Tort – Ex Turpi Causa

Ex turpi causa non oritur actio or ex turpi causa for short simply means that when the plaintiff has committed an illegal act, he cannot claim a legal remedy i.e. where the act is illegal a legal remedy is not available. Another way of looking at it is that no man should be allowed to profit from his crime.

In Ashton and Turner (1981) the plaintiff was a passenger in a car that the defendant was driving. The pair had jointly committed a burglary and the defendant was drunk at the time. The car they were driving in subsequently crashed and the plaintiff sued. The court held that the principle of ex turpi causa prevented him from claiming.

In Meah v McCreamer (No. 1) (1985) the plaintiff suffered severe head injuries as a result of a road accident caused by the plaintiff’s negligence that subsequently resulted in a change of personality. He became a sexual predator and was eventually convicted of sexually assaulting two women and causing injury to a third. The plaintiff sued the defendant on the grounds that had it not been for the defendant’s negligence the plaintiff would not have undergone the personality change. On the contention that such personality changes were not foreseeable the thin skull rule applied i.e. you take your victim as you find them. The plaintiff was successful.

In Meah v McCreamer (No. 2) (1986) two of the women that the plaintiff had assaulted brought an action to recover from the plaintiff damages for the injuries that they had suffered. The women were successful. The plaintiff subsequently sought to recover the damages from the defendant but the court denied the plaintiff’s claim citing the principle of ex turpi causa – where the act is illegal, a legal remedy is not available.

In Pitt v Hunt (1990) the defendant aged 16 gave the plaintiff aged 18 a ride on his motorbike. The defendant neither had insurance nor had he paid road tax and was on a bike with a much bigger engine than someone his age was allowed to be on. In addition to that both the plaintiff and the defendant were drunk and witnesses gave evidence that they were riding recklessly on the road. There was an accident and the defendant was killed while the plaintiff suffered serious injuries. The plaintiff sued. The court held that there was no duty of care that was owed to the plaintiff by the defendant and the maxim of ex turpi causa prevented a duty of care from arising.

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 the 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.

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.

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 negated liability.

In Vellino v Chief Constable of Greater Manchester (2002) the plaintiff was a known criminal who had been arrested on numerous occasions. He had a propensity to try and escape but the police failed to take the necessary precautions to prevent him from escaping. The plaintiff was taken into custody and he attempted to escape by jumping off the second floor. He suffered serious injuries to the head, back and neck and sued the police for negligence or for not taking the necessary precautions to prevent him from escaping. Applying the maxim of ex turpi causa the court denied the plaintiff’s claim.

In Gray v Thames Trains (2009) the plaintiff suffered serious injuries in a rail crash but despite that went on to kill another person. The plaintiff was subsequently detained in a facility for the mentally ill and while in detention he brought an action to claim damages for the injuries that he had sustained. The plaintiff’s claim was denied and the maxim of ex turpi causa was applied.

In Joyce v O’Brien & Tradex Insurance (2013) two men after committing a burglary tried to make a getaway in a van. The plaintiff fell off the van while they were trying to escape and sued his uncle, the driver of the van, for negligence. The uncle pleaded guilty to driving dangerously. The plaintiff was unsuccessful. The court held that, given the severity of the offence, the doctrine of ex turpi causa would apply. The plaintiff cannot recover damages for injuries that are a consequence of his own criminal act.

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Tort XXXV – Remoteness IV

In McGhee v National Coal Board (1972) the plaintiff worked in the defendants’ brick factory and though in the initial stages he was exposed to only small quantities of dust he was later asked to work in brick kilns and was exposed to hot abrasive dust.

The defendants did not have adequate washing facilities available and the plaintiff had to cycle home, after at least eight hours of toiling in the brick kilns, to have a wash. As a result, the plaintiff contracted dermatitis and he sued.

The court held that the defendants had breached their duty by failing to provide adequate washing and cleaning facilities and it does not matter that there may have been other factors that could have or may have impacted the onset of the illness. The prime factor or the major factor that had caused the plaintiff’s illness was the defendants negligence and therefore the defendants were liable.

In Holtby v Brigham & Cowan (2000) the plaintiff worked as a marine fitter and during the course of his employment he was exposed to asbestos dust and as a result suffered from asbestosis – a chronic long-term lung condition. The plaintiff brought an action against the defendants, his employers at the time. The court held that while the defendants were liable, they were liable only for the period that the plaintiff was working for the defendants.

During the trial, it had come to light that the plaintiff had also been working for other employers and the nature of his work or employment brought him in contact with asbestos dust and this too could have contributed to his illness. As a result, the damages that were awarded were reduced accordingly.

Would the plaintiff have been better off if he had brought an action again all his previous employers because he was working in similar conditions all the time, along the lines of Fitzgerald v Lane (1987), and allowed the courts the opportunity to apportion liability accordingly?

In Heil v Rankin and another (2000) we look at other causes that exacerbate an illness or a previous injury that is still operating and the prior operating illness or injury aggravates a new illness or injury. The plaintiff was a dog handler with the police force and in 1987 he was exposed to a serious crime which left him deeply scarred. In 1993, he was involved in another incident with the defendant which was minor compared to the incident that he was involved in, in 1987, but the injury he sustained as a result of the new incident was aggravated or exacerbated by the previous illness and as a result he was no longer able to continue with the police force.

The plaintiff sued and the court had to decide the extent of the defendant’s liability. Did the thin skull rule i.e. the rule that you take your victim as you find them, apply in this instance? – in which case the defendant would be liable for the full extent of the injury or illness or was it a matter of apportioning liability to the extent of the defendant’s wrongdoing?

The court decided that it was the latter, after taking into account the fact that the plaintiff would also be conferred retirement benefits and other benefits that he was entitled to as a result of retiring with full honors from the police force. In this instance, it was not a matter of under compensating the plaintiff but rather a matter of over compensating him.

In Alcoa Minerals v Broderick (2000) we once again have an opportunity to the examine the liability owed by companies and factories with regards and reference to environmental damage. The defendants were owners of a smelting factory and since 1972 the factory had released pollutants into the air caused by smelting works done in their factory. The pollutants were corrosive and caused damaged to the zinc panels on the roof of the plaintiff’s house.

The court in line with the decision in Margereson & Hancock v JW Roberts Ltd (1996) held that the plaintiff was entitled to claim. However, by the time the matter had come to trial the cost of repairs, propelled by inflation, had quadrupled. The question before the courts was whether the damages that were accorded should correspond with the date of the breach or should the damages correspond with the costs at the time the matter came to trial?

The court held that the general rule was that damages were normally accorded in relation to the date of the breach but this rule was subject to exceptions especially when it would lead to injustice and would result in a decision that was inequitable. Taking into account the defendant’s impecuniosity, the court awarded damages in accordance with the costs at the time the matter came to trial and not according to when the breach occurred.

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Tort XXXIV – Remoteness III

In Crossley v Rawlinson (1981) we once again examine the duty that is owed to a rescuer. The defendant was driving a lorry and while he was on the road a tarpaulin on the back of the lorry caught fire. At the time, the defendant was about 100 meters away from an AA station and an AA patrolman caught sight of the fire. The patrolman grabbed a fire extinguisher and rushed to the rescue but he stepped in a pothole and fell and as a result sustained injuries. The plaintiff sued.

The court held that while it was foreseeable that the fire would prompt a rescuer to come to the aid of the defendant it was unforeseeable that the rescuer would step in a pothole, trip, fall and sustain some form of injury. The court held that the damage was too remote and the plaintiff was unable to claim.

Would the plaintiff have been successful if he’d brought an action against the council whose duty it was to maintain the roads instead of the defendant? As per the decisions in Stovin v Wise (1996) and Gorringe v Calderdale Metropolitan Borough Council (2004) the chances are that the council would not have been held liable but if the plaintiff had fallen into a manhole that was left open because of the negligence of council workers then the plaintiff would most likely be entitled to claim see Hughes v Lord Advocate (1963). Likewise, if the plaintiff had stepped into a hole that was left uncovered after works were done, the plaintiff would also be entitled to claim see Haley v London Electricity Board (1965).

In Ward v Cannock Chase DC (1985) the plaintiff owned a terraced house adjoining a row of terraced houses and some land adjoining the terraced house. As a result of a change in council policy the area was industrialized and many of the terraced houses were vacated and left empty.

The houses were subsequently broken into by vandals and the building materials that were used to construct the houses like tiles were stolen and the condition of the houses deteriorated with time.

Because of continued vandalism the rear wall of the house adjoining the plaintiff’s house collapsed causing damage to the roof of the plaintiff’s house. The council rehoused the plaintiff without repairing the roof of the plaintiff’s house and while the plaintiff was away, thieves broke into the plaintiff’s house and stole items belonging to the plaintiff. The plaintiff sued and the council admitted negligence.

The question before the court was to determine the scope of the council’s liability. The court held that it was foreseeable that the damage to the adjoining house would cause some damage to the plaintiff’s house and therefore the plaintiff was entitled to be compensated accordingly. However, the plaintiff also had a responsibility to secure his chattels and belongings and his failure to do so negated the council’s liability and hence the council was not liable for the items that were stolen and was only liable for damage caused to the house.

In Meah v McCreamer (No. 1) (1985) the plaintiff suffered severe head injuries as a result of a road accident caused by the plaintiff’s negligence that subsequently resulted in a change of personality. He became a sexual predator and was eventually convicted of sexually assaulting two women and causing injury to a third. The plaintiff sued the defendant on the grounds that had it not been for the defendant’s negligence the plaintiff would not have undergone the personality change. On the contention that such personality changes were not foreseeable the thin skull rule applied i.e. you take your victim as you find them. The plaintiff was successful.

In Meah v McCreamer (No. 2) (1986) two of the women that the plaintiff had assaulted brought an action to recover from the plaintiff damages for the injuries that they had suffered. The women were successful. The plaintiff subsequently sought to recover the damages from the defendant but the court denied the plaintiff’s claim citing the principle of ex turpi causa – where the act is illegal, a legal remedy is not available.

In Fitzgerald v Lane (1987) the plaintiff was walking down a pelican crossing when the light for pedestrians turned red. He was hit by the first defendant’s car and thrown on to the path of the second defendant’s car. The plaintiff suffered severe injuries especially to the neck resulting in partial tetraplegia. Because it was impossible to determine which of the defendants caused the injury an action was brought against both defendants.

It was held that because it was impossible to determine which of the defendants had caused the injury, the defendants were jointly liable. The damages were however reduced by one third in line with s1(1) of the Law Reform (Contributory Negligence) Act 1945 – Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. Both the defendants were required to pay one third each as compensation for the injury suffered by the plaintiff.

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Tort XXXIII – Remoteness II

In Doughty v Turner Manufacturing Company (1964) the plaintiff was a worker in a factory who was standing too close to a cauldron. A piece of asbestos accidentally fell into the cauldron that was filled with molten liquid and the subsequent reaction, of the asbestos coming in contact with the molten liquid, resulted in an explosion and the plaintiff was injured. The plaintiff sued.

The duty that was owed to the plaintiff was a duty that was owed by an employer to an employee and an employer had to take reasonable care and caution to ensure that the environment that the employee was working in was safe. In this instance, at the time of the accident, it was unknown, within the industry at least, that asbestos coming in contact with molten liquid would result in an explosion.

The court held that the injury was too remote because the defendant could not have foreseen that the accident would produce the result that it did. In order to establish that the damage was not too remote, there had to be an element of foreseeability.

In Tremain v Pike (1969) the plaintiff was a farm hand who worked with cattle. He contracted a rare disease that is spread by coming in contact with rat’s urine. In most instances the disease causes headaches, chills and muscle pains and it is known to be fatal. The plaintiff sued. The question before the courts was to determine if the disease was foreseeable or it the employer had failed to take reasonable care and caution in ensuring the safety and well-being of his employees.

Looking at the nature of the plaintiff’s work i.e. working with cattle or on a cattle farm, it is difficult to say with any degree of certainty that the plaintiff would come in contact with rat’s urine. It would be an entirely different matter if the plaintiff had come in contact with cattle urine and had contracted some form of disease but the possibility of that was virtually non-existent because cow urine actually has antiseptic properties and unless the cow is diseased it does not cause any illness to the person. The court held that the damage was too remote and the plaintiff was unsuccessful.

In Robinson v The Post Office (1974) the plaintiff was an employee of the post office and while climbing down a ladder the plaintiff slipped and fell, sustaining injuries on his shin. The accident was caused by smidges of oil on the rungs of the ladder. Approximately 8 hours later the plaintiff went to his doctor for a tetanus jab and the doctor did not follow the prescribed procedure.

He was required to inject the plaintiff with a small dose and wait for half an hour to determine if there were any adverse effects to the injection prior to administering the full dosage. The doctor waited for about a minute and administered the full dosage. The injection had an adverse effect on the plaintiff and the plaintiff suffered brain damage. The plaintiff sued.

The question before the court was whether the injury was too remote or if it was the natural consequence of the defendants’ negligence. The plaintiff was successful. The court held that it was foreseeable that the plaintiff would go to a doctor for treatment after the first injury, any normal person would, and therefore the consequent injury that the plaintiff suffered was a direct result of the defendants’ negligence.

The fact that the chances were slim that that the plaintiff would suffer from brain damage did not break the chain of causation and the thin skill rule applied i.e. you take your victim as you find them.

As for whether the intervening act of the doctor (novus actus interveniens) caused a break in the chain of causation, the court held that it did not. It was a likely consequence of the defendants’ negligence that the plaintiff would seek some form or type of medical treatment.

In Lamb v Camden LBC (1981) the plaintiff moved away and left her house vacant. While she was away the council employed some workmen to do some work on the underground pipes close to her house and the faulty repairs subsequently undermined the foundations of her house resulting in damage to her house. A year later squatters moved into the house and caused more damage to the property. The squatters were vacated in due time but they moved in again and caused even more damage to the property. The plaintiff when she realized the extent of the damage that had been done to her house brought an action against the council claiming compensation for not only the damage that was done by the faulty piping but also for the subsequent and follow on damage that was done to her house by the squatters.

The court held that the council was not liable for the damage that was done by the squatters. While it was foreseeable that negligently fixing a pipe, or repairing a pipe would cause some type of damage especially if the pipe was a main, it was not foreseeable that the damaged house would be occupied by squatters who’d cause the property further damage and not once but twice at that. The damage done by the squatters was too remote to claim.

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Tort XXXII – Remoteness I

Once the elements of duty, breach and causation are satisfied, the plaintiff has to establish that the type of damage that was incurred was foreseeable i.e. the damage was not too remote and it was the type of damage that a reasonable man would have in his contemplation or the type of damage that is the natural consequence of the defendant’s negligence.

The test for remoteness in tort is the same as the test for remoteness in contract. In Re Polemis (1921) (Re Polemis & Furness Withy & Company Ltd. (1921)) one of the men employed to load and unload cargo from a ship dropped a plank into the ship’s cargo hold and the plank struck a flint which caused a spark that came in contact with petrol fumes and the resulting fire spread to the hull of the ship and set the whole ship on fire. The court had to decide as to the extent of the defendant’s liability.

It was held that the defendant was not only liable for the damages that he could foresee but was also liable for all the other damages that resulted as a consequence of his action(s) regardless of whether the damage was foreseeable of otherwise. It suffices that the defendant caused the initial act which set in motion a chain of events that resulted in damage(s) that would otherwise not have been foreseeable by a reasonable man.

If Re Polemis were to be strictly applied, a defendant is not only liable for the damages that he caused or was foreseeable but also for all other damage that resulted from his negligent act.

Let’s say for example that a defendant negligently threw his lighted cigarette butt into the open window of an abandoned house and that cigarette butt landed on a stack of newspapers, setting the paper alight and the fire soon spread through the whole house. It is foreseeable that the defendant would be liable for the damage that had been caused to the house.

Now let’s say that the neighbors saw the fire and called the fire department and when the firemen arrived at the scene they realized that there were only 2 fire hydrants in place when their records clearly indicated that there should be at least 3 fire hydrants close to the fire. Hence, they were 1 fire hydrant short.

When the firemen went to use the fire hydrants they realized that there was not enough water in the hydrants because the fire department had failed to maintain the fire hydrants as they were required to do and as a result the neighboring houses also burnt down see Church of Latter-Day Saints v Yorkshire Fire and Civil Defense Authority (1997).

For policy reasons the fire department cannot be made liable or held accountable and the question that is to be asked is would the defendant now be liable not only for the damage to the initial house but also for the fire that damaged or destroyed the adjoining houses?

According to test in Re Polemis he would. Hence if the test were to be applied strictly it would clearly lead to some unfair results or decisions and therefore the test was overruled and replaced instead with the test in the Wagon Mound (1) (1961), which is the common law test to determine if the damage that was caused by someone’s negligence was foreseeable or otherwise.

In the Wagon Mound (1) (1961). The defendant’s vessel the Wagon Mound was docked in a wharf in Sydney and unknown to the defendant the boat leaked oil and the resulting fire caused damage to not only the defendant’s vessel but also to the wharf and to 2 other vessels. The court had to determine the scope of the defendant’s liability. It was held that the defendant was only liable for the damages that he could foresee and the court found in favor of the defendant supplanting or overruling the earlier decision in Re Polemis.

Applying the test in the Wagon Mound (I) let’s go back to the example that we’ve given above, that of the defendant throwing a lighted cigarette butt in the open window of an abandoned house. It is foreseeable that some type of damage would result from the defendant’s negligent act and sadly the worst-case scenario in this particular instance would be that the abandoned house would be razed to the ground.

However, it is difficult to say with any degree of certainty, that that the defendant foresaw that the adjoining houses would also catch fire, especially when in most instances the fire department would have been called to the scene as soon as the fire was spotted. It is also possible to say that the intervention of the fire department had broken the chain of causation and the defendant was no longer liable (novus actus interveniens).

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Tort XXXI – Causation XVII

In AB v Leeds Teaching Hospital NHS Trust (2004) three families brought an action for the removal of tissue and organs from the bodies of their deceased children without first obtaining the consent of the parents against the relevant authority. The tissue and the organs were removed after a post mortem and the parents only became aware of the details many years later. The parents sued.

The court held that the removal of tissue and organs from the bodies of the children without informing the parents first or without obtaining their consent violated the duty health care professionals owed to parents.

In Barber v Somerset County Council (2004) an aging teacher, aged 52 at the time, was employed by a school. The teacher was over burdened by the duties that were given to him and despite repeatedly requesting that the workload be shared, the school did not make the effort to delegate some of the teacher’s duties and as a result the teacher suffered from a breakdown and other related psychosomatic illnesses that were caused by stress and over-exertion. The teacher sued.

Thus far we have looked at the duty that is owed by the school to its student(s). Does the school owe a similar duty to teachers? The answer is yes and the type of duty that we are looking at is the duty that is owed by an employer to an employee in an employer-employee relationship.

An employer owes a duty to ensure that his or her employees do not incur any type of injury while in employment (as we have seen earlier the courts are not concerned with the nature or type of injury – it could either be an illness or a physical injury) see Paris v Stepney (1951) and the employer must take reasonable steps to ensure that the employees do not succumb to an illness or an injury see Smith v Baker (1891) and McWilliams v Arrol (1962).

The school had breached that duty by not listening to the teacher’s concerns and it is fair to say that a reasonable employer would not have failed to act once the matter had been brought to the employer’s attention or would not have acted in the manner in which the school did upon hearing the concerns of the teacher and therefore it can be said with some certainty that the school as the employer had breached its duty to the teacher. It is also fair to say that had it not been for the defendants’ negligence or but for the defendants’ omission, the teacher would not have sustained the illness or injury. The plaintiff was successful and the school was liable.

In Bici v Ministry of Defense (2004) the plaintiff was in a vehicle in Kosovo with other passengers when the defendants, British soldiers serving under the UN on a peacekeeping mission, opened fire killing 2 of the passengers and injuring the plaintiff. The question before the courts was to decide whether the ministry of defense owed the plaintiff a duty of care. The court held that in order to establish whether a duty of care was owed under the circumstances the court had to first determine the nature of the mission.

There is a difference between soldiers on a peacekeeping mission and soldiers on combat duties and soldiers on a peacekeeping mission owed the public at large a duty. It would have been different if the soldiers perceived some sort of a threat or if the plaintiff or someone else in the vehicle had produced a weapon and had pointed it at the soldiers. In this instance however there was no evidence to indicate that the soldiers were under any threat and therefore the soldiers were under the same duty as ordinary citizens. The plaintiff was successful.

In Gorringe v Calderdale Metropolitan Borough Council (2004) the plaintiff drove over a hill too fast and the car she was driving in collided with a bus and as a result she suffered from severe injuries. The plaintiff brought an action against the council for not posting warning signs to caution drivers like the plaintiff against going too fast or to urge the plaintiff to go slower contending that they had breached a statutory duty (a duty imposed by an act of parliament or a statute) by not doing so.

The court in line with the decision in Stovin v Wise (1996) held that the council was not liable. The plaintiff had to exercise the care and caution of an ordinary and competent driver and her failure to do so had caused the accident.

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Tort XXX – Causation XVI

In Donachie v The Chief Constable of the Greater Manchester Police (2004) the plaintiff was an undercover police officer and he was assigned to attach a monitoring device on a car. The car was parked behind a public house and the device failed to transmit any signals the first time it was attached. The plaintiff subsequently had to try 9 times before he could get the device to work properly and each time he tried, the pressure kept mounting and he grew more and more weary, to the extent that he feared increasingly for his life with each step that he took.

As a result of the stress that he was exposed to he developed a stress related illness and later had a stroke due to the illness. The plaintiff sued and he was successful.

The court in line with the decision in Swinney v Chief Constable of Northumbria Police (1996) did not distinguish between an illness and a physical injury. It was sufficient that the defendant owed the plaintiff a duty of care (similar to a duty of care owed in an employer-employee relationship see White v Chief Constable of South Yorkshire (1998)) and that a breach of that duty had led to some type or form of injury.

With regards to the illness, applying the decision in Alcock v Chief Constable of South Yorkshire (1992) the court determined that the plaintiff was a primary victim i.e. someone who fears for his or her own safety and as a result suffers from nervous shock or succumbs to an illness distinct and separate from a physical injury.

With reference to the defective equipment, it is worth asking the question if the police would in turn be able to bring an action against the supplier or the manufacturer for supplying or manufacturing defective equipment?

If an action is to be brought against the supplier the action has be brought in contract and if an action is to be brought against the manufacturer the action has to be brought in tort because there is no contract between the police and the manufacturer. A contract only exists between the police and the supplier. If the manufacturer is also the supplier then the action has to be brought in contract.

Let’s start with the supplier. Section 13 (1) of the Sale of Goods Act 1979 states – “where there is a contract for the sale of goods by description, there is an implied (term) that the goods will correspond with the description” and section 14 (2) of the Sale of Goods Act 1979 states – “where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality”. Therefore given the fact that the monitoring device did not work and most likely did not correspond with its description, i.e. a device that works properly, the police have an action.

The Sale of Goods Act 1979 is further reinforced by the Consumer Rights Act 2015 which implies or incorporates into a contract certain terms like the goods must be fit for its purpose and that the goods must be of merchantable quality. The act applies when – Section 1 (1) “there is an agreement between a trader and a consumer for the trader to supply goods, digital content or services, if the agreement is a contract”.

It might however be easier to go with the requirements in the Sale of Goods Act 1979 because it can’t be said with any degree of certainty that monitoring devices used by the police fall into the category of “consumer goods”. If anything monitoring devices are the exact opposite and should not make their way into the hands of the consumer.

Using the literal rule of interpretation or the strictest or the narrowest rule of interpretation we can safely say that monitoring devices used by the police cannot be classed or classified as “consumer goods” or “goods used by a consumer” or tagged as consumer goods. Therefore it might be more relevant to go with the Sale of Goods Act 1979 as opposed to the Consumer Rights Act 2015.

Now let’s try and determine if the manufacturer can be made liable or accountable. Unless the manufacturer is also the supplier, any action that needs to be brought has to be brought in tort.

Does the manufacturer owe the police a duty? Let’s look at the common law duty. All manufacturers owe a duty to users of the items that they manufacture to ensure that those items do not cause any injury to the user see Donoghue v Stevenson (1932). Hence there is a duty.

The next step is to determine if that duty has been breached and the test that we apply is the reasonable man’s test i.e. would the reasonable man have acted in the way the defendant did or would a reasonable man have failed to act under the circumstances? In this instance we could ask the question would a reasonable manufacturer have sold a defective device or would a reasonable manufacturer have failed to inspect the device prior to selling it? If the answer is no to both questions than there is a breach.

Having determined that there is a duty and that that duty had been breached the next step is to ask the question, if it hadn’t been for the defendants negligence or “but for” the defendants negligence, would the police officer be injured, see Barnett v Chelsea Hospital Management Committee (1969)? If the answer is no then the chances are that the manufacturer was negligent. The final step is to determine proximity.

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Tort XXIX – Causation XV

In Farrell v Avon Health Authority (2001) the plaintiff was a father who’d been told that his newborn baby had died. Shocked by the news the father succumbed to a psychiatric illness. Soon afterwards he was told that the baby was alive and that the hospital had made a mistake. Regardless of the fact that he’d been told that the baby was well, the illness that he succumbed to exacerbated the other problems that he had namely drinking and drug addiction. The plaintiff sued.

The court held that the father was a primary victim and the category of primary victim was broadened following the limitation set by Alcock v Chief Constable of South Yorkshire (1992) which defined a primary victim as someone who fears for his or her own safety and as a result suffers from nervous shock or succumbs to a psychiatric illness.

Nevertheless, as per the decision in McLoughlin v O’Brian (1983) the father was entitled to claim. Any parent who succumbs to nervous shock either as a result of witnessing the state their child was in after an accident or thought that their child was a victim of a mishap or an accident, though that may not necessarily be the case see Hambrook v Stokes Brothers (1925), is entitled to claim.

In Mullaney v Chief Constable of West Midlands (2001) the plaintiff a probationary police officer sustained serious injuries while making an arrest. He tried to request for help or backup and made 4 radio calls for assistance but no help was forthcoming. The plaintiff sued.

The court in line with the decision in Costello v Chief Constable of Northumbria Police (1999) held that police officers owed a duty of care to other police officers and the police in this instance had breached that duty of care by failing to come to the assistance of the probationary officer. The reasoning in the case was similar to the reasoning in the earlier case of Costello v Chief Constable of Northumbria Police (1999).

In Orange v Chief Constable of West Yorkshire (2002) the widow of a man who committed suicide while he was in the custody of the police by hanging himself with a belt sued the police for negligence. The court in line with the decision in Reeves v Commissioner of Police of the Metropolis (1999) held that the police owed the plaintiff a duty of care and that they had breached that duty of care by failing to prevent the suicide.

The court decided that the police had a duty to determine beforehand if a prisoner in their custody was suicide prone or had a tendency to commit suicide and were required to take the necessary precautions, if they found that the prisoner was likely to commit suicide, by ensuring that the prisoner did not have the means to do so.

It addition to committing suicide with belts, other items that prisoners normally have on them or use on their persons can also be used to commit suicide including shirts see Reeves v Commissioner of Police of the Metropolis (1999).

In Bradford-Smart v West Sussex CC (2002) the plaintiff was a student who was repeatedly bullied after school and the incident took place outside the school premises. As a result of the bullying she succumbed to a psychiatric illness. The plaintiff sued. The court held that while a student is under the supervision of the school when he or she is within the school premises that supervision ends as soon as the student leaves the school premises but there may be exceptions when a duty may be imposed on the school in instances where the student is bullied outside school.

The courts did not reject the idea or the possibility of imposing a duty on a school when a student is bullied outside school but whether that duty is breached or otherwise would depend on the facts of the case. The plaintiff was unsuccessful.

With regards to bullying outside school, normally there is very little that the school can do because the child is no longer in their care but a police complaint can be made.

Anyone who stumbles across a bullying incident can make the complaint but if it involves other children in the same school it might be appropriate to bring the matter to the attention of the school and if the school fails to take any action and the victim feels threatened, the victim or anyone on his or her behalf can make the complaint.

Copyright © 2017 by Dyarne Ward

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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

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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.

Copyright © 2017 by Dyarne Ward

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