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.

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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.

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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.

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Tort XXVI – Causation XII

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Tort XXV – Causation XI

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

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

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

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

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

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

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

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

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

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

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

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

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

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Tort XXIV – Causation X

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

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

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

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

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

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

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

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Tort XXIII – Causation IX

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

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

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

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

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

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

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

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

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

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

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

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

Copyright © 2017 by Dyarne Ward

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