Case Law

Question 1

Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] Definition of Policy

Answer 1

‘the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied

Question 2

Policy 2 extremes of view

Answer 2

Public policy is ‘a very unruly horse, and once you get astride of it you never know where it will carry you’. (Burrough J, Richardson v Mellish (1824) at 252)

Vs

Denning

With a good man [or presumably woman] in the saddle, the unruly horse can be kept in control. It can jump over obstacles. (Lord Denning MR, Enderby Town Football Club Ltd v The Football Association Ltd [1971] at 606)

Question 3

Tort Law - Patrick Atiyah

Answer 3

As such argues that the operation of tort law is largely arbitrary or—to use his words—a lottery.

Question 4

Tomlinson v Congleton Borough Council [2003]

Answer 4

Occupiers Liability Swimmer breaks neck in lake which you couldnt swim in

an unrestrained culture of blame and compensation

Trespass Vs
To impose liability in this situation would mean closing of many such venues up and down the country for fear of litigation

Question 5

Reasons for Tort

Answer 5

Compensation

Vindication
The vindicatory function of tort is often coupled with a wish to gain publicity about what has happened—to ‘stop it from ever happening again’.

Question 6

Compensation Culture Arguments

Question 7

Saying Sorry

Answer 7

Compensation Act 2006
‘An apology, an offer of treatment or other redress, shall not in itself amount to an admission of negligence’

Question 8

Tort Law and HRA 1998

Answer 8

it imposes a duty on the state to respect and act consistently with the human rights set down in the Convention
where the state does not respect or act consistently with these rights, the HRA enables an individual to make a claim against the state (s 7). This is what is known as ‘vertical effect
Decisions must be HRA compliant - hence the rights and duties which exist between private individuals, must include adequate protection of the rights provided for in the Act (this is what is meant by the HRA having ‘horizontal’ effect)

Question 9

Campbell v Mirror Group Newspapers [2004]

Answer 9

House of Lords refused to recognise a new cause of action on the basis of the HRA but amended an existing action to protect the claimant’s privacy.

Question 10

Donoghue v Stevenson [1932]

Answer 10

neighbour principle
Mrs Donoghue went to a cafe with a friend who bought her ice cream and a bottle of ginger beer. The ginger beer contained a decomposed snail. Mrs Donoghue suffered from personal injury due to this and proceeded to claim against the manufacturer which was successful and resulted in the establishment of the modern law of negligence and the neighbour test.Not only did this case establish the liability of manufacturers to consumers with whom they did not have a direct contractual relationship, but also the now established principle that forms the basis of negligence.

Question 11

Caparo Industries Vs Dickman 1990

Answer 11

House of Lords set out who owes a duty to who:
Reasonable foresight of harm
sufficient proximity of relationship between claimant and defendant
that is it fair and just to impose a duty. (common law tort)

Question 12

Barrett v Ministry of Defence [1995] 3 All ER 87

Answer 12

Naval Officer gets drunk and dies
His colleagues owed him a duty of care as soon as he became unconscious

Question 13

Hedley Byrne & Co Ltd v Heller & Partners Ltd 1967

Answer 13

Economic Loss to be recompensated by Tort Law

Question 14

Caparo Industries Plc v Dickman (1990)

Answer 14

The basic facts were that investors lost money when they bought a company; they had relied on the company’s accounts which had been audited by Touche Ross.It was this case that decided the law which today underlies all professional negligence actions against all those who give clients advice - including lawyers.

Question 15

Mulcahy v the Ministry of Defence. 1996

Answer 15

one soldier does not owe to another a duty of care when engaging the enemy in the course of hostilities.

Question 16

Arthur JS Hall v Simons.

Answer 16

At one time advocates in court were immune from actions in negligence. In 2002, this time-honoured immunity was effectively removed by the House of Lords in

Question 17

Condon v Basi,

Answer 17

Footballers can sue for negligent tackles

Question 18

Capital Counties v Hampshire County Council case.

Answer 18

Fire Service acting as a public duty not eligible to be sued for negligence

Question 19

Kent v Griffiths

Answer 19

Ambulance Service can be sued for negligence as part of the health service

Question 20

Hill v Chief Constable of West Yorkshire Police (1989)

Answer 20

Man dies because Police dont catch a serial killer. Are the police Negligent? No because:
The Law Lords held that it wasn’t fair, just and reasonable to impose a duty on the police. They argued that this would lead to a flood of claims, and a defensive attitude by the police when performing their all-important function of investigating crime. Compare to Kirkham - the police had taken custody of this individual.

Question 21

Osman v Ferguson (1993) CA

and

Osman v United Kingdom (2000)

Answer 21

This time the proximity between the parties was closer than Hill v Chief Constable. The police knew the potential victim and the potential attacker. Nevertheless, the court refused to impose a duty, and struck the case out as disclosing no close of action.

The reasons were entirely based on the third Caparo criterion discussed in the Hill case. The Osmans took the case to the European Court of Human Rights, alleging that they’d been denied a fair trial and that the House of Lords showed insufficient respect for life.

Question 22

Swinney v Chief Constable of Northumbria

Answer 22

Police let documents be taken from their car and an informer was then found out
Duty of Care owed to Informers

Question 23

Bolton v Stone (1951)

Answer 23

Cricket ball hit a woman outside the ground - how likely was it that it was to happen? the HL decided not very likely

Question 24

Whitehouse v Jordan [1981]

Answer 24

In the case of Whitehouse and Jordan, Mrs Whitehouse was having difficulty
while giving birth. The registrar carried out a high forceps delivery which
involves using forceps on the baby’s head to help the delivery. Unfortunately,
the registrar pulled too hard for too long before giving up and delivering by
caesarean section. The baby was brain-damaged by the pressure exerted by
the forceps and the family sued. Although the danger of injury was extremely
serious, the appellate court classed this as an error of judgement rather than
a breach of duty.

Question 25

Watt and Hertfordshire (Watt v Hertfordshire County Council [1954]

Answer 25

Fire Engine Holding down the lifting equipment someone got injured when it slipped

There was no breach of duty. The emergency of the situation and utility of the defendant’s conduct in saving a life outweighed the need to take precautions.

Question 26

Latimer v AEC Ltd [1953]

Answer 26

When a factory floor was flooded the owners made a substantial effort to clear
the water and they laid down plenty of sawdust. Despite these measures,
Latimer, a worker, slipped on a wet patch of oil and water, hurting his back.
Latimer sued his employer, AEC,.but the court decided that the factory had
done as much as was reasonable and was not in breach.

Question 27

Roe v Minister of Health [1954] 2 QB 66, [1954] 2 All ER 131

Answer 27

In the case of Roe and the Ministry of Health, Roe needed an anaesthetic
called nupercaine before an operation. The anaesthetic was to be injected in
his spine. The hospital stored nupercaine in glass ampoules. To keep them
sterile these ampoules were stored in a disinfectant called phenol. Unknown
to the hospital, one of these ampoules had an invisible hair line fracture in it.
Phenol, had seeped through into the nupercaine. When Roe was injected in
the spine with the anaesthetic, he received a mixture of nupercaine and
phenol. He was left paralysed, and sued

So, on every occasion, the court will consider the facts from the standpoint of the reasonable person faced with the particular circumstances at the time, and judge whether or not the defendant’s behaviour lived up to the requisite objective standard

Denning ‘looking at a 1947 case with 1954 spectacles (the seepage was known about by 54)

Question 28

Mullin v Richards [1998] 1 All ER 920, CA.

Answer 28

At the end of a lesson, two fifteen-year-old schoolgirls, Teresa Mullin and
Heidi Richards, were having a mock sword fight using plastic rulers. A piece
of the ruler broke off and went into Teresa’s eye. She sued not only the
teacher for failing to prevent the incident, and the school, but also her fellow
pupil Heidi. One question before the court was how Heidi’s behaviour should
be judged? They decided that a child should be judged by the standards of a
reasonable child of the same age. On the facts she was not in breach.

Question 29

Nettleship v Weston.

Answer 29

The standard of care for a learner driver would be the usual standard applied to drivers: that of an experienced and skilled driver.[2] The policy consideration that played a role in this decision was that the learner driver was covered by insurance.[3] It is essential to consider an objective standard while dealing with a case of negligence The fall out would be that a doctor could be held to a different level because they arent a surgeon

Question 30

Marc Rich v Bishop Rock Marine [1995] UKHL 4

Answer 30

Facts: This case demonstrates the importance of the policy limb of the three-part test for duty of care. A non-seaworthy ship was classified as seaworthy by the classification society. It later sank, losing all its cargo. The owners of the cargo brought the case forward. The questins for the court was whether or not a dty was owed by the people who classified the ship as seaworthy to the owners of the cargo?

Held: It was held that no duty was owed. The reason for this was on policy ground: it was said that classification societies may not be interested in providing services in the future if a duty of care is owed here. NOT FAIR AND REASONABLE FOR A NOT FOR PROFIT TO BE FOUND TO HAVE A DUTY OF CARE

Question 31

Bourhill v Young [1943] AC 92

Answer 31

Woman miscarries at the sight of car crash - negligent driver not found not liable he could not have foreseen this accident causing the miscarriage

Psychiatric harm to secondary victims must be reasonably foreseeable by the defendant to be recoverable

Question 32

Kirkham v CC Greater Manchester Police [1990]

Answer 32

Mr Kirkham was an alcoholic and suffered from depression. He had made a two suicide attempts on 6th Jan 1980. He was admitted to hospital but discharged himself the following day. When he arrived home his wife prevented him from drinking and he became violent and started smashing furniture. The police were called and arrested him. His wife informed them of his suicide attempts and discharging himself from hospital and it was agreed that he should be remanded in custody for his own safety. However, the police failed inform the prison authorities that Mr Kirkham was a suicide risk - the police owed a duty of care when they took him into custody.

Question 33

Home Office v Dorset Yacht Co [1970]

Answer 33

A duty of care be owed by the defendant to the claimant in relation to intentional acts by a third party in certain circumstances

here must be some special relationship between the custodian and the person to whom the duty is owed, which distinguishes the particular risk owed to the general risk from criminal acts shared by the public

Question 34

Smith v Littlewoods [1987]

Answer 34

Highlights the exceptions to the omissions rule and rationalises prior cases dealing with omissions
No special relationship to a third party
D did not owe a duty of care to prevent the trespassers from starting the fire
Opposite Yacht case

Question 35

Carmarthenshire CC v Lewis [1955]

Answer 35

A duty of care can arise from a relationship of control over a third party (in this case the child)

A young child ran from his nursery school premises onto the busy road nearby
C’s husband swerved his car to avoid the child and he was killed when he hit a tree
C sued the Council (D) that runs the nursery for negligence

Duty of care

The nursery is under a duty of care to motorists to take reasonable precautions to prevent children in their care from wandering onto the road
Lord Reid at p. 565B: although there has been no such reported case, likely because in most cases of that kind it would not be worth while to sue the person who was in charge of the child, “the categories of negligence are never closed.”

Question 36

Bolam v Friern Hospital Management Committee [1957]

Answer 36

C was neither given muscle-relaxant drugs nor restrained by his doctor (D) prior to electro-convulsive therapy
C was also not warned about the risk involved by D
As a result, C suffered injuries during the procedure
Professional witnesses had confirmed that much of medical opinion was opposed to the use of relaxant drugs and manual restraints could sometimes increase the risk of fracture, and that it was common practice not to warn of risk unless they are asked

D had not breached his duty of care to C
D had acted in a way accepted as proper by a responsible body of individuals

Laid down the Bolam test for the standard of care to be exercised by medical professionals, which states that a medical professional will not be in breach of their duty of care if they acted in a manner which was in accordance with practices accepted as proper by a responsible body of other medical professionals with expertise in that particular area

Question 37

Wilsher v Essex Area HA

Answer 37

A premature baby was given too much oxygen by a junior doctor. The baby suffered from a condition affecting his retina which left him totally blind in one eye and partially sighted in the other. The condition could have been caused by the excess oxygen he had been exposed to or it could have been caused by four other factors unrelated to the oxygen, but related to the premature birth. The trial judge found the Health Athority liable. He applied McGhee v NCB but stated that McGhee had reversed the burden of proof where there was more than one possible causes. The Health Authority appealed.

Held:

Appeal allowed.

The defendant was in breach of duty. A junior doctor owes the same standard of care as a qualified doctor. McGhee did not reverse the burden of proof which always remains on the claimant.

Question 38

Paris v Stepney Borough Council [1951] AC 367

Answer 38

Features of the Victim

D fell below the standard of care of a reasonable employer, which would provide goggles to an employee with one eye

In negligence, if the victim has a risk of greater injury than co-workers because of a known disability, this must be accounted for when determining whether a reasonable person would have taken precautions to prevent such injury

Question 39

Herald of Free Enterprise

Answer 39

Like the Bolam Principle - it is rare for a court to say that Common Practice can equal negligence but in the case of the RoRo not checking the doors being the common practice it was labelled as being negligent

Question 40

Mansfield v Weetabix [1998]

Answer 40

Where D’s mental capacity is impaired by an illness which he is unaware of and D is unaware he is impaired at the time of the purported negligent act, the standard of care must shift to what is expected of a reasonable person with such a condition

Question 41

Stovin v Wise - 1996

Answer 41

The issue in this context was whether a local authority could be found to owe a common law duty of care if it had not complied with a public law obligation.

Justiciability: Under statutes, public bodies are authorised to take decisions on particular matters (i.e. they have the power to do so), but how and when and whether they exercise these powers is a matter for their discretion, and may come down to a number of different factors such as resource-allocation, prioritisation of resources or services and so on.

It was acknowledged that the Highways Act 1980, s 79 did allow a local authority the power to remove obstructions. However, the statutory power did not give rise to a common law duty of care.

If this was the case, an unacceptable burden would be placed on the local authority’s budget in respect of being permitted to exercise its discretion, especially since road users were already required to carry insurance. In other words, it was not fair, just or reasonable to impose a duty in these circumstances.