2017 BAR

1. TRUE or FALSE – Explain your answers. Only the city or municipal mayor can file a civil action to abate
a public nuisance.

SUGGESTED ANSWER:

If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor (Art. 701, NCC). However, such action may also be filed by
a private person on account of a public nuisance, if it is specially injurious to himself (Art. 703, NCC)

2. Jovencio operated a school bus to ferry his two sons and five of their schoolmates from their houses to
their school, and back. The parents of the five schoolmates paid for the service. One morning, Porfirio,
the driver, took a short cut on the way to school because he was running late, and drove across an
unmanned railway crossing. At the time, Porfirio was wearing earphones because he loved to hear loud
music while driving. As he crossed the railway tracks, a speeding PNR train loudly blared its horn to warn
Porfirio, but the latter did not hear the horn because of the loud music. The train inevitably rammed into
the school bus. The strong impact of the collision between the school bus and the train resulted in the
instant death of one of the classmates of Jovencio’s younger son.
The parents of the fatality sued Jovencio for damages based on culpa contractual alleging that
Jovencio was a common carrier; Porfirio for being negligent; and the PNR for damages based on culpa
aquiliana.
Jovencio denied being a common carrier. He insisted that he had exercised the diligence of a good
father of a family in supervising Porfirio, claiming that the latter had had no history of negligence or
recklessness before the fatal accident.

(a) Did his operation of the school bus service for a limited clientele render Jovencio a common
carrier? Explain your answer. (3%)

(b) In accordance with your answer to the preceding question, state the degree of diligence to be
observed by Jovencio, and the consequences thereof. Explain your answer. (3%)

(c) Assuming that the fatality was a minor of only 15 years of age who had no earning capacity at
the time of his death because he was still a student in high school, and the trial court is minded to
award indemnity, what may possibly be the legal and factual justifications for the award of loss of
earning capacity? Explain your answer. (4%)

SUGGESTED ANSWER:

(a) Yes, he is not engaged in the business of carrying for the public. He carries only for persons with
whom he has initial contract and assumes no obligation to carry for the others
(b) ordinary diligence
(c) Indemnification for damages shall comprehend not only value of the loss suffered but also that of the
profits which the obligee failed to obtain (Art 2200). The award of damages in case of death of a
person is P30,000.00 (People vs. Venco). The amount has been increased to P50,000.00.
The determination of the amount for the indemnity for loss of earning capacity, namely (1) the
number of years on the basis of which the damages shall be computed and (2) the rate at which the
losses sustained by the heirs should be fixed. The first factor shall be based upon the life expectancy
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 of the minor which is 43 and one-third years- he being 15 years old – applying American Expectancy
Table of Mortality. (Villa Rey Transit vs. CA). As regards to the income, he could possibly work at
least as a minimum wage earner, the amount of P 502.00 per day minimum wage for NCR may be
considered. This amount shall be multiplied by 30 times 12 and further multiplied by 37, the number
of years he is expected to work. A fix deduction per year may be deducted by the court for living and
other expenses by the deceased.

2016 BAR
1. With regard to an award of interest in the concept of actual and compensatory damages, please state the
guidelines regarding the manner of computing legal interest in the following situations:

[a) when the obligation is breached and it consists in the payment of a sum of money like a loan or
forbearance of money; (2.5%)

[b] when the obligation does not constitute a loan or forbearance of money. (2.5%)

Consider the issuance of BSP-MB Circular No. 799, which became effective on July 1, 2013.

SUGGESTED ANSWER:

(a) If the obligation consists in payment of sum of money, and the debtor incurs in delay, the indemnity
for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed
upon, and in the absence of stipulation, the legal interest, which is six per cen per annum (Art. 2209)
(b) Interest may, in the discretion of the court, be allowed upon damages awarded for the breach of
contract.

2. Peter, a resident of Cebu City, sent through Reliable Pera Padala (RPP) the amount of P20,000.00 to his
daughter, Paula, for the payment of her tuition fee. Paula went to an RPP branch but was informed that
there was no money remitted to her name. Peter inquired from RPP and was informed that there was a
computer glitch and the money was credited to another person. Peter and Paula sued RPP for actual
damages, moral damages and exemplary damages. The trial court ruled that there was no proof of
pecuniary loss to the plaintiffs but awarded moral damages of P20,000.00 and exemplary damages of
P5,000.00. On appeal, RPP questioned the award of moral and exemplary damages. Is the trial court
correct in awarding moral and exemplary damages? Explain.

SUGGESTED ANSWER:

The award of moral damages is correct. Art. 21 of the NCC provides that any person who wilfully causes
loss or injury to another in a manner that is contrary to morals, good customs and public policy shall
compensate the latter for the damage done. The business is affected with public interest and because of
the nature of its functions, RPP is under the obligation to treat the accounts of its clients with meticulous
care, always having in mind the fiduciary nature of their relationship.
While RPP’s negligence may not have been attended with malice and bad faith, nevertheless, it
caused serious anxiety, embarrassment and humiliation to the private respondents for which they are
entitled to recover reasonable moral damages.

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 In the absence of moral damages, exemplary damages cannot be awarded under Art.2225 of NCC
which states that exemplary damages or corrective damages are imposed, by way of example or corrective
for the public good, in addition to the moral, temperate, liquidated or compensatory damages.

3. Dr. Jack, a surgeon, holds clinic at the St. Vincent's Hospital and pays rent to the hospital. The fees of Dr.
Jack are paid directly to him by the patient or through the cashier of the hospital. The hospital publicly
displays in the lobby the names and specializations of the doctors associated or accredited by it, including
that of Dr. Jack. Marta engaged the services of Dr. Jack because of recurring stomach pain. It was
diagnosed that she is suffering from cancer and had to be operated on. Before the operation, she was asked
to sign a "consent for hospital care," which reads:
"Permission is hereby given to the medical, nursing and laboratory staff of the St. Vincent's
Hospital to perform such procedures and to administer such medications and treatments as may be deemed
necessary or advisable by the physicians of this hospital for and during the confinement."
After the surgery, the attending nurses reported that two (2) sponges were missing. Later, Marta
died due to complications brought about by the sponges that were left in her stomach. The husband of
Marta sued the hospital and Dr. Jack for damages arising from negligence in the medical procedure. The
hospital raised the defense that Dr. Jack is not its employee as it did not hire Dr. Jack nor pay him any
salary or compensation. It has absolutely no control over the medical services and treatment being
provided by Dr. Jack. Dr. Jack even signed an agreement that he holds the hospital free and harmless from
any liability arising from his medical practice in the hospital.
Is St. Vincent's Hospital liable for the negligence of Dr. Jack? Explain your answer.

SUGGESTED ANSWER:

In PSI vs. Agana, the court ruled that the doctors were not employees of PSI in its hospital, they
being merely consultants without any employer-employee relationship and in the capacity of independent
contractors. Their relationship is one of mere apparent agency. Control as a determinative factor in
testing the employer-employee relationship between doctor and hospital under which the hospital could
be held vicariously liable to a patient in medical negligence cases is a requisite fact to be established by
preponderance of evidence. In the PSI case, there was insufficient evidence that PSI exercised the power
of control or wielded such power over the means and the details of the specific process by which Dr. Ampil
applied his skills in the treatment of Natividad. Consequently, PSI cannot be held vicariously liable for
the negligence of Dr. Ampil under the principle of respondeat superior.
There is, however, ample evidence that the hospital (PSI) held out to the patient (Natividad) that
the doctor (Dr. Ampil) was its agent. Present are the two factors that determine apparent authority: first,
the hospital's implied manifestation to the patient which led the latter to conclude that the doctor was the
hospital's agent; and second, the patients reliance upon the conduct of the hospital and the doctor,
consistent with ordinary care and prudence.
Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was significantly
influenced by the impression that Dr. Ampil was a staff member of Medical City General Hospital, and
that said hospital was well known and prominent. Enrique looked upon Dr. Ampil not as independent of
but as integrally related to Medical City.
PSI's acts tended to confirm and reinforce, rather than negate, Enrique's view. It is of record that
PSI required a consent for hospital care to be signed preparatory to the surgery of Natividad.
The Supreme Court, in the PSI case, maintain the ruling that PSI is vicariously liable for the
negligence of Dr. Ampil as its ostensible agent.
Similarly, St. Vincent's Hospital is also vicariously liable for the negligence of Dr. Jack.

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2015 BAR
1. A driver of a bus owned by company Z ran over a boy who died instantly. A criminal case for reckless
imprudence resulting in homicide was filed against the driver. He was convicted and was ordered to pay
P2 Million in actual and moral damages to the parents of the boy who was an honor student and had a
bright future. Without even trying to find out if the driver had assets or means to pay the award of damages,
the parents of the boy filed a civil action against the bus company to make it directly liable for the damages.
a. Will their action prosper? (4%)
b. If the parents of the boy do not wish to file a separate civil action against. the bus company,
can they still make the bus company liable if the driver cannot' pay the award for damages? If
so, what is the nature of the employer's liability and how may civil damages be satisfied? (3%)

SUGGESTED ANSWER:
a. Yes, the action will prosper. The liability of the employer in this case may be based on quasi-
delict and is included within the coverage of independent civil action. It is not necessary to
enforce the civil liability based on culpa aquiliana that the driver or employee be proven to be
insolvent since the liability of the employer for the quasi-delicts committed by their employees
is direct and primary subject to the defense of due diligence on their part. (Article 2176; Article
2180)
b. Yes, the parents of the boy can enforce the subsidiary liability of the employer in the criminal
case against the driver. The conviction of the driver is a condition sine qua non for the
subsidiary liability of the employer to attach. Proof must be shown that the driver is insolvent.
(Article 103, Revised Penal Code)

2. Sara borrowed PS0,000.00 from Julia and orally promised to pay it within six months. When Sara tried to
pay her debt on the gth month, Julia demanded the payment of interest of 12o/o per annum because of
Sara's delay in payment. Sara paid her debt and the interest claimed by Julia. After rethinking, Sara
demanded back from Julia the amount she had paid as interest. Julia claims she has no obligation to return
the interest paid by Sara because it was a natural obligation which Sara voluntarily performed and can no
longer recover. Do you agree? Explain.

SUGGESTED ANSWER:

No, the case is not one of a natural obligation because even if the contract of loan is verbal, the delay of
Julia made her liable for interest upon demand by Sara. This is not a case of a natural obligation but a
civil obligation to pay interest by way of damages by reason of delay. (Article 1956; Article 1169; Article
2209 Civil Code)

2014 BAR
1. A pedestrian, who was four (4) months pregnant, was hit by a bus driver while crossing the street.
Although the pedestrian survived, the fetus inside her womb was aborted. Can the pedestrian recover
damages on account of the death of the fetus? (1%)
(A) Yes, because of Article 2206 of the Civil Code which allows the surviving heirs to demand
damages for mental anguish by reason of the death of the deceased.

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 (B) Yes, for as long as the pedestrian can prove that she was not at fault and the bus driver was the
one negligent.
(C) No, because a fetus is not a natural person.
(D) No, if the fetus did not comply with the requirements under Article 41 of the Civil Code.

SUGGESTED ANSWER:

Correct Answer is letter D – Article 41 of the Civil Code requires that to be considered a person, a fetus
with an intrauterine life of less than seven months must survive for the full twenty-four hours from
complete separation from the mother’s womb.

2. Mabuhay Elementary School organized a field trip for its Grade VI students in Fort Santiago, Manila Zoo,
and Star City. To be able to join, the parents of the students had to sign a piece of paper that reads as
follows:
"I allow my child (name of student), Grade – Section, to join the school’s field trip on
February 14, 2014.
I will not file any claim against the school, administrator or teacher in case something
happens to my child during the trip."
Joey, a 7-year-old student of Mabuhay Elementary School was bitten by a snake while the group
was touring Manila Zoo. The parents of Joey sued the school for damages. The school, as a defense,
presented the waiver signed by Joey’s parents.
Was there a valid waiver of right to sue the school? Why? (4%)

SUGGESTED ANSWER:

No, there was no valid waiver of the right to sue the school. A waiver to be valid must have three requisites
1) existence of the right; 2) legal capacity of the person waiving the right and 3) the waiver must not be
contrary to law, morals, good customs, public order or public policy or prejudicial to a third person with
a right recognized by law. In the case presented, the waiver may be considered contrary to public policy
as it exonerates the school from liability for future negligence. The waiver in effect allows the school to
not exercise even ordinary diligence.