Tort XII – Breach of Duty of Care IV

In Bolitho v City & Hackney Health Authority (1997) a 2-year-old child was admitted for serious brain damage and at the time of admission the hospital staff in attendance paged the doctor but because her pager was faulty the doctor was unable to attend to the child and the child died as a result of respiratory failure.

The mother brought an action in negligence against the hospital contending that, had the child been intubated the child would have survived. The doctor argued that even if she had attended to the case she would not have had the child intubated and her decision was supported by other doctors. The court in line with Bolam v Friern Barnet Hospital Management Committee (1957) found in favor in of the doctor in that as long as there is a professional school of thought that concurs or agrees with the treatment that was administered then the courts would not impose any liability on the doctor.

Under most circumstances or in most instances it is difficult to succeed in a negligence claim against a medical practitioner or a doctor or a surgeon unless the negligent act was glaringly or blatantly obvious like in the case of Mahon v Osborne (1939) because in the interest of public policy doctors are allowed to take a certain amount of risk and as long as the risk is justifiable they won’t be held liable.

The flexibility granted to medical professionals however does not extend to nurses or researchers. In Wisniewski v Central Manchester Health Authority (1998) the defendant a midwife failed to show the doctor the results of a scan which indicated that the child the mother was carrying had some complications and as a result the child was born with cerebral palsy. The defendant was held to be liable.

In Newman & others v United Kingdom Medical Research Council (1996) almost 2,000 children who suffered from growth disorders were treated with human growth hormones and as a result many of them died from Creutzfeldt-Jakob disease (CJD), a rare, degenerative, invariably fatal brain disorder, which affects about 1 in a million worldwide. The researchers were held to be liable and experiments should have ceased or stopped the moment the researchers realized that the treatment was fatal.

On that note, it has to be said that there have been calls in the past to disallow pharmaceutical companies from conducting research in third world countries to develop new drugs or cures because there has been a high rate of infant or young fatalities as a result of these experiments and while pharmaceutical companies are more than welcome to sell their products overseas after it has been approved by the relevant authorities at home, they should not be allowed to conduct medical research or experiments abroad unless the ailment or disease is peculiar to a specific location or locality.

It is also worth adding that the duty that is imposed on junior doctors is the same as that which is imposed on ordinarily skilled doctors. In Wilsher v Essex Area Health Authority (1988) a premature baby was given too much oxygen by a junior doctor and as result the baby suffered from a condition which affected his retina and rendered him blind. The parents sued and the court held that a junior doctor is under the same duty as any other competent doctor and found for the parents.

In Mansfield v Weetabix (1997) the defendant crashed his lorry into the plaintiff’s shop and the plaintiff sued for the resulting damage. The defendant though unknown to him at the time suffered from pancreatic tumor which resulted in hypoglycemia. It was held that the standard that was imposed on the defendant was that of the ordinary and competent driver and it was found that the defendant had complied with the standard and therefore he was not liable. To do otherwise would be to impose strict liability.

It’s worth comparing the decision in Mansfield v Weetabix (1997) with the decisions in Nettleship v Weston (1971) and Roberts v Ramsbottom (1980). In Nettleship v Weston (1971) it is fairly obvious that the defendant did not display the skill of an ordinary competent driver and in Roberts v Ramsbottom (1980) it is possible to argue that a reasonable man, as soon as he realized, that he had chest pains would have immediately stopped his car because at the time the defendant suffered the stroke he still retained some degree or measure of control of his car (partial control).

The same can be said for those who are struck with hypoglycemia but it could be a matter of the time that lapsed between when the defendant is struck by the illness and when he or she experiences its affects.

There appears to be a gradual build up to a stroke during which time the defendant could have stopped his car or still retained some control of his car. With hypoglycemia, the impact of the condition appears to be sudden and the defendant may not have had time to stop his lorry but according to the facts in Mansfield v Weetabix (1997) the defendant was involved in two prior accidents, albeit minor, on the same day. It could be that the defendant in Mansfield v Weetabix (1997) was not aware of his condition while the defendant in Roberts v Ramsbottom (1980) might have been aware that he suffered from a heart condition. A lot depends on the facts.

As for Marshall v Osmond (1983) it does not come into the equation in this particular instance because the defendant had displayed the skills of an ordinary and competent driver and there is also a public policy aspect to the case in that the plaintiff was a passenger in a stolen car seeking to escape the police and it may have been the only way the defendant could have stopped him. To do otherwise might have posed a greater danger to the public.

Copyright © 2017 by Dyarne Ward

Tort XI – Breach of duty of care III

In Home Office v Dorset Yacht Co Ltd (1970) a group of boys from a borstal school, a type of detention center for young delinquents, were doing some supervised work on an island. The boys were subsequently left unsupervised and 7 of them attempted to escape on board a stolen boat which later collided with the plaintiff’s yacht and the plaintiff sued for the damage to his yacht caused by the collision. The plaintiff was successful.

It was held that the officers or the home office who the officers were answerable to were liable for the damage because it was foreseeable, given their track record, that the boys would try and escape, and in doing so, try and commandeer a vehicle to help them escape. The officers should have exercised due care and diligence in carrying out their duties and their failure to do so or their omission had resulted in damage being caused to the plaintiff’s yacht.

In Nettleship v Weston (1971) the defendant was a learner driver who employed the plaintiff to help her fine-tune her driving skills. While they were on the road the defendant turned a bend and the plaintiff told the defendant to straighten the wheel. The defendant failed to do so and in order to avoid an accident the plaintiff pulled on the handbrake but despite that the car ran over a pavement and hit a lamppost and the plaintiff was injured in the accident that followed.

The plaintiff sued. The defendant pleaded volenti and argued that by entering into the car the plaintiff had voluntarily accepted the risk. The court rejected this argument and the plaintiff was successful.

The court held that despite the fact that the defendant was a learner driver the duty imposed on her was the same duty that was imposed on any other driver.

In Roberts v Ramsbottom (1980) the plaintiff was a pedestrian who was injured by the defendant while he was driving. The defendant had suffered a stroke and during the episode he had lost partial control of his car. The court in line with the decision in Nettleship v Weston (1971) held that the duty that was owed was the same duty that was owed by any other driver i.e. that of an ordinary competent driver.

While the defendant in Roberts v Ramsbottom (1980) didn’t know, or couldn’t possibly have known that he was about to suffer from a stroke there are other medical conditions that prohibit a person from getting behind the wheel of a car. The most common would be diabetes.

Diabetes is a condition where the immune system destroys the cells in the pancreas that make insulin and anyone who suffers from diabetes can be subjected to not only the effects of excess sugar in the body but also be subjected to the effects of a lack of sugar in the body, as a result of medication, and both these conditions make it unsafe for anyone who suffers from the condition to drive.

Likewise, epileptic sufferers because they don’t know what would trigger a seizure or when it would occur, should not get behind the wheel of a car because they can not only pose a danger to themselves but to others as well.

The court reaffirmed the decisions in Nettleship v Weston (1971) and Roberts v Ramsbottom (1980) in Marshall v Osmond (1983) when a police officer crashed into an escaping criminal. The duty that was owed was one of the ordinary and competent driver and the police officer was held to be not liable.

In Thompson and Others v Smiths Shiprepairers (North Shields) (1984) the plaintiffs were hired as laborers in a shipyard. After close to 40 years of working and being continuously exposed to the noise in the shipyard they found that their hearing had become impaired. The plaintiffs sued.

The defendants argued that at the time the plaintiffs started their employment hearing impairment due to exposure to noise was not a recognized risk and that most employers failed to see it as a risk and that the defendants had merely acted in the manner that is common in the industry.

The court held that with regards to situations were an employer did not owe a duty to provide an employee with the relevant safety equipment (because the industry standards at that time did not require an employer to do so) but a duty was imposed later (because of new developments or changes in the law) the employer was liable from the time a duty was imposed.

With reference to hearing impairment caused by being continuously exposed to noise, what about the ground crews in the air force? Would they be able to claim for being exposed to continuous noise, which without doubt would cause them some sort of hearing impairment, if they were not provided with the suitable protective equipment or are there policy considerations that should or would negate their claim?

Copyright © 2017 by Dyarne Ward

Tort X – Breach of duty of care II

In Paris v Stepney (1951) the plaintiff, a World War II veteran was employed in the defendant’s garage. He was blind in one eye, having incurred the injury during the war and while he was working, he tried to loosen a stiff bolt with a hammer and as result a splinter went into his good eye and he lost his vision. The plaintiff sued the defendant for not providing him with suitable safety equipment while he was working, i.e. a pair of goggles. The failure to do so had caused him to go completely blind.

It was held that the defendant, his employer, who knew that the plaintiff was blind in one eye should have taken the appropriate steps to provide the plaintiff with the necessary safety equipment – the higher the possibility of an injury, the higher the likelihood that the courts will impose a duty of care and deem that the duty of care had been breached when the injury occurs.

In Latimer v AEC Ltd (1953) the plaintiff was employed in the defendant’s factory and as a result of unusually bad weather, excessive water had resulted in flooding and caused the factory floor to become slippery. The defendant realizing that the conditions were unsafe for working had put up warning signs which cautioned that the floor was slippery and in addition to that had mopped up patches of water and had spread saw dust on the floor to ensure that there were no unwanted incidents.

Despite the precautions that had been taken, the plaintiff who was working at the time slipped and fell and was injured as a result. The plaintiff sued on the grounds that he was employed to work under unsafe conditions. The court held that the defendant had done all that a reasonable man could do under the circumstances and that he wasn’t under any obligation to close the factory.

In Roe v Minister of Health (1954) two patients were given spinal anesthetic which was contaminated. The contamination had occurred as a result of minute cracks that had appeared on the glass ampoules that the anesthetics were stored in and it was not noticeable to the naked eye. At the time the surgery was done there was no technology available that could detect the minute or hairline cracks on glass ampoules. As a result of being given the contaminated anesthetics both the patients became paralyzed and subsequently sued.

It was held that the defendant(s) were not liable because there was no possible way of detecting the minute or hairline cracks or fractures on the ampoules. Foreseeability is a core component in establishing duty and breach and because at the time of the surgery the risk was unknown, the defendant(s) could not have foreseen the injury.

In Watt v Hertfordshire (1954) a woman was trapped beneath a car as a result of an accident. The fire station was a few hundred yards away and the station was informed of the accident. In order to release the victim the firemen needed a heavy lorry jack and the vehicle that the jack was normally mounted onto was not available at the time. The fire chief instructed the firemen to load the jack on the back of a lorry and to hold it in place while the jack was being transported to the scene of the accident. While the truck was moving the jack fell on one of the firemen’s legs and he was injured as a result. The plaintiff, the injured fireman sued.

The court held that there was no breach of duty of care because the situation, one of dire emergency, warranted or merited the risk.

In Bolam v Friern Barnet Hospital Management Committee (1957) the plaintiff was a patient who suffered from a mental illness and was subjected to electro-convulsive therapy. He was not given any relaxant drugs and as a result suffered from a fracture. The plaintiff sued.

At the time the therapy was administered there were two schools of thought or the medical profession was divided on the subject. Some believed that it was better to administer the therapy after the patient had been given relaxant drugs while others believed that it was better without. The court held that as long as there is a professional school of thought that agreed with the manner in which the defendant administered the therapy then he was not liable.

Copyright © 2017 by Dyarne Ward

Tort IX – Breach of Duty of Care I

Once it has been established that a duty of care exists in that the defendant ought to have the plaintiff in contemplation while he undertook the act or failed to act, in order for the defendant to be held liable or for the plaintiff to be awarded damages, or to have any measure of success, the plaintiff must then go on to establish or proof that the defendant has breached the duty of care. Duty in itself does not imply liability.

The test that is imposed to determine that the duty that is owed has been breached is the objective test and the standard that is imposed is that of the reasonable man i.e. the question that is asked is would a reasonable man have acted in the manner that the defendant did? If the answer is no then the chances are that the defendant has breached his or her duty of care.

Likewise, when it comes to omissions or a failure to act the question that has to be asked is would a reasonable man have failed to act in the given circumstances and if the answer is no then the chances are high that the defendant has breached his duty of care.

In Vaughan v Menlove (1837) the defendant stacked hay by the plaintiff’s cottage close to his chimney and the plaintiff had warned the defendant repeatedly on numerous occasions that there is a possibility that the hay would catch fire. The defendant ignored the plaintiff’s warning and outwardly said that he was prepared to take the risk. The hay caught fire and burnt the plaintiff’s cottage down. The plaintiff sued. The court held that the question that was to be asked is would a reasonable man have acted in the manner that the defendant did? The answer was no and therefore the defendant was held to be liable.

Once a duty of care has been established it is fairly easy to infer a breach of the duty. Sometimes it is quite straightforward and that is why the courts are reluctant, at times, for public policy reasons, to impose a duty of care especially in cases that involve law enforcement authorities or the police. There is a possibility that if they were to do that the courts would be inundated with cases. As for making the police liable or accountable in given situations, it is best left in the hands of parliament.

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 swab of cotton in the patient’s body. The court held that there was no need to look any further and that the swab of cotton was sufficient prove that the defendant had been negligent and had breached his duty of care – the principle of res ipsa loquitor was applied i.e. the thing (swab of cotton) speaks for itself.

In Phillips v William (Whiteley) Ltd (1938) the plaintiff was referred to a jeweler to have her ears pierced. The plaintiff walked into the jeweler and after having her ears pierced developed an infection which consequently caused her to develop an abscess in her neck. She had to have the abscess surgically drained and subsequently sued the jeweler (defendant) for his negligence.

It was held that a jeweler was not a surgeon or someone who is deemed to be specialist or someone who professors to be an expert in the field of ear piercing and therefore the duty that was imposed on the jeweler was lesser than that which would be imposed on someone who was an expert or a specialist in the field and hence the jeweler was held to be not liable.

We also have to look at the practical aspects of the case and to impose a duty on jewelers would undoubtedly lead to an increase in litigation and while jewelers have always performed the function of ear piercing or nose piercing for that matter, it is normally at the request of the plaintiff and the possibility that there might be an infection following the procedure was and is something that is accepted.

In Bolton v Stone (1951) the plaintiff was sitting in the terraces watching a cricket match when the batsman hit the ball over the fence and the plaintiff was struck in the head by the ball and as a result suffered injuries. The plaintiff sued the cricket club for injuries sustained and for not erecting fences high enough to stop the ball from going over. The court held that the fences that were in place, the fences measured up to 7 feet in height and the pitch was further sunk some 10 feet which in effect imposed a 17 feet barrier between the terraces and the pitch, were sufficient to stop the ball from going over and the accident was something that was out of the ordinary and was not something that was foreseeable. The cricket club was held to be not liable.

Copyright © 2017 by Dyarne Ward

Tort – Nervous Shock II

In Attia v British Gas Corporation (1988) the plaintiff had employed the defendants to install central heating in her home and stepped out while the work was being carried out. When she returned she realized that there was smoke coming from her loft and she instantly called the fire brigade but by the time they arrived the flames had spread and most of the house had been destroyed.

The plaintiff sued not only for damage to the house but also for the shock that she had suffered seeing her house burn down. The defendants accepted responsibility for starting the fire and agreed to compensate the plaintiff for the loss of her house but argued that the plaintiff should not be allowed to bring a claim for psychiatric illness because of public policy reasons.

The court held otherwise and decided that the plaintiff was entitled to claim for psychiatric illness. It was up to the courts to decide, based on the facts, if such a claim would be successful or otherwise.

In Alcock v Chief Constable of South Yorkshire (1992) during the 1989 FA cup final between Liverpool and Nottingham Forest the police who were in charge of directing the crowd had negligently directed an excessive number of spectators to one end of the stadium despite there being plenty of room in other parts of the stadium.

The crowd amassed at the Liverpool end of the stadium just behind the goalpost. 6 minutes into the match and the first signs of trouble started to appear. Crowds climbed over the fence and the police who still weren’t certain as to exactly what was going on thought it was a pitch invasion and didn’t see the bigger danger.

The first ambulance arrived at 16 minutes past 3 but by that time it was already too late and 96 fans had lost their lives. There were in total 16 claims brought against the defendant including claims from fans who’d watched the match on television, fans who were in other parts of the stadium and family members and the courts were faced with the difficult task of deciding which claims to allow and which claims to refuse.

They had to draw a line and had to distinguish between the claims. To allow claims for those who suffered from shock while watching the incident on television for example would inevitably open the floodgates.

The courts drew a distinction between the claimants. The first category of claimants who would be allowed to claim would the primary victim(s). The primary victim is defined as someone who fears for his or her own safety and as a result suffers from nervous shock or succumbs to a psychiatric illness distinct and separate from a physical injury.

The second category of claimants who would be allowed to claim for nervous shock are claimants who have witnessed the incident and share mutual ties of love and affection with the victim for example parents, children, spouses etc. This reaffirms the decision in McLoughlin v O’Brian (1983).

In addition to that for a secondary claimant to successfully claim damages the claimant must have perceived the incident or its aftermath through his or her own senses or the claimant must have witnessed the incident or its aftermath personally.

This rules out anyone who has suffered from nervous shock or succumbs to a psychiatric illness after watching the incident on television. That does not by any means suggest that these viewers might not have suffered from nervous shock or a psychiatric illness from witnessing the incident on television, it just means that they can’t claim for their illness.

The secondary claimant must also be within the of scope of proximity and foreseeability that was laid down in McLoughlin v O’Brian (1983) in that there was sufficient proximity between the claimant and the victim and that it is foreseeable that shock of some kind would be the natural consequence or the likely result of the claimant witnessing the incident or its aftermath.

In Page v Smith (1991) the plaintiff was a ME sufferer and was in the process of recovering when he was involved in a minor accident. The accident triggered the plaintiff’s illness and led to a resurgence as a result of which the plaintiff suffered a relapse. The plaintiff sued.

The court held that it was sufficient that some form of injury, physical or psychiatric would be the likely result of the accident and it does not matter if the plaintiff suffered from a pre-existing condition. The defendant has to take his or her victim as he or she finds them – the thin skill skull rule applies i.e. the defendant has to take his victim in the manner in which they are or together with all their physical inadequacies and pre-existing conditions.

Copyright © 2017 by Dyarne Ward

Tort – Nervous Shock I

Nervous shock or psychological illness or psychiatric illness is an illness that is recognized in tort as a possible consequence of the negligent acts or omissions (failure to act) of one party that results in some form of mental impairment to another party. It is an illness that may in some instances be fatal see Hambrook v Stokes Brothers (1925).

Because of the nature or the illness, it is difficult to quantify it in monetary terms until the consequences of the illness become apparent. Anyone can claim to suffer from nervous shock and it is difficult to ascertain if they indeed have suffered from nervous shock or otherwise unless there is some type of evidence which tends to indicate that they have.

In Sullivan v Moody (2001) for example a father claimed that he had suffered from a psychological illness because he was investigated for child abuse and sued a medical practitioner and a social worker for conducting an investigation. The court held that neither were liable because they were simply doing what they were required to do by law.

The courts are more prepared or inclined to recognize nervous shock in the following two instances because it is foreseeable that shock of some kind would be the natural consequence or the likely result of the defendant’s actions: –

i) where there is a special relationship between the victim or the perceived victim for example in cases or instances of the parent-child relationship and

ii) where nervous shock or psychiatric illness was caused by fraud.

In Dulieu v White (1901) a pregnant woman was awarded damages because the shock that she suffered as a result of being in a public house when the defendant crashed into it with his carriage had caused her to deliver prematurely and as a result her child was born with below average intelligence.

In Janvier v Swenney (1919), the plaintiff was employed as a maid and she was corresponding, at that time, with a German man who was believed to have had been a spy during the first world war and was as a result interned in the Isle of Man. The defendant who intended to procure some documents belonging to her employer, pretended to be an officer from Scotland Yard and interviewed or interrogated her on the nature of her correspondence with her friend, implying that she might be committing treason. The impact of the interview or interrogation was so severe that the plaintiff went into shock and took a long time to recover. The plaintiff sued and the court found in her favor and held that the defendant was liable.

In Hambrook v Stokes Brothers (1925) a mother went into nervous shock and subsequently died as a result of the trauma she suffered when she thought her children who were playing around the curb were hit by a lorry. Her husband was entitled to claim damages for the psychological illness that had been caused to his wife as a result of the defendant’s negligence.

In Bourhill v Young (1943) the plaintiff a pregnant fishwife was entitled to be awarded damages when she went into nervous shock after she’d witnessed the aftermath of a horrific accident and consequently her baby was stillborn.

In McLoughlin v O’Brian (1983) the plaintiff’s husband and her children were in a car that was involved in a serious accident with a lorry as result of which she lost one of her children. The mother rushed to the hospital as soon as she heard the news and saw her husband and her other two children prior to their wounds being cleaned up and bandaged and immediately went into shock. The plaintiff sued and the House of Lords in line with the decision in Bourhill v Young (1943) held that the plaintiff, even if she’d only witnessed the aftermath of the accident was entitled to claim especially considering the fact that the victims were her husband and children.

Because of the special relationship that the plaintiff shared with the victims, it was foreseeable that the plaintiff would suffer from some sort of psychiatric or psychological illness as a result of witnessing the aftermath of the accident.

The court found that the plaintiff was within the scope of proximity and foreseeability of suffering from some form of illness as a result of witnessing either the accident or its aftermath.

Without stretching it too far, it is possible to say, though they may not be able to claim for it, others who had witnessed the accident and its aftermath, including innocent by-standers, police and ambulance staff would have also suffered from some form of shock.

With regards to being within the width of the scope of proximity and foreseeability ideally it should depend on the facts or the circumstances of the case. Would they plaintiff have suffered from nervous shock if she was residing some distance away from the victims and received the news by telegram? It is fair to say that she probably would.

Copyright © 2017 by Dyarne Ward

Tort VIII – Duty of Care Summary

In order for a plaintiff to be successful in a claim for negligence, the plaintiff was must be able to establish: –

i) that the defendant owed the plaintiff a duty of care

ii) that the defendant had breached that duty of care

iii) that the defendant’s breach has caused the plaintiff some type of damage and has led to one for of the following: –

a) physical injury

b) phycological injury or nervous shock

c) damage to property

and

iv) it is possible to quantify the resultant damage or injury in monetary terms.

Before the courts award damages, they will also look to see if there are any policy considerations that ought to negate the defendants claim for damages and if there are then the courts would not award damages or find in favor of the plaintiff.

A duty of care arises as a result of the defendant’s actions or omissions (a failure to do something especially that which is required by law) see Blyth v Birmingham Waterworks Co. (1856).

The defendant is deemed to owe the plaintiff a duty of care when the defendant ought to have the plaintiff in contemplation while the defendant was doing the act and the question that the defendant has to ask himself or herself is would the plaintiff suffer from some form of physical harm or phycological illness or incur some form of property damage as a result of the defendant acting in the manner that he or she did or would the plaintiff suffer from some form of physical harm or phycological illness or incur some form of property damage as a result of the defendant failing to act (omission).

This principle is known as the neighborhood principle as per Donoghue v Stevenson (1932). If the answer is in the affirmative then the defendant owes the plaintiff a duty of care.

Physical injury is deemed to be any form of injury to the body external or internal (not visible). Gastro-enteritis in the case of Donoghue v Stevenson (1932), for example, is not a visible injury. As for phycological injury or nervous shock, it is any form of injury that causes mental impairment or affects the victim’s ability to think and reason.

When it comes to nervous shock the courts are more inclined to award damages when there is a special relationship between the plaintiff and the victim or the perceived victim. In Dulieu v White (1901) a pregnant woman was awarded damages because the shock that she suffered as a result of being in a public house when the defendant crashed into it with his carriage had caused her to deliver prematurely and as a result her child was born with below average intelligence.

In Hambrook v Stokes Brothers (1925) a mother went into nervous shock and subsequently died as a result of the trauma she suffered when she thought her children who were playing around the curb were hit by a lorry. Her husband was entitled to claim damages for the phycological illness that had been caused to his wife as a result of the defendant’s negligence.

In Bourhill v Young (1943) the plaintiff a pregnant fishwife was entitled to be awarded damages when she went into nervous shock after she’d witnessed the aftermath of a horrific accident and consequently her baby was stillborn.

When it comes to the police, though they are employed to keep the peace, if an officer goes over and above what is required of him and subsequently suffers from some form of injury he is entitled to claim or to be compensated for the injuries that he has suffered.

In Haynes v Harwood (1935) a police officer was awarded damages for the injuries he had incurred when he tried to stop the defendant’s horse drawn carriage from causing injury to the public after the horses that were pulling the carriage had taken off on their own.

As a general rule the police do not owe members of the public a duty of care. In Hill v Chief Constable of Yorkshire (1989) the mother of the Yorkshire ripper’s last victim was refused damages when she brought an action against the police for not arresting the murderer in time despite knowing his identity which could have prevented her daughter’s death.

The decision was upheld in Michael v Chief Constable of South Wales (2015) where the status of a 911 call was downgraded and as a result the police arrived slightly later then they ordinarily would have and failed to prevent the victim from being stabbed to death.

Other employees that come under the Home Office however do owe a duty of care and can be held liable if they fail to carry out their duties in the stipulated manner as per Home Office v Dorset Yacht Co Ltd (1970).

When it comes to duty owed by councils the twofold test in Anns v Merton London Borough Council (1978) has been overruled and damage to property is perceived to be or is interpreted as being pure economic loss as per Sutherland Shire Council v Heyman (1985) and Murphy v Brentwood DC (1991).

Copyright © 2017 by Dyarne Ward

Tort – Pure Economic Loss

Under normal circumstances a duty of care arises when the negligent act of one party leads to the other party incurring some form of physical or pyscological injury or the negligent act of one party had caused damage to the property of the other. However, with the exception of loss caused by negligent mis-statements or defamation, the courts are reluctant to impose a duty of care when the resultant loss is purely financial or purely economic.

In Spartan Steel & Alloys Ltd v Martin (1972) the plaintiffs had a steel producing plant and the defendants were contractors who were employed to do some digging. While the defendants were excavating the grounds close to the plaintiffs plant, they damaged a power supply cable and as a result the power supply to the plaintiffs plant was cut off. The outage lasted for approximately 15 hours which caused damage to the factory’s furnaces and the metals that were being alloyed. The plaintiffs did not own the supply cable and therefore sued in tort for the defendants’ negligence.

The court divided damage into two components, direct and consequential damage. Direct damage was the damage that was caused to the furnace and the damage to the meld. The courts held that the plaintiffs were entitled to claim for direct damage.

The second type of damage was consequential damage or damage that would result from the loss of profits that would be derived from the metals, for example from the sale of the metals, or pure economic loss and the courts held that the plaintiffs were not entitled to claim for the second type of damage or pure economic loss.

The second type of damage was disallowed in Spartan Steel, despite the fact that it was foreseeable that damage to the furnaces and damage to the metals in the meld would lead to some form of loss of profits because of public policy. Power outages were something that happened and to allow the second type of damage would be to open the floodgates i.e. whenever there was a power outage or a power cut anyone who has incurred some form of economic loss as a result of the outage or power cut would be able to sue.

In Caltex Oil v The Dredge Willemstad (1976) the defendants while dredging damaged an oil pipeline that belonged to Australian Oil Refinery Pty Ltd and was used to refine crude oil belonging to Caltex. The dredgers were aware of the pipeline.

In addition to damage to the pipeline a small portion of oil was lost and both Australian Oil Refinery Pty Ltd and Caltex sued for the resultant damage. Australian Oil Refinery Pty Ltd sued for the damage to the pipeline while Caltex sued for the loss of oil. Australian Oil Refinery Pty Ltd was successful.

With regards to Caltex it was held that under normal circumstances they would not be allowed to recover for pure economic loss but were successful in this instance because the dredgers were aware of the oil pipeline.

In Sutherland Shire Council v Heyman (1985) the council approved the plans to construct a house on a slope, subject to the conditions that the council be given notice at proper intervals and that no tenants should be allowed to occupy the house until the council had inspected the house.

A few years after the construction of the house, the plaintiffs purchased the house and once they’d moved in they realized that there was structural damage to the house caused by the inadequate depths of the foundation and the plaintiffs incurred expenses in remedying the damage to the house. The plaintiffs sued the council for failing to carry out their duties diligently.

The plaintiffs were unsuccessful because it was not reasonably foreseeable that economic loss would result from the defendants’ failure to inspect the house.

In order to have any measure of success for a claim arising from pure economic loss the element of foreseeability must be satisfied or complied with. In Caltex Oil v The Dredge Willemstad (1976) for example because the defendants were aware of the pipeline it was foreseeable that damage to the pipeline would cause someone, somewhere some form of loss. In addition to that the public policy element must also be satisfied. i.e. such a claim if allowed would not open the floodgates or lead to an increase in litigation.

In Caparo Industries v Dickman (1990) Caparo industries wished to acquire a company called Fidelity. At the time of the acquisition the report prepared by the auditors did not accurately reflect the financial status of the company and it was much worse than what had been anticipated and as a result Caparo Industries incurred loss.

The plaintiffs (Caparo Industries) sued the defendants for their negligence or for not preparing a report that accurately reflected Fidelity’s status. The plaintiffs claim for pure economic loss was unsuccessful.

Copyright © 2017 by Dyarne Ward

Tort – Rescue workers III

When it comes to asylum seekers because the decision is often at the discretion of the home minister, I’m going to try and use some equitable maxims, though it’s never done in reality, to help us try and achieve or arrive at more just and fair decisions, without taking into account the prevailing political factors or conditions. No nation on earth is forced to grant asylum but having made the decision to do so, it is best to at the very least to make those decisions look acceptable.

Let’s start off with the maxim equity varies with the length of the Lord Chancellor’s foot. The principles of equity were created to remedy the defects of the common law especially in instances where common law decisions seem or appear to be too harsh. Hence equity does not adhere to the principle that like cases should be treated in like manner but rather looks at the facts of each case and this becomes especially important when we are dealing with asylum seekers because no two seekers are alike.

For starters asylum seekers come from a range of different countries and the prevailing conditions in each of the countries are different and despite the fact that they may be requesting for asylum on the same grounds, say for example, to escape racial or religious persecution, the operative factors are different. Therefore, the common-law principle that like cases should be treated in like manner should be set aside and the decision should be based solely on the facts of the case.

The second maxim that I am going to advocate is the maxim that he who comes to equity must come with clean hands. Often with asylum seekers, and not all of them are genuine, they lack documentation and we cannot ignore the fact that some seekers may not have been granted the necessary or relevant documentation because the level of intolerance is so high that they might not be able to obtain the relevant documents.

However, there are also cases and instances where asylum seekers dispose of their travel documents prior to claiming asylum and that may be because they have either travelled on false documents or they are not willing to share their details. In worst case scenarios or instances their story may have been fabricated.

This in turn lengthens the process because the authorities will have a difficult time trying to track their details down during which time they remain incarcerated and some may even do it in the hope that after spending a certain number of years in a detention center they’d be granted asylum.

For those who genuinely seek asylum, even if they have travelled on false documents, it is in their best interest to tell the authorities why they’ve travelled on false documents and if possible where and how they obtained it. It is highly unlikely that the authorities are going to go after those who supplied the documents and in some cases, the forgers may even have been a genuine help. As long as the authorities can piece the story together than there is a good chance that the seeker may be granted asylum.

Asylum seekers have a duty to help themselves where possible, and to start with they have to try and get out of the detention center as soon as possible and begin getting acclimatized or attuned to their new country and to try and develop the skills that they need to survive in their new environment, including language and other social skills. Whatever has been left behind has been left behind and the sad fact of the matter is, five or ten years down the track, it may no longer be there.

Often in cases of racial and religious persecution there is a tendency to wipe out all traces of a people’s existence and it has happened many, many times before in history so there is no point worrying about it or lamenting what’s lost. Change, adopt, survive and continue to do so until such time, that is if he or she wants to, the seeker reaches the stage where he or she can increase public awareness of the legacy he or she has left behind but in a manner that meets the legal requirements of the country that has opted to adopt the seeker.

The third maxim that I am going to use is that equity is a shield and not a sword and this is related to the second maxim in that once the seeker has been granted asylum it is best not to use it as a platform to achieve other objectives abroad. All it serves to do is to create more tensions and in the present climate authorities are not above revoking protective statuses that have been granted. It is just easier to enjoy the new lease on life one has been given.

Copyright © 2017 by Dyarne Ward

Tort VII – Duty of Care VI

In Topp v London Country Bus (1993) the driver of a bus who worked for a bus company, at the end of his shift left his bus in the yard with the doors unlocked and the keys in the ignition. The bus was subsequently stolen by thieves who in their haste to make a speedy getaway ran over a lady on a bicycle who died as a result. The plaintiff, her husband brought an action against the bus company (vicarious liability – employers are liable for the wrongful actions of their employees during the course of employment) for negligence.

The question we have to ask is ought the defendant to have had the plaintiff’s wife in contemplation when he left the keys in the ignition? It is foreseeable that the bus might be stolen as a result of the driver’s negligence but to say that the driver would have foreseen that the bus might have been stolen and a lady would have been run over while the thieves were stealing the bus and that victim would have died as a result of the injuries sustained is not something that is reasonable.

Leaving the keys in the ignition is not uncommon and most people at sometime or other would have left their keys in their car ignitions and would have forgotten about it only to realize their mistake the next morning. If the car remains where they’d left it they’d consider themselves lucky and otherwise they’ll put it down to a stroke of bad luck. Should they be liable if the car that is stolen is then involved in a fatal accident? The answer would most likely be no. Hence should the bus driver be any different? It was held that the bus company did not owe the plaintiff a duty of care.

In Smoldon v Whitworth (1997) the first case of its kind against a referee, the plaintiff was an under-19 rugby player. He was aged 17 at the time and he suffered serious injuries as a result of the referee’s failure to ensure that the rules and guidelines that regulated an under-19 rugby match were observed. The plaintiff sued. The defendant argued that he should only be liable if he had shown wonton and callous disregard for the plaintiff’s safety. The court found in favor of the plaintiff in that the referee was under a duty to ensure that the game was played in accordance with the rules and that he had breached his duty by failing to do so. The standard that was imposed was to ensure that the normal rules that governed the match were observed and not wanton or callous disregard.

It was further held that the defendant was not volenti i.e. he had accepted the risk by participating in the game. The plaintiff had only accepted the risk of participating in a game that was played in accordance with the rules of the game and not the risk of the defendant’s negligence.

In Sullivan v Moody (2001) a father (plaintiff) was investigated for child abuse by a medical practitioner and a social worker (defendants) and the plaintiff claimed that he had no prior dealings with either of the defendants and as a result of the assertions made by the defendants, he had suffered from a pyscological illness. The father sued for negligence.

Child abuse can result not only from physical acts but it could also result from a failure to act (omission). Investigators are empowered by statute to act and most child abuse matters are dealt with confidentially. The authorities are well within their rights to conduct an investigation if they feel that the situation warrants it.

Medical practitioners are under a duty to report any cases of abuse or suspected child abuse that they might come across in the course of their profession and it is not a matter of whether they want to or otherwise. The law and the guidelines of the various bodies that govern the code of conduct for medical practitioners compel them to do so. Therefore it is not practical to impose any form of liability on a medical practitioner for acting in the way and manner that he or she did because the code of conduct of the regulating body that govern medical practitioners compel them to act in the manner that they do.

Secondly the plaintiff should not feel threatened, intimidated or ashamed if such an investigation were to be conducted because it is done with the utmost discretion and unless the plaintiff has made it public knowledge himself, it would not have come to light unless proven. At the end of the day if the plaintiff had done nothing wrong he has nothing to be worried about. The defendants were held to be not liable, they were just doing what they we required to do by law.

Copyright © 2017 by Dyarne Ward