CILEx L3 Tort Law 2 — Questions and Answers
Question 1: What is the legal effect of the defence of volenti non fit injuria if successfully established?
- Damages are reduced by 50%
- The claim is completely defeated (Correct answer)
- The defendant must pay only nominal damages
- The case is referred to mediation
Correct answer: The claim is completely defeated
Volenti non fit injuria (consent) is a complete defence to a claim in tort. If the defendant proves that the claimant voluntarily accepted the risk of harm with full knowledge of the nature and extent of the risk, the claim fails entirely. The defence is difficult to establish as the courts require genuine, free, and informed consent — mere knowledge of the risk is not enough (Smith v Baker [1891]).
Question 2: Under the Occupiers' Liability Act 1957, to whom does an occupier owe the 'common duty of care'?
- All persons on the premises
- Visitors — those with express or implied permission to be on the premises (Correct answer)
- Trespassers only
- Only persons under a contractual right of entry
Correct answer: Visitors — those with express or implied permission to be on the premises
The Occupiers' Liability Act 1957 imposes a common duty of care on occupiers towards their 'visitors', defined as persons who have express or implied permission to be on the premises, including those entering under a contractual right or under a right conferred by law. Trespassers are covered separately by the Occupiers' Liability Act 1984.
Question 3: What does the 'eggshell skull' rule mean in the context of tort law?
- The defendant is only liable for foreseeable types of injury
- The defendant must take the claimant as they find them, including pre-existing vulnerabilities (Correct answer)
- The claimant must prove they had no pre-existing conditions
- Liability is limited to physical injuries only
Correct answer: The defendant must take the claimant as they find them, including pre-existing vulnerabilities
The eggshell (or thin) skull rule, established in Smith v Leech Brain & Co [1962], provides that a defendant must take their victim as they find them. If the claimant has a pre-existing vulnerability that makes their injuries worse than expected, the defendant is liable for the full extent of the damage, even if a person of ordinary health would have suffered less.
Question 4: Which of the following is a requirement for a successful claim under Rylands v Fletcher (1868)?
- The defendant must have acted negligently
- There must be a non-natural use of land and an escape of something likely to cause mischief (Correct answer)
- The claimant must have suffered personal injury
- The defendant must have intended to cause harm
Correct answer: There must be a non-natural use of land and an escape of something likely to cause mischief
The rule in Rylands v Fletcher imposes strict liability where a person brings onto their land something likely to do mischief if it escapes, and that thing does escape and causes damage. The use of land must be non-natural (extraordinary or unusual). No negligence or intention is required. Following Transco plc v Stockport MBC [2003], the rule is now treated as a sub-species of private nuisance.
Question 5: What type of damages are awarded in tort to compensate the claimant for their actual loss?
- Nominal damages
- Compensatory damages (Correct answer)
- Exemplary damages
- Aggravated damages
Correct answer: Compensatory damages
Compensatory damages aim to put the claimant in the position they would have been in had the tort not been committed. They cover both special damages (quantifiable financial losses such as lost earnings and medical expenses) and general damages (non-quantifiable losses such as pain, suffering, and loss of amenity). This is the most common type of damages in tort.
Question 6: In employer's liability, what is the effect of an employer's non-delegable duty of care?
- The employer can transfer the duty to an independent contractor
- The employer remains liable even if they delegate the task to a competent contractor (Correct answer)
- The employer is only liable for their own personal negligence
- The duty only applies to employees, not to independent contractors working on site
Correct answer: The employer remains liable even if they delegate the task to a competent contractor
A non-delegable duty means that while the employer can delegate the performance of a task, they cannot delegate the legal responsibility. If harm results from the negligent performance of that task, the employer remains liable regardless of whether they personally were at fault. This was confirmed in Wilsons & Clyde Coal Co v English [1938], which established the employer's personal duty to provide competent staff, safe equipment, a safe system of work, and a safe workplace.
CILEx L3 Tort Law 2
What is the legal effect of the defence of volenti non fit injuria if successfully established?