cases Flashcards
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*Donoghue v Stevenson
Product Liability - ultimate consumer neighbour principle
Authority that manufacturer of ANY product owes a duty of care to the ultimate consumer
Limitations - duty only extends to latent defects, duty to prevent harm to consumer’s person or property.
D went to café with friend. The friend bought D a bottle of ginger -opaque glass. Decomposing remains of snake in the bottle. D becomes ill. PROBLEM - no contractual remedy for D. it was found - the ultimate consumer could sue in delict, duty of care owed to D, breach of duty due to carelessness, relationship was sufficiently proximate.
*Kay’s Tutor v Ayrshire & Arran Health Board
Factual causation
Child suffering from meningitis, overdose of penicillin. Severe convulsions but recovered. Suffered deafness.
Could not prove causa sine qua non (but for?). Action failed.
*Bourhill v Young
To whom a duty of care is owed to
Secondary victim
LEADING CASE
Y motorcyclist drove too fast, overtook stationary tramcar on the near side. Crashed into a car, which was turning right into side street some 50 feet from tramcar. Y was killed. Accident was accepted to be Y’s fault.
Time of the accident B was on the far side of tramcar - did not SEE the accident, only heard it. Saw the blood on the road. Claimed that shock of the accident caused her to miscarry.
Y did not owe B a duty of care. She was out with the area if risk of potential physical harm.
General rule established - no duty of care to prevent secondary victims from suffering mental harm; liability only extends to primary victims
*McFarlane v Tayside Health Board
Professional Negligence - Negligence Misstatements and Advice
Wrongful conception.
Birth to healthy child after failed conception. Rejected at first instance, accepted in second instance (all damages given), and accepted but limited in third instance.
House of Lords accepted that unplanned conception is breach of duty and mother could recover solatium and derivative economic loss for loss of earnings during pregnancy
HOWEVER principle of non-recoverability for cost of bringing up a healthy child.
*Muir v Glasgow Corporation
To what respect is the duty owed
Standard of Care
Proximity: Scope of Duty of Care
A - manageress of tearoom gave permission to a school picnic to host in the establishment due to rain spoiling their outdoor picnic.
Access tearoom through narrow passage.
Urn with boiling water carried through passage.
Urn dropped and scalded several children.
Never established how urn was dropped
Action against Glas Corp as A’s employers.
Accepted A owed DoC.
House of Lords found that A was only liable for those consequences of her actions which a reasonable person in her position would have in contemplation.
Standard of care - standard of the odinary reasonable man.
Test established for cope of care - the reasonable foresight of the hypothetical reasonable person in the position of the defender as opposed to what the defender actually foresaw.
No absolute standard, degree of care varies with the risk
*Hill v Chief Constable of West Yorkshire
Duties are owed to identifiable persons or persons within a reasonably well defined class as being reasonably likely to be affected by the defender’s conduct.
Mother of the last victim of the Yorkshire Ripper brought action against the Chief Constable.
Found no duty to be owed - no proximity, not fair just or reasonable to impose a duty
*Bolton v Stone
Duties are owed in respect of harm that would have been within the defender’s contemplation as being reasonably likely to follow from their conduct.
In 30 YEARS a cricket ball has been hit out of cricket ground 6 TIMES.
No negligence found in lack of precautions.
Reasonable person could not foresaw.
The Wagon Mound No2
Failure to guard against foreseeable, but improbable risks may require justification.
*Hughes v Lord Advocate
Scope of Duty
AUTHORITY
Workmen left manhole uncovered and unattended. Outside of manhole was a ladder, a rope, and paraffin warning lamps.
Two boys snuck in - tripped over the lamp which caused an explosion. One suffered severe burns.
Experts deemed the explosion was not reasonably foreseeable.
Accepted the workmen were careless for leaving the manhole unattended.
Sufficient to establish breach.
Authority that the scope of duty will extend to the kind or type of injury which is a reasonable and probable consequence of the defender’s careless act or omission
Fact that the injuries were more severe and the explosion were not anticipated is irrelevant.
The type of injury and the possibility of an accident was reasonably foreseeable.
Duty of care owed and breached,
Where the harm of the type covered by the duty arises there may be liability notwithstanding the fact that the precise circumstances under which the harm was incurred could not have been foreseen.
McWilliams v Archibald Arrol & Co
Causa sine qua non - factual causation
Employers not provided safety belt. Steel erector.
Fell and died.
Would not have worn belt even if It was provided.
Widow raised action.
Breach - not providing safety belt.
Action failed - could not prove causa sine qua non.
McKillen v Barclay-Curley & Co Ltd
The thin skull rule
Thin skull rule - no duty arises from pursuer’s unknown susceptibility, defender must “take the victim as he finds him/her”
*Nettleship v Weston
Standard of Care - learner driver
Volenti Non Fit Injuria
Expected to meet the same standard as an experienced driver.
Nothing will suffice short of an agreement to waive any claim for negligence.
Waugh v James K Allan Ltd
To breach a duty the conduct must have been voluntary
Driver of lorry did not purposefully swerve lorry which injured pedestrians.
Driver died at the wheel; conduct not voluntary
Paris v Stepney BC
The potential magnitude of harm if injury occurs
Employee not given googles got splinter in his good eye, other eye blind. Resulted in total blindness. Not normal practice to provide googles. However known weakness.
Extra precautions should have been taken - breach found
Lamond v Glasgow Corporation
Probability of Injury - Bolton v Stone
6,000 golf balls played onto footpath each year therefore it is foreseeable - breach found.
St George v Home Office
The potential magnitude of harm if injury occurs
Prisoner known to suffer from epilepsy, going through withdrawal, prison allocated them top bed.
Resulted in injury - breach found.
Latimer v AEC Ltd
What would be considered to be reasonable precautions
Floor slippery due to flood in factory, floor covered in sawdust except a small portion. Employee slipped on that portion which caused injury.
Danger not such to enforce on employer, acted reasonably.
Brisco v SofS for Scotland
What would be considered to be reasonable precautions
Employer claims employee are in breach of duty in failing to give instructions on not throwing - no breach found.
Harris v Perry
Setting the standard
11-year-old boy and another child attempted to do somersault and broke his arm.
Supervisor backs were turned. No constant surveillance necessary.
No breach
Collins v First Quench Retailing Ltd
What would be considered to be reasonable precautions
Employee worked alone on off-licence, following armed robbery suffered depression and PTSD.
Claimed employer should have provided safety glass.
Employer negligent for making her work on her own.
Anderson v Imrie
Setting the standard
8-year-old left unsupervised, and suffered brain injury. Occupier of farm looking after the boy and their son.
Occupiers liability.
*Sayers v Harlow UDC
Novus actus interveniens
Contributory negligence
Plaintiff entered public toilet. Door locked. Banged on door and put hand out of window to attempt to get attention.
15 min later - attempted to escape through space between top of the door and roof.
Left foot on toilet right foot on toilet roll, one hand on the toilet cistern and other on the top of the door.
Couldn’t squeeze out - lost balance and fell.
Courts held that it was reasonable that anyone in her position would attempt to escape.
No novus actus interveniens and defendant’s breach was the causa causans of accident.
Her carelessness did contribute - contributory negligence. 25% less damages
McKew v Holland Hannen & Cubitts
Novus actus interveniens
Pursuer injured leg whilst at work - workplace accident.
Employers negligent. Consequences of accident leg would get numb and give away.
Leg went numb and gave away whilst going down stairs.
Decided to jump and injured other leg.
Employers liable for the first injury but not for second injury since there WAS novus actus interveniens.
*McTear v Imperial Tobacco Ltd
Factual causation
Husband died of lung cancer - smoke cigarettes. Cannot prove that husband would not have died if not smoked.
As a consumer he had choice and is aware of the dangers due to packaging making it clear of dangers.
Brown v Rolls Royce
What if there is a common practice
Common practice - provide barrier cream.
Employees commonly come into contact with oil and other substances.
Barrier cream not provided in this case.
Medical evidence provided - alternative provisions such as washing facilities.
Contracted dermatitis - question of whether it was due to breach or not, washing facilities was available not effective.
Employer had done what was reasonable in the circumstances.
Allan v Barclay
Remoteness - Foreseeability
The grand rule on the subject of damages is that none can be claimed except such as naturally and directly arise out of the wrong done, and such, therefore as may reasonably be supposed to have been in the view of the wrongdoer.
Simmons v British Steel plc
Remoteness - Foreseeability
Liability limited to foreseeable consequences.
*Kyle v P&J Stormonth-Darling
Remoteness – loss of chance
deprivation of legal right.
Failure to lodge appeal papers by solicitors, which meant appeal being abandoned. Liable.
*Campbell v F&F Moffat
Remoteness – loss of chance
utterly speculative.
Compensation of loss of redundancy payment. Employment terminated, place closed down. All employees given redundancy payment.
Too remote.
McDyer v The Celtic Football and Athletic Company Limited
Occupier’s Liability
Wifi not loading - continue later.
*Gregg v Scot
Remoteness – loss of chance
no remedy simply for reduction in the chance of recovery from illness.
Negligence of GP - lump benign. Referred 9 months later - lump cancerous.
Treatment delayed by 9 months - argued loss of chance of recovery.
Unable to prove failure to survive was caused by diagnosis and cancer
*Scott v London and St. Katherine’s Docks
Man got hit on the head with a sugar packet, originally found no liability.
In the appeal -
3 elements:
1) Defender sole control of offending thing
2) That the incident would not have occurred had due care been taken
3) No explanation given by defenders as to how incident happened.
*Ward v Tesco Stores
Occupier’s Liability
3 elements:
1) Defender sole control of offending thing
2) That the incident would not have occurred had due care been taken
3) No explanation given by defenders as to how incident happened.
Maloco v Littlewoods Organisation Ltd
Occupier’s Liability -
No liability for the intentional actions of trespassers
Titchener v British Railways Board
Occupier’s Liability - Duty of Care,
Defences - Volenti non fit injuria
Dawson v Page
Occupier’s Liability
Legal control over a property
Taylor v Glasgow Cooperation
Occupier’s Liability - dangers
A child eating poisonous berries - young child and no sign pointing out danger - no reasonable care not taken.
Tomlinson v Congleton
Occupier’s Liability - dangers
Swimming in a lake - swimming prohibited - no duty breached since obvious dangers in nature.
Michael Leonard v The Loch Lomond & The Trossachs National Park Authority
Occupier’s Liability - dangers
Falling down a hill - family on visit - 12 year old badly injured - not determine how he was injured - danger not unusual - no breach.
*Cox v Ministry of Justice
Employer’s liability.
Vicarious Liability
The Control Test
Catering managed by the prisoner, someone got negligently injured. Prison was found liable since there was sufficient control.
Test -
1) Wrongdoer acting on behalf of defender
2) Wrongdoer’s activity is connected to defender’s business
3) Employing wrongdoer for activity, defender has created risk of delict being committed.
Taylor Neilson Barratt v Spice Lounge (Scotland) Ltd
Occupier’s Liability - Defences - contributory negligence
Young woman walking took a shortcut that was not meant for people walking there. Badly injured. Company was occupiers. Sufficient light on road - reasonable care taken.
*Various Claimants v The Institute of the Brothers of Christian Schools
Vicarious Liability
Sexual assaults made by brothers in a Christian school.
School found liable since the brother were within their property. While not technically employees - relationship akin to employees enough.
Employer-employee relationship -
1) Relationship between defender and wrongdoer
2) Relationship must be connect to their act/omission - ‘in the course of employment’
*Kerby v National Coal Board
Employers’ Liability - In the course of employment
Miners on break - went to smoke - prohibited place - caused explosion.
Were on break - outside bounds of employment
Course of employment -
1) Employer authorised act?
2) Employee authorised to do work - did in manner not authorised?
a. Employer still vicariously liable here - within scope of employment.
3) Has employee acted outside scope of employment?
Century Insurance Co. v Northern Ireland Road Transport Board
Employers’ Liability - In the course of employment
Employee light cig on transport of fuel.
Employer found liable.
Attorney General of the British Virgin Islands v Hartwell
Employers’ Liability - Vendettas or Frolics
Left station and went to bar where ex was working and attempted to shoot her and shot someone else.
Employer found liable since it was negligent for giving him firearm.
Not found vicariously liable since he left station - frolicking on his own.
- Acting on personal vendetta making it difficult to establish vicarious liability
