Tort Law Case listSeminar 1: Introduction to tort andintroduction to the tort of negligenceDonoghue v Stevenson  (HL)Facts:Judgment:NotesAnns v Merton LBC  (HL)Facts: The claimants were tenants of a block of flats built in accordance with the pla ns approved by thecouncil. The foundations were too shallow. The tenants sued for the cost of making the flats safe on thebasis that the council either negligently approved inadequate plans or failed to inspect the foundationsduring construction.Judgment: A DoC was owed by the council and that if their inspectors did not exercise proper care andskill then the council was liable even though the loss suffered was economic loss.Notes: two-stage approach to DoC formulated.Seminar 2: Psychiatric IllnessBourhill v Young - the event which actually happened would have caused psychiatric illness to a personof sufficient fortitude or customary phlegmMcLoughlin v O’Brian  (HL)Facts: C’s husband and children were involved in a road accident. C heard about it 2 hours later. Shewent to the hospital where she learnt her younger daughter was dead and saw her husband and twoother kids severely injured, all still covered in oil and mud. She sued in nervous shock.Judgment: The nervous shock suffered was the reasonably foreseeable result of the injuries to herfamily caused by D’s negligence and she was entitled to recover damages.Notes: For somebody not directly involved in the incident to recover in nervous shock, there has to be aclose relationship between C and the accident victims/ Further, C was to be in close proximity to theaccident in time and space. (Either present or witness the immediate aftermath. Here, Lord Wilberforceseems to stress the importance of them not being cleaned up yet.)
PRIMARY AND SECONDARY VICTIMSAlcock v Chief Constable of South Yorkshire  (HL)Facts: Concerns the Hillsborough disaster in 1989 where 96 Liverpool fans died in a massive crush. Theaccident was caused by the police negligently allowing too many supporters to crowd in one part of thestadium. A large number of claims were made by those present at the scene and those who had viewedthe events on TV. Claims were also made by people with varying relationships to those crushed.Judgment: HL introduced the distinction of primary and secondary victimsPrimary victims - here it was said they are those involved either ‘mediately or immediately’ but that definition changes - Primary victims have to establish that it was reasonably foreseeable (to D) that they would suffer ‘harm’ (it is unclear whether this covers psychiatric harm)Secondary victimsEssentially, everyone not directly involved in the incident. Note that this criterion presupposes thatsomeone else has suffered physical harm as a result of D’s action and these victims have suffered somepsychiatric injury as a result of viewing the psychical harm. To sue, they need: 1. Proximity of relationship – close tie of love and affection (some assumed; burden on C otherwise) 2. Proximity in time and space to the accident 3. Perception by own senses (sight or sound typically), not TP reports 4. There has to be “shock” (per Lord Ackner “the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind)CLASS OF PRIMARY VICTIMS:White v Chief Constable of the South Yorkshire Police  1 All ER 1Facts: In relation to the Hillsborough disaster but involves police suing their employer in negligence forthe PTSD they suffered as a result of the events. Note that the police in question were not those whowere at any risk of physical harm, nor did they suffer any. They were at the accident though.Judgment: In Alcock, rescuers were also placed in the class of primary victims. However, here the HLchanged the definition and said to be a primary victim, you need to be in the zone of foreseeabledanger. (You must establish ‘objective exposure to danger or a reasonable belief that there was anexposure to danger’)Notes: In the judgment there was clearly concern to avoid different treatment of police officers andbereaved relatives. Hence the exclusion of rescuers (though it was more of a middle ground than a totalexclusion). After white it seems that the HL had decided to create a very definite narrow category forprimary victims. But see W v Essex and Re Organ
Unwitting instrument of another’s negligence?(There is a further category of primary victims insituations where C believes he has caused another’s death or injury. This would only succeed if C wasactually present when the death or injury occurred Hunter v British Coal  2 All ER 97 - proximityrequirement)W v Essex County Council  2 AC 592–(regarding a known child abuser being placed with fosterparents who specifically said they wouldnt accept such a child.) Ultimately, what’s relevant here is thatHL said the category of primary victims not closedRe Organ Retention Group Litigation  QB 506- parents of deceased children whose organs wereretained after post-mortem examination treated as primary victims.Notes: It is clear the parents were at no time in the zone of foreseeable physical danger. 2 reasons weregiven for holding they were primary victims 1. Relationship between parent and health authority is almost analogous to that of doctor and patient (Where it is well-established that a DoC exists) 2. In this situation, there isn’t anybody who could count as a primary victim except the parents therefore, the primary victims must be the parents. (Slightly dubious as it hinges on the fact that the babies were not born as ‘human beings’)PRIMARY VICTIM NEED NOT ( ALWAYS) PROVE FORESEEABILITY OF PSYCHIATRIC INJURYPage v Smith  1 AC 155Facts: C was involved in a minor car accident and was physically unhurt in the collision, but the accidentcaused him to suffer a recurrence of ME from which he had suffered for about 20 years but was then inremission.Judgment: HL held that foreseeability of physical injury (even if none occurs) was sufficient to allow aprimary victim to recover in psychiatric injury.Grieves v FT Everard & Sons Ltd  1 AC 281 (Rothwell v Chemica & Insulating Co Ltd: Re PleuralPlaques)Facts: One of the claimants suffered a recognised psychiatric illness from the fear that he would contracta serious asbestos-related illness in the future.Judgment: HL refused to extend the principle from Page v Smith. Consider that C was working withasbestos, he seems to be in the zone of foreseeable danger. Gave 2 reasons. 1. The risk of physical harm wasn’t immediate (asbestos related diseases take years to manifest) 2. There was an intervening event between the asbestos exposure and the onset of the psychiatric illness (namely, the medical report; he only knew he’d gotten pleural plaques as a doctor had examined him and the test results indicated their presence)
Notes: Mitchell thinks these reasons aren’t convincing and that the HL isn’t completely sold by PvS andthus are going to great lengths to distinguish it.PRIMARY VICTIM ’S LIABILITYGreatorex v Greatorex  1 WLR 1970Facts: D was seriously injured when he negligently got into an accident. C, a fire officer and D’s father,was called to the scene (in the course of his employment) and subsequently suffered PTSD as a result ofseeing his son’s injuriesJudgment: A victim of self-inflicted injuries owes no DoC to a ‘secondary victim’ who suffered apsychiatric injury from witnessing the incident or its immediate aftermath. (i.e. no liability for primaryvictim where he is the negligent defendant)EmployeesWhite v Chief Constable of the South Yorkshire Police  1 All ER 1 (as above) - no special protectionfor employees as secondary victimsEMPLOYEES (AND PRISONERS)CHECKSUMMARY - Law generally looked upon personal injury claims more favourably than psychiatric claims - Idea being that we’re expected to deal with a certain amount of distress in life - This imbalance was somewhat addressed in McLoughlin where a woman who wasn’t ‘directly involved’ as such was allowed to claim for psychiatric injury. Some requirements are imposed to keep claims down though. Namely proximity of relationship and proximity of time and space. - This is taken further in Alcock where there’s a distinction drawn, with regards to psychiatric injury suffered, between primary and secondary victims. - Primary Victims – (Per Alcock, those involved mediately or immediately and includes rescuers. Changed in White to those in the zone of foreseeable danger) - Secondary victims – claims subject to stricter conditions o Proximity of relationship (burden on C. Some relationships would have this assumed. E.g. parent-child, spouses) o Proximity of time and space (witness event or immediate aftermath – e.g. mcloughlin) o Experience the event ‘unaided’; i.e. with your own senses (not on TV or through a TP. E.g. McLoughlin she saw them before they were cleaned up. In Alcock, a claim by someone who saw the primary victim in a morgue a few hours later, cleaned up as well, failed) o “Shock” (can’t be a gradual onset)
- Definition of primary victim refined in White. Becomes ‘zone of foreseeable danger’ (note the concern to avoid differential treatment between police and bereaved relatives. - The definition of primary victims may not be settled though o W v Essex – class of primary victims isn’t closed o Re Organ – Parents treated as primary victims Analogy with doctor-patient relationship The need to have some primary victim - There is a further category of primary victim. This may be described as ‘being an unwitting instrument of another’s negligence’. It applies in situations where C believes he has caused another’s death or injury. This can only succeed if C was actually present when the death or injury occurred. E.g. in Hunter, the owner of the mine was negligent in not having the minimum safety clearance distance in the mine. C a driver struck a hydrant and when he was away getting helped, someone else was killed by an explosion from the hydrant causing C to have a psychiatric injury. - Also, it seems that with regards to psychiatric injury for primary victims, only some physical harm needs to be foreseeable. (see Page v Smith) - But note how this was not followed in Grieves (RothwellI) o Risk of physical harm wasn’t immediate o Intervening event (medical report) - Also, where the primary victim is the negligent defendant, he is not liable for any psychiatric injury suffered by secondary victims (Greatorex v Greatorex)Employees?Seminar 3: Pure Economic Loss(1) The concept of pure economic loss, and the general rule againstrecovery in negligence(A) THE DISTINCTION BETWEEN PURE ECONOMIC LOSS AND CONSEQUENTIAL ECONOMIC LOSSSpartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd  QB 27Facts: D’s employees were digging up a road when they negligently damaged the electrical supply cableto C’s factory, leaving the claimants without power for 14.5 hours. They scrapped a ‘melt’ in the furnace,reducing its value by £368 and they lost a profit from the sale of the metal from that melt of £400. They
could also have completed four further melts during the power cut and their loss of profit from thosemelts was £1,767.Judgment: They could recover the damage to the melt in progress (physical damage) and the loss ofprofit from that melt (consequential economic loss). However, they could not recover for the loss ofprofit during the time the electricity was off, as it was pure economic loss and not recoverable.Notes: Broadly, we see 4 reasons against it - What people should tolerate - Worry about the size/extent of the claims and the ease of exaggeration - Sharing the burden (links to (2). It’d be very heavy for a single contractor to bear it) - There is a statutory immunity for supplies of utilities so when the disruption is caused by someone else, it doesn’t seem fair.Also, a general idea against PEL being recoverable is that in the commercial context, people often seekto inflict economic loss deliberately, let alone negligently.Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) (No 1)  AC 388– this case is considered in more detail later in the course, in the seminar on remoteness of damage;here the important thing is to understand the principle: where a physical injury leads to consequentialeconomic loss (such as loss of earnings), that consequential loss is recoverable provided that it wasreasonably foreseeable that loss of that type would occur.(B) PURE ECONOMIC LOSS IN RELATION TO DEFECTIVE PRODUCTS (COVERED IN L&O 387-407 BUT WE WILLLECTURE YOU ON THIS MATERIAL )Donoghue v Stevenson  AC 562 – In Donoghue, we see this idea emerging that tort duties may beowed to ultimate consumers of a product even though these consumers do not contract with themanufacturer.Dutton v Bognor Regis Urban District Council  1 QB 373 (361,362)Anns v Merton LBC  (HL)–In Anns, the HL held that a local authority may owe a DoC in negligencein exercise of its powers of inspection under the Public Health Act 1936. Lord Wilberforce clearlythought the loss was not purely economic. As a matter of ‘classification’, he was mistaken. The damagesuffered was PEL. No separate ‘damage’ had been done to the property of the plaintiffs, other than thebuilding itself, by the defendnats’ alleged breach of duty. (We see the HL recognise this error and thusdepart from Anns in D&F)D & F Estates Ltd v. Church Commissioners for England  AC 177Facts: The Church Commissioners owned a block of flats built by a firm of contractors. The plasteringwork was sub contracted. Fifteen years after the property was built it was found that the plasteringwork was defective. As there was no direct contractual relationship between the plaintiff and thedefendants an action was brought in tort.
Judgment: The HL held that tort duties under DvS are only owed in respect of damage done by the itemthat is manufactured by the defendant. Lord Bridge attempted to reconcile this decision with Anns bymeans of the ‘complex structure theory.’Murphy v Brentwood District Council  1 AC 398Facts: A council approved plans for a concrete raft upon which properties were built. The raft movedand caused cracks in the walls of a property which was sold for £35, 000 less than it would have done ifit were not defective.Judgment: The HL overruled Anns and held that the council was not liable in the absence of physicalinjury.Notes: The ‘complex structure theory’ was technically dismissed but there were some qualifications tothis (i.e. situations where it might apply) mean the potential exists for complex arguments about theapplication of Murphy: - Lord Bridge distinguished between the foundations (an integral part of the larger structure) and a distinct item (e.g. a heating boiler) - Lord Keith argued that the components could not be treated separately if “erected and equipped by the same contractor… On the other hand where, for example, the electrical wiring had been installed by a subcontractor and due to a defect caused by lack of care a fire occurred which destroyed the building…” there might be liability in tort. - Lord Jauncey also felt that ‘integral components could only be treated as ‘separate property’ if installed by a different contractor. However, he thought these ‘integral compenets’ could be distinguished from the examples of the central heating boiler or electrical installations, which he described as ‘ancillary equipment’ and for which he thought normal principles could apply.Further, it is clear in Murphy that even in the case of defects that cause actual damage to a separatestructure or indeed to the person, there will be liability only if the damage is caused by a defect thatremains ‘latent’. Once the defect is ‘patent’ (becomes known), it ‘no longer poses a danger’.This strict distinction was doubted in Targett v Torfaen Borough Council  3 All ER 27, and it wassuggested that the availability of reasonable steps to avoid the danger should be considered as well.Defective Premises Act 1972 ss1, 2 – Provides a statutory remedy against ‘a person taking on work for orin connection with the provision of a dwelling.’ The protection extends to subsequent purchasers andcannot be excluded or limited via contract. However, it only applies to ‘dwellings’ and an action must bebrought within 6 years of completion of the work. (and local authorities are not covered by the ‘aperson’ definition)Winnipeg Condominium Corporation No 36 v Bird Construction Co  1 SCR 85Bryan v Maloney (1995) 69 ALJR 375 - It does seem that Murphy was decided more on policy reasons o Anns created a new form of liability – best left to parliament o Argument that consumer is already protected by other means. Specifically, first party insurance o There is already consumer protection by statute - And the above 2 cases illustrate how other jurisdictions have seen fit to depart from Murphy
(2) The special principles governing duty of care(A) ASSUMPTION OF RESPONSIBILITYHedley Byrne & Co Ltd v Heller & Partners Ltd  AC 465Facts: The appellants were advertising agents, who had placed substantial forward advertising orders fora company on terms by which they, the appellants, were personally liable for the cost of the orders.They asked their bankers to inquire into the companys financial stability and their bankers madeinquiries of the respondents, who were the companys bankers. The respondents gave favourablereferences but stipulated that these were "without responsibility." In reliance on these references theappellants placed orders which resulted in a loss of £17,000. They brought an action against therespondents for damages for negligence:-Judgment: a negligent, though honest, misrepresentation, spoken or written, may give rise to an actionfor damages for financial loss caused thereby, apart from any contract or fiduciary relationship, since thelaw will imply a duty of care when a party seeking information from a party possessed of a special skilltrusts him to exercise due care, and that party knew or ought to have known that reliance was beingplaced on his skill and judgment. However, since here there was an express disclaimer of responsibility,no such duty was, in any event, implied.Notes: This case gave rise to the Hedley Byrne test. Namely, a DoC may arise in respect of a loss where: 1. (Voluntary?) assumption of responsibility by D (where D exercises skill and judgment knowing C will rely on the statement) 2. Reasonably reliance by C(I) THE CAPARO TESTSmith v Eric S Bush (a firm)  1 AC 831Facts: Here, D gives a disclaimer with their advice which if anything was clearer than the HB disclaimer.HL said that it failed the requirements of UCTA. (1977) and HB was decided in 63. So at the time of hb HLdidn’t have to worry aboutUCTA.Judgment: even though the surveyor said he wasn’t assuming responsibility, that disclaimer wasn’treasonable inthe framework of UCTA and it was to be disregarded and what you were left with is aperson who had assumed responsibility even though he said he hadn’t. (so note the lack of requirementof a voluntariness requirement)Notes: Lord Griffiths in his judgment set out an alternative formulation by which to judge whether aduty of care should be recognised as arising in such a case (which went back to the general conceptionand essentially is the framework of the Caparo test), avoiding the terminology of ‘assumption ofresponsibility’. It should be noted that the search for a ‘voluntary assumption of responsibility’ wasintended by Lord Devlin in Hedley Byrne to be a way to judge whether proximity was present. However,the reasons Lord Griffiths ultimately give seem to fit with the old test. This was perhaps a case in whichan alternative approach to justifying the DoC was simply more appropriate. Nonetheless, Lord Griffiths’
attempt to make the assumption of responsibility fit the facts amounted to a distortion of the conceptand has caused significant confusion.Caparo Industries Plc v Dickman  2 AC 605Facts: Caparo owned shares in a TP company. D audited the TP company and reported a high profitwhen there was actually a loss. On the basis of the report, Caparo decided to increase its investmentand launch a subsequent takeover bid. When the mistake was discovered, Caparo tried to claim againstD for the loss they incurred by paying a higher price for the new shares they purchased as a result of thenegligently produced report.Judgment: It was held that the defendant audit company did not owe a duty of care in this respect. Theyowed it to the shareholder’s at large as a body to ensure that the company was run properly. If any dutywas owed to individual shareholders, it was only in respect of losses they might make in relation to theirexisting stake in the company namely by selling undervalued shares and most certainly not to lossesresulting from the purchase of additional shares which would result from a wholly independenttransaction having no connection with the existing shareholdingNotes:Caparo sets out three criteria for the existence of a Duty of Care 1. Foreseeability 2. Proximity of relationship 3. Fair, Just, and Reasonable to impose liabilityAfter Caparo, ‘assumption of responsibility’ appeared to have been fatally weakened as a justificationfor the DoC in cases of PEL. Certainly it was clear that the duty was not to be understood as ‘voluntarilyassumed’ but note the resurgence of the term in the later cases (below).(II) THE INTER-RELATION BETWEEN THE TESTSMerrett v Babb  3 WLR 1 – The CA doubted whether ‘assumption of responsibility’ has anymeaning. Here they said the test has ‘merged with Caparo’. Indeed, in 2 other CA cases prior to this sawthem treating the ‘assumption of responsibility’ and Caparo as alternative tests, applying both arguingthey should lead to the same result.Customs and Excise Commissioners v Barclays Bank plc  1 AC 181 (disapproving the approachtaken by the CA, which is critically analysed in P Mitchell and C Mitchell (2005) 121 LQR 194)Facts: C had obtained ‘freezing orders’ and served them on D. The purpose of these orders was toprevent two companies from removing funds from their bank accounts, so that C could recoveroutstanding VAT from those accounts. D failed to take action to prevent funds from being moved out oftheir accounts. It was alleged that this failure was negligent. C could thus not recover the full sum theywere owed and sought to recover the shortfall from D on the basis that it breached a DoC owned tothem to abide by the orders.Judgment: The HL gave 5 slightly different judgments (same conclusion) Steele explains the judgment asfollows 1. The first stage in deciding a novel case of economic loss is to ask whether there is a voluntary assumption of responsibility
2. In an assumption of responsibility is established, this may be sufficient (in other words, there may be no need to consider policy issues) 3. At least two of the judges seem to have treated assumption of responsibility as an aspect of proximity (Lord Hoffman is particularly clear on this) o If this is correct, then ‘assumption of responsibility’ forms part of the three stage test, rather than a narrower test to be applied first. Hoffman hints that where there is an assumption of responsibility, it is the nature of the relationship which makes the duty FJR. 4. No assumption of responsibility could be established here o Even if the test of the existence of an assumption of responsibility is objective, a degree of voluntariness is essential. Here, there was an adverse relationship between the parties. 5. This was not the end of the matter, Caparo was applied. So the HL seems to recognise that Caparo is a wider test. Indeed, this helps to explain Smith v Bush as there, despite the lack of assumption of responsibility, there was proximity and foreseeability (and ‘policy’) 6. Policy issues were decisive against a duty of care 7. Lord Hoffman’s short-cut: no common law duty of care could be said to arise out of the freezing order itself (draws an analogy with omissions and Stovin v Wise)(III) EXPRESS ASSUMPTIONS OF RESPONSIBILITYIt seems that assumptions of responsibility can be deduced either from the general nature of therelationship (Henderson), or – if the general nature of the relationship is not compatible with such adeduction – it may be deduced from specific words, conduct or circumstances which (Williams) overridethe general features of the relationship.Williams v Natural Life Health Foods  1 WLR 830 - in determining whether there had in law beensuch an assumption an objective test was to be applied (in reality this doesn’t crop up often.Nonetheless, it seems clear that the assumption of responsibility no longer need be voluntary) , theprimary focus being on things done or said by the defendant or on his behalf and the question beingwhether the plaintiff could reasonably have relied and had relied on an assumption of personalresponsibility by him; and that the fact that the brochure given to the plaintiffs had held the companyout as having the expertise to provide reliable advice to prospective franchisees and had made it clearthat that expertise derived from the second defendants experience in the health food trade wasinsufficient to render the second defendant personally liable to the plaintiffsCalvert v William Hill Credit Ltd  EWHC 454 (Ch) - Here, the court says that by confirming that Cwould be prevented from telephone betting in response to Cs request for self-exclusion, W hadassumed responsibility towards C as the relationship was akin to contract, save for consideration.(Nonetheless they weren’t liable as it was held that D could not have been said to have caused C’s lossesas C would have in any event ruined himself)(IV) ASSUMPTIONS OF RESPONSIBILITY IMPLIED FROM THE RELATIONSHIPThese cases also really highlight how ‘Hedley Byrne liability’ has moved beyond negligent misstatements(and indeed, beyond PEL)
Spring v Guardian Assurance Plc  2 AC 296Facts: Concerns a negligently prepared reference (by D) resulting in C not being hired for another job.Judgment: Two of the majority interpreted Caparo in reaching their decision (Lord Woolf and another).Lord Goff however based his decision through a specific application of principles drawn from HedleyByrne. (with whom Lord Lowry agreed)Notes: Importantly, from Lord Goff’s reasoning, we see the following:There are number of factors the courts take into consideration to decide there’s been an impliedassumption of responsibility; - The nature of the relationship is absolutely key. There are certain relationships such as solicitor- client and doctor-patient that the courts regard as giving rise to the implied assumption of responsibility. - This conclusion is due to the special skills these professionals possess. - In relation to these special skills, if D holds themselves out as having some special skill which they’re going to exercise (for the benefit of C), it leads to an implicit assumption of responsibility. - It is not necessary for D to hold themselves out as merely having a special skill; it could be knowledge as well (as with knowledge of C regarding the reference)Henderson v Merrett Syndicates Ltd  2 AC 145Facts: The case arose out of losses suffered by investors (referred to as ‘Names’) suffered by the Lloydsinsurance market in London during the 1980s. This involved a situation where the claimant wanted tojoin an insurance syndicate. He’d hire an agent (either a members’ agent or a combined agent acting asa members’ agent) to generally advise him and place him on the syndicate etc...The members’ agent would be the one who contracted with the managing agent (or combined agentacting as a managing agent) who managed the syndicate. As can be seen, there are a variety of contractsin play here.Judgment: Lord Goff (giving the leading judgment) holds there could be liability in tort and emphasisedthe concept of assumption of responsibility drawn from Hedley Byrne. (He builds on his own judgment inSpring). LBW agreed the central concept was ‘assumption of responsibility’ but placed considerableemphasis on ‘fiduciary duties’ as forming the historical basis for the action in Hedley Byrne.Notes: with regards to ‘concurrent liability’ in contract and tort, he saw no issue, the practical resultbeing that a claimant could choose a remedy which appears to him to be most advantageousWhite v Jones  2 AC 207Facts: Here, a testator executed a new will after a family quarrel, disinheriting his two daughters, theplaintiffs. After reconciliation, he contacted his solicitors with instructions to draw up a new will,restoring the legacies to the plaintiffs. Little progress was made and the testator died before the newwill was completed.
Judgment: Lord Goff acknowledged there was no trust assumption of responsibility on the part of D’stowards C’s. In his judgment, the case concerned a wrong which required a remedy and the best way ofproviding it was to hold that the assumption of responsibility which existed between D’s and thetestator extended to C’s.Notes: In terms its treatment of legal principles, White v Jones is slightly controversial. On the otherhand, the solution was intended to be confined to negligence in respect of wills. However, it has beenalso been applied in the different but analogous situation of advice in respect of pension rights, wherethe defendant advisor is aware that the client intends to make provision for his or her dependants(Gorham v British Telecommunications plc  1 WLR 2129)Williams v Natural Life Health Foods  1 WLR 830SUMMARY: - The law doesn’t like claims for PEL (Spartan Steel) o We specifically try to cause economic loss often o Idea of what we should bear o Burden sharing theory o There might be ‘unlimited liability’ - Broadly, there are 4 categories we see PEL 1. ‘relational’ economic loss (economic loss caused by damage to property of another party – e.g. Spartan Steel General rule against liability 2. Economic loss caused by acquiring a product that turns out to be defective (Murphy) Generally, there’s no liability but note the room for argument in murphy 3. Economic loss caused by reliance on negligent misstatement (Hedley Byrne) 4. ‘Extended’ Hedley Byrne Liability (Cases after hb) - With regards to category 3, we see in HB this idea of: o A voluntary assumption of responsibility (making a statement knowing it will be relied on) o Reasonable reliance on the statement - In Smith v Bush, this idea seems to be distorted and a new test is suggested to fit the facts - This essentially becomes the 3-stage Caparo test o Foreseeability (harm) o Proximity (relationship) o FJR (liability)
- In later cases however, we see a resurgence of this ‘assumption of responsibility’ idea (see especially Lord Bridge in Spring, Henderson and White). Nonetheless, it is now clear that the assumption is not voluntary, but objective (see especially William) - There was thus a conflict then in the test for a DoC in relation to economic loss which had to be resolved. The CA wrestled with the difficulty, saying that they were alternative tests which should lead to the same result and even going so far as to say the ‘assumption of responsibility’ had merged with Caparo (Merrett) - Broadly, after Customs and Excise v Barclays, it seems you apply the ‘assumption of responsibility’ first and that may be sufficient (though there is debate over whether you are applying one test first followed by the wider one or whether the tests have indeed merged but a finding of this assumption means that it is FJR). Should that fail, you apply the wider Caparo test.So after Customs excise, in general with regards to PEL: 1. There is actually no overarching exclusionary rule for PEL but rather, two specific exclusions for categories 1 and 2. Even then, the exclusion for category 1 can seem arbitrary and while category 2 has more concrete reasons, note that they are doubted and also, the issues with Murphy 2. Outside the scope of the exclusionary rules, additional criteria will apply in addition to foreseeability. 3. If a ‘voluntary assumption of responsibility’ is present, it may suffice without separate consideration of policy issues 4. If the assumption of responsibility is not present, the three stage Caparo test may nevertheless be satisfied. But note that in such cases, policy considerations will be especially important. (per Lord Bingham in Customs Excise “the ‘fair, just, and reasonable criterion’ can be frankly and openly reassessed in terms of ‘policy’”Seminar 4: Duty of Care 3 – Omissions(1) Policy reasons for limiting liability for a failure to actStovin v Wise  AC 923Facts: C was on a motorcycle and involved in an accident with D. D claimed accident was caused partlybecause her view was obstructed (local authority was a joined D). Local authority had written to theobstructors (people owning the things obstructing the view) asking if they could take the necessaryaction. They received no reply and proceeded to do nothing for a year. They were held 30% liable andappealed to the HL.
Judgment: In general, no liability for omissions without a special duty to act. Lord Hoffman gives 3specific reasons. 1. Political reason (restriction on individual autonomy; but, doesn’t seem to weigh up competing factors) 2. Moral reason (‘why pick on me’ argument; again, individual concern overrides others. Also, sometimes there are reason to pick on someone e.g. as possessing a particular skill) 3. Economic efficiency (activities should bear their own costs; but sometimes it may require a small act to save someone’s life. Is that less efficient? This argument only seems to apply in the business context. E.g. letting a child drown won’t help him be more efficient in the future)(2) Distinction between acts and omissions
It can be difficult to distinguish the two. A reasonable working test is to look at the process of causation.The key thing to look out for is whether the defendant’s contribution made things worse than they wereor whether the defendant is merely not making things better. We’re concerned with the latter here.(3) Examples of liability for omissions(A) CREATING THE RISKe.g. Hobbs (Farms) Ltd v Baxenden Chemical Co  1 Lloyds Rep (in leni)C is injured by a product and this product had been made by the D perfectly carefully. At the time noone realised there was anything dangerous or problematic with it. Later however, problems with designwere brought to the manufacturers’ attention but the manufacturer made no attempt to contactpurchasers. Duty of care was owed in regard to that negligent failure to warn the purchasers of thatproduct about that defect that had come to light.(B) UNDERTAKING RESPONSIBILITY FOR THE CLAIMANT’ S WELLBEINGCapital and Counties plc v Hampshire County Council  QB 1004Facts: 3 appeals held all essentially concerned with the fire brigade’s liability for failing to put out a firein some way. In the second 2 cases, all that we could say about the fire brigade was that they hadn’tdone enough. Whereas in the first one, the fire brigade arrives, apparently they don’t do enough to startwith, but then the fire brigade officer orders the sprinkler system turned off and that made the buildingburn down.Judgment: In general, there’s no DoC owed by a fire brigade in respect of a fire. Nonetheless, in the thirdcase here there was liability.Notes: There are no policy reasons to require a duty being imposed in respect of getting there in timeonce they accept a call. Further, once they arrive, the fact that there may be conflicting demands placedon the fire services (e.g. might have to break down another house to save a block) means thereshouldn’t’ be a duty imposed there either.Kent v Griffiths  QB 36Facts: An ambulance had not turned up in time for unexplained reasons. The result of their delay wassevere injury to the claimant.Judgment: There is no general duty on the ambulance service to respond to a call; but once a call hasbeen accepted, the service owes a duty to the named individual at a specific address.Notes: CA distinguish the fire service because conflicting demands aren’t placed on them once they’reallocated to a particular call. Lord Woolf however recognises they if they’re called to the scene of amajor road accident for instance, there might still be conflicting demands (e.g. who to save first) butsays that a duty of care would still exist. (and tort law would avoid imposing excessive liability as long as
they weren’t negligent in choosing the order in which they treated people) This distinction betweenCapital and Kent does not seem convincing.Van Colle v Chief Constable of the Hertfordshire Police  1 AC 225,  (Lord Bingham)–(Casewhere C was threatened with death if he did not drop charges and eventually killed) Here, Binghamsuggests that the real distinction between the two cases is that Capital is about property damage whileKent is about personal injury. Life should be given more weightage but beyond that, property, especiallycommercial property as in Capital, is typically insured. Though courts aren’t meant to take that intoaccount, they often do. Flowing from this, it does seem to suggest that if a fire brigade is required tohelp someone personally in danger, there could be a DoC.Barrett v Ministry of Defence  1 WLR 1217Facts: C got very drunk on cheap duty free booze at his naval base’s bar and lies down. A senior officerorganises for him to be taken away and he’s left alone and proceeds to puke and choke.Judgment: It is held that once the duty officer organises for him to be taken away, a duty of care arises.Notes: There was a question of whether a duty should arise for the Ministry of Defence with regards topreventing him from becoming so drunk as to become a danger. The answer seems to be no as the lawfavours autonomy and the effect of such a duty would be to ‘dilute self-responsibility’. (So the duty hereis relatively limited. Cf. Jebson)Jebson v Ministry of Defence  1 WLR 2055Facts: Soldiers go to the town of Portsmouth. Transport is a lorry with a canvas back basically, on theway back, the soldiers notice that driving along behind the lorry is a young woman in the car. In an effortto impress her, one of them climbs up to the lorry roof to do a dance. He falls off and gets injured.Judgment: Because the officer organised the event, he assumed a responsibility for the safety of thesoldiers throughout. So the mere fact that he was the CO who organised the event meant that he washeld to have responsibility throughout.Notes: Is it because of his position in employment rather than the mere fact he organised an event? Is iteven an employment context? Does Jebson mark a large, and indeed perhaps overly large, extension ofthis assumption of responsibility context? Consider the case of someone organising an office party,could he be liable? The ruling seems confined to the military context.Reeves v Commissioner of Police for the Metropolis  1 AC 360 - Man commits suicide in a cell.Authorities knew he was at risk and failed to take steps to prevent him from killing himself. There it’dseem that the position of responsibility occupied by prison authorities is what gives rise to the duty. It isbecause they locked someone up, confined his movements etc..., that they ought to take careto providesafety in that confined space.
(C) OCCUPATION OF LANDIt’s said that a person’s control over land gives rise toa responsibility to prevent damage occurring toother people.Goldman v Hargrave  1 AC 645Facts: A tree on a man’s land got hit by lightning. He thought he’d let it burn out (that’s the negligent bit.Not putting it out). But the weather got worse and the wind changed etc so it flared up and the firespread to the neighbour.Judgment: He’s made liable for failing to prevent the damage occurring to his neighbour.Notes: Why should occupying land give rise to such a duty? - The person at risk isn’t allowed to come onto your land to get rid of your danger also the person can’t really move away. - Note that there is an issue of cost of prevention. It’s quite important on the facts there that there’s quite a simple task he could have done to stop the spread of the fire. So it seems we’re only requiring landowners to take ‘reasonable steps’ to prevent the harm rather than all possible steps. However, as different people have different amounts of resources, there is a lingering question of whether these ‘reasonable steps’ will be assessed subjectively or objectively. Particularly with omission situations where potentially expensive acts are required.(4) Liability for Acts of Third Parties(A) GENERAL RULEThe general rule is that you don’t owe a doc to prevent TP’s from causing damage to anyone. Indeed, it’sreinforced by the general rule of causation which is that a TP’s voluntary act breaks the chain ofcausation. So even if I do something negligent, e.g. leave the keys in my car so a thief steals it; if the thiefruns over you, his voluntary act would break the chain of causation b/w me leaving the keys and yourdamage. So generally the fact that a TP has injured you cannot make me liable in negligence. (Essentiallydescribes Topp v London Country Bus  1 WLR 976)But there are exceptions and the way they’ve developed underlines an underlying difficulty in the lawregarding the DoC and that’s whether you can use the foreseeability test or whether you have toidentify particular situations where a DoC arises. Nonetheless, as with other areas of tort, it is nowreasonably clear that mere foreseeability isn’t enough.(B) EXCEPTIONS TO THE GENERAL RULEHome Office v Dorset Yacht  AC 1004Facts: Young offenders at Dorset snuck out, stole a boat and crashed into one owned by D.Judgment:
Lord Reid: DoC should be based on foreseeability and if it was foreseeable, liability would hinge oncausation (and whether it was broken)Lord Diplock (and Pierce): Mere foreseeability isn’t enough. Identifies certain features of the situation athand that made it appropriate to impose a DoC. Here, the high degree of control justified the duty (sothis applies more generally to prison officers and prisoners)Notes: So it seems an important factor in imposing liability for acts of Third Parties is the degree ofcontrol D was entitled to exercise over the TP.Smith v Littlewoods Organisation Ltd  AC 241Facts: Case concerned a cinema in the town centre of a Scottish town which was burned down byvandals who broke in. Owners of the cinema didn’t realise there was such a risk; when it burns down, itdamages neighbouring property and it is the neighbours suing the cinema owners.Judgment: No DoC owed. Majority focus on the question of foreseeability.Lord Goff by contrast was clear that mere foreseeability was not enough. Some categories he suggestedincluded: - Degree of control exercised over the TP - Presence of an ‘assumption of responsibility’ by D to protect C against a TP - If D negligently created a risk which a TP then foreseeably triggered (e.g. fireworks for a village festival stored in an unlocked shed which are then set off by trespassers causing damage)Mitchell v Glasgow City Council  1 AC 874Facts: C (Mitchell’s spouse) has this violent antisocial neighbour who causes him various problems.Mitchell complains to the council. Council summoned neighbour to a meeting. Following the meetingneighbour returns to the house and kills Mitchell.Here it was said that the council had been negligent asthey should have warned C that the meeting was going to take place. What would he have done then?Gone out or maybe gone away for a few days to let the neighbour calm down for a bit.Judgment: HL held that no DoC was owed to him. The idea being that they were simply exercising theirstatutory powers andno criticism could have been made for them calling the meeting. They also saidthat the council had not assumed responsibility to Mitchell to protect him against the neighbour andLord Hope says it’s only when there’s been an assumption of responsibility that you can find that afailure to warn a TP has been a breach of a DoC.Notes: This case illustrates how important it is that we choose one option over another in terms ofimposing a DoC. Here, mere foreseeability would have led to the imposition of a duty. Focus on Goff inSmith and the HL here to get an understanding of liability for acts of TP’s.Part of Lord Hope’s reasoning was that if you imposed a duty here, you’d have to impose a duty onprivate landlords and housing associationsSUMMARY - No general duty to act in English law (Stovin v Wise)
- A good way to tell the difference between an act and omission is whether the defendant made things worse (which would be an act and thus potentially have liability) or whether he merely did not make things better - There are nonetheless exceptions to this rule such as when you undertake responsibility to act o This is explicitly not the case for the fire department (Capital and Counties) No policy reasons to impose duty at time of answering call Policy reasons (conflicting interests) against duty at time of arrival Unstated reason? insurance o However, it seems to be so for the ambulance service (Kent) No conflicting interests once allocated to a call. Nonetheless, even if there are there’d still be a duty o The distinction between the above 2 is unsatisfactory and in Van Colle, Bingham suggests that the reason may be that one deals with personal injury and another with property. So is there a duty if the fire service is called to rescue someone? o Where someone is clearly in a very bad state and you make some motion of helping them (Barrett) o Perhaps employers and employees? (wide reading of Jebson) o Something in the nature of organising an activity for servicemen (narrow reading of Jebson) o Prison officers and prison guards (Reeves) o Occupiers of land and visitors (Goldman. Note how special cost considerations may arise here) - With regards to liability for the acts of third parties again, the general rule is that there is no DoC owed. However there are some exceptions. - Home Office v Dorset Yacht; where D has a high degree of control over the TP. Note that the category approach was favoured by the majority here. - Smith v Littlewoods; The majority favoured a foreseeability approach. Lord Goff firmly took a category approach and suggested a few. o High degree of control o Assumption of responsibility o Where D has created a dangerous situation but is negligent allowing the TP’s to ‘realise the danger’ (or make the danger materialise essentially) - Mitchell; adopted Lord Goff’s reasoning in Smith. So it seems the mere foreseeability approach is gone.Seminar 5: Duty of care 4: publicauthorities
(1) The techniques used to narrow the scope of duty(A) DIRECT LIABILITY AND VICARIOUS LIABILITYPhelps v Hillingdon London Borough Council  2 AC 619 - example of assumption of responsibilityby individual psychologist to child.X (minors) vBedfordshire County Council  2 AC 633 - authority can only act through its employees.(B) JUSTICIABILITYHome Office vDorset Yacht Co Ltd  AC 1004 - illustrations of justiciability; suggestion of ultra virestest to define public authority’s liability.X (minors) v Bedfordshire County Council  2 AC 633 - rejection of ultra vires test; ask insteadwhether authority had acted within its discretion, and apply policy/operational distinction.Barrett vEnfield London Borough Council  2 AC 550.Phelps v Hillingdon London Borough Council  3 WLR 776Carty v Croydon London Borough Council  1 WLR 2312, especially at - - rejection of thediscretion test; scepticism about the value of the policy/operational distinction.Connor v Surrey County Council  EWCA Civ 286 - (Laws LJ) - arguing that the underlyingidea of justiciability has changedCraig, Administrative Law (L&O 504-505)(C) ARE PUBLIC LAW CONCEPTS RELEVANT ?Stovin vWise  AC 923 - dicta that claimant must show irrationality where duty based on failure toexercise statutory power.Gorringe v Calderdale Metropolitan Borough Council  1 WLR 1057 - some caution about the dictain Stovin. See in particular  (Lord Steyn),  and  (Lord Hoffmann). But contrast  (LordRodger).(2) Applying the test for a duty of careCaparo Industries plc v Dickman  2 AC 605 - basic test for dutyX (minors) vBedfordshire County Council  2 AC 633 - not fair, just and reasonable to imposeliability for negligent conduct of child abuse investigations
Barrett vEnfield London Borough Council  2 AC 550 - fair just and reasonable to impose liabilityfor decisions as to child’s future, once he had been taken into care.Phelps vHillingdon London Borough Council  3 WLR 776 - assumption of responsibility bypsychologist employed by authority to child in respect of assessing child for dyslexia.Stovin vWise  AC 923 - vital importance of statutory context.D v East Berkshire Community Health NHS Trust  QB 558 (CA);  2 AC 373 (HL) - veryimportant case; you need to be familiar BOTH with the Court of Appeal’s analysis of the claim by thechild (which was not appealed to the House of Lords) AND with the House of Lords’ analysis for theclaim by the parents.D v Bury Metropolitan Council  1 WLR 917, - only - wide application of D v East Berkshire.Jain v Trent Strategic Health Authority  1 AC 853Merthyr Tydfil County Borough Council v C  EWHC 62 (QB)Seminar 6: Breach of duty and causation1(1) Breach of duty(A) BASIC TESTWhether D was negligent.Blyth v Birmingham Waterworks Co (1856) 11 Ex 781: “Negligence is the omission to do somethingwhich a reasonable man, guided upon those considerations which ordinarily regulate the conduct ofhuman affairs, would do, or doing something which a prudent and reasonable man would not do”.(B) OBJECTIVE STANDARDObjective standard;Nettleship v Weston  2 QB 69 – A learner driver crashed into a lamp post and injured herinstructor. CA said that negligence was judged by reference to an objective standard and in general, thereasonable person test shouldnt be modified by reference to D’s characteristics.To be judged in context;This is particularly relevant to sporting situations (or situations analogous to sporting situations)Wooldridge v Summer  CA
Facts: A photographer is injured by one of the competitor’s horses while taking pictures at an showjumping event.Judgment: the CA held that the duty of care would only be breached where a competitor displayed‘reckless disregard’ for the safety of the rider. So it’d be necessary to show a high degree of negligence,even recklessness. Here, D was held to have made ‘an error of judgment’ rather than ‘actionablenegligence’.Blake v Galloway  (CA)Facts: Teenage boys were playing a game which involved throwing pieces of bark at each other. One ofthem threw a bit of bark so hard that it hit his friend in the eye, causing serious injury.Judgment: CA said it was akin to a sport and there was an almost tacit agreement between the ‘players’as to what they’d do. Thus the context allows the standard of the duty owed to be lowered andprevented the finding of a breach.Without reference to hindsightYou have to assess whether the defendant is careless by reference to the date of the event.Roe v Minister of health  CAFacts: D ran a hospital. C had been in for an operation which required anaesthetic. He was injected withanaesthetic but unfortunately, it’d become contaminated and the contamination in it caused C tobecome paralysed. The contamination had come about in a peculiar way. Anaesthetic was stored inglass vessels called vials. These vials were stored in an antiseptic called phenol. Nobody realised it at thetime but those glass vials were at risk of microscopic cracking, through which the antiseptic couldpenetrate. It was this penetration that had caused the contamination in Roe’s case.Roe’s case was the first time anybody realised that this was how anaesthetic could becomecontaminated. And after it was realised, articles were published about this risk etc… Roe sues thehospital for negligence.Judgment: CA says hospital wasn’t negligent as it has to be judged by the state of expertise as it exists atthe time of the alleged negligence. You can’t use the benefit of hindsight. (Per Denning “we must notlook at the 1947 accident with 1954 spectacles)So we start from a basic position of an objective standard just by reference to the context and the timeof the incident. There are 2 questions we might ask: - Are there any characteristics of the particular defendant that can be taken into account? - What are certain factors the RP would consider in deciding whether to do (or not do) an activity?
BUT COURTS SOMETIMES TAKE D’S SPECIAL CHARACTERISTICS INTO ACCOUNT :Age, specifically young ageMullin v Richards  1 WLR 1304Facts: Two 15-year old schoolgirls were fencing with plastic rulers during a class when one of the rulerssnapped and a fragment of plastic caused one of them to go blind in one eye.Judgment: CA held that the standard of care should be modified to the extent of taking D’s age intoaccount as people who are young are less capable of appreciating the likely consequences of theiraction.Notes: From this judgment, is not clear whether either old age or mental immaturity can be taken intoaccount. (e.g. 20 year old with a mental age of 10)Professional StatusPhillips v Williams Whiteley Ltd  1 All ER 566Facts: C had her ears pierced by a jeweller in a department store. He sterilised the needle in a flame aswas the practice for jewellers then but did not take the steps a doctor would have. C gets an infection.Judgment: CA held that it is the nature of the task that determines the standard of care. Also, where aperson undertakes an activity requiring specialist skills, they’re required to reachthe standard of aperson reasonably competent in that skill.DisabilityMansfield v Weetabix Ltd  1 WLR 1263Facts: Driver of a Weetabix lorry suffering from malignant insulinoma crashed into the front of a shop.The disease makes you drowsy and affects your concentration and depth perception. Also, it comes ongradually so it isn’t easy to appreciate that you’ve been affected by it. Importantly, the driver didn’trealise he was suffering from it as for those who do, treatment is available.Judgment: CA said to disregard the disability would essentially be to impose strict liability which is notwhat the law of negligence is about. The RP test can thus be modified to take disability into account.(Here, a reasonable person who didn’t know he suffered from MI, and thus wouldnt have realisedsomething was wrong, would have continued to drive)CERTAIN FACTORS A REASONABLE PERSON TAKES INTO ACCOUNT WHEN DECIDING WHETHER TO PERFORM (OR NOTPERFORM ) AN ACTIVITY 1. Likelihood of Harm 2. Gravity of the Harm 3. Cost of taking precautions
4. PurposeLikelihood of harmBolton v Stone  AC 850Facts: C lives close to a cricket ground and is hit by a cricket ball which is hit out of the ground. In thisground, there was a fence around the edge which was about 7 feet high and the ground was on a bit ofa slope. In fact, for the ball to hit the claimant, it had to have travelled about 17 feet high in the air. Andin the past 30 years it was said, the ball had only been hit out of the ground on half a dozen or sooccasions, and prior to this, no one had been injured.Judgment: The court held that low likelihood of harm meant it was not negligent for the club to have amatch there. So the fact that the RP would only have expected this to happen in a fantasticalcombination of circumstances went to show there wasn’t a breach of docThis was confirmed more recently inWhippey v Jones  EWCA Civ 452Facts: C was a runner in a park. D was owner of hector, the Great Dane who apparently weighed 12stone. Unfortunately for C, Hector knocked into his right shoulder and through a series of events causedhim to break his ankle. C sues D for negligence.Judgment: CA holds it’s not negligent to let dog off leash in the park because dog never had previoushistory of jumping onto people or barging into them. I.e. because likelihood of harm is so small, a RP isjustified in taking the risk of that harm“*16+ … Before holding that a persons standard of care has fallen below the objective standard expectedand so finding that he acted negligently, the court must be satisfied that a reasonable person in theposition of the defendant (i.e. the person who caused the incident) would contemplate that injury islikely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be asufficient probability of injury to lead a reasonable person (in the position of the defendant) toanticipate it.”Gravity of HarmParis v Stepney Borough Council  AC 367Facts: C worked for the council on a street cleaning vehicle. He only had one functioning eye. Whenusing a hammer to remove a bolt on a vehicle, a scrap of metal is liberated by this act and it goes into hisgood eye. So he completely loses his sight as a result of the accident. He sues the council saying they’renegligent in failing to provide him with goggles in the use of the vehiclesJudgment: D owed a higher standard of care to the claimant because they knew that for him inparticular, an injury to his good eye would be extremely serious.
Cost (and practicability) of precautionsLatimer v AEC Ltd  AC 643Facts: Here, there’d been a downfall of rain which had caused flooding in D’s factory. As a result of thatflooding, coolant for the machines which ran in open channels on the floor had been washed out ofthose channels. After the water subsided, that coolant which was like oil had been left all over thefactory floor. D realised there was a problem and they obtained 3 tonnes of sawdust to sprinkle over thefloor to make it less slippery, they then reopened the factory.C was a worker who slipped and fell on a staircase on a set of stairs that didn’t have this sawdust (buthad coolant). It was a set of stairs that was rarely used.Judgment: HL said one had to take into account the economic cost of closing the factory for a night indeciding whether employees had taken reasonable care in reopening it after taking the precautions theyhad taken. The only way to remove the risk would have been to close the affected part of the factoryuntil it dried out. This would have been expensive and disproportionate to the relatively small risk ofinjury.PurposeWatt v Hertfordshire CC  1 WLR 835Facts: C was a fireman. He was injured whilst travelling to an emergency call. The circumstances of thatemergency were slightly peculiar. Fire brigade has received this call in relation to a person trapped in avehicle after a road accident.For some reason, the fire brigade didn’t have the correct vehicle for transporting the equipment they’dneed to extract the person from the road accident. As such, they put it on a different vehicle notdesigned to carry it. C is on back of vehicle, basically holding the equipment in place. When the vehiclecomes to a stop, the equipment moves on the back of the vehicles and crushes/injures CJudgment: CA said there’s no breach of duty of care as the purpose for which the risk has been takenwas to get to the scene ASAP to help the trapped person. So that purpose, that socially beneficialpurpose (to save a life), altered the assessment of whether the D, the fire brigade, had been negligent.Notes: Even a socially beneficial purpose does not mean the defendant is justified in taking any risk.Emergency services for example, must still take care in passing re lights and remember to use theirsirens and lights. Also now, s1 of the Compensation Act 2006 allows the court to consider whetherprecautionary or defensive measures might prevent a socially desirable activity.(C) ‘LEARNED HAND FORMULA’There is a breach of duty if the cost of precaution is less than likelihood of the harm multiplied by thegravity of the harm
C<L*GBy doing this, American courts have felt they give more certainty to the way the breach of dutyassessment is carried out. There are potential problems though(D) SPECIFIC ISSUES REGARDING BREACH OF DUTY CONCERNING PROFESSIONALSBolam v Friern Hospital Management Committee  1 WLR 582Facts: Person treated for depression by electric shock therapy. Consequence of being administered withthe treatment is that your limbs flair around due to the force of the electric shock. On the facts of thiscase, the patient had been strapped onto the bed in order to stop him falling off when the electricityhad been administered. Unfortunately he’d been strapped on so tightly and reacted extremely forciblyso that when he did move, he broke his leg. He argued it’d been negligent not to give him any musclerelaxing drug before administering the therapy. However, there was some issue about whether theyshould have administered itJudgment: J McNair resolved the problem by saying it wasn’t necessary to show that what a particulardoctor had done in the circumstances was what reasonable doctors would do in the case. So long aswhat was done conformed with a responsible body of medical opinion, it’d satisfy the test for takingreasonable care.It’s been criticised for being too protective of professionals. The HL clarified the situation;Bolitho v City and Hackney HA  AC 232Facts: C suffered brain damage as a result of a doctor’s failure to attend to clear a child’s blockedairways by intubation. There was a difference of medical opinion as to whether intubation wasnecessary in the particular circumstancesJudgment: It’s necessary to satisfy the test to show that the responsible body of medical opinion youwere following was both based on somerational foundation and that it had made an assessment of boththe advantages and disadvantages of pursuing that particular approach or course of treatment.Though the tests from Bolam and Bolitho are primarily developed for doctors, they apply to allprofessions.SUMARRY - You typically have a breach of duty where D has been negligent. Per Blyth v Birmingham Waterworks negligence is doing something a RP person wouldn’t or not doing something a reasonable person would. - When we talk about the RP here, we mean it is judged from an objective standard (Nettleship v Weston) taking into account the context (Wooldrige v Summer, Blake v Galloway), and without the benefit of hindsight (Roe v Minister of Health) - However, certain characteristics of the particular D can be taken into account. Notably:
o Age, especially young age (Mullins v Richards) o Profession (Phillips) o Disability (Weetabix) - When considering the factors a RP would take into account, there are 4 main things we look at o Likelihood of harm occurring (Bolton v Stone, Whippey v Jones) o Gravity of the harm (Paris) o Cost and practicability of precautions (Latimer v AEC) o Purpose (so socially desirable purposes will have a lower standard of duty owed to C – Watt; nb. Compensation Act 2006 s1) - Also take note of the learned hand formula(2) Causation 1(A) THE BASIC BUT FOR TESTStarting point for causation is the basic ‘but for test’. It works on the balance of probabilities.Barnett v Chelsea & Kensington Hospital Management Committee  1 QB 428Facts: C was turned away from the hospital by a doctor who refused to examine him. He later died ofarsenic poisoning. It was later shown that he would not have recovered even if properly diagnosed as itwas too late to administer the antidote at that point.Judgment: No liability for breach of duty as there was no causation(B) EXCEPTION: MATERIAL CONTRIBUTION TO DAMAGEWhere there are multiple causes of damage, It can be hard to prove ‘but for’ causation. Thus, theclaimant only has to show that D made a ‘material contribution to damage)Bonnington Castings Ltd v Wardlaw  AC 613Facts: C contracted pneumoconiosis while comes about through breathing contaminated air. (It wascontaminated with silicone dust in this case) There were two main causes of dust, one of which wasrequired by law to be extracted (and so, only one cause was negligent) It was impossible to prove ‘whichdust’ had caused the disease.Judgment: D could be liable as they were responsible for a material contribution to the damage. It doesnot have to be a significant cause but it has to be a material contribution rather than a negligible one.(Per Lord Reed: if you were responsible for a single speck of dust, you wouldn’t be liable)(C) EXCEPTION: MATERIAL CONTRIBUTION TO RISK OF DAMAGEMcGhee v National Coal Board  1 WLR 1
Facts: Here, C gets dermatitis which he alleges is a result of exposure to brick dust while cleaning outbrick kilts. While D is not negligent in respect of that exposure, it is alleged that they are negligent infailing to provide washing facilities. As it were, C had to cycle home covered in the dust.The problem here is that no one is quite sure exactly how the dermatitis comes about. If it occurs themoment the dust lands, say it causes an abrasion of the skin which will inevitably result in dermatitis,since D is not negligent at that point, it seems there’d be no liability.However, if it is caused through prolonged contact with the skin, cycling home with the dust has clearlycontributed to the disease occurring. The point here is that we really do not know. The sole causal linkthat C can establish is that the employer’s action (or inaction rather) increased the risk of gettingdermatitis.Judgment: HL here held that a material increase in the risk of damage was sufficient for liability. This wasquite a radical decision and in Wilsher, they attempted to re-interpret McGhee to the point where itwould be as though it never happened.Wilsher v Essex Area Health Authority  AC 1074Facts: The defendant hospital, initially acting through an inexperienced junior doctor, negligentlyadministered excessive oxygen during the post-natal care of a premature child who subsequentlybecame blind. Excessive oxygen was, according to the medical evidence, one of five possible factors thatcould have led to blindness. On the "balance of probabilities" test, the hospital would not be liable, sinceit was more likely that one of the alternate risks had caused the injury. (CA found liability applyingMcGhee)Judgment: The House of Lords found that it was impossible to say that the defendants negligence hadcaused, or materially contributed, to the injury and the claim was dismissed. It also stated that McGheearticulated no new rule of law, but was rather based upon a robust inference of factThis reinterpretation however was subsequently rejected.Fairchild v Glenhaven Funeral Services Ltd  1 AC 32Facts: C had worked for several different employers, all of whom had exposed him to asbestos. The(late) claimant contracted mesothelioma (a form of cancer that is almost always caused by exposure toasbestos) and died. His wife sued the employers on his behalf in negligence. However, due to longlatency periods (it takes years before symptoms are evident), and the fact that a single fibre of asbestoscan trigger mesothelioma, it was impossible to attribute his death to a single employer generally, nor onthe balance of probabilities.Judgment: The HL reaffirms the McGhee test of material contribution to the risk of harm and rejects theWilsher analysis (but approves the result) and thus, all the employers were jointly and severally liable.
Notes: So we have this new principle based on increase in risk but we know that in Wilsher there was noliability but in McGhee there was. So we’re left with the question of when an increase in risk will besufficient.These limits on the Fairchild exception come through quite clearly in the Barker caseBarker v Corus UK Ltd  2 AC 572Facts: C’s husband, who died of mesothelioma, had been exposed to asbestos during three periods in hisworking life: first while working for a company which had since become insolvent, secondly whileworking for D and thirdly, while self-employed. (at first instance, D and the insolvent company were heldto be jointly and severally liable subject to a 20% reduction for contributory negligence)Judgment: The HL said it didn’t matter that not all of the exposures were wrongly. Therefore, adefendant who wrongly exposed the deceased to the risk may still be liable even though the otherexposures either occurred naturally or resulted from the deceased’s own acts.Also, they applied‘proportionate liability;Notes: This clarification leaves us with 2 limits to applying Fairchild/Barker. 1. Scientific uncertainty – The idea that it is the limits of science which prevents the identification of the actual defendant responsible for the damage and that this limit shouldn’t bar C from a claim. 2. Same causal agent/mechanism – Since Wilsher was upheld, it seems that to apply Fairchild, the damage must have the ‘same causal agent’ (see notes on the dicta explaining this)On proportionate liability, Lord Hoffman and the majority thought it was more fair. Lord Rodger indissenting felt that to apply proportionate liability was to make Fairchild not an exception to ‘but for’causation but a new method of causation in itself.For various reasons, this caused a political backlash resulting in s3 of the Compensation Act 2006 whichspecifically only refers to cases of mesothelioma caused by exposure to asbestos.SUMMARY - Starting point is ‘but for’ causation (Barnett) - There is an exception where D was responsible for a material contribution to the damage (Bonnington) - There is a further exception where D is responsible for a material increase in risk of damage (Barker but also important are the cases leading up to Barker) o McGhee – material increase in risk of damage was sufficient for liability o Wilsher – material increase of risk was not sufficient. McGhee reinterpreted o Fairchild – Essentially follows McGhee and says that a material increase in risk of damage was sufficient and while they reject the Wilsher analysis, they approve the result - Barker – resolves the tension between Fairchild and Mcghee somewhat
o Says that D can be liable when responsible for a material risk in increase of damage regardless of whether all the sources of exposure were negligent o However, they favoured ‘proportionate liability’ which per Lord Rodgers reasoning seems to make this not an exception to ‘but for’ causation but a new form of causation o Importantly, to use the Fairchild exception, it seems you need Scientific uncertainty Same causal agent/mechanismSeminar 7: Causation 2 and remoteness(1) Causation 2(A) LOSS OF A CHANCECourts are extremely reluctant to impose liability where the negligence of the defendant caused theclaimant to lose a chanceHotson v East Berkshire Area Health Authority  AC 750Facts: a boy fractured his hip when he fell from a tree. The hospital made a misdiagnosis and the boydeveloped a hip deformity. Experts confirmed that he would have had a 75% chance of developing thedeformity even with the correct diagnosis. The trial judge (upheld by CA) awarded him 25% in damagesfor his lost chance of recovery.Judgment: HL reversed the previous decisions considering that since there was only a 25% chance thatthe negligence caused the injury, ‘but for’ causation was not satisfied.Gregg v Scott  2 AC 176Facts: D had negligently misdiagnosed the claimant’s malignant cancer as benign. This delayed theclaimant’s treatment by nine months and reduced his chances of being cured from 42% to 25%.Judgement: The majority of the HL (3-2) upheld the earlier decision in Hotson, though Lord Nicholls(joined by Lord Hope) argued strongly for loss of a chance to be actionable.Notes: If claims for a ‘loss of chance’ were actionable, it is likely there would be pressure for all damagesto be awarded on proportionate liability. Also there’s the floodgates argument (people made even a few% worse off by medical negligence might try and claim)Finally, statistics aren’t perfect but with BoP, atleast you have a higher chance of getting it right.(B) INTERVENING ACTSAn intervening act may break the chain of causation between the defendant’s breach of duty and theloss or damage suffered by the claimant.
In Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. (1998)2 WLR. 350, Lord Hoffman says there are 2 strong indicators to look out for - Deliberate voluntary acts - Extraordinary natural eventsThe third type is a bit more tricky, namely, negligent actsExtraordinary natural eventsHoffmann illustrates this in the case. Imagine I’ve got a drum full of flammable liquid on my premises. Ifthat liquid catches fire because it’s a very warm day and that makes it spontaneously combust etc, wewouldn’t regard it as something that breaks the chain. In the scheme of things, it being a hot day isn’tparticularly unusual.If on the other hand, the drum is struck by lightning during a storm and that causes it to catch fire, thatwould be an extraordinary natural event.Deliberate voluntary actsSimilarly in relation to deliberate voluntary acts, talking about the same drum, there’s a workmansmoking who casually negligently drops the cigarette into the drum that probably wouldn’t break thechain of causation.But if he deliberately puts it in knowing there’s flammable liquid in the drum that probably would breakthe chain of causation.Negligent actsThe other thing that might break a chain of causation would be a negligent act. However, this is going tobe more difficult to establish.(Phrased ‘positively’, it seems the original defendant will be responsible for injury and damage which arethe natural and probable results of the initial wrongful act; he will also be liable where the interveningact is one he should have foreseen)(phrased negatively, there seem to be three main things against the negligent act breaking the chain (i)where the nature of the duty is such that it will be made redundant by breaking the chian, (ii) where thenegligent act is quite unusual or extraordinary, (iii) where the claimant himself breaks the chain by doingsomething stupidly negligent)The final point Hoffman made in Empress Car is about the relation between the rules on intervening actsand the rules of a DoC to prevent damage being inflicted by a TP (e.g. smith v littlewoods). (This point isalso made in Reeves) is that the court has to consider the nature of the DoC.Reeves v Metropolitan Police Commissioner  1 AC 360
Facts: The deceased (C) was in the prison and committed suicide (after 2 earlier failed attempts). Thepolice knew he was a suicide risk. It was held that the police did owe him a DoC to protect C frominjuring himself which they breached by leaving the flap of the cell door open. (remember the rules onDoC for TP’s)Judgment: Applying the general principles about intervening acts, it seems like the chain of causation isbroken by a voluntary deliberate act. However, the courts decided that the intervening act principlecouldn’t be established.Notes: Here, the point of the duty is to prevent a person from deliberately harming himself. If at thecausation stage of the claim the court were to say that he’s broken the chain by deliberately harminghimself that would be making a mockery of the duty.So if a duty is express in terms of being a duty to prevent either someone injuring himself or a duty toprevent another person injuring him, then these general rules about breaking the chain of causationdon’t apply. The chain will not be broken by voluntary deliberate acts by C or a TP.Knightley v Johns  1 WLR 349Facts: There’s a car accident in the Queensway tunnel in Birmingham. D1 is the person who negligentlycrashed his car. Police come and they realise they haven’t stopped incoming traffic from coming in. Sothey send 2 cops back into the tunnel into oncoming traffic (on bike) and a car comes and crashes intoone of bikers.The police officer is clearly negligent or at least in contravention of police standing orders. First of allthey failed to stop the traffic at the correct end of the tunnel. Then the officer in charge of the incidentorders the bikers to go the wrong way and the police biker is suing the original accident causer.Judgment: The CA is quite clear that the mere fact that an intervening act is negligent does not breakthe chain of causation (i.e. negligent acts do not automatically break the chain of causation); thenegligent act needs to be quite unusual or extraordinary. Here, the CA emphasised that the twodeliberate contraventions of police orders, namely blocking the wrong end and then sending the officersagainst the flow of traffic, were unusual acts of negligence and thus were held to break the chain ofcausation. (The original defendant will be responsible for “injury and damage which are the natural andprobably results of the *initial+ wrongful act”)Further, it is also possible for the claimant to break the chain of causation by doing something stupidlynegligent. (Highlighted in Spencer). More specifically, for an act of a claimant to be a novus actusinterveniens, it must be entirely unreasonable in all the circumstances.Spencer v Wincanton Holdings Ltd  PIQR P8Facts: C suffered injury due to workplace negligence and had to have an amputation of one leg (or mostof it). While he had prosthetics, pending modification to his car he could not drive it with theprosthetics. 3 years after the injury while filling his car at a gas station, without wearing prosthetics or
using crutches, he tripped and suffered injury which made him wheelchair bound. He sued D in respectof the further damage he suffered. At first instance the judge held that the chain of causation was notbroken but reduced damage by a third for contributory negligence.Judgment:The second ground of appeal based on the respondent’s unreasonable conduct also failed. There was nonovus actus interveniens that broke the chain of causation. Whilst each case must be considered on itsown facts the trial judge was entitled to find that the respondent’s conduct was not “unreasonable” ascontended for. The respondent made a misjudgement in running a risk by not using his prosthesis orsticks and this was properly reflected in the reduction for contributory negligence.”(2) REMOTENESSThe Wagon Mound (No 1)  AC 388Facts: Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October 1951.The crew had carelessly allowed furnace oil (also referred to as bunkering oil) to leak from their ship.The oil drifted under a wharf thickly coating the water and the shore where other ships were beingrepaired. Hot metal produced by welders using oxyacetylene torches on the respondents timber wharf(Morts Dock) at Sheerlegs Wharf fell on floating cotton waste which ignited the oil on the water. Thewharf and ship moored there sustained substantial fire damage. In an action by Morts Dock fordamages for negligence it was found as a fact that the defendants did not know and could notreasonably have been expected to know that the oil was capable of being set alight when spread onwater. The dock owners knew the oil was there, and continued to use welders.Judgment: Here the PC decided that the main link between damage and liability is foreseeability andthat it is not only that damage generally must be foreseeable but the type of damage as well.Here, the fire damage was not foreseeable and thus D was not liable. (Damage generally could beforeseen though. For example, environmental damage from the oil potentially leading to propertydamage. Under the only rule from Re Polemis, this would have sufficed.)It is sufficient to foresee the type of harm, not the magnitude (Essentially the ‘egg-shell’ skull rule)Smith v Leech Brain & Co  2 QB 405Facts: C was splashed by molten metal as a result of his employer’s negligence and suffered a burn to hislip. This burn triggered cancer, from which the claimant died. The claimant’s lip was pre-malignant atthe time of the incident.Judgment: There is no dispute as to liability for the initial injury. Further, the HL says that while thesubsequent cancer was not foreseeable, it is merely the extent of the injury and the remoteness rulesmerely require you to foresee the type of damage. (sometimes called the ‘eggshell skull rule’; per Lord
Parker “If a man is negligently run over... it is no answer to the sufferer’s claim for damages that hewould have suffered less injury... if he had not had an unusually thin skull or an unusually weak heart”)It is sufficient that you foresee the type of harm may come about and not the exact method it comesabout(e.g. in wagon mound there’s a distinction between damage caused merely by oil and that by fire)Hughes v Lord Advocate  AC 837Facts:On November 8, 1958 evening the appellant, an eight year old boy with his ten year old uncle waswalking down Russell Road, Edinburgh. Some Post Office employees were repairing cables under thestreet. They opened a manhole on the surface of the road, which was nine feet deep and put a weathertent on it. A ladder was put inside the manhole for access. The tent was again covered with a tarpaulinfor better protection, but the workmen left one of the corners a gap of two feet and six inch. They hadalso fixed four red paraffin lamps on the site to warn the traffic since 3.30pm. The workmen left the siteat about 5pm for a tea break to a nearby Post Office building. Before leaving, they took out the ladderand put it on the ground outside the tent.While the workmen were out, the plaintiff and his uncle arrived at the site and started meddling withthe equipment. They picked up one of the lamps and entered the tent. They took the ladder along withwhich was kept outside the site in order to explore the manhole. Thereafter, they took a piece of rope(which was not a part of the Post Office equipment) and tied it to the lamp and went inside themanhole. After exploring the manhole they succeeded to come out of the manhole safely. Somehow,the appellant tripped over the lamp, and it fell into the manhole. The lamp broke, the paraffin withinleaked, the paraffin vaporised which resulted to an explosion with flames reaching up to thirty feet. Dueto the impact of the blast, the appellant fell into the hole and suffered severe injuries from burns.Judgment: The HL held that knowledge of the source of danger would suffice. So while it may not beforeseeable that a small boy would come along to the manhole with the lamp, pick it up, go in, comeout, and then drop the lamp causing an explosion causing him to fall back in and get hurt, you couldprobably foresee that a child may come along and get hurt.So it is important to define the kinds of foreseeable damage by reference to the result and what mightbe termed ‘the basic method’ by which the result comes out. So in Hughes, the type of damage ispersonal injury by getting burnt and it doesn’t matter that the detailed way in which the harm cameabout was unforeseeable. So both the extent of the harm and the detailed method by which it cameabout needn’t be foreseeable as long as the type of harm is foreseeably and it that it was reasonablyforeseeable that the source of danger might cause that type of danger.What counts as a different type of harm, and what merely goes to the extent of the same type ofharm?(Courts seem to take a wide interpretation of the extent)(focus on Page v Smith and Corr v IBC which shed some light on this question)
Corr v IBC  UKHL 13Facts:As a result of D’s negligence C suffers a severe head injury at work. He receives surgery but beginsto suffer from PTSD and clinical depression as a result of the injury and a few years later, kills himself.Judgment:HL say the suicide is effectively a kind of symptom/a facet of the clinical depression. It’smerely the extent of the harm, not a different type of the harm. So it wasn’t necessary to foresee he’dcommit suicide as a result of getting this type of head injury. All it was necessary to foresee is that he’dsuffer depression and the suicide goes to the extent of that depressionNotes: If all that needs to be foreseen is that the harm may be suffered in a broad sense, that doesn’treally insist on a tight test. This is the reason courts have been focusing on this point.Page v Smith  AC 155Facts:C involved in a minor car accident and was unjury but this caused a recurrence of his MEJudgment: In the case of direct victims, their Lordships said the following test should be applied: "Couldthe defendant reasonably foresee that his conduct would expose the plaintiff to the risk of personalinjury, psychological or physical?" If the answer was yes, it would be irrelevant that the extent of thedamage was unforeseeable because the plaintiff had special sensitivities. This is based on the eggshellskull rule, that is, one "takes the plaintiff as one finds him". Consequently, the defendant was foundliable for the nervous shock suffered by Mr Page.Summary - Loss of a chance is not sufficient to warrant an actionable claim (Hotson) - Confirmed in Gregg but with a particularly strong dissent this time. There are legitimate concerns against allowing it though o Might mean a push for all claims to be based on ‘proportionate liability’ o Floodgates o Statistics aren’t perfect but at least with BoP you have a greater chance of getting it rightSeminar 8: Defences to Negligence Claims(1) Voluntary assumption of risk (volenti non fit injuria = no wrong isdone to one who consents)NB this defence should not be confused with the argument that can be made in response to batteryclaims (discussed in seminar 12) that the claimant has consented to the defendant’s touching; here the
point is that the defendant has voluntarily assumed the risk of harm, not that he has consented to theharm itself.The most common situation is where it can be concluded from the factual situation that C hasconsented to the riskWoodley v Metropolitan District Railway Co (1877) 2 Ex D 384The plaintiff, a workman in the employ of a contractor engaged by the defendants, had to work in a darktunnel rendered dangerous by the passing of trains. After he had been working a fortnight he wasinjured by a passing train. The jury found that the defendants in not adopting any precautions for theprotection of the plaintiff had been guilty of negligence. (CA reversed this but HL returned to the originalverdict)Essentially, one mustn’t confuse knowledge and consent of the risk. It is not enough that C knew thatthe risk was there: one must prove consent to that riskDann v Hamilton  1 KB 509Facts: On a motoring trip, participants go to various pubs on the way to London and back out. Thisaffects driver’s ability to drive. During the trip, some passengers become so alarmed by the way that thedriver is driving that they abandon the car. Car crashes, driver dies and C is badly injured.The defences claimed are both (1) Contributory negligence (put aside for now) and (2) volenti non fitinjuriaJudgment: The defence failed: Held that it only really applies in extreme cases. There would be 2situations in which the defence of volenti might be appropriate-1. Implied permission to be careless- C gave permission to D to act carelessly2. Deciding to enter an obviously dangerous situation- e.g. meddling with an unexploded bombNotes: Getting into a car with an obviously drunken driver does seem like deciding to enter into anobviously dangerous situation. The defence probably failed for historical reasons. This case was in 1939and drink driving was still very common and not really frowned upon. So it may well be that in itscontext, this case makes sense: because at the time the obviousness of the danger isn’t as glaring as itwould be to us todayA. IMPLIED PERMISSION TO BE CARELESS- C GAVE PERMISSION TO D TO ACT CARELESSLYICI Ltd v Shatwell  AC 656Facts: C works in a quarry as a shot-firer. His job was to blast away rocks that were used for industrialpurposes. Before they carried out the blast, they were instructed to run a test in which everyone else
had to be well away from the area in which the explosive was to go off: to carry this out, he had to uselong wires to operate the explosive from the shelter in which they were situated at.On the day of the test, they didn’t have the long wires. While one person went off to get the long wires,the other two decided to carry out the test with short wires. The bomb explodes and the C is injured. Heseeks to sue his employer for vicarious liability for the carelessness of his work colleagueJudgment: the defence is established. HL emphasises that all the instruction and training that had beengiven to the shot firers, and that previously one of the shot firers had been fired for not carrying out thetests. Given that factual background, the actions of the 2 shot firers in testing the circuit using the shortwire gave rise to an implied promise by the man who was injured not to sue the person who injuredhim.Notes: This almost seems to draw on contractual ideasB. DECIDING TO ENTER AN OBVIOUSLY DANGEROUS SITUATIONMorris v Murray  2 QB 6Facts: C and D are friends, and had been out drinking heavily. C drives them from the pub to the airport.At the airport, they take off the wrong way down the runway and fly off with the wind behind them(should have taken off into the wind). The plane crashes and the pilot dies, with C severely injured. Hasvolenti been established here? (following Dann v Hamilton, it seems that it shouldn’t be established)Judgement: The court applied a subjective test and held that the claimant was aware of the risk he wastaking and therefore consent was found (in contrast with Dan)Notes: Though they took a subjective approach, the CA was slightly troubled by the argument that if Cwas so drunk as to not appreciate the risk, consent wouldn’t be found. So in a sense, his legal problemwas that he was not drunk enough. If a more ‘contract like’ theory is taken, an objective approach wouldbe taken. Mitchell feels the subjective approach is appropriate here though.Woodridge v Sumner  2 QB 23: (About the photographer injured at a horse race)Notes: CA said that the volentidefence isn’t very useful in large group situations. They feel it is far betterto deal with these situations by adjusting the standard of care that was owed. Essentially, not that Cagreed to D being careless but that C wasn’t entitled to demand D reach the level of care that he wouldordinarily have to reach.So in these situations, they can be dealt with either by the volentidefence or by changing the standard orcare to reflect what we think C should be entitled to demand in the circumstancesCorr v IBC Vehicles Ltd  AC 884(negligent injury leading to subsequent depression and suicide)Notes: Here it was argued that in deciding to jump off from a height, C entered into an obviouslydangerous situation. Nonetheless, the defence of volenti failed. Despite features that seem to make it a
promising argument. It was held that the depression had so affected his mental processes that hecouldn’t evaluate the merits of not jumping off the car park. There was therefore no consent to a risk,because there was no true/ free consent. (Again, this highlights that the test is objective)(2) Contributory negligenceLaw Reform (Contributory Negligence) Act 1945, s 1(1): ‘Where any person suffers damage as the resultpartly of his own fault and partly of the fault of any other person or persons, a claim in respect of thatdamage shall not be defeated by reason of the fault of the person suffering the damage, but the damagerecoverable in respect thereof shall be reduced to such extent as the court thinks just and equitablehaving regard to the claimant’s share in the responsibility for the damage.’‘Fault’ is defined in s 4 to mean ‘negligence, breach of statutory duty or other act or omission whichgives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributorynegligence.’Note: The definition of fault in the act is important. Pre-1945, the defence was only applicable to certaintorts. Post-1945, courts can apply it to the extent it thinks it’s applicable. The Act only reforms the effectof contributory negligence though, it doesn’t reform when the defence is available nor does it expandthe categories.“WHERE ANY PERSON SUFFERS DAMAGE AS THE RESULT PARTLY OF HIS OWN FAULT AND PARTLY OF THE FAULT OFANY OTHER PERSON OR PERSONS” – SO BOTH PARTIES MUST HAVE BEEN AT FAULTGough v Thorne  1 WLR 1387Facts: 7 year old girl is crossing the road with her mum and a lorry stops to let them through. Once theypass the lorry, they get hit by a car that was trying to overtake the lorry. Had the little girl been negligentin crossing the road without checking and relying simply on the indication by the lorry driver and theelder sibling assisting her?Judgment: It was reasonable reliance- the test of fault does seem totake into account the same factorswe take into account in establishing that D were in breach of duty. Should there be a more complicatedsituation with more factors, we might look at how C weighed up these factors.Jones v Livox Quarries Ltd  2 QB 608Causation is somewhat important to contributory negligence. So C’s fault has to have caused some partof the damage.Facts: C was injured at work when two quarrying vehicles collided. The claimant was sat on the back ofone of the vehicles at the time of the collision, without the driver’s knowledge and in contravention ofthe explicit prohibition in doing so. Applying the last opportunity doctrine, one wouldn’t say that C’sfault caused his damage at all. Thus, CA had to consider if the doctrine still applied post-1945.