Tort XXVIII – Causation XIV

In Phelps v Hillingdon London Borough Council (2000) the plaintiff was a young student who suffered from dyslexia (a condition that makes learning difficult). The plaintiff was not performing up to the expected level in school and with the help of the local authority an educational psychologist was enlisted to determine the causes of the plaintiff’s learning difficulties. The psychologist failed to pick up that the plaintiff suffered from dyslexia and as a result the plaintiff suffered from much emotional distress. The plaintiff sued and was successful.

There is a duty owed by the relevant authorities to ensure that children with learning difficulties are given the help that they needed and that help would have been possible and forthcoming if the cause of the child’s learning difficulty had been identified. Addressing these problems at an early stage could make the difference between a child achieving his or her full potential or falling short of what he or she could become.

In Kent v Griffiths (2001) an action was brought against an ambulance service for arriving 30 minutes late. The plaintiff was suffering from an asthma attack and was attended to by a doctor who advised those in attendance to call for an ambulance. While the plaintiff was waiting for the ambulance she suffered a respiratory arrest. 2 phone calls were made to the ambulance service by those in attendance and they were informed that the ambulance was on its way. During the trial, the doctor gave evidence that had he known that the ambulance would be delayed he would have instructed the plaintiff’s husband to drive her to the hospital.

It was held that the duty owed by the ambulance service was similar to the duty that was owed by other members or components of the emergency services and had there been other demands on that day, the delay may have been excusable but even then, the plaintiff or anyone else who called on her behalf should be informed of the delay so that alternative transportation could be sought.

However, having agreed to provide the service it was essential that the ambulance arrived on time and the failure to do so required an explanation. The plaintiff was successful.

In L and another v The CC of the Thames Valley Police (2001) a mother alleged that the father had sexually abused their son. An investigation was carried out and it turned out that the mother suffered from a factitious disorder (Munchausen’s Syndrome) and the allegations she’d made had been fabricated. The reports of the allegations however had been made public or somehow came into the hands of third parties and as a result the father claimed that he had been subjected to much distress and sued. He was successful.

The situation was comparable to a situation where there was a voluntary undertaking of responsibility and that undertaking was given at the time the authorities received the information, in that, it would be treated with confidentiality.

While the authorities are well within their rights to investigate allegations of child abuse, news or results of their investigations should not be made public especially because it involves a minor.

It is however fair to add that at times it is difficult to conduct investigations in confidentiality and sometimes no matter how discreet the authorities are the matter might inadvertently leak out especially if it is a lengthy investigation which concerns questioning teachers, neighbors and anyone else who had come in contact with the child. The problem with imposing a duty on the authorities especially with regards to child abuse is that it might make them reluctant to conduct investigations into allegations of child abuse.

While public perceptions matter, they should not matter to the extent that they supplant the rights of a minor or put the authorities in a position where they’d be uncomfortable or unable to conduct an investigation.

We can’t deny the fact that there are a number of cases that are fabricated but there are also a greater number of cases that go unreported and sometimes it is a matter of striking a balance between the rights of a minor and the rights of an adult and when there is a conflict, the rights of the minor should prevail i.e. if there are valid or legitimate grounds to conduct an investigation the authorities should do so.

When a case goes to trial, it is a matter of whether the allegations can be proven or otherwise and in cases where there is no physical evidence it is difficult to prove that the accused committed the act and sometimes even if the investigators know that there has been some form of abuse, they might not be able to prove it and the only option that may be available to them is to go public. Some investigators would go to that extent if they believed that the allegations were indeed genuine without worrying about the consequences or the repercussions.

Copyright © 2017 by Dyarne Ward

Tort XXVII – Causation XIII

In Griffiths v Brown and Lindsay (1999) a taxi driver dropped a drunk passenger off close to his destination, by a pedestrian crossing, seated in an upright position. An action was brought against the taxi driver because there was a risk, given the state he was in, that something undesirable may happen.

The question before the courts was whether there was a duty owed by the taxi driver to his passenger. The court held that a duty only existed for as long as the passenger remained in the car and the duty would be that of a reasonable and competent driver. The duty ended when the passenger got out of the car and the duty could not be extended beyond that.

Passengers in a taxi or a cab have a tendency to change their minds during the trip and they can hop off at any point or place, along the way, that they choose to or desire. It is impossible to impose a duty on a taxi driver or to compel him or her to take the passenger to his or her destination or the destination that was agreed upon when the passenger got into the car.

If it is a metered taxi and the charges had not been agreed upon at the time the passenger got into the car, the charges would depend on the traffic conditions and sometimes the passenger may not have the money on him or her to pay the charges, especially when the traffic is heavy and may simply choose to get off somewhere close to home.

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

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

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

The damages that were paid out however were reduced by half because a medical examination prior to death had established that the deceased was in fact of sound mind and despite the fact that he had attempted suicide on previous occasions, he did not suffer from any mental illness or a condition that would compel him to take his own life. It was, if anything, a matter of choice.

In Jebson v Ministry of Defense (2000) a group of soldiers were out drinking and on their return trip, they were travelling in a truck with a canvas roofing at the back, one of the soldiers attempted to climb on the canvas roof of the truck and as a result fell off and sustained injuries. The plaintiff sued.

The court had to decide whether the duty that was owed was negated by horseplay (rough horseplay could constitute a defense – R v Jones (1987) the case is with regards to two schoolboys who were tossed up in the air and both suffered serious injuries as a result. It was held that rough horseplay constituents a defense as long as it is genuine).

It was decided that while the plaintiff contributed to his own injuries, the ministry of defense did owe the plaintiff a duty of care because it was foreseeable that soldiers when they were drunk would engage in rowdy behavior and that might lead to some type of mishap or other. The ministry of defense was under a duty to supervise the soldiers and had breached its duty by failing to do so.

In Palmer v Tees Health Authority (2000) the defendant was a healthy authority who had discharged the accused from an institution for the mentally ill. There was a high probability that the accused would commit a crime and that belief was supported by medical evidence and further supported by testimonies from his neighbors. The accused subsequently sexually abused and murdered a 4-year-old child. The plaintiff, her mother, sued the health authority for their negligence and for the psychiatric illness that she had suffered as a result, contending that the accused should not have been released in the first place. The court held that the health authority was not liable because sufficient proximity could not be established.

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Tort XXVI – Causation XII

In Barrett (AP) v Enfield London Borough Council (1999) the plaintiff was placed in foster care and as a result he suffered from a psychological illness and turned out to be an alcoholic. The plaintiff sued the council for placing him in foster care on the grounds that he may have turned out to be a better person and may not have suffered from a psychological illness had he not been placed in foster care.

The foster care system is not without its faults and it is different from adoption. Under the system children are normally placed by the authorities concerned in the care of carers, groups homes or in the care of care-givers and in the past the system has attracted its fair share of criticism.

The question that is to be asked here is should the council be held responsible if the child is placed in the care of a family or a group home that isn’t quite suited to play the role of foster parents? The answer is yes and the plaintiff was successful. The council owed a duty of care to ensure that all children who were unable to live with their birth parents were placed in suitable homes or homes that were able to meet the standard of care that was required. Any allegations of misconduct by the carers or the council warrants and merits further investigation.

Prior to allowing anyone to foster a child there is a vetting process or an assessment process in place to allow potential foster parents to become acquainted with the duties of a foster parent and to understand what it expected of them and therefore should any foster parent or any foster providers contend that they were uncertain as to what was expected of them, the argument would not hold water.

Furthermore, there is a requirement or stipulation that periodical visits be paid to foster homes to ensure that the required standards are being met.

Is there further a voluntary undertaking of responsibility that imposes on foster parents a duty to ensure that reasonable care is provided for the children that are under their care?

It would appear so. We have to keep in mind that no one is forced or compelled to be a foster parent but having made the decision to do so, foster parents have a duty to provide reasonable care and likewise are entitled to enjoy all the rewards that come with foster parenting.

In Costello v Chief Constable of Northumbria Police (1999) a lady police constable was attacked by a prisoner and her senior officer failed to come to her aid. The plaintiff, the police constable who was attacked, sued. The question before the courts was does a duty of care exist between police officers that compels one officer to come to the aid and assistance of the other, when the other is in difficulty?

The court held that there was. There was a special relationship that existed between members of the police force that required them to assist one another. In addition to that it was also good public policy that police officers be seen to come to the aid of one another and when it comes to the police public perceptions are important.

We have previously discussed the type of risk that members of the protective services and members of the emergency services agreed to accept at the time they signed up and it is fair to say that one of the risks that they did agree to accept was to come to the aid of their colleagues should the circumstances allow or permit it.

In Gibson v Orr, Chief Constable of Strathclyde (1999) the plaintiff and his passengers while driving got on to a bridge that had collapsed as result of a severe rainstorm and the car they were driving in plunged into the river below. Two of the passengers were killed and another was injured. The police were informed that the bridge had collapsed prior to the accident but failed to erect suitable barricades or post warning signs. The plaintiff brought an action in negligence against the police.

Let’s examine the elements of duty, breach and causation. Per se the police do not owe members of the public a duty of care see Hill v Chief Constable of Yorkshire (1989) and Michael v Chief Constable of South Wales (2015) but in this instance the police were not acting in their capacity as police officers or as crime solvers but were rather acting in their capacity as public servants who were required to perform another duty that is more akin to an extension of a civic duty.

When there is an obvious danger to road users for example when there is work being done in a manhole or when construction workers had dug a hole to repair some cables there is a duty to ensure that the public is aware that work is being done and to give members of the public and other road users sufficient notice seeHughes v Lord Advocate (1963) and Haley v London Electricity Board (1965).

The court held that there was a duty of care and that the police had breached its duty by not posting any warnings or by not making any effort to inform other road users of the dangers that lay ahead. If could be said with some certainty that but for the negligence of the police the accident would not have happened. The plaintiffs were successful.

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Tort XXV – Causation XI

White v Chief Constable of South Yorkshire (1998) is a follow on from Alcock v Chief Constable of South Yorkshire (1992) and it is with regards to the Hillsborough Football Stadium disaster. While in Alcock v Chief Constable of South Yorkshire (1992) the claimants were the relatives of those who had died and spectators, the claimants in White v Chief Constable of South Yorkshire (1998) were the police officers who were on duty at the stadium on the particular day.

The case is complicated because the disaster is generally perceived to have resulted from the negligence of the police and while there is a duty of care which is similar to the duty of care in an employer-employee relationship we have to take into account the fact that relatives of those who had died and spectators were denied compensation because of the floodgates argument. The chances are that the officers on duty did suffer from some form of psychiatric illness, as did the spectators and the relatives of those who had lost their lives in the disaster but to allow one party to claim and not the other would be manifestly unjust.

Thompson v Blake-James (1998) gives us another opportunity to examine the scope of duty that is owed by doctors. The plaintiffs took their son to be immunized against measles and the doctor advised against it because the child’s medical history suggested that vaccination would be more harmful to him than it was to other children. The child subsequently contracted measles that resulted in brain damage.

Let us examine the duty, breach and causation elements again. Under normal circumstances a doctor would not be liable unless the negligent act was strikingly and glaringly obvious see Mahon v Osborne (1939) and as long as there is a school of medical thought that agrees with the way the patient was treated, the court would be reluctant to impose any type of liability on the doctor or medical practitioner see Bolam v Friern Barnet Hospital Management Committee (1957) and Bolitho v City & Hackney Health Authority (1997).

If it can be established at the onset that the doctor does not owe a duty of care than there is no need to proceed with breach, causation and remoteness of damage.

The fact that the child’s medical history suggested to the doctor that immunization may be more harmful to him than to other children may have been sufficient to stop the courts from imposing any liability on the doctor. The plaintiffs were unsuccessful.

This is the second case we have come across where a child has been severely effect by either the child or the parent not being immunized see McKay v Essex Area Health Authority (1982) and it highlights the importance of children being immunized against various diseases at the right age.

The CDC (center for disease control) strongly recommends that all children get two doses of MMR vaccines (Mums-Measles-Rubella), the first dose when the child is between 12 – 15 months old and the second dose when the child is between 4 – 6 years old. Should these immunizations be made compulsory, if they haven’t already been made so? Well, that is something that is best left to parliament but it would be helpful if they were.

In Watson v BBBC (1999) the case concerns a boxer who was injured. He was knocked out during a bout and because there was no medical care provided at ringside the plaintiff, the contestant who was knocked out, suffered serious injury.

Medical evidence suggests that had the proper medical treatment been provided on time, the injuries might not have been so severe and the delay in getting medical treatment aggravated the injury.

We have to keep in mind that the flexibility that is granted to doctors is not granted to other medical professionals or services see Newman & others v United Kingdom Medical Research Council (1996) and Wisniewski v Central Manchester Health Authority (1998) and therefore a failure to provide adequate medical services would most likely attract some type of liability.

The courts held that the defendants. the boxing council owed a duty of care to provide adequate medical services during their fights and therefore the defendants were held to be liable.

It is foreseeable that in all sanctioned fights there is a possibility that one of the contestants may be knocked out, if fact that is how most boxers hope to win their fights, by knock-outs, and it is further foreseeable that these knock-outs may result in some form of injury, some more serious than others and it is only reasonable to expect the organizers to have medical services on hand and an ambulance on standby.

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Tort XXIV – Causation X

In Langley v Dray (1998) the defendant was driving a stolen car and while he was on the motorway, he was spotted by a policeman. The plaintiff, the policeman, gave chase and the defendant stepped on the accelerator. A motorway speed chase ensued. The policeman subsequently lost control of his car and there was an accident. The plaintiff sued.

In line with the decision with Haynes v Harwood (1935) the court found in favor of the policeman. Let’s apply the duty, breach and causation requirements.

The standard that is imposed on any driver is that of the reasonable and competent driver or road-user and this standard applies even if the driver is a learner-driver see Nettleship v Weston (1971) and it is regardless of whether the defendant is ill or is struck by a sudden illness see Roberts v Ramsbottom (1980). Hence there was a duty of care owed in that the defendant had to exercise the care of a reasonable and competent driver.

The test that is to be applied is the objective test or that of the man on the Clapham omnibus see Hall v Brooklands Auto Racing Club (1933). The question that is to be asked is would a reasonable man have acted in the manner that the defendant did under the circumstances? The answer would invariably be no and therefore the defendant had breached his duty of care.

The next question that is to be asked is would the plaintiff have been injured “but for” the defendant’s act see Barnett v Chelsea Hospital Management Committee (1969) and it can be said with some certainty that if it wasn’t for the defendant’s negligent act, the plaintiff would not have been injured and accordingly the defendant was held to be liable.

In Leach v Chief Constable of Gloucester (1998), the case is with regards to the notorious serial killer Fred West, who committed at least 12 murders from 1967 to 1987. The plaintiff, a volunteer, agreed to act as an appropriate adult (an appropriate adult is someone who is responsible for safeguarding the rights of children or the mentally vulnerable who have been detained by the police – Police and Criminal Evidence Act 1984). At the time she volunteered she had no knowledge of who the defendant was or of the nature of the crimes he had committed so it is fair to say that the plaintiff was caught off-guard.

All the previous cases the plaintiff had worked on were in relation to youths who had been detained by the police for some reason or other and she didn’t have any experience with anyone who suffered from a mental illness. The plaintiff accompanied the accused and spent a substantial amount of time with him including following him to the crime scenes – which is something that can be very distressful for most adults and it would take someone with strong fortitude to not be affected by what she heard and saw. She subsequently succumbed to a psychiatric illness and sued.

The court in line with Swinney v Chief Constable of Northumbria Police (1996) held that the police owed the defendant a duty of care. The arguments for finding for the plaintiff are more or less the same in both cases. The first question that is to be asked is whether the defendants assumed responsibility for the plaintiff? The answer is in the affirmative and the voluntary undertaking of responsibility arose the moment the police put or placed the plaintiff in a stressful situation or in a situation where she would most likely incur some form of psychiatric illness or other.

It was foreseeable that by being put in the position that she was, the plaintiff would incur some form of injury – the court did not draw a distinction between the type of injury, physical or psychiatric. All that was required was that some form of injury was incurred.

Secondly, while the court did not say so, for public policy reasons the plaintiff should be awarded some form of compensation because appropriate adults play an important role in ensuring that the rights of youth and the mentally vulnerable are upheld.

In Perrett v Collins (1998) the defendants built a plane and the plane crashed as a result of which the plaintiff was injured. Prior to the plane being allowed to fly it had to be approved by the relevant authority i.e. the inspector and the certifying body. The plaintiff sued on the grounds that the inspector and certifying body had been negligent in their assessment and had allowed a plane that had not fully complied with the mandatory requirements to fly. The plaintiff was successful.

It was held the inspector and the certifying body were under a duty to ensure that the stipulated requirements or regulations were complied with and it was foreseeable that their negligence would lead to some sort of mishap or other.

Let’s compare the decision in Perrett v Collins (1998) with that of Harris v Evans (1998). It is clear that in both cases the defendants had a duty to perform their roles or tasks as stipulated by law, and in the former the defendant was found to be liable while in the latter the defendant was held to be not liable. Yet again a lot depends on the facts but the result of not performing one’s duties in accordance with the required standards may lead to a potentially dangerous situation.

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Tort XXIII – Causation IX

In John Munroe (Acrylics) Ltd v London Fire and Civil Defense Authority (1997) the fire brigade was called in to put out a fire on an adjoining property. The firemen inspected the area and once they’d finished they left the scene believing that the fire had been put out but failed to take note of some soldering debris. Once they had left, the fire started again and spread to the plaintiff’s property and caused damaged to his property. The plaintiff sued but was unsuccessful

The court held that there was no duty owed. The standard of care that is imposed on the fire brigade is similar to that which is owed by the police and applying the principle in Hill v Chief Constable of Yorkshire (1989) the court found that imposing a duty under the circumstances would impede the fire brigade and would not allow them to carry out their duties efficiently. It would lead to defensive firefighting in that firemen would be more concerned or may become preoccupied with the liabilities that may be imposed on them rather than firefighting.

McFarlane v EE Caledonia Ltd (1997) allows us to further examine the duty that is owed to a rescuer. It concerns the Piper Alpha disaster which is the worst offshore oil rig disaster to date. In a space of 2 hours 167 men lost their lives while 61 others survived by jumping into the sea from the helicopter platform.

The plaintiff was employed to work on the oil rig (Piper Alpha) but at the time of the accident he was onboard another vessel which was anchored close by. The vessel, the plaintiff was on, went to help with the rescuing operations and the plaintiff was clearly able to see everything that transpired. He was certainly close enough.

The plaintiff claimed that he had succumbed to a psychiatric illness after witnessing the disaster and its aftermath. The court held that the plaintiff could not recover for psychiatric illness because he wasn’t in any danger.

Let’s compare the decision in McFarlane v EE Caledonia Ltd (1997) with the decision in Chadwick v British Railways Board (1967); in the latter (Chadwick v British Railways Board (1967)) the plaintiff was at the scene of the incident. In the former (McFarlane v EE Caledonia Ltd (1997)) the plaintiff, while he could witness the incident, was a safe distance away. We have to keep in mind that the duty that we are referring to here is that which is owed to a rescuer and not that which is owed to someone who witnessed the aftermath of an accident or an innocent bystander like in the case of Bourhill v Young (1943) and the series of cases that followed it. With regards to a rescuer it would be safe to say that in order for the courts to impose a duty the rescuer must be at the scene of the accident or the incident.

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

The plaintiff was unsuccessful and the principle of ex turpi causa was applied i.e. – where the act is illegal, a legal remedy is not available.

In Harris v Evans (1998), the plaintiffs were operating a bungee jump, which was quite popular at the time. The participations stood on a platform which was lifted by a crane to a certain height often above a river with their feet bound and attached to a bungee rope. Once the platform was in place, the participants would walk off the platform and fall straight into the river.

A health and safety inspector inspected the jump and came to the conclusion that it was unsafe and thereby instructed the operators to terminate all future jumps. The operators, the plaintiffs, sued for loss of income.

The plaintiffs were unsuccessful. The plaintiff was suing for pure economic loss. In line with the decision in Spartan Steel & Alloys Ltd v Martin (1972) and Caparo v Dickman (1990) the courts are reluctant to allow damages for pure economic loss.

Furthermore in Harris v Evans (1998) the defendant was merely doing his duty as he was employed to do and he was empowered to do so by statute. Therefore there should be no liability imposed on the defendant.

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Tort XXII – Causation VIII

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Tort XXI – Causation VII

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

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

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

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

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

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

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

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

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

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

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

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

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

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Tort XX – Causation VI

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

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

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

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

Tort XIX – Causation V

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

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

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

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

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

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

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

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

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

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

The police when they apprehended the prisoner were aware of these facts but failed to pass them on to the prison authorities and the defendant while in prison committed suicide. The plaintiff sued and the defendants relied on the defense of volenti and ex turpi causa (a plaintiff would not be able to pursue a legal remedy with regards or reference to his or her own illegal act – where the act is illegal, a legal remedy is not available).

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

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

Copyright © 2017 by Dyarne Ward