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

Tort VI – Duty of care V

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 that what had been anticipated.

The plaintiffs (Caparo Industries) acquired shares in Fidelity based on the report by the auditors (defendants) and they incurred loss and as a result sued the defendants for their negligence or for not preparing a report that accurately reflected Fidelity’s status. Caparo has to be distinguished from the other cases that we have done so far because unlike the other cases where there has been some form of damage to property or injury (physical or physcological), the plaintiffs in Caparo Industries v Dickman (1990) were suing for financial loss or pure economic loss.

As we have seen thus far, a duty of care arises when the defendant while carrying out the act ought to have the plaintiff in contemplation with regards to damage to property, physical injury or physcological illness. Can the same be said for economic loss? The answer in short is no.

There is a distinction between the type of damage that is incurred as a result of one party’s act or omission (failure to act) towards the other and it is one thing to avoid causing physical injury, physcological illness or damage to property and it is another thing to avoid causing others pure economic loss and to make a party liable for the latter in situations like Caparo is tantamount to subjecting the party to liability in an indeterminate amount for an indeterminate time to an indeterminate class.

If the auditors were to be held liable then they would be liable to any company that has stepped up and purchased shares in Fidelity based on the report prepared by them. The auditors were held to be not liable.

In Murphy v Brentwood DC (1991) the facts of the case were very similar to that of Anns v Merton London Borough Council (1978) – the plaintiff purchased a house from the respective builders and it was later discovered that the plans, though approved by the council, were faulty and as a result, the foundations for the house were inadequate. The repairs to remedy the defect were substantially more than what the plaintiff could afford and as a result the plaintiff was forced to sell the house at a reduced price. The plaintiff brought an action against Brentwood District Council.

The court however did not look at it from the perspective of a duty of care arising out of physical injury or damage to property or from the perspective of a duty of care arising out physcological illness or nervous shock but rather looked at it from the perspective of a duty of care arising out of financial loss or economic loss and in line with the decision in Caparo, held that the council was not liable.

Following the decision in Caparo Industries v Dickman (1990) and Murphy v Brentwood DC (1991), the two cases are deemed to have overruled the decision in Anns v Merton London Borough Council (1978), we can see two schools of thought emerging. The first school of thought looks at property damage in the ordinary sense of the word i.e. some type of damage to property and would seek to apply the two-fold test in Anns v Merton London Borough Council (1978) while the second school of thought treats damage to property, which is caused by the negligence of another, as pure economic loss in line with the decision in Caparo Industries v Dickman (1990) and Murphy v Brentwood DC (1991). At this stage however it would be fair to say that damage that is caused to property that is due to the negligence of a council is to be treated as pure economic loss.

In Gala v Preston (1991) two youths, the plaintiff and the defendant after they’d spent the afternoon getting drunk decided to steal a car and go for a joyride with the defendant at the wheel. The car crashed and the plaintiff sued the defendant. It was held that there was no duty of care owed because both the plaintiff and the defendant had broken the law, the act of stealing a car was a criminal act and therefore the question of duty, breach, causation and remoteness did not arise.

Would it have been any different if the plaintiff and defendant had not stolen the car? It would. The defendant could plead the defense of volenti i.e. the plaintiff had accepted the risk of some harm occurring by getting into the car with the defendant, but it would depend on how drunk the plaintiff and defendant really were and in order for the defense to be successful the parties must have been glaringly, strikingly, and blaringly drunk.

Copyright © 2017 by Dyarne Ward

Tort – Rescue Workers II

While we are on the subject of the Red Cross it would be worth our while to know the functions that they perform. In addition to aid or relief work, tasks that we commonly equate with the Red Cross, they also perform another very important function called tracing. Tracing is a mechanism whereby families that have been separated, normally as a result of war or other types of social or civil unrest or discord are reunited and often it is the only means available to track down lost family members.

When it comes to conflict or conflict prone areas, the normal mechanisms are unreliable especially in instances of ethnic or racial conflict and the only mechanism that provides some sort of relief or remedy is the Red Cross and therefore it is only fitting that they be granted some sort of implied immunity especially in cases or instances of negligence.

It is also important that Red Cross members in all the countries that they operate in remain unmolested and untampered and regardless of the political motives or objectives of the day, it is in the best interest of everyone concerned to allow the Red Cross to operate with some independence.

Any dispute with or within the Red Cross should ideally be resolved through an internal mechanism for example a tribunal made up of its own members and that would allow them or grant them the flexibility that they need to operate independently.

The Red Cross also becomes crucial in the asylum seeker process. Asylum is not a right but rather a privilege and as such it is granted to those who deserve it. The process in recent times has been marred and tainted with numerous allegations and part of the problem is due to the fact that it is difficult to verify the reasons that an asylum seeker is seeking asylum.

When someone has been granted asylum, he or she is basically being given a new lease on life and therefore it should be granted to those who deserve it or those who are genuinely afraid of being persecuted because of their race, religion, color or creed. It is not a means, though that is what it has become in recent times, to escape poverty or to seek greener pastures.

Therefore, at the time the asylum seeker seeks asylum the fear of persecution must be real and tangible and it is subjective to the asylum seeker i.e. we look at the seeker’s state of mind at the time the seeker is claiming asylum as opposed to raising the question of if someone in the make or mold of the seeker would be claiming asylum because fear itself is intangible or cannot be quantified and what may or may not put someone in fear may differ from person to person.

Once the asylum seeker claims asylum at any entry point i.e. an airport or a port or if the person has entered a country illegally when the person surrenders to the relevant authorities (it is important to note that some countries do not grant asylum) the process begins. The asylum seeker is taken to a detention center and here the person is interviewed by immigration officers or officials.

The next step is crucial and it’s where organizations like the Red Cross come in. The asylum seeker is asked about his life in the country he or she has fled from. If there are documents to verify the seeker’s claim like a passport, all fair and good, but some asylum seekers don’t have passports or proper travel documentations.

During the process which is akin to an interview the asylum seeker is asked personal questions about himself or herself and the reasons he or she is claiming asylum and the seeker is given the opportunity to present his or her side of the story.

Now once the interview is over the asylum seeker is interned in a detention center and the next question that comes to mind is how do these officials determine if the story that has been told to them is true or otherwise bearing in mind that there are limited places offered to asylum seekers and there are normally thousands waiting in queue.

Under normal circumstance most asylum seekers come from war torn countries where the normal policing mechanism has broken down and there is no way to verify their story or the immigration officials might not want to contact the local authorities because they might inadvertently put the asylum seeker or his or her family in jeopardy. Hence there is a need for an unbiased organization that works in war torn countries that can verify the seeker’s story and that is where the Red Cross comes in.

Whether they choose to or otherwise is an entirely different matter but if they could say for certain that the seeker’s claim is genuine then it would go a very long way in helping the seeker get asylum. Using organizations like the Red Cross also ensures that the places that are limited for asylum seekers go to those who truly deserve it. I think the reasons that I’ve given here are compelling enough to make anyone think twice about bringing an action against the Red Cross.

Copyright © 2017 by Dyarne Ward

Tort – Rescue Workers I

There are a few classes of people that should be able to claim for psychological illnesses despite agreeing to accept the risk, especially rescue workers and those who work in disaster relief. This includes members of the emergency services like the police and the fire brigade and it also includes those who serve in voluntary organizations like the Red Cross.

The type of disasters that we are looking at includes rail disasters and natural disasters like earthquakes. The damage that is done and scenes of the aftermath are often so horrific that it is fair to say that a person of reasonable fortitude can go into shock that results in some type of permanent damage as a result of being exposed to the aftermath of these accidents or natural disasters.

The situation is a bit more complicated when it comes to natural disasters and voluntary organizations. If an aid work turns around and brings a claim against the Red Cross for exposing him or her to scenes that are so horrific that he or she could not continue working anymore or could not sleep at nights, these symptoms are the natural result of being exposed to horrific scenes, soldiers who have been in combat suffer from similar after effects, can the Red Cross turn around and plead volenti?

They probably could because any aid or relief worker that signs up with the Red Cross knows that there is a possibility that he or she may be put in a situation where the person is going to be exposed to extremely horrific scenes, scenes so horrible that the footage isn’t even allowed on TV.

Then again it is also a question of the type of risk that the aid or relief worker has accepted to be subjected to. He or she may have agreed to remove a dead body from a home but that does not however mean that the same aid or relief worker has agreed to remove a mangled corpse that has been crushed by a fallen building. Overall however it might probably be easier to work out some sort of compensation scheme for aid and relief workers who have suffered from some type of physcological illness as a result of being exposed to horrific scenes than to allow law suits because the respective aid organization may be reluctant to help the next time there is a natural disaster.

The next category of people who may be able to claim for physcological illnesses or nervous shock are members of the emergency services i.e. the police, the fire-brigade etc. Employers are generally under a duty not to put their employees in a situation where they’d likely suffer from some form or physical injury or physcological illness and while the employer may argue that the employee agreed to accepting such risks when he or she signed up to join the emergency services its once again a question of how much risk did the employee sign up for or how much risk did they agree to accept when they signed up with the emergency services.

Let us look at the example of the local police or the fire brigade in a quaint little picturesque town in the middle of nowhere. Most of them were born in the town and the hardest thing that they’ve had to do in their careers is to break-up a football fight between rival supporters or put out a small fire. Regardless of the training that they have been given they are definitely not catered or tailored for disaster relief.

There is a railway station in the town and trains stop over at regular intervals to ferry passengers from one destination to another. In the two hundred years that the trains have been running in the town there hasn’t been a single unwanted incident then suddenly out of the blue there is a serious accident. Two trains have crashed into each other just three kilometers out of town and members of the local constabulary and the local fire brigade are summoned to help and assist with the rescue operations.

They are the first to arrive on the scene and the aftermath of such an accident would be, to put it mildly, horrific, and the chances are high that they would suffer from some form of nervous shock or the other. To say otherwise would just not be practical. Are they entitled to be compensated?

Lastly we also have members of the media, people who work for the press and those who work for television stations, who are normally rushed to cover these incidents, the same people that bring us all the vivid and real time footage that we watch on television. Are they entitled to be compensated for the risk of being exposed to the aftermath of these accidents? Chances are high that they too may suffer by some form of psychological illness as a result of witnessing the aftermath of these accidents and natural disasters.

Copyright © 2017 by Dyarne Ward

Tort V – Duty of care IV

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 foundations 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 facts in the case were similar to the facts in Anns v Merton London Borough Council (1978).

It was held that the council did not owe the plaintiffs a duty of care and therefore the plaintiffs were unsuccessful. The council’s powers of inspection were discretionary because there was no statutory duty imposed on the council to inspect the house. Despite the fact that it was foreseeable that there would be damage to the property if the council was negligent in its duty it was decided that foreseeability alone did not imply duty. Duty was dependent on the facts of the case and because it was determined that there was no duty owed by the council in this instance the question of breach did not arise.

It would be fair to say that in order for the courts to construe that there was a duty of care owed there must be foreseeability i.e. the defendant ought to have the plaintiff in his or her contemplation while he or she was carrying out the act or failed to carry out the act but once the element of foreseeability is satisfied or established, a duty of care doesn’t automatically arise. Whether a duty of care arises or otherwise is dependent on the facts of the case.

The case of Hill v Chief Constable of Yorkshire (1989) – the case concerns the arrest and conviction of Peter Sutcliffe, the Yorkshire Ripper, sheds some light on the extent of the duty, if any, that is owed by the police.

Between 1975 to 1980 there were a series of brutal attacks on female sex workers in Leeds and Bradford. While the initial attacks centered around those in the sex trade, the later attacks involved the brutal killings of women from other walks of life. Eventually the murderer was convicted for 13 murders and 7 attempted murders but has been since reportedly been questioned on other murders.

The mother of the last victim, Jacqueline Hill brought an action against the Chief Constable claiming that her daughter might have been spared had the police acted in time and it was the negligence of the police that had led to the death of her daughter. Prior to arresting the murderer, the police interviewed him up to 9 times and it was these delays that had resulted in the death of her daughter.

It was held that the police owed no duty to the public though they may be liable in negligence on certain occasions for failing to act on time. To impose liability on the police would lead to ineffective policing because police officers might be reluctant to act fearing that they might be made accountable in court for situations that in most instances are beyond their control.

The decision was reaffirmed in Michael v Chief Constable of South Wales (2015). The parents and the children (plaintiffs) of the victim, brought an action against the Chief Constable for failing to act in time. The victim dialed 911 requesting for help because her ex-boyfriend was on his way to kill her. The person at the other end did not hear the threat and downgraded the call which meant that the response time would be slightly slower. The victim called again minutes later requesting for assistance and when the police finally arrived at the scene they discovered that the victim had been stabbed to death. It was held that the police did not owe the victim a duty of care to protect him or her from harm caused by a third party.

The case was distinguished from Home Office v Dorset Yacht Co Ltd (1970). In the latter, the officers had control of the boys and it was their lack of diligence while exerting their authority that led to the defendant’s yacht being damaged. In the former, the police had no control over the defendant’s boyfriend. With regards to proximity the courts proposed a four-pronged approach.

Copyright © 2017 by Dyarne Ward

Tort – Volenti non fit injuria II

In situations where a passenger gets into a car with the knowledge that the driver is drunk, whether the defense of volenti would apply or otherwise is dependent on the how drunk the driver actually is.

In Dann v Hamilton (1939) the plaintiff got into the car with the driver and a few other passengers knowing that the driver had been drinking. One of her friends had earlier refused to get into the car because of the condition the driver was in. The car later crashed with the plaintiff in it, and the plaintiff sued. The defendant raised the defense of volenti and the court rejected the defense.

The courts determined that in order for volenti to apply in instances where passengers had gotten into a vehicle with the knowledge that the driver was drunk, the condition of the driver must be so striking or glaring that it is akin to waiting for a bomb to explode or walking on the edge of a cliff. The reluctance to allow the defense of volenti in such instances may once again be due to public policy reasons.

In Bowater v Rowley Regis Corp (1944) the plaintiff was employed by the defendant to collect road sweepings which were gathered in a cart and the plaintiff was ordered to use a rather temperamental horse to pull his cart. The plaintiff protested knowing that the horse was prone to bad behavior but his protests were ignored. A few weeks later the horse misbehaved and the plaintiff was thrown off the cart and as a result incurred injuries. The plaintiff sued and the defendant raised the defense of volenti.

The decision of the court was in line with the decision in Smith v Baker (1891). In order for the courts to allow the defense of volenti the plaintiff must have acted freely and independently and the plaintiff in this instance cannot be said to have acted freely and independently especially when he had voiced his objections to using the horse. He was compelled to use the horse by his employer and the act of compelling the plaintiff to use the horse robbed the defendant of the defense of volenti.

Even if the plaintiff had accepted the risk that does not mean to say that he had accepted the risk of the defendant’s negligence. In White v Blackmore (1972) the plaintiff was a participant in a jalopy car race and he had entered it with full knowledge of the risks that were involved. The plaintiff was subsequently watching the race when one of the cars crashed into the safety ropes and because the ropes were not constructed in the proper manner the resulting accident was fatal.

The plaintiff’s estate sued and the defendant pleaded volenti. The defendant argued that the plaintiff had accepted the risk by being a part of the race or by being a driver in the race and furthermore there were exemption clauses posted in clear view of anyone in attendance that purported to exempt the organizers from liability as a result of personal injury.

The plaintiff’s estate was successful. The court held that despite the fact that the plaintiff had accepted the risk of personal injury by participating in the races, he had not accepted the risk of the defendants negligence. The plaintiff died not as a result of participating in the races but as a result of the defendants lack of diligence and therefore the defendants could not argue that the plaintiff had voluntarily accepted the risk.

In Morris v Murray (1991) after a night of heavy drinking, the defendant who was a pilot suggested to the plaintiff that they take the defendant’s airplane, a light aircraft, out for a spin and the plaintiff agreed. The pair took off from the airport and crashed shortly afterwards. The defendant was killed while the plaintiff sustained serious injuries. The plaintiff sued and the defendant’s estate raised the defense of volenti. The defense of volenti was allowed and the defendant was found not liable.

The decision in the case is in line with what was said in Dann v Hamilton (1939) in that both the plaintiff and defendant in Morris v Murray (1991) were glaringly, strikingly, and blaringly drunk to the extent that it would have been more than obvious to anyone who they’d come across that they were intoxicated and to get into a vehicle with someone who was intoxicated to that level would be similar to inviting an accident.

Copyright © 2017 by Dyarne Ward

Tort IV – Duty of care III

In Bourhill v Young (1943) – the case concerns someone who’d witnessed a horrific accident. The plaintiff was a pregnant fishwife and as she got off the tram, a motorcyclist, the defendant, flashed past her and hit a car and as a result the motorcyclist died. The plaintiff did not witness the accident but heard the sound of the crash and minutes later witnessed the aftermath. The body had been removed from the scene of the accident, by the time the plaintiff got there, but there were pools of blood on the ground. The plaintiff went into shock and her baby was stillborn. The plaintiff brought an action against the defendant’s estate. It was held the defendant did not owe the plaintiff a duty of care. The defendant could not have foreseen that a pedestrian would be affected in the manner that the defendant was and to make the defendant liable would be to stretch the scope of liability too far.

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 Anns v Merton London Borough Council (1978) the plaintiffs were tenants in a block of flats. The council was under an obligation to inspect the foundations of the flats to ensure that they were in accordance with the correct or prescribed depths prior to granting approval and the council failed to do so. As a result, there was structural damage to the flats and the plaintiffs sued. The court held that when considering if that there was a duty of care owed they must take into account 2 criteria: –

i) if there is close enough proximity between the plaintiffs and the defendants i.e. ought the defendants to have the plaintiff in contemplation at the time of carrying out the act or would the defendants at the time they were inspecting the flats know that a failure to carry out their duties in the prescribed manner would result in some form of damage to the plaintiff and if the answer is in the affirmative then

ii) whether there are any other considerations for example public policy reasons that ought to reduce the scope of the duty that is owed or the extent of the damages which is owed. If the answer is in the negative than there is a duty of care.

The twofold test in Anns v Merton London Borough Council (1978) was overruled in Murphy v Brentwood DC (1991) but by using the test it is possible to arrive at the same conclusion that the court arrived at in Bourhill v Young (1943).

Was there close enough proximity between the defendant and the plaintiff that the defendant ought to reasonably have the plaintiff in contemplation while riding his motorcycle? The answer would be in the affirmative in that a road user, especially a driver of a vehicle ought to have other road users in mind when driving his or her vehicle or riding his or her motorcycle.

Applying the second limb of the twofold test, are there any considerations that ought to limit the scope of the defendant’s liability? The answer would also be also in the affirmative because there is no telling the number of pedestrians or by standers that may have witnessed the accident or its aftermath and it is impossible to tell how witnessing the accident or its aftermath would affect them.

People don’t always react in the same manner and some may be able to set it aside and others may not and what if there were a 100 people who had witnessed the accident or its aftermath and they all suffered from shock? To extend the defendant’ s scope of liability would mean that the defendant would be open to a 100 law suits. Therefore, in certain instances the only viable option would be to limit the scope of the defendant’s liability.

Copyright © 2017 by Dyarne Ward

Tort – Volenti Non Fit Injuria I

Volenti non fit injuria (volenti) is a defense that is pleaded in claims of negligence. It means that the plaintiff’s injuries are the result of his own actions or when a person voluntarily puts himself in a position that would most likely result in some form of injury to himself or herself then the defendant is not liable for those injuries.

In Wooldridge v Sumner (1963) the plaintiff was a photographer who was standing too close to a racetrack and subsequently he was knocked over by a rider who had lost control of his horse. The plaintiff sued for negligence and the defendant pleaded volenti. The court dismissed the claim. Volenti is only a defense in instances of negligence. In this instance the defendant wasn’t negligent at all; he merely lost control of his horse, which is something that happens during races and can happen in the course of any race. In any racetrack there is seating that is available for the spectators and the plaintiff, if he had bought a ticket, than by virtue of entering into the contract, must restrict himself to the sitting area.

In cases where the relationship between the plaintiff and the defendant is an employer-employee relationship, the employer must take reasonable care not to put his employee in a situation where he’d likely incur some form of injury or other and having done so, he cannot claim or plead the defense of volenti.

In Smith v Baker (1891) the plaintiff was employed by the defendant to construct a railway. On the site there was a crane that was constantly operating, moving rocks and stones over the plaintiff’s head and the plaintiff had complained to the defendant on numerous occasions that there is a possibility that rocks or stones may drop down as they were being moved by the crane. The defendant acknowledged the fact and instructed the plaintiff to continue working and as a result the plaintiff was injured by a falling stone. The plaintiff sued and the defendant pleaded the defense of volenti. The court found in favor of the plaintiff.

Would it have been any different if the defendant had made safety hats available to all his workers? It would have. If the plaintiff had been issued with a safety hat and if he had removed it while he was working and was subsequently injured by a falling stone, he would have been contributorily negligent.

Volenti is a voluntary act that the plaintiff undertakes on his own accord or by his own volition. Here the plaintiff was instructed to work under the crane. Employers generally have a duty not to put their employees in situations where they would sustain or incur some form of physical injury and to provide them with the correct or appropriate safety equipment or gear.

In ICI Ltd v Shatwell (1965) the plaintiff and his brother were experienced shotfirers who were employed to work in the defendants quarry. The wire on one of the detonators was short and while another worker went off to find a longer wire the plaintiff detonated the explosives. Because the length of the wire was too short the plaintiff and his brother were unable to seek adequate shelter and as a result the brothers were injured. Both the plaintiff and his brother were aware of the relevant safety precautions but failed to take the appropriate measures. The plaintiff sued the defendants for negligence and the defendants relied on the defense of volenti. The plaintiff failed. The plaintiff was aware of the dangers and of the fact that the explosives were only to be detonated from a safe distance away. In addition to that there was also a duty imposed by statute that placed on them a duty to take the necessary precautions while detonating explosives.

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 this particular instance in order for the defendant to successfully plead volenti the plaintiff must have either impliedly or expressly waived his right to seek a legal remedy.

Copyright © 2017 by Dyarne Ward

Tort III – Duty of Care II

In Dulieu v White (1901) the plaintiff was sitting at the bar in a public house that belonged to her husband, she was pregnant at the time, when a horse and cart crashed into the establishment. The plaintiff suffered from severe shock that resulted from her being in the premises at the time the defendant crashed into it and she subsequently fell severely ill. She gave birth to a premature baby 9 days later and the child as he or she grew up did not display the level of intelligence that other children his or her age would display and the plaintiff argued that the child’s premature birth and the subsequent inability to cope was the result of the shock and the serious illness that she had suffered as a result of being in the public house at the time of the incident. The plaintiff sued.

The court held that the defendant had a duty of care not to frighten the plaintiff by his actions and if the resultant injury is not too remote than the plaintiff can claim. However, mere fright alone will not suffice and the fright has to be followed by some form of physical injury. The fright must also be the natural result or consequence of the defendant’s actions.

So there are three elements to claims involving nervous shock or psychiatric illnesses, which is in effect what the defendant is claiming for. They are as follows;-

i) the defendant owes the plaintiff a duty of care i.e. a duty not to frighten her or cause her some form of physical or mental harm

ii) the fright is followed by some form of physical or mental injury and

iii) the type of physical or mental injury would be the type of injury that is the natural result or consequence of the defendant’s actions or it is foreseeable that the injury would be the likely result of the defendant’s actions.

In Haynes v Harwood (1935) the defendant had left his horse drawn van unattended and someone had thrown a bottle at the horses which caused the horses to bolt down a busy street. The plaintiff, a policeman was on duty at the time and he saw the ensuing ruckus from his window. Having determined the cause of the commotion he then tried to stop the horses and was injured as a result. The plaintiff sued and the court held that he was entitled to be compensated for the injuries that he had suffered or incurred. The defendant should have taken reasonable care to ensure that his horse drawn van was secure.

The principle is still in application today and owners of vehicles still have a duty of care to ensure that their vehicles do not cause injuries to others. Let’s take the example of someone parking a car on a slope. If the driver forgets the brakes there is a possibility that the car may roll downhill and cause some type of injury or damage to someone and therefore the driver of a vehicle has a duty of care to ensure that the vehicle is secured before he or she moves away from it.

Is it possible for the defendant to argue that the plaintiff’s injuries were the result of actions that he had undertaken voluntarily i.e. volenti non fit injuria – when a person voluntarily puts himself in a position that would most likely result in some form of injury then the defendant is not liable for those injuries?

We have to look into the facts of the case. The plaintiff was a policeman who has a responsibility to keep the peace. From all accounts the incident took place in broad daylight or at a time when the policeman was most likely on duty and thus it was his responsibility to ensure that the peace was kept and no unwanted incidents occurred during his watch and therefore he was merely doing his duty.

It is also possible to argue that the policeman had gone over and above his duty by putting himself at risk and therefore should be in some form or manner rewarded for his actions as per Glasbrook Brothers v Glarmorgan County Council (1925).

In Hambrook v Stokes Brothers (1925) a mother suffered severe nervous shock that resulted in a chronic illness when she saw a lorry run downhill towards the bend where she had just left her children. She took instant fright and moments later another person approached her to tell her that one of her children was injured.

As it turned out the injury was slight but by that time the mother had gone into shock and the resultant illness that was brought on by initial shock eventually led to her death. Her husband sued and was successful. The court held that the defendants had a duty to ensure that their vehicle was secure.

The courts might be more willing to award claims for nervous shock or mental illness when the victim is a parent who has suffered an illness because he or she feared for the safety of his or her child. Such illnesses are both realistic and foreseeable.

Copyright © 2017 by Dyarne Ward