Tort XXII – Causation VIII

In Margereson & Hancock v JW Roberts Ltd (1996) two children, the plaintiffs, who grew up playing close to a factory, later had cancer because they were exposed to asbestos dust from the factory. The plaintiffs sued.

Despite the fact that the damage suffered was removed from the time the plaintiffs were close to the factory, they were successful. The court held that it was foreseeable that the defendants’ negligence in allowing the contaminants to escape would lead to some type of illness or other to anyone that came in contact with the pollutants and that illness may be detached from the time the victims were exposed to the contaminants.

Delay in the impact of being exposed to pollutants is a facet of environmental damage and illnesses incurred as a result of being exposed to fumes and dusts released from factories often manifest or materialize at a later time or place.

In OLL v Secretary of State for the Home Department (1996) 8 boys, 2 teachers and an instructor were lost during a canoeing trip. A report was lodged and the coastguard was called in to locate them. They were subsequently found but soon after 4 of the boys died and the others suffered from hypothermia. An action was brought against the organizers who in turn brought an action against the coastguard. The second claim was unsuccessful.

The duty that is owed by the coast guard is similar to that which is owed by the police in that; they do not per se owe members of the public a duty of care.

In this instance, however one looks at it, it is difficult to hold the coastguard accountable or responsible especially given the fact that they were called in only after the incident had taken place and it is fair to argue, given the prevailing conditions (weather) the boys, teachers and instructor shouldn’t have been out canoeing in the first place.

In Mulcahy v Ministry of Defense (1996) we examine the duty owed by the army to its soldiers. The plaintiff was a soldier deployed during the Gulf War and he was standing too close to a machine gun, a howitzer, and as a result suffered damage to his hearing. Like the example we gave earlier of members of the ground crew who sustain hearing damage as a result of being exposed to aircraft take-off’s or artillery crews suffering hearing damage when the guns are fired, does the army, navy or air force owe its staff a duty of care?

It was held that the army does not owe its servicemen and women a duty of care and the decision is largely one of policy. The number of servicemen and women that incur some form of injury as a result of serving in the armed forces is high and should the armed forces be held accountable for every injury that its men and women suffer, it would have to pay out large figures in damages each year. A majority of cases however go unreported.

It is also fair to say that the rules with regards or reference to the employer-employee relationship are not applicable to the armed forces.

Let’s look at another situation. What happens if the plaintiff was provided with earmuffs or ear protectors and suffered hearing impairment as a result of defective earmuffs? Does the plaintiff have an action against the defense contractor(s) who supplied the earmuffs?

In R v Corydon Health Authority (1997) the plaintiff went for a chest x-ray which was a routine requirement prior to commencing employment and the radiologist negligently failed to report a significant abnormality. The plaintiff subsequently became pregnant and was diagnosed with PPH (primary pulmonary hypertension), which could be aggravated or worsened by pregnancy. The plaintiff had the child but became progressively depressive as a result of believing that her life expectancy had been reduced. The plaintiff sued for psychiatric illness.

It was held that the defendant was liable but the damages were reduced in lieu of the fact that the decision to become pregnant was that of the plaintiff. The plaintiff might not have become pregnant if she had known the facts but it is a matter of proving that in court and in this instance the best option was to probably divide the responsibility.

In Church of Latter-Day Saints v Yorkshire Fire and Civil Defense Authority (1997) the plaintiffs’ premises was on fire and the plaintiffs called in the fire brigade. When the fire brigade arrived, they realized that the fire hydrants did not have adequate water supply and as a result they couldn’t put out the fire.

The fire department in addition to firefighting duties is also tasked with the regular inspection and maintenance of fire hydrants. The plaintiffs sued.

The courts held that there was no duty owed. The decision is largely based on public policy and to prevent the fire department from being encumbered by additional liability.

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Tort XXI – Causation VII

In Barrett v Ministry of Defense (1995) the plaintiff’s husband was working in the navy and was stationed in Norway. On the night of the incident he’d been drinking heavily and caught the attention of a senior officer who then instructed a petty officer to make sure he was well and to get him back to his bunk. The petty officer did as he was instructed and checked on him on a few occasions but despite that, he died during the night. His wife, the plaintiff brought an action in court alleging that her husband’s death could have been prevented had it not been for the defendants’ negligence.

The court held that under normal circumstances the navy did not owe her husband a duty of care but the court decided that a duty of care was owed in this instance because a senior officer had taken charge of matters.

If the conduct of the plaintiff’s husband did not come to the attention of the senior officer or if he was drinking around the corner somewhere unknown to anyone, a duty of care wouldn’t have arisen but because a senior officer had assumed the responsibility to ensure that he was well, a duty of care had arisen. The defendants were held to be liable.

Let’s look at another example where this type of duty is imposed. In the case of adopted children there is no duty that is owed by a third party to a child while the child is in an orphanage but the moment the child is adopted, there is a duty imposed on the parents and they have to observe the same rules, norms and standards of any other parent and ensure that the child is fed, is healthy and that the child is not abused or mistreated in anyway.

Capital and Counties plc v Hampshire County Council (1996) gives us another opportunity to examine the duty that is imposed on firemen. A fire broke out in a building and the fire brigade was called in to put out the fire. The defendant a fireman accidentally turned the sprinklers off and as a result the fire spread to the adjoining buildings. Had the sprinklers not been turned off, the adjoining buildings might not have been damaged or the resultant damage might not have been so severe. The owners of the adjoining buildings sued.

It was held that the defendant had breached the duty of care. It could be said with some certainty that but for the defendant’s actions the adjoining buildings would not have been destroyed by the fire. Members of the emergency services or the protective services owe the public a duty of care to comply with the standards that are imposed on them when they signed up.

Without taking into account the fact that the defendant was a fireman, the question that has to be asked is whether a reasonable man would have switched off the sprinklers under the circumstances. The answer would certainly be no. It is not appropriate to impose a standard on members of the emergency services or members of the protective services which is below what is expected of a normal person.

In Stovin v Wise (1996) the defendant was a motorist whose car was involved in an accident with a motorcyclist. The accident occurred when the motorist was turning a curb and as a result the plaintiff, the motorcyclist was injured. The plaintiff sued.

In her defense, the motorist argued that she wasn’t entirely to blame because there was a mound of earth on a piece of land belonging to the local council that hampered her visibility while she was making the turn. The court held that the plaintiff was liable.

There was no liability imposed on the council because the mound of earth was not the cause of the accident and the number of accidents that had occurred in the particular curb over the previous years (12 years) were relatively small which tends to suggest that the mound didn’t obstruct visibility.

In Swinney v Chief Constable of Northumbria Police (1996) the plaintiff was an informant who had given information to the police that revealed the identity of the owner of a vehicle that had been involved in the death of a policeman. The plaintiff had left the information in his car which was subsequently stolen and the information came into the hands of the owner of the vehicle that had been involved in the death of the policeman. The plaintiff was then harassed with death threats and suffered from a psychiatric illness as a result. The plaintiff sued.

The defendants were found to be liable. There were two salient aspects of the case that prompted the court to decide in the plaintiff’s favor. Firstly, in line In Barrett v Ministry of Defense (1995) there was a voluntary undertaking of responsibility by the police in that the information was given on the basis that the plaintiff’s identity would never be revealed, to do otherwise might put the plaintiff’s life in danger.

Secondly public policy dictates that the police take extra care with regards to information given by informants because they are an essential component in the crime solving mechanism.

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Tort XX – Causation VI

The decision in Kirkham v Chief Constable of the Greater Manchester Police (1990) must be compared with the decision in Knight v Home Office (1990). The case concerns a 21-year-old boy who had suicidal tendencies and was imprisoned. The prison authorities were aware of his condition and the authorities kept a constant watch on the boy at regular intervals. Despite the precautions that were taken the boy committed suicide and his parents sued.

It was held that the prison authorities had taken relevant care by ensuring that the boy was kept under frequent watch. A prison however was not a hospital for the psychiatrically ill and the plaintiff could not expect the same level of care as one would expect from a hospital. The prison authorities were only required to exercise the level of care that was required for a prison and the prison authorities in this instance were deemed to have done just that. The plaintiff was unsuccessful.

In Hale v London Underground Ltd (1993), the case concerns a firefighter who had gone over and above his duty by repeatedly returning to the scene of the King’s Cross fire. The plaintiff was awarded a medal for bravery and though he did not suffer any physical injury from being continuously exposed to the fire and its aftermath he did suffer from post-traumatic stress. The plaintiff brought an action to recover for psychiatric illness caused by the defendants’ negligence and was successful. He was awarded damages in lieu of his illness.

In Alexandrou v Oxford (1993) we once again examine the scope of duty that is owed by a member of the police force to the public. The defendant let a burglar escape after the alarm in a retail store went off. The plaintiff, the owner of the shop brought an action against the police for letting the burglar escape. The court in line with all the previous cases we have looked at with regards to the duty owed by the police held that the defendant was not liable. The decision of the courts is largely based on public policy and though there may be occasions where mistakes are made, those mistakes are small when compared to the success rate.

In Osman v Ferguson (1993) a teacher developed an unhealthy fascination for a 14-year-old boy and started following him around. It later turned out to be something more sinister than mere infatuation and the teacher was sacked but he continued to persist and began to harass the boy and his family and at one stage even threatened to kill the boy and anyone else who came in his way – he even admitted that he couldn’t stop himself. The matter was reported to the police but no action was taken and finally the teacher shot the boy and his father. The boy survived but his father didn’t. The plaintiff, the boy’s mother brought an action against the police.

The court in line with Hill v Chief Constable for West Yorkshire (1988) held that the police did not owe the plaintiff a duty of care. While it was foreseeable that some harm might occur as a result of the teacher’s improper actions, for reasons of public policy, a duty could not be imposed on the police. It is difficult to ask of the police to keep the boy under 24-hour surveillance because the police lacked the resources.

Would the boy’s family, given the seriousness of the threat have been able to use the services of a private agency? The answer in short, as long as the courts allow it, is yes, but these services are not cheap and therefore it is a matter of if the family can afford it.

A similar rule applies to missing children. As long as the law permits it, the parents are allowed to use any means at their disposal to recover their child. When it comes to private agencies, it is a matter of costs and it depends on how much the parents can afford to pay.

In Smith v Cribben (1994) the plaintiff tried to overtake the defendant on the motorway and the defendant continued driving at the speed he was driving at. The plaintiff was unsuccessful in overtaking the defendant but continued to persist and as a result crashed into a tree. The plaintiff sued.

The court held that the defendant was not under a duty to give way to the plaintiff and was entitled to continue driving at the speed he was driving at as long as it was within the limits imposed by the law. The plaintiff was unsuccessful.

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Tort XIX – Causation V

We have previously examined the scope of duty that is owed by the police and rescue workers and the duty that is owed by third parties to them. Are similar rules applicable to other components, arms or branches of the emergency services like the fire brigade?

In Ogwo v Taylor (1987) the defendant negligently set fire to his house while trying to burn off some paint on walls, with a blow torch, beneath the roof of his house and inadvertently set fire to the whole house. The fire brigade was called in and in order to put the fire out the firemen had to make their way to the roof of the house where the heat was most intense and despite the protective gear that the firemen had on, one of the firemen, the plaintiff, suffered serious burns. The plaintiff sued and was successful.

Could the defendant have raised the defense of volenti? While all members of the emergency services agree to accept some risk when they sign up, it is a question of the level of risk that they’d accepted or agreed to accept. In this instance, it would be fair to say that the level of risk that the firemen accepted was only to the extent that the protective gear that they had on allowed them to accept.

And just how effective is the protective gear that some of these men and women have on? Well the protective vests worn by those who belong to the riot squad (riot police) protect them from shots fired from small caliber pistols, stabs with knives, blows and shield them from burns from small fires.

The vests or body armor, as they are sometimes referred to, are designed to protect the wearer from stray bullets, blows, knife attacks and burns. The material is tough and working on the assumption that the protective gear worn by firemen are made from similar material or perform a similar function, we can come to the conclusion that the fire these men were exposed to would have been more lethal than a normal fire and it is possible to argue that while firemen agree to be exposed to the risk of a normal fire they do not agree or consent to accept the risk of being subjected to anything that is higher.

Let’s turn our attentions briefly to Chernobyl, the site of one of the most devastating nuclear disasters of our time. Did the men and women who went in to put out the fire at reactor no. 4 consent or agree to accept the risk that they were subjected to at the time that they signed up? The answer in short is no. While it was something that could happen, in reality it should never happen and as a result these men and women or members of their immediate families who survived them, should be compensated accordingly.

In Smith v Littlewoods Organization Ltd (1987) the defendants owned a disused cinema and unknown to them vandals had broken into the premises on numerous occasions despite the fact that the building was left secure. On their final visit, the vandals set fire to the property and the fire spread to the adjoining buildings. The plaintiffs, owners of the adjoining properties, sued.

The court held that the defendants had taken reasonable care. The defendants or their agents had left the building secure and therefore had not breached their duty. Because the owners did not know about the previous break-ins it was not reasonable to impose an additional duty on them.

Would the situation have been any different if the owners had known of the previous break-ins? It is possible to say that every time the premises was broken into, the defendants or their agents would have to take reasonable steps to ensure that the premises was secure or re-secured but they don’t have to do more than that unless they are compelled to do so by law.

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 these 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 (a plaintiff would not be able to pursue a legal remedy with regards or reference to his or her own illegal act – where the act is illegal, a legal remedy is not available).

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.

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Tort XVIII – Causation IV

In McKay v Essex Area Health Authority (1982) the plaintiffs, a mother and her child sued a doctor for not advising the mother to terminate her pregnancy. The mother had contracted rubella or German measles while she was pregnant and the chances were high that the child would be born with serious or severe disabilities but because the mother was not advised accordingly, she continued with the pregnancy. The court held that the doctor was not liable under the circumstances despite the fact that he’d not given the mother suitable medical advice.

In today’s dynamic and multi-faceted world, it is possible in many instances to determine whether a child will be born healthy or otherwise and it may be appropriate to place a duty on doctors to inform all prospective mothers of any risks involved with the pregnancy or educate the mothers as to the risks as soon as the facts become available. The decision to terminate the pregnancy or otherwise however should be left entirely in the hands of the mother.

The law must be practical and it has to take into account both the emotional and economic aspect of things or the E & E factor which is playing an increasingly greater role in the decisions we make today. The simple fact of the matter is that some mothers may just not be able to cope with raising a child with disabilities.

In most cases it takes its toll on both the mother and the child and this case in particularly paints a poignant picture because according to the facts both the child and the mother had decided that the pregnancy, given the facts as they were, should have been terminated. It goes to show how difficult it is to raise children with disabilities and the difficulty of growing up with a disability.

In Junior Books v Veitchi (1983) the plaintiffs entered into a contract with a company to refurbish their building and the company sub-contracted the flooring work to another company, the defendants, who specialized in flooring. The flooring subsequently proved to be defective and as a result the plaintiffs not only incurred expenditure to have the floor refitted but they also had to have machines moved and had to put up with all the other inconveniences that resulted from having the floor refitted. The plaintiffs sued.

The law in this area seems to be similar to that in contract see Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd (1965), in that, when a company claims, professes or accepts the tag or label of being specialists then the chances are higher that they will be held liable for their negligent acts. The plaintiffs were successful.

The plaintiffs were allowed to recover for economic loss and the scope of foresight or the foreseeability factor or limb was widened or extended to allow the plaintiffs to claim.

It is reasonable to say that a specialist or someone who professes to have specialized knowledge in the field or area would be able to foresee the risk and likewise would be able to anticipate the damage that would ensue if that duty was breached or if that risk was to happen.

In Hotson v East Berkshire Health Authority (1987) the plaintiff fell off a tree and as a result he suffered from a fractured hip and was taken to a hospital but the hospital failed to treat the injury and the plaintiff was sent home instead. He continued to complain of severe pain and was taken back to the hospital 5 days later and the x-ray that followed revealed the extent of the injury as a result of which the plaintiff developed a permanent disability which might lead to further complications later. The plaintiff sued.

According to the facts, even if the plaintiff had been treated the first time he’d been taken to the hospital, there was only a 25% possibility that he would have been treated successfully. There was a 75% chance that he would still develop a disability and the prospects of future complications arising out of the disability was still a possibility.

In line with the decision in Barnett v Chelsea Hospital Management Committee (1969) the plaintiff’s claim failed. The doctor would only be liable if the plaintiff could have been treated successfully and because there was a 75% probability that the plaintiff would have still developed a disability even if he had been treated the first time around, the doctor was held to be not liable.

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Tort XVII – Causation III

In Chadwick v British Railways Board (1967), the case concerns the duty of care that is owed to rescue workers and the Lewisham train disaster which left 90 people dead and nearly 200 others injured.

On the 4th of December 1957 two trains collided at St. Johns Railway Station just outside Lewisham. The collision derailed one of the trains that subsequently fell on carriages ferrying evening rush hour commuters. The plaintiff a volunteer worked tirelessly as a rescuer to try and safe as many passengers as possible and as a result suffered from shock and anxiety attacks and was forced to seek treatment. An action was brought in court for damages.

While the case is more relevant with regards or reference to rescue workers, by applying the normal criteria to establish duty and breach we can come to the conclusion that the defendants owed the plaintiff a duty of care.

A duty of care is owed not only to persons who are directly affected by an incident or an accident but also to third parties who perceive the incident or accident or witnessed its aftermath with their own senses, unaided by electronic devices like television sets, computers and mobile phones with access to the internet, in line with Bourhill v Young (1943) and the series of cases that followed.

The question that is to be asked in this instance is would the defendant have suffered from nervous shock, anxiety attacks or any other form of psychiatric illness but for the defendants’ actions or omissions? The answer in short would be no. The court held that the plaintiff was entitled to recover.

It is foreseeable that any disaster would inevitably prompt rescue workers to rush to the scene and it is likely that some of them may develop some form of an illness as a result of witnessing the aftermath of the incident or accident.

In Baker v Willoughby (1970) the plaintiff suffered serious injuries when the defendant ran into him with his car and was subsequently forced to give up his job and to take on another lower paying job because he could not continue working in the first job as a result of the injuries he had sustained. While he was in his second job, two robbers entered his workplace; he was working in a scrap yard and shot the plaintiff in the injured leg.

As a result, the plaintiff had to have his leg amputated. While the plaintiff was trying to claim for the first injury the defendant argued that since the plaintiff had lost his leg, the defendant should not be held liable and that the subsequent injury had precluded the earlier injury. The court rejected the defendant’s argument and held that the defendant was liable for the injury that had been caused by the accident, the loss of income and any other costs that resulted directly from the accident.

The robbers if they were ever caught were liable for the subsequent injury or the injury that was caused by the shooting. The plaintiff’s misfortunate does not negate the primary defendant’s liability.

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.

In Jobling v Associated Dairies (1981) the plaintiff was a butcher and while he was working he slipped and fell because of his employer’s negligence. The fall resulted in a serious back injury and his earning capacity was reduced substantially. The defendant subsequently developed a spinal disease (4 years later) that was independent of the earlier injury i.e. an injury that was not connected with the earlier injury, following which he was no longer able to work or suffered from a disability that prohibited him from working.

The court in line with Baker v Willoughby (1970) held that the plaintiff was entitled to claim for the first injury i.e. the injury that was caused by the employer but was not allowed to claim for the second injury or the subsequent or consequent independent injury that occurred 4 years later.

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Tort XVI – Causation II

In McWilliams v Arrol (1962) the plaintiff a steel erector had fallen 70 feet from a lattice tower. He was working without a safety harness and despite statutory requirements that made it mandatory for the plaintiff to be provided with a safety harness, his employers, the defendants failed to do so. The plaintiff’s estate sued the defendants on the grounds that it was their negligence in not complying with their statutory duties that had caused the plaintiff’s death. During the trial the question of whether the plaintiff would have used the safety harness had he been provided with one surfaced and there was nothing to say for certain that he would have.

It was held that the defendants were not liable because it could not be established with certainty that if it wasn’t for the defendants’ omission that death could have or would have been prevented.

In Sayers v Harlow UDC (1958) the plaintiff used one of the public toilets provided by the defendants. When she tried to leave the cubicle, she realized that the door was without a knob or a handle or the knob or the handle had become undone. She tried fidgeting with the door and when that was unsuccessful she tried climbing out the window by standing on a toilet roll holder which gave way and the plaintiff was injured as a result. The plaintiff sued.

The court held that it was reasonable to expect that doors in public toilets would open both ways and the means to open the doors would always be readily available. It was also foreseeable that if someone was trapped in a public toilet they’d try, in some way or other, to get out and the longer a person is stuck or trapped in the toilet the more frantic or desperate he or she would become. The plaintiff was successful and the council was held to be liable.

In Hughes v Lord Advocate (1963) the defendants were working in a manhole. The stopped their work midway when it was time for lunch but prior to leaving they erected a tent above the manhole to either cordon the area off or to act as a barricade that allowed others to see that there was some work being done in the manhole The also left some paraffin lamps close to the tent, to warn other road users.

Two boys aged 8 and 10 came across the tent and the paraffin lamps and as boys often do, went to investigate the matter further and explore the manhole. While they were doing so they accidentally knocked over one of the paraffin lamps that fell into the manhole and a small explosion followed when the fire from the paraffin lamp came in contact with sewage gases and the boys suffered from serious burns. The plaintiffs sued.

Sewage gases include a variety of gases like hydrogen sulfide, ammonia, methane, carbon monoxide, sulfur dioxide and nitrogen oxides. Some of these gases are highly flammable.

The court held that the defendants were liable and if was not for their negligence the boys would not be injured. The council should have take reasonable care to highlight to its workers the dangers of leaving paraffin lamps close to manholes and though the defendants did make some effort to protect members of the public unfortunately in this instance their efforts were not sufficient. Members of the public not only include adults but also children and those who suffer from disabilities.

In Haley v London Electricity Board (1965) the defendants, construction workers, had dug a hole to facilitate the fitting of electric cables. As soon as they’d finished they realized that it was time for lunch and they went off without putting up any notices or erecting a barricade of any sort. They merely left a pick at one end and a shovel at the other end and went on their way. The plaintiff a blind man, who was unable to see either the pick or the shovel or the hole for that matter fell into the hole and lost his hearing as a result. The plaintiff sued.

The court, in line with Hughes v Lord Advocate (1963), held that the defendants had a duty to take reasonable care to ensure that their actions and omissions would not cause any harm or injury to the public and that they had breached that duty by failing to take reasonable care to ensure that the area that they were working on or at was suitably cordoned off before they went for lunch. If it was not possible to cordon the area off or erect suitable barricades, one of them should have at least stayed behind and taken a later lunch to ensure that any unfortunate incidents did not take place.

The council further should have taken reasonable care to highlight suitable safety measures to be deployed under such circumstances and should have insisted that at least one of the workers remained behind and allowed him to take a later lunch.

Applying the “but for” test to decide if they defendants negligence was the sole cause of the plaintiff’s injuries the question that was to be asked is, did the defendants acts or omissions cause the plaintiff to lose his hearing? The answer would invariably be so. The court held that the defendants were liable.

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Tort XV – Causation I

Once it has been established that the defendant owed the plaintiff a duty of care and once it has been found that the defendant has breached that duty of care either by his actions or by failing to act, the next step in order for a plaintiff to be successful in a claim of negligence is to establish that the defendant’s actions or his omissions (failure to act) has caused the plaintiff to incur some type of property damage, physical injury, psychiatric illness or nervous shock. The question that needs to be asked is – would the plaintiff have incurred any damage to his or her property or would he or she have suffered from any form of physical injury, psychiatric illness or nervous shock “but for” the defendant’s acts or omissions? If the answer is no i.e. the plaintiff would not have incurred any type of property damage or suffered from some form of physical injury, psychiatric illness or nervous shock “but for” the defendant’s actions or inactions (failure to act or omissions) then the defendant would be held to be liable.

This test is called the “but for” test and it was laid down in Barnett v Chelsea Hospital Management Committee (1969). The plaintiff went to a hospital complaining of stomach pains and vomiting and was subsequently examined by a nurse who telephoned the doctor on duty. The doctor after hearing the nurse instructed her to tell the patient to consult a general practitioner and the nurse did as she was instructed. The plaintiff went home and died 5 hours later from arsenic poisoning. His estate sued on the grounds that had the doctor examined the patient in time, he could have saved the patient and that his death was the result of the doctor’s negligence.

In order for the doctor to be liable it must be established that the patient died as a result of the doctor’s actions or his or her inactions (omissions). If it can be established that the patient would have died regardless of the whether the doctor acted or failed to act (omission) then the chances are that the doctor would not be held to be liable. The test to establish liability is called the “but for” test i.e. “but for” the defendant’s actions or inactions (omissions) the plaintiff would not have died. In Mahon v Osborne (1939) for example it could be established that the plaintiff would not have fallen ill and subsequently died “but for” the swab of cotton that was left in his body.

In Carmarthenshire CC v Lewis (1955) the defendant was a teacher who left a 5-year-old-child that was under her care unsupervised and the child somehow left the classroom and made his or her way onto a busy road. The child got in the way of an oncoming lorry and the driver had to swerve to avoid hitting the child and crashed into a tree and subsequently died as a result. His widow sued.

The court held that had it not been for the defendant’s inactions (omissions) or failure to act in the manner that she was supposed to – there was a duty imposed on her not leave a child under her care alone, the plaintiff’s husband would not have died. The defendant’s employers were held to be liable.

In Froom v Butcher (1975) the plaintiff was involved in a car accident which was caused by the defendant’s negligence. While the defendant was held liable, the claimant was not wearing her seat belt at that time of the accident. The law that made the wearing of seatbelts mandatory only came into force on the 31st of January 1983 – prior to that it was recommended that passengers in a car wear seatbelts. Fitting of seatbelt anchorage points in all new cars was made compulsory in 1967. Therefore it is possible to surmise that the government was quite serious about making the public aware of the benefits of wearing seatbelts and it was only a matter of time before the law came into effect.

It was held that the plaintiff would not have been injured but for the defendants negligence but the plaintiff also had a duty to take the necessary precautions to mitigate or reduce any injury he or she may incur by taking recommended precautionary steps and therefore the damages that the plaintiff received were reduced in proportion to the amount that he or she was deemed to have contributed to his or her own injury.

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Tort XIV – Breach of Duty of Care VI

Hall v Simons (2000) concerns the immunity enjoyed by an advocate with regards to legal proceedings. In the past lawyers, solicitors and barristers had enjoyed a certain amount of immunity from being held accountable or liable for acts of negligence during a trial. The court in the case held that the immunity that was once conferred on members of the legal profession with regards to advocacy was no longer valid and that it was in the interest of the public to revoke that immunity. Members of the legal profession are now accountable for their actions in court.

The law has to change with the times and in the present climate or environment where most people are aware of their rights and liabilities, it is only fair that lawyers, solicitors and barristers exercise reasonable care when handling cases.

In Heywood v Wellers (1976) for example, the plaintiff was repeatedly stalked by a former lover and she approached the defendants, a solicitors’ firm, to take out an injunction against her former lover and stalker. The defendants negligently failed to do so and as a result the harassment continued and the plaintiff suffered much distress. The court held that the plaintiff was entitled to be compensated for the distress that she had suffered and was accordingly awarded damages

The legal profession is like any other profession and when members of other professions are held to be liable for falling below the acceptable standard of care that is imposed on them, why shouldn’t members of the legal profession? Duty of care among other things is also a mechanism to ensure that the services that are rendered comply with acceptable standards.

It is foreseeable, with the advent of technology, that even the flexibility that is presently conferred upon doctors will soon be narrowed and its scope reduced especially when it comes to determining if a person suffers from a specific illness or otherwise and to ensure that the correct medication is prescribed to remedy the illness.

In Richard Vowles v Evans and Welsh Rugby Union Ltd (2003) the plaintiff was injured in a rugby match and was paralyzed as a result of the injuries that he had sustained. The plaintiff sued and the court in line with the decision in Smoldon v Whitworth (1997) held that the plaintiff was entitled to claim.

Referees in rugby matches have a duty towards the players to ensure that the game is played in accordance with the rules regardless of whether it is played at junior level or at adult level or whether it is played at the semi-professional level or at the professional level.

The sport in itself is an inherently dangerous sport and the players depend on the referee to protect their safety by ensuring that the game is played in accordance with the stipulated rules and when referees fail to ensure that the rules are adhered to there is a real likelihood that in would result in some form or injury or other to the player(s).

As for the defense of volenti; referees in a game that has not been conducted in accordance with the rules cannot claim that the player has accepted the risk by participating in the game because the only risk that any player that participates in a rugby game accepts is the risk of playing in a game which is conducted in accordance with the rules where the risk of injury is minimized and not otherwise.

In Simonds v Isle of Wright Council (2003) a 5-year-old was attending his school sports day that was organized in a playing field. After finishing the morning activities, the boy picnicked with his mother and the teachers. Once the picnic was over the mother left him in the care of the teachers and went to do some shopping. The boy made up his mind to jump on one of the swings that were located close to the picnic area, he was the only child to do so, and as a result he fell down when he was clambering off it and broke his arm. His mother sued.

The court held that playing fields were not without hazards and therefore it is fair to assume that parents who allow their children to play on playing fields or parks do so on the understanding that the child may incur some small injury or other while playing. Hence the council that is responsible for maintaining the playing fields cannot be held liable.

The mother’s omission i.e. leaving the child in the care of the teachers once the sports day and the picnic was over had broken the chain of causation and if anything, the teachers were being generous by agreeing to look after the child when it fact it was no longer their duty or responsibility to do so. Hence neither the school nor its teachers could be held liable.

The question that is to be asked is would the boy have incurred the injury “but for” the defendant’s actions. It cannot be said with some certainty that he would.

In Blake v Galloway (2004) a group of boys were out playing and after a short time of being by themselves, for some reason or other, decided to start throwing sticks at each other and engage in a bout of horseplay. The plaintiff, a 15-year-old boy, who refused to take part at first but later changed his mind, threw a stick at the defendant which hit him in the leg. The defendant responded by picking up the stick and throwing it back at the plaintiff. The stick hit the plaintiff in the eye and as a result he sustained a serious injury. The plaintiff sued.

The court held that with regards to horseplay, the court would only arrive at the conclusion that a duty has been breached when the defendant’s act can be defined as reckless or there has been a very high degree of carelessness. Merely throwing the stick back, despite the seriousness of the injury does not amount to recklessness or a very high degree of carelessness. The defendant was thus found to be not liable.

Copyright © 2017 by Dyarne Ward

Tort XIII – Breach of duty of care V

In Wilson v Governors of Sacred Heart RC Primary School, Carlton (1997) a 9-year-old school boy was hit in the eye with a coat by another school boy and the skirmish occurred while the injured boy was running towards the gate after school, eager to be on his way home. The court held that the school had not fallen below the standard of care that was required and while supervision is provided during lunch it is common not to provide any supervision while the children are about to head for home.

To some extent, standard of care or duty of care is like a common benchmark and as long as the defendant has not fallen below the benchmark which is sometimes dictated by norms and practices or even customs for the matter, it is possible to argue that it is common custom in certain areas or localities to allow children to run towards the gates as soon as the bell that signals the end of school is rung, the defendant is not liable.

Gates v Mckenna (1998) presents an interesting set of facts. The defendant who was a hypnotist was conducting a show on stage and in order to exhibit his skills he asked for help from members of the audience. The plaintiff volunteered and as a result of being subjected or exposed to hypnosis the plaintiff developed schizophrenia. The plaintiff sued and was successful. The court held that the level of care that the defendant was required to exhibit was that of a reasonably skilled hypnotist.

In Jolley v Sutton LBC (1998) 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. A claim was brought against the council and the court found in favor of the plaintiffs. It was reasonably foreseeable that if the boat was not disposed of, someone, sometime would stumble across it and there was real likelihood that the person(s) could sustain some form of harm or injury as a result.

Human nature prompts us to do various things and regardless of whether the boat was discovered by adults or children it is foreseeable that someone who was more curious than others or someone who was more adventurous than others would try and fiddle or meddle with it. Sometimes the temptation is just too great to do otherwise.

In Mullins v Richards (1998) two 15-year old school girls were fighting with a plastic ruler and one of the rulers broke midway and a splinter went into the one of the girls’ eye causing her to lose her vision. The question before the courts was the standard of care that was to be imposed. Was it the standard of care of an adult or was in the standard of care of someone who was the same age as the defendant? The court found that it was the latter and the standard of care that was imposed was that of a 15-year old girl and thus the defendant was held to be not liable.

It would be fair to surmise that the reasonable man’s test under normal circumstances would be that of a man of average intelligence subjected to the stresses and pressures most people in a society or community are subjected to with the exception of minors. With minors the standard of care that is applied is that of a minor.

In Carroll v Fearon (1999) the driver of a recently purchased car lost control after the threads in one of the rear tyres came undone causing him to spin on to the other side of the motorway and subsequently collide with the plaintiff’s car causing serious injury to the plaintiff and his family. The plaintiff sued and was successful. The court found that the threads in the tyre had become undone as a result of defective manufacturing and held the manufacturer to be liable.

Copyright © 2017 by Dyarne Ward