unit 3 TUT

EXEMPLAR EXAM QUESTION

Question 1

Tunde, a well‑paid rugby union player, waited for the green pedestrian signal before crossing the road. While crossing, he realised that an approaching truck driven by David would not be able to stop in time. David was distracted because he was unwrapping a cereal bar and did not see Tunde until too late. David swerved, but the truck brushed against Tunde’s shoulder.

The truck then left the road and crashed into a paint factory owned by Saira. David’s truck contained liquid fertiliser which leaked and mixed with paint chemicals, causing a large explosion that destroyed the factory. Rebuilding the factory will cost £500,000. At the time of the explosion, half of the factory was already closed for repairs due to a previous fire, which would have cost Saira £250,000.

Although Tunde was not badly hurt initially, the impact caused an old shoulder injury to flare up. The injury is now permanent, forcing him to retire from professional rugby and take much lower‑paid employment.

Advise Tunde and Saira as to whether they have any claims in negligence against David.

MODEL ANSWER (FIRST‑CLASS / 1:1 STANDARD)

This problem concerns liability in negligence, with the central issues being causation and remoteness of damage. To succeed, Tunde and Saira must establish that David owed them a duty of care, breached that duty, and that this breach caused legally recoverable damage. Duty and breach are relatively straightforward, so the main focus is causation.

Claim by Tunde

David owed Tunde a duty of care as a road user, and this duty was breached when David failed to keep a proper lookout while unwrapping a cereal bar. The key issue is whether David’s breach caused Tunde’s injury.

The basic test for factual causation is the “but for” test, as set out in Barnett v Chelsea Hospital. But for David’s negligent driving, the truck would not have struck Tunde’s shoulder. Factual causation is therefore satisfied.

Tunde’s situation also raises the issue of a pre‑existing condition. The impact caused an old shoulder injury to worsen and become permanent. Under the eggshell skull rule, the defendant must take the claimant as they find them (Smith v Leech Brain). It does not matter that Tunde was unusually vulnerable. Once causation is established, David is liable for the full extent of the injury.

The damage suffered by Tunde was also reasonably foreseeable. It is foreseeable that careless driving may cause physical injury to a pedestrian. The fact that the injury was more severe due to a pre‑existing condition does not break the chain of causation.

Conclusion (Tunde):
Tunde is likely to succeed in a claim against David for his shoulder injury and consequent loss of earnings.

Claim by Saira

David clearly owed a duty of care to road users and neighbouring property owners. His negligent driving caused the truck to crash into Saira’s factory. The difficulty lies in whether David’s negligence legally caused the explosion damage.

Applying the “but for” test, but for David’s negligent driving, the truck would not have entered the factory, and the fertiliser would not have mixed with the paint chemicals. Factual causation is therefore established.

However, the explosion involved an unusual chain of events, raising issues of remoteness and intervening acts. In Wright v Lodge, it was confirmed that where later events are part of an unbroken sequence set in motion by the defendant’s negligence, causation is not broken. Here, the leaking fertiliser was a direct consequence of the crash, and the chemical reaction was a foreseeable result of crashing into an industrial site.

Under The Wagon Mound (No 1), the type of damage must be foreseeable, though not the precise manner in which it occurs. It is foreseeable that a vehicle crash carrying chemicals could cause serious property damage or an explosion. The damage is therefore not too remote.

Saira cannot, however, recover the £250,000 relating to the earlier fire damage. That loss would have occurred regardless of David’s negligence, and therefore fails the “but for” test.

Conclusion (Saira):
Saira is likely to recover £500,000 for the destruction of the factory caused by the explosion, but not the £250,000 relating to the previous fire.

Overall Conclusion

David’s negligence was the factual and legal cause of Tunde’s permanent shoulder injury and career loss, and Tunde is likely to succeed in negligence. David’s negligence also caused the destruction of Saira’s factory, and she may recover the cost of rebuilding. However, losses unrelated to David’s breach cannot be recovered.