the hiker was pulling her across the
pond, the ice gave way and they went into the water. The hiker was unable to get out of
the water and drowned. The rider was able to pull herself onto land and eventually was
rescued. However, she suffered severe hypothermia and lost some of her toes to
frostbite as a result of being in the water.
Which of the following statements best describes whether the rider would have an
action for negligence against the hiker's estate? correct answers (A) The hiker's estate
is liable, because the hiker should not have attempted to cross the ice.
(D) The hiker's estate will be liable to the rider because the hiker acted negligently when
he was rescuing the rider. As a general rule, no legal duty is imposed upon any person
to affirmatively act for the benefit of others. However, one who gratuitously acts for the
benefit of another, although under no duty to do so in the first instance, is then under a
duty to act like a reasonable person. Here, the hiker was under no duty to come to the
rider's assistance. Having done so, however, he was under a limited duty of care not to
make the situation any worse. Because he acted negligently in doing so, and thereby
made the situation worse than it would otherwise have been, he was in breach of his
duty to the rider and the rider would have a cause of action against his estate.
An oil company began testing a method of hydraulic fracturing, commonly called
fracking. This is a drilling technique used for extracting oil or natural gas from deep
underground. The tests, conducted in a sparsely populated area, caused heavy
vibrations in the ground and the slumping of subsurface earth structures surrounding
the test site. This led to the collapse of a water well on a farmer's property.
Which of the following best states the reason why the oil company will avoid liability in
negligence? correct answers ) The distance from the test site to the farmer's property
means that the farmer cannot be a foreseeable victim and thus the oil company does
not owe the farmer a duty of care. The first requirement to establish the tort of
negligence is that the defendant must owe a duty of care to the claimant. Where there is
no established duty of care, the claimant is in a novel duty situation and a duty of care
will only be owed by the oil company to the farmer if (i) the farmer was a foreseeable
victim, (ii) there is a relationship of sufficient proximity between the farmer and the oil
company and (iii) the court would consider it fair, just and reasonable to impose a duty
of care. If (as (B) states) the farmer's property is located so far from the test site that no
risk to the farmer was foreseeable, then there would be no duty of care imposed upon
QUESTION AFQ040 [duty of care]
The claimant was crossing the road at a pedestrian crossing when she was struck by a
car driven by the defendant. The defendant was a learner driver, taking his first lesson
under the supervision of an instructor.
In a claim by the pedestrian against the driver, which of the following statements is
correct? correct answers d) The driver will succeed in defending the claim if he met the
standard of care to be expected of a reasonable qualified driver.
(D) The driver will succeed under the conditions stated in choice (D). The pedestrian will
make her claim in the tort of negligence. She needs to show that the defendant owed
her a duty of care, that the duty was breached, and that the breach caused her damage.
To establish breach, the pedestrian needs to show that the driver fell below a
reasonable standard of care. So, if the driver did meet the standard of care to be
expected of a reasonable qualified driver, breach will not be established, and the driver
will succeed in defending the claim.
A landowner managed his very large garden and opened it to the public so that they
could view the plants. Pursuant to this permission, a lady entered the garden and
walked round to look at the plants. Unfortunately, she slipped on a moss-covered
pathway. She fell and broke her wrist. She also damaged her expensive camera in the
fall. She seeks damages for the harm suffered, alleging that the slippery moss should
have been cleared from the pathway.
Which of the following statements best describes the duty owed by the owner of the
garden to the lady who fell? correct answers (A) The landowner owes the lady a duty to
take reasonable care to see that she will be reasonably safe in using the premises for
the permitted purpose.
(E) The landowner owes the lady the duty owed to lawful visitors. The landowner has
control over the garden and so is the occupier. The lady who fell entered the garden
with permission and so is a lawful visitor. The damage was caused by the state of the
premises. Hence, the duty of the occupier to his lawful visitors in respect of damage
caused by the state of the premises is governed by the Occupiers' Liability Act 1957. It
is a duty to take reasonable care to see that the visitor will be reasonably safe in using
the premises for the permitted purpose.
A man was sitting in his garden next to a busy motorway. He saw a heavy goods
vehicle stop on the road because its load had caught fire. Although his garden hose was
within reach, he did not get up to help put out the fire because he reasonably feared that
the vehicle's fuel tank might explode. So he did nothing, and the vehicle, and its load of
goods, were totally destroyed. The owner of the vehicle has been informed of the man's
conduct and is angry that the man did nothing to help prevent the owner's loss.
, If the owner makes a claim in the tort of negligence against the man, which of the
following statements best explains the likely outcome? correct answers )The owner
could not make a successful claim because the man did not owe any duty of care to the
owner in respect of his failure to act.
(D) The owner could not make a successful claim against the man. In the tort of
negligence, the general rule is that no duty of care is owed in respect of an omission to
act (subject to exceptions which are not relevant on the facts of the question).
A hiker in an isolated area encountered a cross-country horse rider who had broken her
leg. The hiker created a makeshift sled and began pulling the rider to the nearest road.
The hiker decided to take a short cut across an icy pond even though he knew that the
ice was thin and there was an alternate route. As the hiker was pulling her across the
pond, the ice gave way and they went into the water. The hiker was unable to get out of
the water and drowned. The rider was able to pull herself onto land and eventually was
rescued. However, she suffered severe hypothermia and lost some of her toes to
frostbite as a result of being in the water.
Which of the following statements best describes whether the rider would have an
action for negligence against the hiker's estate? correct answers (A) The hiker's estate
is liable, because the hiker should not have attempted to cross the ice.
(D) The hiker's estate will be liable to the rider because the hiker acted negligently when
he was rescuing the rider. As a general rule, no legal duty is imposed upon any person
to affirmatively act for the benefit of others. However, one who gratuitously acts for the
benefit of another, although under no duty to do so in the first instance, is then under a
duty to act like a reasonable person. Here, the hiker was under no duty to come to the
rider's assistance. Having done so, however, he was under a limited duty of care not to
make the situation any worse. Because he acted negligently in doing so, and thereby
made the situation worse than it would otherwise have been, he was in breach of his
duty to the rider and the rider would have a cause of action against his estate.
An oil company began testing a method of hydraulic fracturing, commonly called
fracking. This is a drilling technique used for extracting oil or natural gas from deep
underground. The tests, conducted in a sparsely populated area, caused heavy
vibrations in the ground and the slumping of subsurface earth structures surrounding
the test site. This led to the collapse of a water well on a farmer's property.
Which of the following best states the reason why the oil company will avoid liability in
negligence? correct answers ) The distance from the test site to the farmer's property
means that the farmer cannot be a foreseeable victim and thus the oil company does
not owe the farmer a duty of care. The first requirement to establish the tort of
negligence is that the defendant must owe a duty of care to the claimant. Where there is
no established duty of care, the claimant is in a novel duty situation and a duty of care
will only be owed by the oil company to the farmer if (i) the farmer was a foreseeable
victim, (ii) there is a relationship of sufficient proximity between the farmer and the oil
company and (iii) the court would consider it fair, just and reasonable to impose a duty
of care. If (as (B) states) the farmer's property is located so far from the test site that no
risk to the farmer was foreseeable, then there would be no duty of care imposed upon
