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54506919 tort-law-caselist-111223105459-phpapp01 (1)

  1. 1. Tort Law Case list Seminar 1: Introduction to tort and introduction to the tort of negligence Donoghue v Stevenson [1932] (HL) Facts: Judgment: Notes Anns v Merton LBC [1978] (HL) Facts: The claimants were tenants of a block of flats built in accordance with the pla ns approved by the council. The foundations were too shallow. The tenants sued for the cost of making the flats safe on the basis that the council either negligently approved inadequate plans or failed to inspect the foundations during construction. Judgment: A DoC was owed by the council and that if their inspectors did not exercise proper care and skill then the council was liable even though the loss suffered was economic loss. Notes: two-stage approach to DoC formulated. Seminar 2: Psychiatric Illness Bourhill v Young - the event which actually happened would have caused psychiatric illness to a person of sufficient fortitude or customary phlegm McLoughlin v O’Brian [1983] (HL) Facts: C’s husband and children were involved in a road accident. C heard about it 2 hours later. She went to the hospital where she learnt her younger daughter was dead and saw her husband and two other 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 her family 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 a close relationship between C and the accident victims/ Further, C was to be in close proximity to the accident in time and space. (Either present or witness the immediate aftermath. Here, Lord Wilberforce seems to stress the importance of them not being cleaned up yet.)
  2. 2. PRIMARY AND SECONDARY VICTIMS Alcock v Chief Constable of South Yorkshire [1992] (HL) Facts: Concerns the Hillsborough disaster in 1989 where 96 Liverpool fans died in a massive crush. The accident was caused by the police negligently allowing too many supporters to crowd in one part of the stadium. A large number of claims were made by those present at the scene and those who had viewed the events on TV. Claims were also made by people with varying relationships to those crushed. Judgment: HL introduced the distinction of primary and secondary victims Primary 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 victims Essentially, everyone not directly involved in the incident. Note that this criterion presupposes that someone else has suffered physical harm as a result of D’s action and these victims have suffered some psychiatric 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 [1999] 1 All ER 1 Facts: In relation to the Hillsborough disaster but involves police suing their employer in negligence for the PTSD they suffered as a result of the events. Note that the police in question were not those who were 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 HL changed the definition and said to be a primary victim, you need to be in the zone of foreseeable danger. (You must establish ‘objective exposure to danger or a reasonable belief that there was an exposure to danger’) Notes: In the judgment there was clearly concern to avoid different treatment of police officers and bereaved relatives. Hence the exclusion of rescuers (though it was more of a middle ground than a total exclusion). After white it seems that the HL had decided to create a very definite narrow category for primary victims. But see W v Essex and Re Organ
  3. 3. Unwitting instrument of another’s negligence?(There is a further category of primary victims in situations where C believes he has caused another’s death or injury. This would only succeed if C was actually present when the death or injury occurred Hunter v British Coal [1998] 2 All ER 97 - proximity requirement) W v Essex County Council [2001] 2 AC 592–(regarding a known child abuser being placed with foster parents who specifically said they wouldn't accept such a child.) Ultimately, what’s relevant here is that HL said the category of primary victims not closed Re Organ Retention Group Litigation [2005] QB 506- parents of deceased children whose organs were retained 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 were given 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 INJURY Page v Smith [1996] 1 AC 155 Facts: C was involved in a minor car accident and was physically unhurt in the collision, but the accident caused him to suffer a recurrence of ME from which he had suffered for about 20 years but was then in remission. Judgment: HL held that foreseeability of physical injury (even if none occurs) was sufficient to allow a primary victim to recover in psychiatric injury. Grieves v FT Everard & Sons Ltd [2008] 1 AC 281 (Rothwell v Chemica & Insulating Co Ltd: Re Pleural Plaques) Facts: One of the claimants suffered a recognised psychiatric illness from the fear that he would contract a serious asbestos-related illness in the future. Judgment: HL refused to extend the principle from Page v Smith. Consider that C was working with asbestos, 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)
  4. 4. Notes: Mitchell thinks these reasons aren’t convincing and that the HL isn’t completely sold by PvS and thus are going to great lengths to distinguish it. PRIMARY VICTIM ’S LIABILITY Greatorex v Greatorex [2000] 1 WLR 1970 Facts: 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 of seeing his son’s injuries Judgment: A victim of self-inflicted injuries owes no DoC to a ‘secondary victim’ who suffered a psychiatric injury from witnessing the incident or its immediate aftermath. (i.e. no liability for primary victim where he is the negligent defendant) Employees White v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1 (as above) - no special protection for employees as secondary victims EMPLOYEES (AND PRISONERS) CHECK SUMMARY - 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) -
  5. 5. - 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 against recovery in negligence (A) THE DISTINCTION BETWEEN PURE ECONOMIC LOSS AND CONSEQUENTIAL ECONOMIC LOSS Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 Facts: D’s employees were digging up a road when they negligently damaged the electrical supply cable to 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
  6. 6. could also have completed four further melts during the power cut and their loss of profit from those melts was £1,767. Judgment: They could recover the damage to the melt in progress (physical damage) and the loss of profit from that melt (consequential economic loss). However, they could not recover for the loss of profit 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 seek to inflict economic loss deliberately, let alone negligently. Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) (No 1) [1961] 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 consequential economic loss (such as loss of earnings), that consequential loss is recoverable provided that it was reasonably 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 WILL LECTURE YOU ON THIS MATERIAL ) Donoghue v Stevenson [1932] AC 562 – In Donoghue, we see this idea emerging that tort duties may be owed to ultimate consumers of a product even though these consumers do not contract with the manufacturer. Dutton v Bognor Regis Urban District Council [1972] 1 QB 373 (361,362) Anns v Merton LBC [1978] (HL)–In Anns, the HL held that a local authority may owe a DoC in negligence in exercise of its powers of inspection under the Public Health Act 1936. Lord Wilberforce clearly thought the loss was not purely economic. As a matter of ‘classification’, he was mistaken. The damage suffered was PEL. No separate ‘damage’ had been done to the property of the plaintiffs, other than the building itself, by the defendnats’ alleged breach of duty. (We see the HL recognise this error and thus depart from Anns in D&F) D & F Estates Ltd v. Church Commissioners for England [1989] AC 177 Facts: The Church Commissioners owned a block of flats built by a firm of contractors. The plastering work was sub contracted. Fifteen years after the property was built it was found that the plastering work was defective. As there was no direct contractual relationship between the plaintiff and the defendants an action was brought in tort.
  7. 7. Judgment: The HL held that tort duties under DvS are only owed in respect of damage done by the item that is manufactured by the defendant. Lord Bridge attempted to reconcile this decision with Anns by means of the ‘complex structure theory.’ Murphy v Brentwood District Council [1991] 1 AC 398 Facts: A council approved plans for a concrete raft upon which properties were built. The raft moved and caused cracks in the walls of a property which was sold for £35, 000 less than it would have done if it were not defective. Judgment: The HL overruled Anns and held that the council was not liable in the absence of physical injury. Notes: The ‘complex structure theory’ was technically dismissed but there were some qualifications to this (i.e. situations where it might apply) mean the potential exists for complex arguments about the application 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 separate structure or indeed to the person, there will be liability only if the damage is caused by a defect that remains ‘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 [1992] 3 All ER 27, and it was suggested 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 or in connection with the provision of a dwelling.’ The protection extends to subsequent purchasers and cannot be excluded or limited via contract. However, it only applies to ‘dwellings’ and an action must be brought within 6 years of completion of the work. (and local authorities are not covered by the ‘a person’ definition) Winnipeg Condominium Corporation No 36 v Bird Construction Co [1995] 1 SCR 85 Bryan 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
  8. 8. (2) The special principles governing duty of care (A) ASSUMPTION OF RESPONSIBILITY Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 Facts: The appellants were advertising agents, who had placed substantial forward advertising orders for a 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 company's financial stability and their bankers made inquiries of the respondents, who were the company's bankers. The respondents gave favourable references but stipulated that these were "without responsibility." In reliance on these references the appellants placed orders which resulted in a loss of £17,000. They brought an action against the respondents for damages for negligence:Judgment: a negligent, though honest, misrepresentation, spoken or written, may give rise to an action for damages for financial loss caused thereby, apart from any contract or fiduciary relationship, since the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care, and that party knew or ought to have known that reliance was being placed 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 TEST Smith v Eric S Bush (a firm) [1990] 1 AC 831 Facts: 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 HL didn’t have to worry aboutUCTA. Judgment: even though the surveyor said he wasn’t assuming responsibility, that disclaimer wasn’t reasonable inthe framework of UCTA and it was to be disregarded and what you were left with is a person who had assumed responsibility even though he said he hadn’t. (so note the lack of requirement of a voluntariness requirement) Notes: Lord Griffiths in his judgment set out an alternative formulation by which to judge whether a duty of care should be recognised as arising in such a case (which went back to the general conception and essentially is the framework of the Caparo test), avoiding the terminology of ‘assumption of responsibility’. It should be noted that the search for a ‘voluntary assumption of responsibility’ was intended 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 which an alternative approach to justifying the DoC was simply more appropriate. Nonetheless, Lord Griffiths’
  9. 9. attempt to make the assumption of responsibility fit the facts amounted to a distortion of the concept and has caused significant confusion. Caparo Industries Plc v Dickman [1990] 2 AC 605 Facts: Caparo owned shares in a TP company. D audited the TP company and reported a high profit when there was actually a loss. On the basis of the report, Caparo decided to increase its investment and launch a subsequent takeover bid. When the mistake was discovered, Caparo tried to claim against D for the loss they incurred by paying a higher price for the new shares they purchased as a result of the negligently produced report. Judgment: It was held that the defendant audit company did not owe a duty of care in this respect. They owed it to the shareholder’s at large as a body to ensure that the company was run properly. If any duty was owed to individual shareholders, it was only in respect of losses they might make in relation to their existing stake in the company namely by selling undervalued shares and most certainly not to losses resulting from the purchase of additional shares which would result from a wholly independent transaction having no connection with the existing shareholding Notes: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 liability After Caparo, ‘assumption of responsibility’ appeared to have been fatally weakened as a justification for the DoC in cases of PEL. Certainly it was clear that the duty was not to be understood as ‘voluntarily assumed’ but note the resurgence of the term in the later cases (below). (II) THE INTER-RELATION BETWEEN THE TESTS Merrett v Babb [2001] 3 WLR 1 – The CA doubted whether ‘assumption of responsibility’ has any meaning. Here they said the test has ‘merged with Caparo’. Indeed, in 2 other CA cases prior to this saw them treating the ‘assumption of responsibility’ and Caparo as alternative tests, applying both arguing they should lead to the same result. Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181 (disapproving the approach taken 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 to prevent two companies from removing funds from their bank accounts, so that C could recover outstanding VAT from those accounts. D failed to take action to prevent funds from being moved out of their accounts. It was alleged that this failure was negligent. C could thus not recover the full sum they were owed and sought to recover the shortfall from D on the basis that it breached a DoC owned to them to abide by the orders. Judgment: The HL gave 5 slightly different judgments (same conclusion) Steele explains the judgment as follows 1. The first stage in deciding a novel case of economic loss is to ask whether there is a voluntary assumption of responsibility
  10. 10. 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 RESPONSIBILITY It seems that assumptions of responsibility can be deduced either from the general nature of the relationship (Henderson), or – if the general nature of the relationship is not compatible with such a deduction – it may be deduced from specific words, conduct or circumstances which (Williams) override the general features of the relationship. Williams v Natural Life Health Foods [1998] 1 WLR 830 - in determining whether there had in law been such 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) , the primary focus being on things done or said by the defendant or on his behalf and the question being whether the plaintiff could reasonably have relied and had relied on an assumption of personal responsibility by him; and that the fact that the brochure given to the plaintiffs had held the company out as having the expertise to provide reliable advice to prospective franchisees and had made it clear that that expertise derived from the second defendant's experience in the health food trade was insufficient to render the second defendant personally liable to the plaintiffs Calvert v William Hill Credit Ltd [2008] EWHC 454 (Ch) - Here, the court says that by confirming that C would be prevented from telephone betting in response to C's request for self-exclusion, W had assumed 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 losses as C would have in any event ruined himself) (IV) ASSUMPTIONS OF RESPONSIBILITY IMPLIED FROM THE RELATIONSHIP These cases also really highlight how ‘Hedley Byrne liability’ has moved beyond negligent misstatements (and indeed, beyond PEL)
  11. 11. Spring v Guardian Assurance Plc [1995] 2 AC 296 Facts: 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 Hedley Byrne. (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 implied assumption of responsibility; - - - The nature of the relationship is absolutely key. There are certain relationships such as solicitorclient 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 [1995] 2 AC 145 Facts: The case arose out of losses suffered by investors (referred to as ‘Names’) suffered by the Lloyds insurance market in London during the 1980s. This involved a situation where the claimant wanted to join an insurance syndicate. He’d hire an agent (either a members’ agent or a combined agent acting as a 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 agent acting as a managing agent) who managed the syndicate. As can be seen, there are a variety of contracts in play here. Judgment: Lord Goff (giving the leading judgment) holds there could be liability in tort and emphasised the concept of assumption of responsibility drawn from Hedley Byrne. (He builds on his own judgment in Spring). LBW agreed the central concept was ‘assumption of responsibility’ but placed considerable emphasis 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 result being that a claimant could choose a remedy which appears to him to be most advantageous White v Jones [1995] 2 AC 207 Facts: Here, a testator executed a new will after a family quarrel, disinheriting his two daughters, the plaintiffs. 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 new will was completed.
  12. 12. Judgment: Lord Goff acknowledged there was no trust assumption of responsibility on the part of D’s towards C’s. In his judgment, the case concerned a wrong which required a remedy and the best way of providing it was to hold that the assumption of responsibility which existed between D’s and the testator extended to C’s. Notes: In terms its treatment of legal principles, White v Jones is slightly controversial. On the other hand, the solution was intended to be confined to negligence in respect of wills. However, it has been also been applied in the different but analogous situation of advice in respect of pension rights, where the defendant advisor is aware that the client intends to make provision for his or her dependants (Gorham v British Telecommunications plc [2000] 1 WLR 2129) Williams v Natural Life Health Foods [1998] 1 WLR 830 SUMMARY: - 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)
  13. 13. - 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 act Stovin v Wise [1996] AC 923 Facts: C was on a motorcycle and involved in an accident with D. D claimed accident was caused partly because her view was obstructed (local authority was a joined D). Local authority had written to the 'obstructors' (people owning the things obstructing the view) asking if they could take the necessary action. They received no reply and proceeded to do nothing for a year. They were held 30% liable and appealed to the HL.
  14. 14. Judgment: In general, no liability for omissions without a special duty to act. Lord Hoffman gives 3 specific 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
  15. 15. 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 were or 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 RISK e.g. Hobbs (Farms) Ltd v Baxenden Chemical Co [1992] 1 Lloyd's Rep (in leni) C is injured by a product and this product had been made by the D perfectly carefully. At the time no one realised there was anything dangerous or problematic with it. Later however, problems with design were brought to the manufacturers’ attention but the manufacturer made no attempt to contact purchasers. Duty of care was owed in regard to that negligent failure to warn the purchasers of that product about that defect that had come to light. (B) UNDERTAKING RESPONSIBILITY FOR THE CLAIMANT’ S WELLBEING Capital and Counties plc v Hampshire County Council [1997] QB 1004 Facts: 3 appeals held all essentially concerned with the fire brigade’s liability for failing to put out a fire in some way. In the second 2 cases, all that we could say about the fire brigade was that they hadn’t done enough. Whereas in the first one, the fire brigade arrives, apparently they don’t do enough to start with, but then the fire brigade officer orders the sprinkler system turned off and that made the building burn down. Judgment: In general, there’s no DoC owed by a fire brigade in respect of a fire. Nonetheless, in the third case here there was liability. Notes: There are no policy reasons to require a duty being imposed in respect of getting there in time once they accept a call. Further, once they arrive, the fact that there may be conflicting demands placed on the fire services (e.g. might have to break down another house to save a block) means there shouldn’t’ be a duty imposed there either. Kent v Griffiths [2001] QB 36 Facts: An ambulance had not turned up in time for unexplained reasons. The result of their delay was severe injury to the claimant. Judgment: There is no general duty on the ambulance service to respond to a call; but once a call has been 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’re allocated to a particular call. Lord Woolf however recognises they if they’re called to the scene of a major road accident for instance, there might still be conflicting demands (e.g. who to save first) but says that a duty of care would still exist. (and tort law would avoid imposing excessive liability as long as
  16. 16. they weren’t negligent in choosing the order in which they treated people) This distinction between Capital and Kent does not seem convincing. Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225, [55] (Lord Bingham)–(Case where C was threatened with death if he did not drop charges and eventually killed) Here, Bingham suggests that the real distinction between the two cases is that Capital is about property damage while Kent is about personal injury. Life should be given more weightage but beyond that, property, especially commercial property as in Capital, is typically insured. Though courts aren’t meant to take that into account, they often do. Flowing from this, it does seem to suggest that if a fire brigade is required to help someone personally in danger, there could be a DoC. Barrett v Ministry of Defence [1995] 1 WLR 1217 Facts: C got very drunk on cheap duty free booze at his naval base’s bar and lies down. A senior officer organises 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 to preventing him from becoming so drunk as to become a danger. The answer seems to be no as the law favours autonomy and the effect of such a duty would be to ‘dilute self-responsibility’. (So the duty here is relatively limited. Cf. Jebson) Jebson v Ministry of Defence [2000] 1 WLR 2055 Facts: Soldiers go to the town of Portsmouth. Transport is a lorry with a canvas back basically, on the way back, the soldiers notice that driving along behind the lorry is a young woman in the car. In an effort to 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 the soldiers throughout. So the mere fact that he was the CO who organised the event meant that he was held to have responsibility throughout. Notes: Is it because of his position in employment rather than the mere fact he organised an event? Is it even an employment context? Does Jebson mark a large, and indeed perhaps overly large, extension of this 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 [2000] 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’d seem that the position of responsibility occupied by prison authorities is what gives rise to the duty. It is because they locked someone up, confined his movements etc..., that they ought to take careto provide safety in that confined space.
  17. 17. (C) OCCUPATION OF LAND It’s said that a person’s control over land gives rise toa responsibility to prevent damage occurring to other people. Goldman v Hargrave [1967] 1 AC 645 Facts: 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 fire spread 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 RULE The general rule is that you don’t owe a doc to prevent TP’s from causing damage to anyone. Indeed, it’s reinforced by the general rule of causation which is that a TP’s voluntary act breaks the chain of causation. So even if I do something negligent, e.g. leave the keys in my car so a thief steals it; if the thief runs over you, his voluntary act would break the chain of causation b/w me leaving the keys and your damage. So generally the fact that a TP has injured you cannot make me liable in negligence. (Essentially describes Topp v London Country Bus [1993] 1 WLR 976) But there are exceptions and the way they’ve developed underlines an underlying difficulty in the law regarding the DoC and that’s whether you can use the foreseeability test or whether you have to identify particular situations where a DoC arises. Nonetheless, as with other areas of tort, it is now reasonably clear that mere foreseeability isn’t enough. (B) EXCEPTIONS TO THE GENERAL RULE Home Office v Dorset Yacht [1970] AC 1004 Facts: Young offenders at Dorset snuck out, stole a boat and crashed into one owned by D. Judgment:
  18. 18. Lord Reid: DoC should be based on foreseeability and if it was foreseeable, liability would hinge on causation (and whether it was broken) Lord Diplock (and Pierce): Mere foreseeability isn’t enough. Identifies certain features of the situation at hand that made it appropriate to impose a DoC. Here, the high degree of control justified the duty (so this 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 of control D was entitled to exercise over the TP. Smith v Littlewoods Organisation Ltd [1987] AC 241 Facts: Case concerned a cinema in the town centre of a Scottish town which was burned down by vandals who broke in. Owners of the cinema didn’t realise there was such a risk; when it burns down, it damages 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 suggested included: - 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 [2009] 1 AC 874 Facts: 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 meeting neighbour returns to the house and kills Mitchell.Here it was said that the council had been negligent as they 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 their statutory powers andno criticism could have been made for them calling the meeting. They also said that the council had not assumed responsibility to Mitchell to protect him against the neighbour and Lord Hope says it’s only when there’s been an assumption of responsibility that you can find that a failure 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 of imposing a DoC. Here, mere foreseeability would have led to the imposition of a duty. Focus on Goff in Smith 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 on private landlords and housing associations SUMMARY - No general duty to act in English law (Stovin v Wise)
  19. 19. - 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: public authorities
  20. 20. (1) The techniques used to narrow the scope of duty (A) DIRECT LIABILITY AND VICARIOUS LIABILITY Phelps v Hillingdon London Borough Council [2001] 2 AC 619 - example of assumption of responsibility by individual psychologist to child. X (minors) vBedfordshire County Council [1995] 2 AC 633 - authority can only act through its employees. (B) JUSTICIABILITY Home Office vDorset Yacht Co Ltd [1970] AC 1004 - illustrations of justiciability; suggestion of ultra vires test to define public authority’s liability. X (minors) v Bedfordshire County Council [1995] 2 AC 633 - rejection of ultra vires test; ask instead whether authority had acted within its discretion, and apply policy/operational distinction. Barrett vEnfield London Borough Council [2001] 2 AC 550. Phelps v Hillingdon London Borough Council [2000] 3 WLR 776 Carty v Croydon London Borough Council [2005] 1 WLR 2312, especially at [20]-[37] - rejection of the discretion test; scepticism about the value of the policy/operational distinction. Connor v Surrey County Council [2010] EWCA Civ 286 [76]-[102] (Laws LJ) - arguing that the underlying idea of justiciability has changed Craig, Administrative Law (L&O 504-505) (C) ARE PUBLIC LAW CONCEPTS RELEVANT ? Stovin vWise [1996] AC 923 - dicta that claimant must show irrationality where duty based on failure to exercise statutory power. Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 - some caution about the dicta in Stovin. See in particular [4] (Lord Steyn), [26] and [31] (Lord Hoffmann). But contrast [91] (Lord Rodger). (2) Applying the test for a duty of care Caparo Industries plc v Dickman [1990] 2 AC 605 - basic test for duty X (minors) vBedfordshire County Council [1995] 2 AC 633 - not fair, just and reasonable to impose liability for negligent conduct of child abuse investigations
  21. 21. Barrett vEnfield London Borough Council [2001] 2 AC 550 - fair just and reasonable to impose liability for decisions as to child’s future, once he had been taken into care. Phelps vHillingdon London Borough Council [2000] 3 WLR 776 - assumption of responsibility by psychologist employed by authority to child in respect of assessing child for dyslexia. Stovin vWise [1996] AC 923 - vital importance of statutory context. D v East Berkshire Community Health NHS Trust [2004] QB 558 (CA); [2005] 2 AC 373 (HL) - very important case; you need to be familiar BOTH with the Court of Appeal’s analysis of the claim by the child (which was not appealed to the House of Lords) AND with the House of Lords’ analysis for the claim by the parents. D v Bury Metropolitan Council [2006] 1 WLR 917, [1]-[32] only - wide application of D v East Berkshire. Jain v Trent Strategic Health Authority [2009] 1 AC 853 Merthyr Tydfil County Borough Council v C [2010] EWHC 62 (QB) Seminar 6: Breach of duty and causation 1 (1) Breach of duty (A) BASIC TEST Whether D was negligent. Blyth v Birmingham Waterworks Co (1856) 11 Ex 781: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”. (B) OBJECTIVE STANDARD Objective standard; Nettleship v Weston [1971] 2 QB 69 – A learner driver crashed into a lamp post and injured her instructor. CA said that negligence was judged by reference to an objective standard and in general, the reasonable person test shouldn't 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 [1963] CA
  22. 22. Facts: A photographer is injured by one of the competitor’s horses while taking pictures at an show jumping 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 ‘actionable negligence’. Blake v Galloway [2004] (CA) Facts: Teenage boys were playing a game which involved throwing pieces of bark at each other. One of them 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 and prevented the finding of a breach. Without reference to hindsight You have to assess whether the defendant is careless by reference to the date of the event. Roe v Minister of health [1954] CA Facts: D ran a hospital. C had been in for an operation which required anaesthetic. He was injected with anaesthetic but unfortunately, it’d become contaminated and the contamination in it caused C to become paralysed. The contamination had come about in a peculiar way. Anaesthetic was stored in glass vessels called vials. These vials were stored in an antiseptic called phenol. Nobody realised it at the time but those glass vials were at risk of microscopic cracking, through which the antiseptic could penetrate. 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 become contaminated. And after it was realised, articles were published about this risk etc… Roe sues the hospital for negligence. Judgment: CA says hospital wasn’t negligent as it has to be judged by the state of expertise as it exists at the time of the alleged negligence. You can’t use the benefit of hindsight. (Per Denning “we must not look 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 time of 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?
  23. 23. BUT COURTS SOMETIMES TAKE D’S SPECIAL CHARACTERISTICS INTO ACCOUNT : Age, specifically young age Mullin v Richards [1998] 1 WLR 1304 Facts: Two 15-year old schoolgirls were fencing with plastic rulers during a class when one of the rulers snapped 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 into account as people who are young are less capable of appreciating the likely consequences of their action. Notes: From this judgment, is not clear whether either old age or mental immaturity can be taken into account. (e.g. 20 year old with a mental age of 10) Professional Status Phillips v Williams Whiteley Ltd [1938] 1 All ER 566 Facts: C had her ears pierced by a jeweller in a department store. He sterilised the needle in a flame as was 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 a person undertakes an activity requiring specialist skills, they’re required to reachthe standard of a person reasonably competent in that skill. Disability Mansfield v Weetabix Ltd [1998] 1 WLR 1263 Facts: 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 on gradually so it isn’t easy to appreciate that you’ve been affected by it. Importantly, the driver didn’t realise 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 not what 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 wouldn't have realised something was wrong, would have continued to drive) CERTAIN FACTORS A REASONABLE PERSON TAKES INTO ACCOUNT WHEN DECIDING WHETHER TO PERFORM (OR NOT PERFORM ) AN ACTIVITY 1. Likelihood of Harm 2. Gravity of the Harm 3. Cost of taking precautions
  24. 24. 4. Purpose Likelihood of harm Bolton v Stone [1951] AC 850 Facts: C lives close to a cricket ground and is hit by a cricket ball which is hit out of the ground. In this ground, there was a fence around the edge which was about 7 feet high and the ground was on a bit of a slope. In fact, for the ball to hit the claimant, it had to have travelled about 17 feet high in the air. And in the past 30 years it was said, the ball had only been hit out of the ground on half a dozen or so occasions, 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 a match there. So the fact that the RP would only have expected this to happen in a fantastical combination of circumstances went to show there wasn’t a breach of doc This was confirmed more recently in Whippey v Jones [2009] EWCA Civ 452 Facts: C was a runner in a park. D was owner of hector, the Great Dane who apparently weighed 12 stone. Unfortunately for C, Hector knocked into his right shoulder and through a series of events caused him 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 previous history of jumping onto people or barging into them. I.e. because likelihood of harm is so small, a RP is justified in taking the risk of that harm “*16+ … Before holding that a person's standard of care has fallen below the objective standard expected and so finding that he acted negligently, the court must be satisfied that a reasonable person in the position of the defendant (i.e. the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the defendant) to anticipate it.” Gravity of Harm Paris v Stepney Borough Council [1951] AC 367 Facts: C worked for the council on a street cleaning vehicle. He only had one functioning eye. When using a hammer to remove a bolt on a vehicle, a scrap of metal is liberated by this act and it goes into his good eye. So he completely loses his sight as a result of the accident. He sues the council saying they’re negligent in failing to provide him with goggles in the use of the vehicles Judgment: D owed a higher standard of care to the claimant because they knew that for him in particular, an injury to his good eye would be extremely serious.
  25. 25. Cost (and practicability) of precautions Latimer v AEC Ltd [1953] AC 643 Facts: Here, there’d been a downfall of rain which had caused flooding in D’s factory. As a result of that flooding, coolant for the machines which ran in open channels on the floor had been washed out of those channels. After the water subsided, that coolant which was like oil had been left all over the factory floor. D realised there was a problem and they obtained 3 tonnes of sawdust to sprinkle over the floor 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 (but had 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 in deciding whether employees had taken reasonable care in reopening it after taking the precautions they had taken. The only way to remove the risk would have been to close the affected part of the factory until it dried out. This would have been expensive and disproportionate to the relatively small risk of injury. Purpose Watt v Hertfordshire CC [1954] 1 WLR 835 Facts: C was a fireman. He was injured whilst travelling to an emergency call. The circumstances of that emergency were slightly peculiar. Fire brigade has received this call in relation to a person trapped in a vehicle after a road accident. For some reason, the fire brigade didn’t have the correct vehicle for transporting the equipment they’d need to extract the person from the road accident. As such, they put it on a different vehicle not designed to carry it. C is on back of vehicle, basically holding the equipment in place. When the vehicle comes to a stop, the equipment moves on the back of the vehicles and crushes/injures C Judgment: CA said there’s no breach of duty of care as the purpose for which the risk has been taken was to get to the scene ASAP to help the trapped person. So that purpose, that socially beneficial purpose (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 their sirens and lights. Also now, s1 of the Compensation Act 2006 allows the court to consider whether precautionary 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 the gravity of the harm
  26. 26. C<L*G By doing this, American courts have felt they give more certainty to the way the breach of duty assessment is carried out. There are potential problems though (D) SPECIFIC ISSUES REGARDING BREACH OF DUTY CONCERNING PROFESSIONALS Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Facts: Person treated for depression by electric shock therapy. Consequence of being administered with the treatment is that your limbs flair around due to the force of the electric shock. On the facts of this case, the patient had been strapped onto the bed in order to stop him falling off when the electricity had been administered. Unfortunately he’d been strapped on so tightly and reacted extremely forcibly so that when he did move, he broke his leg. He argued it’d been negligent not to give him any muscle relaxing drug before administering the therapy. However, there was some issue about whether they should have administered it Judgment: J McNair resolved the problem by saying it wasn’t necessary to show that what a particular doctor had done in the circumstances was what reasonable doctors would do in the case. So long as what was done conformed with a responsible body of medical opinion, it’d satisfy the test for taking reasonable care. It’s been criticised for being too protective of professionals. The HL clarified the situation; Bolitho v City and Hackney HA [1998] AC 232 Facts: C suffered brain damage as a result of a doctor’s failure to attend to clear a child’s blocked airways by intubation. There was a difference of medical opinion as to whether intubation was necessary in the particular circumstances Judgment: It’s necessary to satisfy the test to show that the responsible body of medical opinion you were following was both based on somerational foundation and that it had made an assessment of both the 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 all professions. 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:
  27. 27. - - 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 TEST Starting point for causation is the basic ‘but for test’. It works on the balance of probabilities. Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 Facts: C was turned away from the hospital by a doctor who refused to examine him. He later died of arsenic poisoning. It was later shown that he would not have recovered even if properly diagnosed as it was 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 DAMAGE Where there are multiple causes of damage, It can be hard to prove ‘but for’ causation. Thus, the claimant only has to show that D made a ‘material contribution to damage) Bonnington Castings Ltd v Wardlaw [1956] AC 613 Facts: C contracted pneumoconiosis while comes about through breathing contaminated air. (It was contaminated with silicone dust in this case) There were two main causes of dust, one of which was required by law to be extracted (and so, only one cause was negligent) It was impossible to prove ‘which dust’ had caused the disease. Judgment: D could be liable as they were responsible for a material contribution to the damage. It does not 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 DAMAGE McGhee v National Coal Board [1973] 1 WLR 1
  28. 28. Facts: Here, C gets dermatitis which he alleges is a result of exposure to brick dust while cleaning out brick kilts. While D is not negligent in respect of that exposure, it is alleged that they are negligent in failing 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 the moment 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 clearly contributed to the disease occurring. The point here is that we really do not know. The sole causal link that C can establish is that the employer’s action (or inaction rather) increased the risk of getting dermatitis. Judgment: HL here held that a material increase in the risk of damage was sufficient for liability. This was quite a radical decision and in Wilsher, they attempted to re-interpret McGhee to the point where it would be as though it never happened. Wilsher v Essex Area Health Authority [1988] AC 1074 Facts: The defendant hospital, initially acting through an inexperienced junior doctor, negligently administered excessive oxygen during the post-natal care of a premature child who subsequently became blind. Excessive oxygen was, according to the medical evidence, one of five possible factors that could have led to blindness. On the "balance of probabilities" test, the hospital would not be liable, since it was more likely that one of the alternate risks had caused the injury. (CA found liability applying McGhee) Judgment: The House of Lords found that it was impossible to say that the defendant's negligence had caused, or materially contributed, to the injury and the claim was dismissed. It also stated that McGhee articulated no new rule of law, but was rather based upon a robust inference of fact This reinterpretation however was subsequently rejected. Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 Facts: 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 to asbestos) and died. His wife sued the employers on his behalf in negligence. However, due to long latency periods (it takes years before symptoms are evident), and the fact that a single fibre of asbestos can trigger mesothelioma, it was impossible to attribute his death to a single employer generally, nor on the balance of probabilities. Judgment: The HL reaffirms the McGhee test of material contribution to the risk of harm and rejects the Wilsher analysis (but approves the result) and thus, all the employers were jointly and severally liable.
  29. 29. Notes: So we have this new principle based on increase in risk but we know that in Wilsher there was no liability but in McGhee there was. So we’re left with the question of when an increase in risk will be sufficient.These limits on the Fairchild exception come through quite clearly in the Barker case Barker v Corus UK Ltd [2006] 2 AC 572 Facts: C’s husband, who died of mesothelioma, had been exposed to asbestos during three periods in his working life: first while working for a company which had since become insolvent, secondly while working for D and thirdly, while self-employed. (at first instance, D and the insolvent company were held to 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, a defendant who wrongly exposed the deceased to the risk may still be liable even though the other exposures 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 in dissenting 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 which specifically 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
  30. 30. o o 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 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 Importantly, to use the Fairchild exception, it seems you need  Scientific uncertainty  Same causal agent/mechanism Seminar 7: Causation 2 and remoteness (1) Causation 2 (A) LOSS OF A CHANCE Courts are extremely reluctant to impose liability where the negligence of the defendant caused the claimant to lose a chance Hotson v East Berkshire Area Health Authority [1987] AC 750 Facts: a boy fractured his hip when he fell from a tree. The hospital made a misdiagnosis and the boy developed a hip deformity. Experts confirmed that he would have had a 75% chance of developing the deformity even with the correct diagnosis. The trial judge (upheld by CA) awarded him 25% in damages for his lost chance of recovery. Judgment: HL reversed the previous decisions considering that since there was only a 25% chance that the negligence caused the injury, ‘but for’ causation was not satisfied. Gregg v Scott [2005] 2 AC 176 Facts: D had negligently misdiagnosed the claimant’s malignant cancer as benign. This delayed the claimant’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 damages to 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, at least you have a higher chance of getting it right. (B) INTERVENING ACTS An intervening act may break the chain of causation between the defendant’s breach of duty and the loss or damage suffered by the claimant.
  31. 31. 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 events The third type is a bit more tricky, namely, negligent acts Extraordinary natural events Hoffmann illustrates this in the case. Imagine I’ve got a drum full of flammable liquid on my premises. If that liquid catches fire because it’s a very warm day and that makes it spontaneously combust etc, we wouldn’t regard it as something that breaks the chain. In the scheme of things, it being a hot day isn’t particularly unusual. If on the other hand, the drum is struck by lightning during a storm and that causes it to catch fire, that would be an extraordinary natural event. Deliberate voluntary acts Similarly in relation to deliberate voluntary acts, talking about the same drum, there’s a workman smoking who casually negligently drops the cigarette into the drum that probably wouldn’t break the chain of causation. But if he deliberately puts it in knowing there’s flammable liquid in the drum that probably would break the chain of causation. Negligent acts The other thing that might break a chain of causation would be a negligent act. However, this is going to be more difficult to establish. (Phrased ‘positively’, it seems the original defendant will be responsible for injury and damage which are the natural and probable results of the initial wrongful act; he will also be liable where the intervening act 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 the negligent act is quite unusual or extraordinary, (iii) where the claimant himself breaks the chain by doing something stupidly negligent) The final point Hoffman made in Empress Car is about the relation between the rules on intervening acts and the rules of a DoC to prevent damage being inflicted by a TP (e.g. smith v littlewoods). (This point is also made in Reeves) is that the court has to consider the nature of the DoC. Reeves v Metropolitan Police Commissioner [2000] 1 AC 360
  32. 32. Facts: The deceased (C) was in the prison and committed suicide (after 2 earlier failed attempts). The police knew he was a suicide risk. It was held that the police did owe him a DoC to protect C from injuring himself which they breached by leaving the flap of the cell door open. (remember the rules on DoC for TP’s) Judgment: Applying the general principles about intervening acts, it seems like the chain of causation is broken by a voluntary deliberate act. However, the courts decided that the intervening act principle couldn’t be established. Notes: Here, the point of the duty is to prevent a person from deliberately harming himself. If at the causation stage of the claim the court were to say that he’s broken the chain by deliberately harming himself 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 to prevent another person injuring him, then these general rules about breaking the chain of causation don’t apply. The chain will not be broken by voluntary deliberate acts by C or a TP. Knightley v Johns [1982] 1 WLR 349 Facts: There’s a car accident in the Queensway tunnel in Birmingham. D1 is the person who negligently crashed his car. Police come and they realise they haven’t stopped incoming traffic from coming in. So they send 2 cops back into the tunnel into oncoming traffic (on bike) and a car comes and crashes into one of bikers. The police officer is clearly negligent or at least in contravention of police standing orders. First of all they failed to stop the traffic at the correct end of the tunnel. Then the officer in charge of the incident orders 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 break the chain of causation (i.e. negligent acts do not automatically break the chain of causation); the negligent act needs to be quite unusual or extraordinary. Here, the CA emphasised that the two deliberate contraventions of police orders, namely blocking the wrong end and then sending the officers against the flow of traffic, were unusual acts of negligence and thus were held to break the chain of causation. (The original defendant will be responsible for “injury and damage which are the natural and probably results of the *initial+ wrongful act”) Further, it is also possible for the claimant to break the chain of causation by doing something stupidly negligent. (Highlighted in Spencer). More specifically, for an act of a claimant to be a novus actus interveniens, it must be entirely unreasonable in all the circumstances. Spencer v Wincanton Holdings Ltd [2010] PIQR P8 Facts: C suffered injury due to workplace negligence and had to have an amputation of one leg (or most of it). While he had prosthetics, pending modification to his car he could not drive it with the prosthetics. 3 years after the injury while filling his car at a gas station, without wearing prosthetics or
  33. 33. using crutches, he tripped and suffered injury which made him wheelchair bound. He sued D in respect of the further damage he suffered. At first instance the judge held that the chain of causation was not broken 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 no novus actus interveniens that broke the chain of causation. Whilst each case must be considered on its own facts the trial judge was entitled to find that the respondent’s conduct was not “unreasonable” as contended for. The respondent made a misjudgement in running a risk by not using his prosthesis or sticks and this was properly reflected in the reduction for contributory negligence.” (2) REMOTENESS The Wagon Mound (No 1) [1961] AC 388 Facts: 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 being repaired. Hot metal produced by welders using oxyacetylene torches on the respondent's timber wharf (Mort's Dock) at Sheerlegs Wharf fell on floating cotton waste which ignited the oil on the water. The wharf and ship moored there sustained substantial fire damage. In an action by Mort's Dock for damages for negligence it was found as a fact that the defendants did not know and could not reasonably have been expected to know that the oil was capable of being set alight when spread on water. 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 and that 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 be foreseen though. For example, environmental damage from the oil potentially leading to property damage. 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 [1962] 2 QB 405 Facts: C was splashed by molten metal as a result of his employer’s negligence and suffered a burn to his lip. This burn triggered cancer, from which the claimant died. The claimant’s lip was pre-malignant at the time of the incident. Judgment: There is no dispute as to liability for the initial injury. Further, the HL says that while the subsequent cancer was not foreseeable, it is merely the extent of the injury and the remoteness rules merely require you to foresee the type of damage. (sometimes called the ‘eggshell skull rule’; per Lord
  34. 34. Parker “If a man is negligently run over... it is no answer to the sufferer’s claim for damages that he would 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 comes about (e.g. in wagon mound there’s a distinction between damage caused merely by oil and that by fire) Hughes v Lord Advocate [1963] AC 837 Facts:On November 8, 1958 evening the appellant, an eight year old boy with his ten year old uncle was walking down Russell Road, Edinburgh. Some Post Office employees were repairing cables under the street. They opened a manhole on the surface of the road, which was nine feet deep and put a weather tent on it. A ladder was put inside the manhole for access. The tent was again covered with a tarpaulin for better protection, but the workmen left one of the corners a gap of two feet and six inch. They had also fixed four red paraffin lamps on the site to warn the traffic since 3.30pm. The workmen left the site at about 5pm for a tea break to a nearby Post Office building. Before leaving, they took out the ladder and 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 with the equipment. They picked up one of the lamps and entered the tent. They took the ladder along with which 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 the manhole. 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 within leaked, the paraffin vaporised which resulted to an explosion with flames reaching up to thirty feet. Due to 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 be foreseeable that a small boy would come along to the manhole with the lamp, pick it up, go in, come out, and then drop the lamp causing an explosion causing him to fall back in and get hurt, you could probably 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 might be termed ‘the basic method’ by which the result comes out. So in Hughes, the type of damage is personal injury by getting burnt and it doesn’t matter that the detailed way in which the harm came about was unforeseeable. So both the extent of the harm and the detailed method by which it came about needn’t be foreseeable as long as the type of harm is foreseeably and it that it was reasonably foreseeable 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 of harm?(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)
  35. 35. Corr v IBC [2008] UKHL 13 Facts:As a result of D’s negligence C suffers a severe head injury at work. He receives surgery but begins to 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’s merely the extent of the harm, not a different type of the harm. So it wasn’t necessary to foresee he’d commit suicide as a result of getting this type of head injury. All it was necessary to foresee is that he’d suffer depression and the suicide goes to the extent of that depression Notes: If all that needs to be foreseen is that the harm may be suffered in a broad sense, that doesn’t really insist on a tight test. This is the reason courts have been focusing on this point. Page v Smith [1996] AC 155 Facts:C involved in a minor car accident and was unjury but this caused a recurrence of his ME Judgment: In the case of direct victims, their Lordships said the following test should be applied: "Could the defendant reasonably foresee that his conduct would expose the plaintiff to the risk of personal injury, psychological or physical?" If the answer was yes, it would be irrelevant that the extent of the damage was unforeseeable because the plaintiff had special sensitivities. This is based on the eggshell skull rule, that is, one "takes the plaintiff as one finds him". Consequently, the defendant was found liable 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 right Seminar 8: Defences to Negligence Claims (1) Voluntary assumption of risk (volenti non fit injuria = no wrong is done to one who consents) NB this defence should not be confused with the argument that can be made in response to battery claims (discussed in seminar 12) that the claimant has consented to the defendant’s touching; here the
  36. 36. point is that the defendant has voluntarily assumed the risk of harm, not that he has consented to the harm itself. The most common situation is where it can be concluded from the factual situation that C has consented to the risk Woodley v Metropolitan District Railway Co (1877) 2 Ex D 384 The plaintiff, a workman in the employ of a contractor engaged by the defendants, had to work in a dark tunnel rendered dangerous by the passing of trains. After he had been working a fortnight he was injured by a passing train. The jury found that the defendants in not adopting any precautions for the protection of the plaintiff had been guilty of negligence. (CA reversed this but HL returned to the original verdict) Essentially, one mustn’t confuse knowledge and consent of the risk. It is not enough that C knew that the risk was there: one must prove consent to that risk Dann v Hamilton [1939] 1 KB 509 Facts: On a motoring trip, participants go to various pubs on the way to London and back out. This affects driver’s ability to drive. During the trip, some passengers become so alarmed by the way that the driver 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 fit injuria Judgment: The defence failed: Held that it only really applies in extreme cases. There would be 2 situations in which the defence of volenti might be appropriate1. Implied permission to be careless- C gave permission to D to act carelessly 2. Deciding to enter an obviously dangerous situation- e.g. meddling with an unexploded bomb Notes: Getting into a car with an obviously drunken driver does seem like deciding to enter into an obviously dangerous situation. The defence probably failed for historical reasons. This case was in 1939 and drink driving was still very common and not really frowned upon. So it may well be that in its context, this case makes sense: because at the time the obviousness of the danger isn’t as glaring as it would be to us today A. IMPLIED PERMISSION TO BE CARELESS- C GAVE PERMISSION TO D TO ACT CARELESSLY ICI Ltd v Shatwell [1965] AC 656 Facts: C works in a quarry as a shot-firer. His job was to blast away rocks that were used for industrial purposes. Before they carried out the blast, they were instructed to run a test in which everyone else
  37. 37. had to be well away from the area in which the explosive was to go off: to carry this out, he had to use long 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. He seeks to sue his employer for vicarious liability for the carelessness of his work colleague Judgment: the defence is established. HL emphasises that all the instruction and training that had been given to the shot firers, and that previously one of the shot firers had been fired for not carrying out the tests. Given that factual background, the actions of the 2 shot firers in testing the circuit using the short wire gave rise to an implied promise by the man who was injured not to sue the person who injured him. Notes: This almost seems to draw on contractual ideas B. DECIDING TO ENTER AN OBVIOUSLY DANGEROUS SITUATION Morris v Murray [1991] 2 QB 6 Facts: 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. Has volenti 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 was taking 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 C was so drunk as to not appreciate the risk, consent wouldn’t be found. So in a sense, his legal problem was that he was not drunk enough. If a more ‘contract like’ theory is taken, an objective approach would be taken. Mitchell feels the subjective approach is appropriate here though. Woodridge v Sumner [1963] 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 better to deal with these situations by adjusting the standard of care that was owed. Essentially, not that C agreed to D being careless but that C wasn’t entitled to demand D reach the level of care that he would ordinarily have to reach. So in these situations, they can be dealt with either by the volentidefence or by changing the standard or care to reflect what we think C should be entitled to demand in the circumstances Corr v IBC Vehicles Ltd [2008] 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 obviously dangerous situation. Nonetheless, the defence of volenti failed. Despite features that seem to make it a
  38. 38. promising argument. It was held that the depression had so affected his mental processes that he couldn’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 negligence Law Reform (Contributory Negligence) Act 1945, s 1(1): ‘Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damage recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having 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 which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.’ Note: The definition of fault in the act is important. Pre-1945, the defence was only applicable to certain torts. Post-1945, courts can apply it to the extent it thinks it’s applicable. The Act only reforms the effect of contributory negligence though, it doesn’t reform when the defence is available nor does it expand the categories. “WHERE ANY PERSON SUFFERS DAMAGE AS THE RESULT PARTLY OF HIS OWN FAULT AND PARTLY OF THE FAULT OF ANY OTHER PERSON OR PERSONS” – SO BOTH PARTIES MUST HAVE BEEN AT FAULT Gough v Thorne [1966] 1 WLR 1387 Facts: 7 year old girl is crossing the road with her mum and a lorry stops to let them through. Once they pass the lorry, they get hit by a car that was trying to overtake the lorry. Had the little girl been negligent in crossing the road without checking and relying simply on the indication by the lorry driver and the elder sibling assisting her? Judgment: It was reasonable reliance- the test of fault does seem totake into account the same factors we take into account in establishing that D were in breach of duty. Should there be a more complicated situation with more factors, we might look at how C weighed up these factors. Jones v Livox Quarries Ltd [1952] 2 QB 608 Causation is somewhat important to contributory negligence. So C’s fault has to have caused some part of the damage. Facts: C was injured at work when two quarrying vehicles collided. The claimant was sat on the back of one of the vehicles at the time of the collision, without the driver’s knowledge and in contravention of the explicit prohibition in doing so. Applying the last opportunity doctrine, one wouldn’t say that C’s fault caused his damage at all. Thus, CA had to consider if the doctrine still applied post-1945.
  39. 39. Judgment: Given that contributory negligence post 1945 is no longer a complete defence, the doctrine, that was developed to deal with the harshness of the fact that it was a complete defence, doesn’t need to apply and C’s act was taken to be contributory negligence. (recall again that finding fault under the act is similar to finding a breach of duty. So assessed by reference to a reasonable person) Per Denning: “In order to illustrate this question of causation, I may say that if the plaintiff, whilst he was riding on the towbar, had been hit in the eye by a shot from a negligent sportsman, I should have thought that the plaintiff's negligence would in no way be a cause of his injury. It would only be the circumstance in which the cause operated. It would only be part of the history. But I cannot say that in the present case. The man's negligence here was so much mixed up with his injury that it cannot be dismissed as mere history. His dangerous position on the vehicle was one of the causes of his damage” Thus the approach towards causation here has become broader/more inclusive. Courts focus on whether C’s fault is merely part of the history/background. If it is, it won’t regard the fault as having caused the loss because there won’t be a sufficient connection in time, place and circumstances between C’s fault and the damage that he suffers. (because above, C’s negligence in riding atop the excavator, even if shot, would clearly satisfy ‘but for’ causation) BUT THE DAMAGE RECOVERABLE IN RESPECT THEREOF SHALL BE REDUCED TO SUCH EXTENT AS THE COURT THINKS JUST AND EQUITABLE The extent to which C owed actions that could have prevented the harms or reduced the severity: Froom v Butcher [1976] QB 286: carelessly not wearing a seatbelt affects the severity of the injury that is suffered. Carelessness Rule: If both have contributed equally but one has been more careless, then the more careless one should pay a bit more. There is a problem of working out how much of a reduction to make for the ‘less careless party’ though. Denning in Froom: Introduces guidelines for what the figure should be- but these guidelines haven’t really been followed (3) Illegality (ex turpi causa non oritur actio = no action arises from a disgraceful cause) (3) ILLEGALITY (EX TURPI CAUSA NON ORITUR ACTIO = NO ACTION ARISES FROM A DISGRACEFUL CAUSE) C could lose claim for damage in negligence because C was involved in an illegal activity at the time. There must be a close connection between the injury sustained by C and the illegal activity for the defence to work. 4 different approaches as to how the defence should work: (1) The fact that C was doing a criminal offense should have no impact on the liability of D:Revill v Newberry [1996] QB 567