Tort – Occupiers Liability Cases II

In Grimes v Hawkins (2011) a young lady was invited by her friend, while her parents were away, to a party at her house. During the course of the party, the plaintiff used the swimming pool in the house. The plaintiff had used the pool before and was familiar with its depths. The plaintiff then decided to dive into the pool and because the depths of the pool were not sufficient the plaintiff’s head hit the bottom of the pool and as a result she suffered severe injuries to the spine. The plaintiff sued.

The court found for the defendant on the basis that the plaintiff had used the pool on previous occasions and was entirely familiar with its depths. Regardless of the fact that the plaintiff was a visitor that was invited, the question that was to be asked, in line with the dictum in the Calgarth 1927 was whether the pool was used for the purpose that it was intended? When someone is invited to use the facilities in the house, the invitation is extended on the basis that the facilities in question will be used in the way that they would ordinarily be used and not otherwise.

In Geary v JD Wetherspoon PLC (2011) the plaintiff, while on the defendant’ premises chose to slide down the bannister and as a result sustained serious injuries. The plaintiff sued. Applying the dictum in the Calgarth 1927 as per Scrutton L.J. – when a person is invited to use the staircase in the house they are not invited to slide down the banister. They are invited to use the staircase in the manner that it is normally used. This approach is sometimes called the common-sense approach. In this instance, the plaintiff (Geary v JD Wetherspoon PLC (2011)) was aware of the risk and chose to accept the risk and therefore the defendants were not liable.

Let’s go back momentarily to owners who keep Rottweilers and German Shepherds on their premises. They are fully aware of their pet’s temperament and in most instances, take more than adequate measures to ensure that the fencing around their house is secure.

In addition to that they also post warning signs to warn others that there a is a dog on the premises. Despite that there are some very strange people who lurk about and like nothing better than to meddle with the fences and poke their hand through the fences to aggravate the dog. Are the owners to be blamed if the dog bites their hand off? Hasn’t the stranger in this instance accepted the risk by his or her own volition?

In Moira Brown v Lakeland Ltd (2012) the plaintiff was injured when she slipped and fell while using a staircase at the defendants shopping center. There were no handrails in place and adequate signs were not posted to inform visitors to the shopping center that there was an alternate route that they could use. The plaintiff sued on the grounds that had there been a handrail or had adequate signs been posted, the plaintiff would not have been injured.

The court held that all stairs were a risk and it is up to the user to ensure that they take reasonable care and precaution when using the facilities that are provided in shopping centers and other premises that are open to the public. The plaintiff was unsuccessful.

In John Dawson v Ruth Page (2012) we look at the duty that is owed by an occupier of a premises to visitors who have implied permission to be on the premises.

The plaintiff was a courier who had to deliver a package to the defendant’s house. Because the house was being renovated it looked rather disorganized and there were building materials in the way, the type one would associate to ordinary renovation or refurbishing works, that prevented easy access to the house. The plaintiff who was unable to locate the defendant, under normal circumstances the courier is obliged to first locate the person the parcel is addressed to, entered the premises and left a package at a convenient spot. On the way out the plaintiff slipped on a wet plank and was injured. The plaintiff sued.

The court, applying the common-sense approach, decided that it was the plaintiff’s failure to exercise due care and caution that had led to the injury as opposed to the defendant’s negligence. Once the plaintiff realized that the plank was wet, in most cases and instances, it would be fairly obvious, the plaintiff should not have used it as a crossing.

Copyright © 2017 by Dyarne Ward

Tort – Occupiers Liability II

Lowery v Walker (1911) gives us an example of the type of duty that is owed to strangers and stranglers that make their way onto private poverty. The plaintiff used the defendant’s land as a short cut, the land was usually used as a short cut, and the defendant had taken no steps to prevent it from being used as such. The plaintiff while walking across the land was injured by the defendant’s horse. The defendant knew that the horse was dangerous but despite that had not taken any steps or measures to restrain the horse or have it secured. The plaintiff sued and was successful.

The situation is not too dissimilar to those who have guard dogs like Rottweilers and German Shepherds. Without doubt, these are some of the most loving dogs in the world but they have a tendency to be over protective and are best kept on land that is not open to public. Most owners of these dogs usually post signs to warn friends, visitors, strangers, and stranglers that there is a dog or dogs in the vicinity to prevent them from coming too close to the fence – these dogs are normally kept in an enclosed area.

On the same token strangers, stranglers, visitors, and trespassers also have a duty to ensure that they act in the appropriate manner. For example, if there is a sign posted on the fence saying “beware of dog” please do not try and put your hand on the fence or meddle with the fence because the chances are that you will get bitten. Owners train these dogs to react in the manner that they do for their own safety and protection.

There are also instances and occasions where people tend to aggravate the dog and if you do so and get your hand bitten off don’t blame the owner because no one in their right mind would aggravate a Rottweiler or a German Shepherd especially when there are signs posted all around that clearly say “beware of dog”.

Strangely enough there are some people who can’t walk past compounds that are protected by dogs without aggravating the animal and after that make a complain to the relevant authorities saying that the dog is too vicious. Vicious or otherwise in most instances the dog is just doing what it is trained to do.

The court elaborated on the duty that is owed by strangers, stranglers, trespassers, and visitors in the Calgarth 1927 – when a person is invited into a house to use the staircase they are not invited to slide down the banister. They are invited to use the staircase in the manner that it is normally used i.e. the duty that is owed by any occupier of land is one that is within reason.

In Haseldine v C. A. Daw & Son and Others (1941) the plaintiff was injured when the cylinder gland of a hydraulic lift in a block of flats broke. The lift was examined only the previous day by someone from the company that was contracted to maintain it and the lift was passed fit. The plaintiff sued the owner of the flats who was also the occupier and the courts held that the owner was not liable. In this instance, the maintenance of the lift was contracted to another company that was required to inspect the lift once a month. The accident was not caused by the negligence of the owner or the occupier but rather by the lack of skill exercised by the servicemen that were contracted to ensure that the lifts were in good working order.

In Tomlinson v Congleton B.C. (2004) the defendants had converted a sand quarry into a park that was open to visitors to frequent. The disused quarry included a lake and signs were posted in plain sight disallowing or prohibiting visitors from swimming in the lake, especially because these lakes are normally shallow and the sand below is loose and prone to give way, which is normally the case with pools that occur naturally in disused mines and quarries and these pools are a hazard to swimmers. Despite that some of the visitors did go for a swim or a wade in the shallow waters of the lake.

The plaintiff was a visitor who decided to go for a swim. He dived into the pool but because of the shallowness of the water or the lack of depth, he sustained severe injuries to the neck. The plaintiff sued.

The court held that the council was not liable. The risk was one that was perpetuated by the claimants own actions rather that a failure by the council to take reasonable care and precaution. S2(2) Occupiers Liability Act 1957 – “The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”.

Copyright © 2017 by Dyarne Ward

Tort – Occupiers Liability Cases I

In Edward v Railway Executive (1952) the case was decided prior to the enactment of the Occupiers Liability Act 1957; a railway track was used by members of the public to cut across, as a short cut, and the council erected fences to prevent the use of the railway track as a short cut but the fences were repeatedly torn down and the matter was eventually brought before the court. The question that was to be decided upon was whether the council despite repeatedly erecting fences owed those who used the railway track as a short cut a duty of care? The court held that when there are repeated attempts to erect fences to prohibit members of the public from using the railway track as a short cut and those fences are repeatedly torn down, a duty of care did not arise.

In Wheat v Lacon (1966) the plaintiff and her family were staying in a hotel and while her husband was climbing down a particularly steep staircase, he fell down and hit his head on a beam and died as a result. During the trial, according to the evidence that was given, the staircase was narrower than usual and the lightbulb which normally lit the staircase did not work. In addition to that, the handrail was two steps short towards the end of the staircase which meant that the handrail would stop two steps before the end of the staircase and anyone holding on to the handrail would most likely fall especially if the staircase was not lit. The plaintiff sued.

To start with the court had to decide who the occupiers were. The premises was owned by one party but the day to day running of the hotel was in the hands of another party who were also the occupiers. The court held that there could be more than one occupier in a or to a premises.

The plaintiff had brought an action against the owners who though they retained sufficient control of the premises, the day to day affairs with regards or reference to running or operating the premises fell into the hands of the other party. Clearly the fixing of the lightbulb or rectifying defecting lighting fell into the hands of the second party and therefore the plaintiff’s action failed.

In Lewis v Six Continents (2005) the plaintiff fell through a glass window and brought an action against the owners for failing to have bars erected on the outside of the windows to prevent visitors from falling. The court denied the plaintiff’s claim. If the claim was allowed it would mean that bars would have to be placed outside all glass windows to prevent other claims due to similar accidents. The Occupiers Liability Act 1957 only required occupiers and owners of premises to take reasonable care and not anything beyond that.

In Maguire v Sefton Metropolitan Borough Council (2006) the defendants operated a leisure center that had exercise machines for public use. The plaintiff was a paying visitor who used an exercise machine and because the machine was faulty or defective the plaintiff was injured. The maintenance of the machine was contracted to a third party who was under a duty to ensure that the machines were in proper working order. The plaintiff sued.

Because the plaintiff was a paying customer there was a contract between the plaintiff and the defendants and it was held that there was an implied warranty that the machine could be safely used for the purposes that it was intended for.

In Lisa Wardle v Scottish Borders Council (2011) the plaintiff was a 9-year-old girl who climbed on to the rafters of her school playground shelter and was injured when she fell. The court had to determine if a duty of care was owed and the nature of the duty of care.

It was decided that a duty of care was owed under s2(1) of the Occupiers Liability Act 1957 and that duty was similar to the duty of care that was owed in negligence and the question that was to be asked was whether a reasonable person would have acted in the way the defendant did or would have failed to act under the circumstances and if that act or failure to act had led to some type of injury to the plaintiff? The court found in favor of the plaintiff but unlike in other cases that involved children, decided that the plaintiff was contributorily negligent and the damages that were awarded were reduced by half.

Copyright © 2017 by Dyarne Ward

Karma Hinduism

Karma is a fundamental belief of the Hindu faith and basically it denotes the sum collective of all actions, both good and bad, that follows the soul into the next life. Hinduism is based on the notion that existence is dualistic in nature and that the human body is composed or comprises of two components the physical component i.e. the body per se and the spiritual component or the spiritual matter within the body which is commonly referred to as the soul. While the body exists for a limited time and comes to an end after having existed for a specific time, the soul is eternal and exists for all time.

The physical body comes into existence with birth and from then on it gets stronger with age as it grows from adolescence to youth and continues to gain physical strength with time until its faculties start to slow down and it loses the strength it has gained as it grows old and infirm before slipping into death. The body is then reduced to ashes or cremated and it remains only as a fleeting memory in the minds of those that were in some way or form attached to the body.

The same however cannot be said for the soul which remains the same from birth to death and upon death depending on the deeds and actions of the body it was encased in while it was alive it either attains salvation or liberation or migrates to another body to begin the journey anew.

According to some schools, the type of body that the soul attains after death depends on its deeds and actions when it was trapped or encased in the previous body. Souls that belonged to a body that had lived a good life, even if they do not attain salvation or liberation after death, acquire the body of someone who is born in a higher or a good station in life and are not subjected to the many miseries that often accompany human existence for example poverty, disease, sickness, and homelessness, to name some of the many problems that plague human existence today.

Souls that belong to a body that has led a wayward life and a body that has committed numerous sins normally attain the body of someone who is born into a lower station in life and are subjected to the many miseries of mortal existence. The general belief is that the new body will experience the sins the former body inflicted on others and upon realization of its mistakes, it will be liberated from a wretched existence and continue on the higher path until it is born in the body of someone who attains salvation and liberation by virtue of having lead a noble existence.

As far as the soul is concerned, birth and death is a continuous cycle and the soul passes from one state to another, repeating the process for as long as it takes or for as many times that is needed until such time that it attains the body of someone who desires to live a noble and virtuous existence and not be swayed by material pleasures or corporeal or temporal needs but rather someone whose existence is driven by spiritual needs and the desire to do so permeates his or her very existence.

Another way of looking at it is that in order for one to escape the birth and death cycle, all one has to do is to live a good life for the duration of a lifetime which in present terms translates to no more than a hundred years or so and upon death the soul will either attain salvation or liberation or attain the body of someone who is born in a higher station of existence.

Living a good or a meritorious life doesn’t always equate or translate to attaining salvation or liberation and even while living a praiseworthy existence, one can be subjected to the many pitfalls that result from temporal or corporeal needs and therefore the only surefire way of attaining salvation or liberation is to seek enlightenment.

Seeking enlightenment merely means renouncing all material existence and devoting one’s existence to seeking out the higher truths and it normally means leading the life of a monk or an ascetic.

Upon death those persons who have faithfully complied with the norms and rules that accompany an ascetic existence are liberated and gain the status of an enlightened being and may return to the world of the living to help others through difficult times or may be reunited with the source and continue to exist with the source for the duration of the universe.

Karma in short is simply the deeds that we acquire in the present life, good and bad, that follow us into the next life and determine the body that we will attain in the next life. Therefore, while one is alive it is in one’s best interest to accrue as many good deeds as possible and to avoid negative actions.

Copyright © 2017 by Dyarne Ward

Tort – Occupiers Liability I

Occupiers liability refers to the duty that is owed by those who occupy property through ownership or lease to visitors to their land or property. Despite the fact that owners legally own the land they must take adequate, relevant and appropriate steps to ensure that any visitor to their property, whether invited or otherwise, is not subjected to the risk of accident, injury or illness.

In Jolley v Sutton LBC (1998), for example, the council had left an abandoned boat on a piece of land that it owned with a notice stuck to it that warned others not to meddle with the boat and if the boat was unclaimed within 7 days it would be removed. The boat however was left abandoned for 2 years and in that time it had further deteriorated and posed a hazard to trespassers or anyone else who clambered on it or fiddled with it.

The boat was discovered by two 14-year-old boys who as boys normally do got carried away with it and tried to do it up. While they were trying to fix the boat, there was an accident and one of the boys suffered serious spinal injuries and was paralyzed as a result. The plaintiff sued under the Occupiers Liability Act 1957 and was successful.

It was reasonably foreseeable that if the boat was not disposed of in the appropriate manner, someone sometime was likely to stumble across it and there was a real likelihood that the person(s) could sustain some form of harm or injury as a result.

In Ward v Tesco Stores Ltd (1976) the plaintiff was walking down the aisle of a Tesco store shopping when she stepped on some spilled yogurt and subsequently slipped and fell. The plaintiff was injured as a result of the accident and brought an action against Tesco for negligence. The court held that Tesco owed its customers a duty of care and it had breached that duty by failing to ensure that the floors were kept clean at all times. The plaintiff’s injury was the result of stepping on the spilled yogurt or the plaintiff would not have been injured but for the spilled yogurt and thus the defendant was held to be liable.

The plaintiff despite having brought an action in negligence could have also brought a successful action under the Occupiers Liability Act 1957. The act was enacted primarily “to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.” (Section I(I)).

S2 of the act elaborates on the natures of the duty that is owed. S2(1) An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

The Occupiers Liability Act 1984 further reinforces the principles that were laid down in the 1957 act. S1(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine –

(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and

(b) if so, what that duty is.

In Gwilliam v West Hertfordshire Hospital NHS Trust (2002) the plaintiff, a 63 year old lady, was injured while she attended a summer fair hosted by the defendants. During the fair the plaintiff had participated in some of the activities and as a result of the defective equipment that was provided, she sustained injuries. The plaintiff sued. Under normal circumstances the matter would be covered by public liability insurance but in this instance the insurance policy of the contractors who provided the equipment had expired 4 days prior to the fair, and the contractors had failed to renew it.

The court held that under the Occupiers Liability Act 1957 there was a duty that was imposed on organizers to ensure that the contractors they employed had suitable insurance coverage and the court found that the defendants had been negligent by failing to ensure that their contractors had suitable insurance coverage. The plaintiff was successful.

Copyright © 2017 by Dyarne Ward

Tort – Res ipsa loquitur

Res ipsa loquitur simply means that the thing speaks for itself. In instances where the courts apply the principle, the burden of proof shifts to the defendant. The maxim is normally applied in instances where the cause of the damage, injury or illness is unknown and it is up to defendant to rebut the presumption that he or she had caused the accident, injury or illness.

In Mahon v Osborne (1931) a patient died shortly after a surgery and the post mortem revealed that the surgeon who had conducted the surgery had negligently left a cotton swab in the patient’s body. The court held that there was no need to look any further and that the cotton swab was sufficient prove that the defendant had been negligent and had breached his duty of care i.e. the thing (the cotton swab) speaks for itself (res ipsa loquitur).

The fact that the cotton swab was present in the body of the deceased was sufficient evidence that the defendant was guilty and the court need not look any further to imply or impose liability.

In order for the maxim or the principle to apply three factors must be established:-

i) The defendant must have control or must be able to exert control of the thing that caused the damage. In Mahon v Osborne (1931) the defendant had all the control in the world over the cotton swab and the fact that he did not notice that the cotton swab remained in the body once he had completed the surgery clearly implies that he was negligent or implicates him.

In Gee v Metropolitan Railway (1873) the plaintiff was injured when the train moved as he was about to disembark and as a result he suffered or sustained injury. The train was clearly in the control of the driver and would not have moved without his intervention. The court held that the defendant was liable and the plaintiff was successful.

It is worth comparing the decision in Gee v Metropolitan Railway (1873) with that in Easson v London North Eastern Railway (1944). In the latter case the plaintiff fell out of a carriage door because it was left open. The plaintiff sued and it was established during the trial that the carriage door was left open by one of the passengers. The court held that the defendant was not liable because it could not be established with any degree of certainty that it was his negligence that caused the plaintiff’s injuries. Moreover it was fairly obvious from the facts that the defendant did not have any control over the carriage doors.

ii) The damage or the injury must be the result of the defendant’s carelessness and it must be the type of damage that would not have occurred otherwise i.e. with the exception of the defendant’s negligence there could be no other cause or causes for the damage, illness or injury. In Scott v London and St Katherine Docks (1865) the defendant was injured when 6 bags of sugar landed on his head from where they were perched at the top of the defendants’ warehouse. In addition to the fact that the plaintiff would not have been injured but for the defendants negligence, it could be said with some degree of certainty that the accident, which would otherwise not have happened, could have only occurred as a result of the defendants carelessness. It is worth adding that the type of mishap in this instance (Scott v London and St Katherine Docks (1865)) was something out of the ordinarily and could only be precipitated by the negligent act of the blameworthy party.

iii) thirdly instead of the plaintiff establishing or proving, normally by adducing evidence, that it was the action or inaction of the defendant that had caused the damage, injury or illness, it is now up to the defendant to prove that he did not cause the damage, injury or illness i.e. res ipsa loquitur reverses the burden of proof or instead of the plaintiff proving that the defendant had caused the damage, injury or illness it is now up to the defendant to disprove that he or she had caused the damage, injury or illness.

In Barkway v South Wales Transport (1980) an omnibus (which simple means a bus that is available for all) veered to the pavement and as a result injured the plaintiff. Omnibuses were generally only meant to be driven on the road and the fact that the bus had made its way to the pavement was enough for the court to infer liability. The mishap was most likely due to either the driver’s negligence or some defect in the bus which prompted or compelled the driver to steer away from the normal route. It was now up to the driver or the bus company to disprove that the injury to the plaintiff was not caused by the driver’s negligence.

Copyright © 2017 by Dyarne Ward

Tort – Novus actus interveniens

Novus actus interveniens in tort is an intervening act that causes a break in the chain of causation and negates the defendant’s liability. A defendant is liable in tort when his action or inactions (omissions) cause some form of physical injury, psychiatric illness, or some type of damage to property. The injury, illness, or damage is normally the direct consequence of the defendant’s action or inactions (omissions).

Causation is a chain i.e. an action or an inaction (omission) that leads to a result, often dire but nonetheless foreseeable and the defendant is often liable unless there is a break in the chain and a new, often independent act, causes a break in the chain.

In the Oropesa (1943) there was a collision at sea between two ships. The Oropesa collided with another vessel, the Manchester Regiment and the vessel, the Manchester Regiment sustained serious damage. The captain of the Manchester Regiment ordered the crew to abandon ship. The captain having transferred 50 of his crew members to the Oropesa continued to try and safe the ship and ordered that a lifeboat be lowered.

He and 17 other crew members got on the lifeboat and headed for the Oropesa in an attempt to persuade the captain of the Oropesa to tow the ship to the nearest post. The sea was rough and the lifeboat capsized. 7 of the crew members drowned.

At the trial, the defendants (the Oropesa) argued that they were not responsible for the lives that were lost because the actions of the captain had broken the chain of causation. The court held that the captain’s actions were both natural and foreseeable and the seamen’s deaths were the direct consequence of the collision that was caused by the negligence of the Oropesa and therefore the defendants were liable. The captain’s actions did not break the chain of causation.

In Robinson v The Post Office (1974) the plaintiff was an employee of the post office and while climbing down a ladder the plaintiff slipped and fell, sustaining injuries on his shin. The accident was caused by smidges of oil on the rungs of the ladder. Approximately 8 hours later the plaintiff went to his doctor for a tetanus jab and the doctor did not follow the prescribed procedure.

He was required to inject the plaintiff with a small dose and wait for half an hour to determine if there were any adverse effects to the injection prior to administering the full dosage. The doctor waited for about a minute and administered the full dosage. The injection had an adverse effect on the plaintiff and the plaintiff suffered brain damage. The plaintiff sued.

The question before the court was whether the injury was too remote or if it was the natural consequence of the defendants’ negligence. The plaintiff was successful. The court held that it was foreseeable that the plaintiff would go to a doctor for treatment after the first injury, any normal person would, and therefore the consequent injury that the plaintiff suffered was a direct result of the defendants’ negligence.

The fact that the chances were slim that that the plaintiff would suffer from brain damage did not break the chain of causation and the thin skill rule applied i.e. you take your victim as you find them.

As for whether the intervening act of the doctor (novus actus interveniens) caused a break in the chain of causation, the court held that it did not. It was a likely consequence of the defendants’ negligence that the plaintiff would seek some form or type of medical treatment.

In Reeves v Commissioner of Police of the Metropolis (1999) the police held in custody a prisoner who had attempted suicide on several occasions. The prisoner however did not suffer from a psychological illness and nor did he suffer from depression or schizophrenia. From all accounts, he was a person of sound mind but did have suicidal tendencies or leaned towards taking his own life.

The police left the hatch of his cell door open and the prisoner committed suicide. An action was brought against the police for negligence and the police contended that the deceased was a person of sound mind or the argument was that people of sound mind do not commit suicide and therefore the police were not required to take additional precautions other that what they normally would.

The court held that there was a duty of care on the grounds that despite the prisoner being of sound mind, he displayed suicidal tendencies and had attempted suicide on several previous occasions. Therefore, given the opportunity the chances were high that the prisoner might attempt to take his own life.

It was further contended that the act of suicide was an intervening act i.e. when a person of sound mind takes his own life, it is a deliberate act and therefore the act had caused a break in the chain of causation. The courts decided that suicide is not an intervening act if it was the very act that the duty sort to prevent.

Copyright © 2017 by Dyarne Ward

Tort – Ex Turpi Causa

Ex turpi causa non oritur actio or ex turpi causa for short simply means that when the plaintiff has committed an illegal act, he cannot claim a legal remedy i.e. where the act is illegal a legal remedy is not available. Another way of looking at it is that no man should be allowed to profit from his crime.

In Ashton and Turner (1981) the plaintiff was a passenger in a car that the defendant was driving. The pair had jointly committed a burglary and the defendant was drunk at the time. The car they were driving in subsequently crashed and the plaintiff sued. The court held that the principle of ex turpi causa prevented him from claiming.

In Meah v McCreamer (No. 1) (1985) the plaintiff suffered severe head injuries as a result of a road accident caused by the plaintiff’s negligence that subsequently resulted in a change of personality. He became a sexual predator and was eventually convicted of sexually assaulting two women and causing injury to a third. The plaintiff sued the defendant on the grounds that had it not been for the defendant’s negligence the plaintiff would not have undergone the personality change. On the contention that such personality changes were not foreseeable the thin skull rule applied i.e. you take your victim as you find them. The plaintiff was successful.

In Meah v McCreamer (No. 2) (1986) two of the women that the plaintiff had assaulted brought an action to recover from the plaintiff damages for the injuries that they had suffered. The women were successful. The plaintiff subsequently sought to recover the damages from the defendant but the court denied the plaintiff’s claim citing the principle of ex turpi causa – where the act is illegal, a legal remedy is not available.

In Pitt v Hunt (1990) the defendant aged 16 gave the plaintiff aged 18 a ride on his motorbike. The defendant neither had insurance nor had he paid road tax and was on a bike with a much bigger engine than someone his age was allowed to be on. In addition to that both the plaintiff and the defendant were drunk and witnesses gave evidence that they were riding recklessly on the road. There was an accident and the defendant was killed while the plaintiff suffered serious injuries. The plaintiff sued. The court held that there was no duty of care that was owed to the plaintiff by the defendant and the maxim of ex turpi causa prevented a duty of care from arising.

In Kirkham v Chief Constable of the Greater Manchester Police (1990) the plaintiff was the wife of a prisoner. The prisoner was an alcoholic who suffered from prolonged depression with suicidal tendencies and given his condition there was a real likelihood that he would commit suicide.

The police when they apprehended the prisoner were aware of the facts but failed to pass them on to the prison authorities and the defendant while in prison committed suicide. The plaintiff sued and the defendants relied on the defense of volenti and ex turpi causa.

The plaintiff was successful. The defense of volenti was rejected because it was only applicable to those who did not suffer from any type of psychological or mental illness i.e. those who were sound of mind and ex turpi causa only concerned those who had committed an illegal act and suicide was not illegal (Suicide Act 1961 decriminalized the act of suicide in England and Wales).

If the prison authorities had known that the defendant had suicidal tendencies or was likely to commit suicide, they could have taken steps to ensure that it did not happen for example by putting him in a secure cell or by keeping a closer eye on him. Therefore, it is quite possible to say with some certainty that the prisoner would not have committed suicide but for the defendants’ actions or omissions.

In Clunis v Camden & Islington Health Authority (1998) the plaintiff was detained in a mental hospital prior to release and soon after his release, the plaintiff stabbed a man to death and was convicted for manslaughter. The plaintiff brought an action against the defendants claiming that he shouldn’t have been released from a mental hospital and it was his release that had provoked the stabbing and as a consequence he was now incarcerated and therefore he should be compensated accordingly by the defendants for negligently releasing him. The plaintiff was unsuccessful and the principle of ex turpi causa negated liability.

In Vellino v Chief Constable of Greater Manchester (2002) the plaintiff was a known criminal who had been arrested on numerous occasions. He had a propensity to try and escape but the police failed to take the necessary precautions to prevent him from escaping. The plaintiff was taken into custody and he attempted to escape by jumping off the second floor. He suffered serious injuries to the head, back and neck and sued the police for negligence or for not taking the necessary precautions to prevent him from escaping. Applying the maxim of ex turpi causa the court denied the plaintiff’s claim.

In Gray v Thames Trains (2009) the plaintiff suffered serious injuries in a rail crash but despite that went on to kill another person. The plaintiff was subsequently detained in a facility for the mentally ill and while in detention he brought an action to claim damages for the injuries that he had sustained. The plaintiff’s claim was denied and the maxim of ex turpi causa was applied.

In Joyce v O’Brien & Tradex Insurance (2013) two men after committing a burglary tried to make a getaway in a van. The plaintiff fell off the van while they were trying to escape and sued his uncle, the driver of the van, for negligence. The uncle pleaded guilty to driving dangerously. The plaintiff was unsuccessful. The court held that, given the severity of the offence, the doctrine of ex turpi causa would apply. The plaintiff cannot recover damages for injuries that are a consequence of his own criminal act.

Copyright © 2017 by Dyarne Ward

Tort XXXV – Remoteness IV

In McGhee v National Coal Board (1972) the plaintiff worked in the defendants’ brick factory and though in the initial stages he was exposed to only small quantities of dust he was later asked to work in brick kilns and was exposed to hot abrasive dust.

The defendants did not have adequate washing facilities available and the plaintiff had to cycle home, after at least eight hours of toiling in the brick kilns, to have a wash. As a result, the plaintiff contracted dermatitis and he sued.

The court held that the defendants had breached their duty by failing to provide adequate washing and cleaning facilities and it does not matter that there may have been other factors that could have or may have impacted the onset of the illness. The prime factor or the major factor that had caused the plaintiff’s illness was the defendants negligence and therefore the defendants were liable.

In Holtby v Brigham & Cowan (2000) the plaintiff worked as a marine fitter and during the course of his employment he was exposed to asbestos dust and as a result suffered from asbestosis – a chronic long-term lung condition. The plaintiff brought an action against the defendants, his employers at the time. The court held that while the defendants were liable, they were liable only for the period that the plaintiff was working for the defendants.

During the trial, it had come to light that the plaintiff had also been working for other employers and the nature of his work or employment brought him in contact with asbestos dust and this too could have contributed to his illness. As a result, the damages that were awarded were reduced accordingly.

Would the plaintiff have been better off if he had brought an action again all his previous employers because he was working in similar conditions all the time, along the lines of Fitzgerald v Lane (1987), and allowed the courts the opportunity to apportion liability accordingly?

In Heil v Rankin and another (2000) we look at other causes that exacerbate an illness or a previous injury that is still operating and the prior operating illness or injury aggravates a new illness or injury. The plaintiff was a dog handler with the police force and in 1987 he was exposed to a serious crime which left him deeply scarred. In 1993, he was involved in another incident with the defendant which was minor compared to the incident that he was involved in, in 1987, but the injury he sustained as a result of the new incident was aggravated or exacerbated by the previous illness and as a result he was no longer able to continue with the police force.

The plaintiff sued and the court had to decide the extent of the defendant’s liability. Did the thin skull rule i.e. the rule that you take your victim as you find them, apply in this instance? – in which case the defendant would be liable for the full extent of the injury or illness or was it a matter of apportioning liability to the extent of the defendant’s wrongdoing?

The court decided that it was the latter, after taking into account the fact that the plaintiff would also be conferred retirement benefits and other benefits that he was entitled to as a result of retiring with full honors from the police force. In this instance, it was not a matter of under compensating the plaintiff but rather a matter of over compensating him.

In Alcoa Minerals v Broderick (2000) we once again have an opportunity to the examine the liability owed by companies and factories with regards and reference to environmental damage. The defendants were owners of a smelting factory and since 1972 the factory had released pollutants into the air caused by smelting works done in their factory. The pollutants were corrosive and caused damaged to the zinc panels on the roof of the plaintiff’s house.

The court in line with the decision in Margereson & Hancock v JW Roberts Ltd (1996) held that the plaintiff was entitled to claim. However, by the time the matter had come to trial the cost of repairs, propelled by inflation, had quadrupled. The question before the courts was whether the damages that were accorded should correspond with the date of the breach or should the damages correspond with the costs at the time the matter came to trial?

The court held that the general rule was that damages were normally accorded in relation to the date of the breach but this rule was subject to exceptions especially when it would lead to injustice and would result in a decision that was inequitable. Taking into account the defendant’s impecuniosity, the court awarded damages in accordance with the costs at the time the matter came to trial and not according to when the breach occurred.

Copyright © 2017 by Dyarne Ward

Tort XXXIV – Remoteness III

In Crossley v Rawlinson (1981) we once again examine the duty that is owed to a rescuer. The defendant was driving a lorry and while he was on the road a tarpaulin on the back of the lorry caught fire. At the time, the defendant was about 100 meters away from an AA station and an AA patrolman caught sight of the fire. The patrolman grabbed a fire extinguisher and rushed to the rescue but he stepped in a pothole and fell and as a result sustained injuries. The plaintiff sued.

The court held that while it was foreseeable that the fire would prompt a rescuer to come to the aid of the defendant it was unforeseeable that the rescuer would step in a pothole, trip, fall and sustain some form of injury. The court held that the damage was too remote and the plaintiff was unable to claim.

Would the plaintiff have been successful if he’d brought an action against the council whose duty it was to maintain the roads instead of the defendant? As per the decisions in Stovin v Wise (1996) and Gorringe v Calderdale Metropolitan Borough Council (2004) the chances are that the council would not have been held liable but if the plaintiff had fallen into a manhole that was left open because of the negligence of council workers then the plaintiff would most likely be entitled to claim see Hughes v Lord Advocate (1963). Likewise, if the plaintiff had stepped into a hole that was left uncovered after works were done, the plaintiff would also be entitled to claim see Haley v London Electricity Board (1965).

In Ward v Cannock Chase DC (1985) the plaintiff owned a terraced house adjoining a row of terraced houses and some land adjoining the terraced house. As a result of a change in council policy the area was industrialized and many of the terraced houses were vacated and left empty.

The houses were subsequently broken into by vandals and the building materials that were used to construct the houses like tiles were stolen and the condition of the houses deteriorated with time.

Because of continued vandalism the rear wall of the house adjoining the plaintiff’s house collapsed causing damage to the roof of the plaintiff’s house. The council rehoused the plaintiff without repairing the roof of the plaintiff’s house and while the plaintiff was away, thieves broke into the plaintiff’s house and stole items belonging to the plaintiff. The plaintiff sued and the council admitted negligence.

The question before the court was to determine the scope of the council’s liability. The court held that it was foreseeable that the damage to the adjoining house would cause some damage to the plaintiff’s house and therefore the plaintiff was entitled to be compensated accordingly. However, the plaintiff also had a responsibility to secure his chattels and belongings and his failure to do so negated the council’s liability and hence the council was not liable for the items that were stolen and was only liable for damage caused to the house.

In Meah v McCreamer (No. 1) (1985) the plaintiff suffered severe head injuries as a result of a road accident caused by the plaintiff’s negligence that subsequently resulted in a change of personality. He became a sexual predator and was eventually convicted of sexually assaulting two women and causing injury to a third. The plaintiff sued the defendant on the grounds that had it not been for the defendant’s negligence the plaintiff would not have undergone the personality change. On the contention that such personality changes were not foreseeable the thin skull rule applied i.e. you take your victim as you find them. The plaintiff was successful.

In Meah v McCreamer (No. 2) (1986) two of the women that the plaintiff had assaulted brought an action to recover from the plaintiff damages for the injuries that they had suffered. The women were successful. The plaintiff subsequently sought to recover the damages from the defendant but the court denied the plaintiff’s claim citing the principle of ex turpi causa – where the act is illegal, a legal remedy is not available.

In Fitzgerald v Lane (1987) the plaintiff was walking down a pelican crossing when the light for pedestrians turned red. He was hit by the first defendant’s car and thrown on to the path of the second defendant’s car. The plaintiff suffered severe injuries especially to the neck resulting in partial tetraplegia. Because it was impossible to determine which of the defendants caused the injury an action was brought against both defendants.

It was held that because it was impossible to determine which of the defendants had caused the injury, the defendants were jointly liable. The damages were however reduced by one third in line with s1(1) of the Law Reform (Contributory Negligence) Act 1945 – 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 damages 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. Both the defendants were required to pay one third each as compensation for the injury suffered by the plaintiff.

Copyright © 2017 by Dyarne Ward