European Tort Law 2007 (Tort and Insurance Law Tort and Insurance Law - Yearbooks)

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This was suggested in Leach v Chief Constable of Gloucestershire and the argument is being pursued by two policewomen who attended the aftermath of the Dunblane massacre. Proximity in terms of time and space Initially, the plaintiff had to be at the scene of the accident to be able to recover for nervous shock. In Bourhill v Young , the plaintiff was 50 yards from the scene of the accident which she could hear but could not see and was held to be insufficiently proximate.

It was held that she was insufficiently proximate to the scene of the accident. In Jaensch v Coffey , the plaintiff who saw her husband in hospital in a serious condition after he had been injured, succeeded in her claim for nervous shock. In Duncan v British Coal Corporation , a plaintiff who was metres away from the scene of the accident and arrived at the scene four minutes later but saw no injury or blood was not sufficiently proximate in terms of time and space.

Reasonable foreseeability In Bourhill v Young, the plaintiff did not recover as she was not regarded as being reasonably foreseeable. Two views formed as to the true ratio of the case. The first view holds that the defendant must be at the scene of the accident. The second view states that injury by way of psychiatric injury must be foreseeable. The latter view is now taken as the test for foreseeability — the defendant should be able to foresee injury by way of nervous shock. Lord Bridge, however, did not see the necessity of setting such an arbitrary limit on claims.

Ravenscroft v Rederiaktiebolaget was, as a result, overturned on appeal. Sudden shock There must be a sudden shock. Policy or principle? The policy limitations on the rights of secondary victims to recover have caused many arbitrary distinctions and much dissatisfaction with the law relating to nervous shock. Why was it possible for the police officers present at the Hillsborough disaster to recover Frost but not relatives of the victims Alcock?

Why can an employee present at the scene of disaster recover Frost but not an off duty employee similarly present at the scene of disaster McFarlane v EE Caledonia Ltd? Policy limitations have caused great uncertainty as to the state of the law. They are thought necessary, as without them the floodgates would open. There is evidence to suggest that this assumption is not justified. Legislation in New South Wales allowed a parent or spouse to recover for nervous shock, without the requirement that there be proximity in terms of time and space.

No flood of litigation followed. Murphy argues that the three stage test should be replicated throughout negligence. There would be no sharp divergence between the treatment of primary and secondary victims and the same tests would be applied. He argues that the actual result would not differ much from the outcome of the decided authorities, as it would still be harder for those who are currently classed as secondary victims to satisfy the proximity stage of the test. An alternative is to legislate in this area. Furthermore, the plaintiff would no longer be required to perceive the accident with his own unaided senses.

When proving proximity in terms of love and affection, there would be a fixed set of relationships covered by the statutory duty of care. Anyone not included on the list would have to prove close ties of love and affection. Economic loss The law of negligence does not give the same level of protection to economic interests as it does to physical interests. This area was greatly affected by the application of the Anns test. In Junior Books v Veitchi Co Ltd , recovery was allowed for economic loss in a situation where liability had not been held to exist before.

The defendants were sub-contractors and flooring specialists and had been nominated by the plaintiffs who had employed the main contractors. The floor was negligently laid and the plaintiffs claimed loss of profits for the period when the floor had to be re-laid. Applying the Anns test it was held that the damage was recoverable. This promised to open up a whole new field of claims for economic loss and Junior Books has not been followed in subsequent cases, although it has not been formally overruled.

The courts have since returned to the traditional test. For example, in Muirhead v Industrial Tank Specialities Ltd , the plaintiffs who had suffered loss because their lobsters had been killed due to defective motors on a tank could only recover the cost of the lobsters and repairs to the tank, they could not recover for loss of profits. This case has clear echos of Spartan Steel. This trend was confirmed by the case of Leigh and Sillivan v Aliakmon Shipping , which again held that it was not possible to recover economic losses arising from negligent misconduct.

Negligent mis-statements So far we have looked at liability for negligent acts, the situation is very different when it comes to statements which cause economic loss.

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One difficulty is that statements may be made on an informal occasion and may be passed on without the consent of the speaker. However, there was a minority view rejecting this approach. That attempt has not been followed since and the special relationship has been drawn more liberally. Liability would not extend to off-thecuff information. So, in Esso Petroleum v Mardon , the defendants were liable even though they were not in the business of giving financial advice but they did have experience and special skill and knowledge compared to the plaintiffs.

While in Henderson v Merrett Syndicates Ltd , there was liability for advice given under a contract. In Holt v Payne Skillington , it was held that the duty under Hedley Byrne could be greater than that in contract. In Chaudhry v Prabhakar , liability was imposed when the statement was made on a social occasion but the defendant had specialist knowledge compared to the plaintiff.

Reliance There must be reliance on the statement by the plaintiff. In the first case, the plaintiff had applied to a building society for a mortgage and was required to pay for a valuation to be done on the property by the defendants for the building society. It was known by the defendants that the valuation would be shown to the plaintiff and that it would form the basis of her decision as to whether she would buy the property.

The valuation contained a disclaimer that the defendants would not be liable in the event of any negligence. In contrast to Hedley Byrne, this case was decided after the Unfair Contract Terms Act and the disclaimer failed the reasonableness test. The statement had been used for the purpose for which it was intended. In the second case, the valuation had been carried out by the local authority. The valuation had not been shown to the plaintiff and it also contained a disclaimer, the defendants were still found to be liable. However, it was possible for a firm of estate agents to rely on a disclaimer in property particulars as against the purchaser of a property in McCullagh v Lane Fox and Partners Ltd The purchaser had not, in that case, been reasonably entitled to believe that the estate agent at the time of making the statement was assuming responsibility for it.

In addition to reliance there must be knowledge by the maker of the statement, that the recipient will rely on the statement to his detriment. An environmental health officer negligently required the owner of food premises to comply with the Food Act , by making unnecessary substantial building works and major alterations to the kitchen. He also threatened to close the business down, if the works were not completed.

The officer knew that what he said would be relied on by the plaintiffs without independent inquiry and he visited to inspect and approved the works being carried out. The fact that the relationship arose out of the purported exercise of statutory functions did not give rise to an immunity on the part of the local authority. It was not necessary to consider whether it was fair, just and reasonable to impose a duty, as the case did not involve an incremental extension to the Hedley Byrne principle.

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The test for reasonable reliance on a personal assumption of responsibility was held to be an objective one by the House of Lords in Williams v Natural Life Health Foods Ltd There could be no liability on the part of the defendant in this case. He was the Managing Director and principal shareholder in a company which had attempted to sell a franchise to the plaintiff.

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The defendant had contributed to a brochure, which the plaintiff had relied upon, but there had been no personal dealings between the plaintiff and defendant. This absence of personal dealings means that the plaintiff could not have gained the impression that there was a voluntary assumption of responsibility on the part of the defendant. Purpose The courts will take into account the purpose for which the statement was made. In Caparo Industries plc v Dickman, the plaintiffs were shareholders in a company and, as such, were entitled to annual audited accounts.

On the basis of these accounts, they launched a take-over bid in the company before discovering that the accounts had been negligently audited and had wrongly shown the company to be profit making. The annual audited accounts were the fulfilment of a statutory obligation, the purpose of which was to enable the shareholders to take decisions about the management of the company, it was not intended to be the basis of an investment decision. There have been other cases concerning annual audited accounts, such as Al Saudi Banque v Pixley where auditors did not owe a duty to a bank which had advanced money to a company on the basis of annual audited accounts and Al Nakib Investments v Longcroft where accounts were provided to existing shareholders to encourage them to buy additional shares in a rights issue but the plaintiffs used the accounts as the basis of a decision to buy additional shares on the stock market and were consequently held not to be owed a duty.

Inequality of bargaining power It was suggested in Morgan Crucible v Hill Samuel by Hoffman J that the difference between Smith v Bush and Caparo v Dickman was that in the former the plaintiff was in a weak financial position and was absolutely dependent on the advice she received from the valuer, whereas in Caparo the plaintiff was a large company with access to its own legal and accountancy advice.

It was therefore necessary to take into account the extent to which it was reasonable for the plaintiff to rely on the advice. Negligent statements relied upon by a third party An employee who gives a negligent reference about an employee to a prospective employer owes a duty not only to the prospective employer but also to the employee. In Spring v Guardian Assurance plc , it was held by the House of Lords that there could be liability in negligence to an employee for an inaccurate reference under the Hedley Byrne principle.

This defence would only be defeated by the plaintiff if malice could be proved, which is extremely difficult. Similar situations have arisen where a doctor has examined a plaintiff on behalf of someone else such as a company. In Baker v Kaye , a doctor carried out a pre-employment medical assessment on behalf of a company. It was held that, in such circumstances, a doctor could owe a duty of care to the prospective employee. Although, on the facts of the case, there had been no breach of duty. The case was distinguished from Spring as there had never been a contractual relationship between the prospective employer and prospective employee, but it was regarded as just and reasonable to impose a duty.

In Kapfunde v Abbey National plc , the plaintiff applied for a job and filled in a medical questionnaire. A doctor who considered the questionnaire felt that the plaintiff might be frequently absent from work. The Court of Appeal held that there was no duty of care owed by the doctor to the plaintiff as there was insufficient proximity. The Court of Appeal disapproved of the decision in Baker v Kaye. Voluntary assumption of responsibility other than for negligent mis-statements There is also a line of cases that allows recovery for pure economic loss in negligence when the special skills and expertise of a provider of professional services has been relied on by someone other than his client.

In Ross v Caunters , a solicitor allowed the spouse of a beneficiary to witness a will. As a result, the gift to the beneficiary lapsed. It was held that the solicitor was liable to the beneficiary, as damage to her could have been foreseen and she belonged to a closed category of persons. Ross v Caunters was decided during the period of the Anns test. It was uncertain after the demise of that test whether this type of economic loss would remain recoverable.

The facts were that the testator of a will cut his two daughters out of his estate following a quarrel. The letter was received on 17 July and nothing was done by the solicitors for a month. The following day the managing clerk went on holiday and on his return a fortnight later he arranged to see the testator on 17 September.

The testator died on 14 September before the new will had been executed. Lord Goff held that the plaintiffs were owed a duty of care as otherwise there would be a lacuna in the law. The solicitor owes a duty of care to his client and generally owes no duty to a third party. If an extension to the Hedley Byrne principle were not allowed, there would be no method of enforcing the contractual right. Those who had a valid claim the testator and his estate had suffered no loss. Those who had suffered a loss the disappointed beneficiaries would not have a valid claim.

Lord Browne Wilkinson found that the situation was analogous to Hedley Byrne. It was held in Hemmens v Wilson Browne that the principle would not extend to an inter vivos transaction, as it would always be possible to rectify a mistake. A woman who knew that her partner had undergone a vasectomy did not use any form of contraception and subsequently became pregnant. Her partner had been assured by the defendants that the operation had been successful and that future contraception was unnecessary.

It was argued that the situation was analogous to White v Jones. The plaintiff was not owed a duty as it was not known that the advice would be communicated to the advisee and would be acted upon by her. She belonged to an indeterminate class of women with whom the man could have formed a relationship after the operation.

Some indication of the scope of the duty is provided by Woodward v Wolferstans The defendants were a firm of solicitors who acted for her father who guaranteed the mortgage. There was no contact between the firm and the plaintiff. After the mortgage fell into arrears, the lender commenced possession proceedings. This did not extend to explaining the details of the transaction and the implications of the mortgage. This area has been greatly affected by the Consumer Protection Act , which makes manufacturers strictly liable for defects in their products. The plaintiff cannot claim in tort for the product being defective in itself.

Any claim for the product being worth less than the plaintiff thought it was worth lies in contract. In D and F Estates v Church Commissioners , it was held that a defective product would have to have caused damage to other property or personal injury for the claim to be recoverable in negligence.

If a dangerous defect is discovered prior to it causing personal injury or damage to other property, then this will not be recoverable. There is a long line of decisions beginning with Dutton v Bognor Regis UDC and, most famously, Anns v Merton LBC where local authorities were held liable to building owners in respect of negligent inspections of foundations leading to damage to the building itself.

The flow of cases in favour of the building owner and against local authorities was reversed by the case of Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd , where it was held that local authorities are not liable to the original building owner since he is the author of his own misfortunes and since he is under an obligation to ensure that his work is carried out properly.

Liability of builder Although it is now virtually impossible to sue a local authority in respect of failure to discover a defect in plans, it may be possible to sue the builder in negligence. A builder will usually only be liable for latent defects which cause personal injury or damage to other property. In exceptional cases, a builder will also be liable for defects which are known to the occupier but where it is unreasonable to expect the occupier to remove the defect and it is reasonable to expect the occupier to run the risk of injury which the defect creates.

In Targett v Torfaen BC , the plaintiff was the tenant of a council house built by the defendants. He fell down a flight of stairs which had no handrail and was unlit. Even though the plaintiff was aware of the danger, it was not reasonable to expect him to provide a handrail nor was it unreasonable for him to use the stairway without a handrail. Lord Goff in Henderson v Merrett Syndicates Ltd said that a building owner would not normally be able to sue a sub-contractor or supplier if sub-contracted work or materials do not conform to the required standard.

There would have to be an assumption of responsibility by the sub-contractor or supplier direct to the building owner under Headley Byrne principles. As far as the building itself is concerned, it may be possible to sue the builder for breach of statutory duty for breach of building regulations or to bring an action under s 1 of the Defective Premises Act Now, the problem of whether a duty of care will ever be imposed in respect of the negligent exercise of statutory powers and the problem of liability for failure to exercise a power can be considered together.

The Home Office had a wide discretion as to how to run Borstals. If the Home Office was held to owe a duty to private individuals for escaping trainees then the exercise of their discretion might be inhibited. So, Lord Diplock stipulated that the Home Office could not be held liable unless the act resulted in an ultra vires act of the Home Office or its servants. Borstal officers had disregarded instructions and so their conduct was ultra vires. The duty was only owed to those in the immediate vicinity whose property was reasonably foreseeably likely to be damaged or stolen in the immediate escape.

His reasoning was further developed in Anns v Merton LBC where the local authority argued that it had merely exercised a power and had not been under a mandatory duty to inspect all foundations. Again, it was stated that ultra vires conduct could create a duty of care, and that ultra vires conduct could be a failure to exercise a power at all, or an improper exercise of that power. It was said in Rowling v Takaro that there was no automatic liability for operational decisions but the distinction could be seen as a preliminary filter.

Policy decisions would be automatically filtered out but once this step has been overcome then there is a need to decide whether a duty should be imposed on the basis of foreseeability, proximity and if it was fair, just and reasonable to do so. As we have already seen, there has been a trend of restricting the tort of negligence in this area. In Yeun Kun-Yeu v AG of Hong Kong , Rowling v Takaro Properties and Davis v Radcliffe , the factors that were cited as militating against a duty of care were similar, for example, the distorting effect of potential liability on the decision making process, and the waste of public money involved in civil servants cautiously investigating the case to the detriment of other members of the public, the difficulty of ever proving negligence in the making of such a decision and the difficulty of distinguishing the cases in which legal advice should have been sought.

This generally restrictive approach to negligence claims in this area appears to be a reluctance to introduce the tortious duty of care where there is an existing system of redress or the statutory regulatory system has made no provision for individual claims. It was held that, where a statutory discretion was imposed on a local authority, it was for the authority to exercise the discretion and nothing which the authority would do within the ambit of the discretion could be actionable at common law. Where the decision complained of fell outside the statutory discretion, it could give rise to common law liability but where the factors relevant to the exercise of the discretion included matters of policy, the court 29 ESSENTIAL TORT LAW could not adjudicate on such policy matters and therefore could not reach the decision that it was outside the statutory ambit.

In W v Essex CC , it was found to be arguable that the considerations which led to a duty not being imposed in X v Bedfordshire CC did not apply where a local authority were not performing any statutory duty. A child who was known to have been cautioned for sexually abusing his sister was placed with the plaintiffs and sexually abused their four children. The children had an arguable case in negligence. An appeal by the parents went to the House of Lords in It was held that their claim for damages in negligence was not so bad that it ought to be struck out.

It was held that dyslexia was not an injury and in the absence of an assumption of responsibility the defendants were not liable for the same reasons as were set out in X v Bedfordshire CC. The House of Lords held that any person exercising a skill or profession owes a duty of care to people who it can be forseen will be injured if due skill or care is not exercised. Such a duty does not depend on a contractual relationship and includes a teacher concerned with children having special educational needs or an educational psychologist. A local education authority may be liable for such breaches vicariously.

Breaches of duties of care may include a failure to diagnose dyslexic pupils and to provide appropriate education for them. The difference between the cases was that, in Barrett, the plaintiff had already been in care and the defendant was liable for subsequent actions that affected him. In X v Bedfordshire CC, the local authority had failed to take the children into care after it received reports of parental abuse and gross neglect.

A distinction was made again between policy and operational decisions. The same conclusion was reached in Stovin v Wise when Lord Hoffman said that the minimum pre-conditions for basing a duty of care on the existence of a statutory power were first, it would have to have been irrational not to have exercised the power, so that there was a public duty to act and secondly, there were exceptional grounds for holding that the policy of the statute required compensation to be paid to persons who suffered loss because the power was not exercised.

In Harris v Evans , a Health and Safety inspector making negligently excessive requirements of bungee operators when making recommendations as to whether activities should be authorised under the Health and Safety at Work Act was not liable. It was part of the system of regulation that it would have adverse impacts for certain sections of society. There was an appeals mechanism built into the legislation and a common law duty of care would lead to inspectors being defensive in the exercise of their enforcement powers under the Act.

A duty will also not be imposed on a public authority if it would not be fair, just and reasonable or a common law duty would be inconsistent with, or discourage, the due performance by the public authority of its statutory duties. Following the discharge, the defendants under s of the same Act were under a duty to provide after care services but failed to do so.

Three months after discharge, he killed a stranger and was convicted of manslaughter. He was ordered to be detained in a special hospital. Breach of duty: standard of care Having established that the defendant owes the plaintiff a duty of care, it will next be necessary to determine whether the defendant has in fact breached that duty. The defendant will have fulfilled his duty if he has behaved in accordance with the standard of the reasonable man. This is an objective standard and disregards the personal idiosyncrasies of the defendant.

Everyone is judged by the same standard, the only exceptions being skilled defendants, children, the insane and physically ill. The question whether a person has fulfilled a particular duty is a question of fact. It was held by the House of Lords in Qualcast Wolverhampton Ltd v Haynes that reasonableness will depend on the circumstances of the case and it is a mistake to rely on previous cases as precedents for what constitutes negligence.

The Court of Appeal held that the previous case laid down no legal principle, that such decisions were to be treated as questions of fact. Factors of the objective standard The law provides various guiding principles as to the objective standard. Reasonable assessment of the risk This can be further subdivided into two factors.

Degree of likelihood of harm occurring A reasonable man is not usually expected to take precautions against something where there is only a small risk of it occurring. Two cricketing cases provide a simple illustration. First, in Bolton v Stone , a cricket ball had been hit out of a cricket ground six times in 28 years into a nearby, rarely used lane. On the seventh occasion, it hit a passer-by. It was held that the chances of such an accident occurring were so small that it was not reasonable to expect the defendant to take precautions against it happening.

However, in Miller v Jackson , a cricket ball was hit out of a ground eight to nine times a season.


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In this case, it was held that the defendant had been negligent as it was reasonable to expect the defendant to take precautions. The crucial difference between the two cases is that the risk of harm was much greater in this case than in Bolton v Stone. There can be liability when the risk is not serious but there is a recognised risk and there is a rule to provide protection. In Hartshorn v Secretary of State for the Home Department , a prisoner was attacked by two other prisoners and slashed across the face.

The attack occurred whilst tea was being served and prisoners were entitled to associate with prisoners from different wings. Prisoners were prohibited from leaving the ground floor, at such times. There were no officers either on the upper floors or guarding the stairs.

Although an officer was supervising generally, he was not present at the time of the attack, as he was absent on an errand. The prisoners attacked the plaintiff on an upper floor. Although there was no reason to suspect an attack, the defendant should have taken reasonable care should have taken reasonable care to ensure the rule was obeyed. In Paris v Stepney BC , the plaintiff was blind in one eye. While he was working for the defendants, a metal chip entered his good eye and rendered him totally blind.

The defendants were found to be negligent in failing to supply him with goggles since, even though there had only been a small risk, the consequences were serious. The object to be achieved The importance of the object to be attained is also a factor which is taken into account when deciding the standard of care.

In Watt v Hertfordshire CC , the plaintiff was a fireman and part of a rescue team that was rushing to the scene of an accident to rescue a woman trapped under a car. The plaintiff was injured as a heavy piece of equipment, due to the emergency circumstances had not been properly secured on the lorry on which it was travelling.

Practicability of precautions The cost of avoiding a risk is also a material factor in the standard of care. The defendant will not be expected to spend vast sums of money on avoiding a risk which is very small. Sawdust was spread on the surface but not enough to cover the whole affected area. It was held that the employers were not negligent. It was necessary to balance the risk against the measures necessary to eliminate it. In this case, the risk was not so great as to justify the expense of closing the factory down.

However, this is not conclusive and a defendant may still be negligent even though he acted in accordance with a common practice. There is a obligation on the defendant to keep up to date with developments and to change practices in the light of new knowledge Stokes v Guest, Keen and Nettleford Bolts and Nuts Ltd It will not be a defence to say that general and approved practice has been followed, if it is an obvious folly to do so. Following the Zeebrugge ferry disaster, the master of the ship claimed that it was general and approved practice for him not to check that the bow doors were closed prior to setting out to sea.

Failure to comply with a guide to professional conduct is not conclusive proof of negligence Johnson v Bingley The general standard and skilled defendants Skilled defendants are judged by higher standards than the ordinary defendant. The test for skilled defendants was encapsulated by McNair J in Bolam v Friern Hospital Management Committee : The test is the standard of the ordinary skilled man exercising and professing to have that particular skill.

A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. It can be seen that skilled defendants must meet a higher standard than the ordinary person and this is an exception to the rule that everyone is judged by the same standard.

Skilled defendants face a particular problem when trying to invoke the defence of general and approved practice, as often there are conflicting views within a profession as to which course of action is the appropriate course to take. Bolam gave an answer to this problem when it stated that a doctor was not negligent if he acted in accordance with a respectable body of opinion merely because another body of opinion took a contrary view.

It was also held that a doctor could not be criticised if he believed damages of treatment were minimal and did not stress them to the patient. A two year old boy suffered brain damage as a result of the bronchial air passages becoming blocked leading to cardiac arrest. It was agreed that the only course of action to prevent the damage was to have the boy intubated. The doctor who negligently failed to attend the boy said that she would not have intubated had she attended.

There was evidence from one expert witness that he would not have intubated, whereas five other experts said that they would have done so. The House of Lords held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a desirable conclusion. Bolitho was applied in Marriott v West Midlands RHA when it was held by the Court of Appeal that a trial judge was not bound to follow the opinion of a body of experts. The opinion could be subject to scrutiny to see if it was based on logic.

The plaintiffs failed to have abnormalities in their cervical smears identified. The trial judge had been entitled to conclude that a test contained abnormalities even though there was conflicting medical evidence on the issue. The Bolam test was appropriate where the exercise of skill and care by the screener was being questioned but it had no application where a judge had to determine what the slides actually showed, even where that was the subject of conflicting medical opinion.

Trainee experts The potential harshness of the objective standard for skilled defendants is illustrated by the case of Wilsher v Essex AHA , when it was stated that a young, inexperienced doctor is judged by the standards of a competent experienced doctor even though, by definition, he is unable to attain that standard. In Philips v William Whiteley , the court rejected the idea that a jeweller who carried out an ear piercing operation should be judged by the standard of a surgeon but instead the court said that she should be judged by the standard of a reasonably competent jeweller carrying out that particular task.

Expert standard depends on the surrounding circumstances In the same way as the ordinary standard, the expert standard depends on the circumstances of the particular case. In Wooldridge v Sumner , a momentary lapse on the part of a showjumper did not make him negligent.

Wooldridge v Sumner involved a participant in a sporting event injuring a spectator. The threshold of liability was a high one and would not be easily crossed. On the facts of the case, the referee was liable for spinal injuries caused by a collapsed scrum. Abnormal defendants Further exceptions to the rule that everyone is judged by the same standard in assessing whether they are negligent are children, the insane and physically ill.

Both categories are treated separately and different principles apply. Children In Gough v Thorne , Lord Denning said that a 12 year old child could not be contributorily negligent. In Walmsley v Humenick , it was held that very young children were incapable of negligence as they were incapable of foreseeing harm. It should be noted that in tort there is no fixed age for liability unlike in criminal law. The test was whether the risk of injury would have been foreseeable to an ordinarily prudent and reasonable 15 year old girl. The insane and the physically ill The principles which apply here seem to revolve around whether the defendant was aware of his condition and also whether the defendant had control over his own actions.

Defendant is unaware of the condition In Waugh v Allan , the defendant, a lorry driver, was in the habit of suffering gastric attacks which normally quickly passed. After one such attack, the defendant pulled off the road and when he felt better continued on his journey only to suffer a fatal coronary thrombosis and injured the plaintiff. The defendant was held not to be negligent as he had recovered sufficient skill and judgment to continue his journey. In Jones v Dennison , the defendant was unaware that he suffered from blackout attacks as a result of epilepsy. He suffered a blackout while driving, injuring the plaintiff.

It was held that he could not be considered negligent, as he was unaware of his tendency to blackout. Defendant retains control over his actions In situations where the defendant retains some control over his actions, he will be held liable.


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  • In Roberts v Ramsbottom , the defendant suffered a stroke shortly after starting a two and a half mile journey. It was found that he was aware of the collisions and had retained some impaired control over his actions and consequently was liable. In Moriss v Marsden , the defendant suffered from a mental disease which robbed him of his moral judgment. The defendant was held to be liable. Proof of breach The burden of proof rests with the plaintiff on the balance of probabilities. However, there may be ways in which the plaintiff can receive assistance in discharging that burden of proof.

    Assistance by statute Section 11 of the Civil Evidence Act Where the defendant has been convicted of criminal proceedings, that conviction will be admissible in civil proceedings and the defendant will be taken to have committed the acts until the contrary is proved.

    On the other hand, losses on the commodity market are not prima facie evidence of negligence on the part of brokers Stafford v Conti Commodity Services Ltd ; nor is a spark from a domestic fire Sochacki v Sas As a result, the issue has arisen whether the doctrine can apply to matters which are outside the common experience. In Mahon v Osborne , a swab had been left inside a patient after an abdominal operation. In Easson v London and North Eastern Railway Co , the railway company could not be said to be in control of railway doors on a journey from Edinburgh to London, because of the possibility of interference by a third party.

    This can be contrasted with Gee v Metropolitan Railway Co where someone fell trough a train door shortly after it left the station. Here, it could be said to be under the control of the railway company, since there was no opportunity for third party interference. The effect of the doctrine of res ipsa loquitur The effect of res ipsa loquitur depends principally on the cogency of the inference. If he does so, then the plaintiff goes back to square one and must prove on the balance of probabilities that the defendant has been negligent. Support for this view can be found in Colvilles Ltd v Devine The Privy Council in Ng Chun Pui v Lee Chuen Tat stated that the burden of proof does not shift to the defendant but remains with the plaintiff throughout the case.

    It has also been argued that if res ipsa loquitur reverses the burden of proof then paradoxically a plaintiff who relies on the maxim will be in a better position than a plaintiff who establishes a prima facie case in some other way. This is not always as obvious as it sounds. An example of the working of the test is contained in Barnett v Chelsea and Kensington Hospital Management Committee Three nightwatchmen called into a hospital at the end of a shift, complaining that they had been vomiting after drinking tea. The nurse on duty consulted a doctor by telephone and he said that the men should go home and consult their doctor in the morning.

    The answer has to be no. The courts have not always been consistent in their approach. Two weeks later, the defendant was involved in an accident with the plaintiff for which the defendant accepted responsibility. This time, there was damage to the wing and bumper which necessitated a respray of the lower part of the car. The defendant was not liable as he had not contributed any more damage than had occurred after the first accident.

    A similar sequence took place in Baker v Willoughby Before the trial and while working at a new job, the plaintiff was the victim of an armed robbery and suffered gunshot wounds to the same left leg which then had to be amputated. The defendants argued that their liability was extinguished by the second incident. The House of Lords rejected this.

    They held that the plaintiff was being compensated for his loss of amenity, that is, the loss of a good left leg, the difference between a damaged leg and a sound leg. The fact that the leg was further damaged at some later date did not alter the fact that he had already been deprived of the facility of a properly functioning left leg.

    This can be contrasted with Jobling v Associated Dairies Ltd Three years later and before trial, the plaintiff was diagnosed as suffering from a condition called myelopathy, which was unrelated to the accident.

    This time it was accepted, in contrast to the other cases, the second incident extinguished liability. Simultaneous events The pragmatic approach of the courts was again evident in the case of Fitzgerald v Lane He could have suffered slight injuries from the first defendant and been badly injured by the second or vice versa. Multiple causes So far, we have looked at situations where there have been a sequence of events. Slightly different issues arise when there are several possible causes of an injury. Again, the courts approach has not always been consistent. This was sufficient to make the defendant liable.

    The facts were that a boy fell out of a tree injuring his hip. He was rushed to hospital, but the injury was not diagnosed for five days. The boy developed a hip condition. On appeal, it was held that this approach was incorrect. The defendants would not be liable unless their cause was the probable cause. As it was more likely that the condition would have developed anyway, then the most probable cause was that it had developed as a result of the fall.

    The defendants were not liable. The approach in Wilshier and Hotson to decide causation questions has not been followed in other areas of negligence not involving personal injury. The defendants were a firm of accountants and, in a letter, grossly overestimated the worth of their client to the plaintiffs, a bank. As a result of the letter, the plaintiffs delayed enforcing their security. The court must consider what would have happened if the defendant had acted instead of omitting to do so.

    The issue will then be whether the omission to act made any difference to the outcome. This is a novus actus interveniens. It was described by Lord Wright in The Oropesa as The facts of The Oropesa were that two ships collided. The captain of one ship put out to sea in heavy weather in a lifeboat to discuss the situation with the captain of the other ship and was drowned.

    It was argued that this constituted a novus actus but this was rejected as it was held that the decision to put out to sea was reasonable in the circumstances. The courts have been quite lenient in what they consider to be a reasonable act. For an intervening act to constitute a novus actus, it must be something in the order of an illegal act such as in Knightley v Johns where a police officer, contrary to police standing orders sent a police motorcyclist the wrong way through a tunnel without first sealing the tunnel off.

    This constituted a novus actus. However, not every illegal act constitutes a novus actus, as in Rouse v Squires , where the court required a reckless, negligent act. The first driver was held partially to be responsible for the additional damage as the intervening conduct had not been so reckless as to constitute a novus actus.

    James Goudkamp

    This element of recklessness was again required in Wright v Lodge where the first defendant negligently left her car on the carriageway in thick fog. Knightley v Johns is hard to reconcile with Rouse v Squires and Wright v Lodge and the differences arise as a result of policy decisions on the part of the court. One day, as the plaintiff was descending some stairs he felt that his leg was about to give way so he jumped down the remaining stairs, thereby injuring his right leg.

    She fell as she had been unable to use her bifocal spectacles with her usual skill and suffered further injuries. The additional injuries were held to be attributable to the defendants original negligence. In Kirkham v Chief Constable of Greater Manchester , it was held that the suicide of a prisoner in police custody was not a novus actus.

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    The police were under a duty to guard the prisoner to prevent that type of incident occurring. The reasoning was followed in Reeves v Commissioner of Police for the Metropolis This case also concerned a prisoner who committed suicide in police custody. To hold as such would lead to the absurd result that the very act the duty sought to prevent would be fatal to establishing a causative link. If a defendant was responsible for his actions ad infinitum, human activity would be unreasonably hampered.

    The Wagon Mound lays down the rule that foreseeability of damage is the test not only for the imposition of a duty of care but also for remoteness of damage. Remember in this context we are looking at liability for the extent of damage, not whether a duty exists. Manner of occurrence of damage need not be foreseeable If the type of injury is foreseeable, then the manner in which it occurs need not be foreseeable Hughes v Lord Advocate but note that this case was distinguished in Doughty v Turner Manufacturing Co Ltd It was held that in the case of primary victims of nervous shock there should be no distinction between physical and psychiatric injury.

    Again, it was said by the Court of Appeal obiter in Giblett v P and NE Murray Ltd that, where physical injury is foreseeable in an accident, damages for consequent psychiatric injury were recoverable in principle.


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    Foreseeability of psychological harm need not be shown. On the facts of the case, no causal link was established. This is a residuary hangover from the days of Re Polemis. So, in Bradford v Robinson Rentals , a lorry driver was subject to extreme cold and suffered frostbite as a result. The defendants were liable even though the injury was greater than could have been foreseen because the type of injury was foreseeable.

    This can be contrasted with Tremain v Pike, where the type of injury had not been foreseeable. Problems arise where the defendant is too impecunious to be able to afford to mitigate his loss. This can be contrasted with more recent cases such as Dodd Properties Ltd v Canterbury CC and Martindale v Duncan where delays in repair caused by impecuniosity and the cost of substitute hire vehicles were allowed.

    It was said in Mattocks v Mann that The Liesbosch was constantly being changed in the light of changed circumstances and hire charges were again allowed. The test is one of control and not exclusive occupation The basic test for an occupier is one of control over the premises. The defendants owned a public house and the manager and his wife occupied the upper floor. It was held that the defendants were occupiers of the upper floor as they exercised residuary control.

    It was held in Bailey v Armes that the defendants who occupied a flat that overlooked a flat roof that belonged to a supermarket, and allowed their own children to climb onto the roof to play, did not exercise sufficient control over the roof to be regarded as occupiers. It is not necessary to be present on the premises In Harris v Birkenhead Corporation , the local authority had issued a notice of compulsory purchase order and notice of entry but had not taken possession.

    They were held to be occupiers. Express and implied permission A visitor is someone who has express or implied permission to be on the land — either someone who has been expressly requested to enter onto premises or has permission to be there. Rules the same for children but may be a tacit licence Knowledge that a track is constantly used by children together with a failure to take any steps to indicate that passage is not permitted does amount to a tacit licence Lowery v Walker Entering premises to communicate with occupier does amount to tacit licence A person entering with the purpose of communicating with the employer will have implied permission, for example, asking directions, the postman, roundsman, etc.

    Entering premises to exercise a right conferred by law amounts to licence Section 2 6 stipulates that anyone entering premises for any purpose in the exercise of a right conferred by law, are visitors, for example, police with search warrants and officials empowered by statute to enter premises. In , a housing estate was built either side of the railway bridge and the bridge was used to connect the two.

    The plaintiff was injured when he stepped in a pothole. The common duty of care is the duty to take such care as is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited by the occupier to be there s 2 2. The common duty of care under s 2 2 extends to design faults.

    In Perry v Butlins Holiday World , the plaintiff, who was three years old at the time, fell on a low brick wall. The wall was capped with a brick with a sharp edge, designed to protect the wall from frost and rain. It was found that the wall could have been rounded and capped with wood or rubber. It was held by the Court of Appeal that the lower the structure the more likely that someone would fall on it and the top surface should be made of appropriate materials. Standard of care The same standard of care as that which applies in ordinary negligence applies.

    Children An occupier must be prepared for children to be less careful than adults. In Moloney v Lambeth LBC , the occupier was liable when a four year old boy fell through a gap in railings protecting a stairwell, when an adult could not have fallen through the gap. In Glasgow Corporation v Taylor , a seven year old boy ate poisonous berries on a visit to a botanical garden.

    It was held that the occupiers were liable as they knew that the berries were poisonous and they had made no attempt to fence the berries off. So, in that case, a child playing with a heap of stones had no remedy, as stones do not involve any element of allurement. In Phipps v Rochester Corporation , a trench which was not concealed was held not to be an allurement and, in Simkiss v Rhondda BC , there was no concealed danger in sliding down a steep bluff on a blanket and, in Jolley v Sutton LBC , the Court of Appeal ruled that a boat in a dangerous condition was an allurement to a 14 year old.

    In Jolley v Sutton LBC , the occupier had left a boat on land, which was a trap and attraction for children. The occupier was only liable for those injuries, which were reasonably foreseeable that children would play on an abandoned boat and might injure themselves on it; it was not foreseeable that older children would attempt to repair the boat by jacking it up. Consequently, the occupier was not liable when the jacked up boat fell on a boy and injured him. Skilled visitors An occupier is entitled to expect that a person in the exercise of his calling will appreciate and guard against any special risks incidental to his trade.

    In Roles v Nathan , two chimney sweeps died from carbon monoxide poisoning while cleaning the flue of a boiler. They had been warned not to continue working while the boiler was alight. The occupier was held not to be liable as, first, they had been warned of the danger and, secondly, it was reasonable to expect a specialist to appreciate and guard against the dangers arising from the very defect that he had been called in to deal with. The risk must be incidental to the trade or calling In Bird v King Line Ltd , it was held that the risks of working on a ship did not include falling on refuse which was carelessly left on the deck.

    Third parties An occupier was held to be liable for the acts of third parties in Cunningham v Reading FC The defendants were liable when rioting fans broke lumps of concrete from a structure and used them as missiles, on the basis that a prudent occupier would have done more to minimise the risk. Reasonable to entrust work to a contractor It depends on the circumstances and the nature of the work to be done as to whether it was reasonable to entrust the work to a contractor.

    The more complex the work the more reasonable it will be to entrust it to a contractor. This can be contrasted with Woodward v Mayor of Hastings , where the occupiers were liable for the negligence of a cleaner in leaving a step in an icy condition. Cleaning a step does not require any particular skill. Discharge of the duty of care Warning Section 2 4 a provides that an occupier can discharge his duty to a visitor by giving a warning of the danger that in all the circumstances allows the visitor to be reasonably safe. A written warning will not be adequate in the case of someone who is blind or cannot read or speak English.

    In Staples v West Dorset DC , it was held that an occupier had not been negligent when the council had failed to provide a warning and the danger was obvious. In such circumstances, a warning would not have told the visitor anything he did not already know and would not have affected his conduct. Journal of European Tort Law 3 2 , pp. Loss of Housekeeping Capacity.. Tort and Insurance Law Vol. Berlin: de Gruyter, pp. Journal of Professional Negligence 27 2 , pp. Professional Negligence 27 2 , pp. Oliphant, K.

    On a slippery slope: a response to the Jackson Report. Project Report. In: Koziol, H. Spiralling or stabilising? The compensation culture and our propensity to claim damages for personal injury. Modern Law Review 70 3 , pp. Coping with the costs war: the judiciary and the conditional fee egime. In: Pauknerova, M. Prague: Charles University, pp.

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