Sample Question (Tort)
Wholemart, owned by Fredrik Smith, is a successful supermarket in the city of Den York. Ken went
to Wholemart to buy some groceries. About half an hour before Ken entered Wholemart, a customer
had accidentally spilled some oil on the floor while shopping. The customer instantly notified a shop
employee. Nevertheless, the employee failed to take any action and the spilled oil was not cleaned up.
While Ken was shopping, Mike dropped off his pregnant wife, Monica, at the entrance of Wholemart
for grocery shopping. After dropping her off at Wholemart, Mike drove to a nearby vehicle body shop
in order to get the engine oil of his car changed. He was supposed to pick up Monica from Wholemart
in 25-30 minutes.
While shopping, Ken happened to step on the spilled oil. This led to Ken losing his balance and
accidentally pushing his cart forward. The cart happened to hit Monica. As a result of the collision,
Monica fell down. She complained of excruciating pain, and was rushed to the emergency room of the
nearest hospital in an ambulance that was called by the Wholemart’s manager. The hospital was 3
kilometers away from Wholemart and Monica reached the emergency room within 15 minutes of her
fall. The emergency room doctor notified Monica that she had suffered a miscarriage due to her fall in
Wholemart. A nurse called up Mike and informed him about Monica’s fall and her miscarriage. Upon
hearing this, Mike rushed to the hospital. Both Monica and Mike complained of suffering from
intense psychiatric stress as a result of losing their unborn child. (10
marks)
Identify and discuss the possible actions under Tort law with respect to the aforementioned scenario.
Short Answer Key:
Topic: Negligence
Issue 1: Vicarious Liability
- The issue is whether the employer, Fredrik Smith is vicariously liable for the tort(s) committed by an
employee within the course of employment?
- Yes. Joint and several liability: employer and employee
Issue 2: Psychiatric Injury
Wife, Monica’s claims:
- The issue is whether Monica suffered from a reasonable fear for her own safety
- In Dulieu v. White, Plaintiff suffered shock from a reasonable fear for her own safety caused by the
Defendant’s negligence
- Similar to Dulieu, Monica was in the store. Employee and employer were negligent in not cleaning
up the floor even though the employee was reported by the shopper.
Husband, Mike’s claims:
- The issue is whether or not secondary victim could claim psychiatric injury because Mike was not
physically present in the store and only was notified by ER’s nurse.
- In McLoughlin and Alcock, secondary victim of the psychiatric injury was not present at the scene
of accident. For damages to be made available to the secondary victim, the two conditions of
proximity and foreseeability need to be met.
- In this case, Mike was not at the scene of accident because he was in the car body shop near the
store. Thus, he was not the primary, but secondary victim of psychiatric injury.
- Mike was Monica’s husband and was in a nearby store. He arrived at the hospital within 15 minutes
after receiving the nurse’s call (close relationship between the husband and wife, proximity and
foreseeability)
- Mike might be a secondary victim of psychiatric injury and could be eligible for damages.
