Tort XVII – Causation III

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

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

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

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

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

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

Continue Reading

Tort XVI – Causation II

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

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

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

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

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

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

Continue Reading

Tort XV – Causation I

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

Continue Reading

Tort XIV – Breach of Duty of Care VI

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

Continue Reading

Tort XIII – Breach of duty of care V

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

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

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

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

The boat was discovered by two 14-year-old boys who as boys normally do got carried away with it and tried to do it up. While they were trying to fix the boat, there was an accident and one of the boys suffered serious spinal injuries and was paralyzed as a result. A claim was brought against the council and the court found in favor of the plaintiffs. It was reasonably foreseeable that if the boat was not disposed of, someone, sometime would stumble across it and there was real likelihood that the person(s) could sustain some form of harm or injury as a result.

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

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

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

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

Copyright © 2017 by Dyarne Ward

Continue Reading

Tort XII – Breach of Duty of Care IV

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

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

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

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

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

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

Continue Reading

Tort XI – Breach of duty of care III

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

Continue Reading

Tort X – Breach of duty of care II

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

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

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

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

Continue Reading

Tort IX – Breach of Duty of Care I

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

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

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

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

Continue Reading

Tort – Nervous Shock II

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

Continue Reading