Private II Cases Flashcards
Kay’s Tutor v Ayrshire & Arran Health Board 1987 SC (HL) 145
Causal Link
Factual Causation
- causa sine qua non
Kay’s son was admitted to the hospital with meningitis.
Due to a mistake, he received a penicillin overdose (about thirty times the normal dose).
The overdose caused toxic effects, including convulsions and hemiparesis (paralysis on one side of his body).
The child survived, but he went deaf.
No previous cases had recorded penicillin causing deafness; often, meningitis itself led to deafness.
The central issue was whether the overdose increased the risk of neurological damage.
The pursuer argued that the overdose made the defenders liable for the resulting deafness.
The House of Lords considered the medical facts.
Lord Keith described meningitis and the treatment process in detail.
The injection of penicillin into the subarachnoid space was meant to attack the bacteria causing the disease.
The overdose was a negligent act.
The Lords held that the overdose increased the risk of neurological damage.
Since deafness was a form of damage, the defenders were liable.
McFarlane v Tayside Health Board 2000 SC (HL) 1
Reparation
Public Policy Consideration
Mr. McFarlane underwent a vasectomy after deciding that their family was complete.
The health professionals informed them that the vasectomy was successful, and contraceptive measures were no longer necessary.
Despite this advice, Mrs. McFarlane became pregnant and gave birth to a healthy child named Catherine.
Mrs. McFarlane brought a claim for the physical discomfort arising from her pregnancy, confinement, and delivery.
Both parents also claimed for the financial costs of raising the child.
The central issue was whether the health professionals were liable for the costs associated with raising a healthy child born due to their erroneous advice.
Specifically, the question was whether it was fair, just, and reasonable to impose such liability.
HofL ruled:
Pain and Suffering: Mrs. McFarlane was entitled to damages for the pain, suffering, and inconvenience of pregnancy and childbirth, as well as extra medical expenses, clothing, and loss of earnings associated with these.
Costs of Raising the Child: However, the parents’ claim for the costs of raising Catherine was not allowed.
Reasoning:
Lord Slynn emphasized that while the doctor had a duty of care regarding pregnancy prevention, this did not extend to covering the costs of raising a child.
Lord Steyn highlighted that imposing such a duty would not be fair, just, or reasonable from the perspective of distributive justice.
Judges consider what an ordinary citizen would regard as right, rather than relying solely on subjective views.
Lewis v British Columbia [1997] SCR 1145
Negligence
Duty of Care
Rocks protruded from a cliff face alongside a highway in British Columbia.
The provincial Ministry of Transportation and Highways engaged an independent contractor to remove these rocks.
The contractor performed the work negligently, leaving some rocks on the cliff face.
Tragically, one of these rocks fell onto a car, fatally injuring the driver.
A common law duty of care “does not usually demand compliance with a specific obligation [requirement or stipulation]. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care.” para 17
The trial judge held that the contractor’s negligence and the ministry’s breach of its duty to maintain the highway made the respondent provincial Crown liable.
The private law duty of care coexisted with statutory authority, and the ministry’s policy decision to undertake highway maintenance triggered this duty.
Donoghue v Stevenson 1932 SC (HL) 31
Establishing a Duty of Care
To Whom is the Duty Owed?
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation when I am directing my mind to the acts or omissions which are called into question.” Lord Atkin (at 44)
The Development of Judicial Thinking
- Proximity
The House of Lords (HoL) found in favor of Mrs. Donoghue.
Lord Atkin delivered the leading judgment, emphasizing the concept of duty of care.
This case laid the foundation for the modern law of negligence, influencing jurisdictions worldwide.
Expanded the duty of care beyond contractual relationships, significantly shaping tort law.
Bourhill v Young 1942 SC (HL) 78
Duty of Care
To Whom is the Duty Owed?
Mr. Young was negligently riding his motorcycle and collided with a car, resulting in his own fatal injuries.
At the time of the crash, Mrs. Euphemia Hay Bourhill © was leaving a tram about 50 feet away.
Mrs. Bourhill heard the crash and witnessed the immediate aftermath.
She was 8 months pregnant at the time.
Later, Mrs. Bourhill gave birth to a stillborn child.
She claimed that she suffered nervous shock, stress, and sustained loss due to Mr. Young’s negligence.
The House of Lords held that Mr. Young was not liable for any psychiatric harm suffered by Mrs. Bourhill.
It was not foreseeable that Mrs. Bourhill would suffer psychiatric harm due to Mr. Young negligently causing a loud traffic accident.
Additionally, Mrs. Bourhill was not sufficiently proximate to the scene of the crash itself.
Therefore, Mr. Young owed no duty of care to Mrs. Bourhill.
“The duty to take care is not owed to the world at large, but to those to whom injury may reasonably and probably be anticipated if the duty is not observed.” Lord Macmillan (at 88)
Muir v Glasgow Corporation 1943 SC (HL) 3
In Respect of What is the Duty Owed?
A group of children from a Sunday school had a day out.
Due to rain, their picnic plans were ruined.
The leader asked the manager of a tearoom (run by Glasgow Corporation) if the children could have their picnic there.
The manager agreed, and the children entered the tearoom.
While in the tearoom, the children lined up along a corridor to buy sweets from a tuck shop.
At that moment, two adults were carrying a large tea urn along the same corridor.
The tea urn slipped, spilling scalding tea and injuring several children, including Muir.
The court held that the manager owed a duty of care to everyone in the tearoom.
However, she did not owe a duty of care specifically to the Sunday school.
As long as the tearoom operated under normal safety standards, no additional precautions were required.
The incident was deemed an unforeseeable accident that could not have been prevented.
“[I]t has long been held in Scotland that all that a person can be bound to foresee are the reasonable and probable consequences of the failure to take care, judged by the standard of the ordinary reasonable man.” (at 8)
The standard of care varies with the degree of risk: “There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved.” per Lord MacMillan
Lord MacMillan emphasised that legal liability is limited to consequences a reasonable person would anticipate.
Mitchell v Glasgow City Council [2009] UKHL 11
Proximity and Foreseeability
HoL addressed the duty of car wowed by landlords to protect tenants from anti-social behaviour by their neighbours. Issue centred around the scope of the duty owed by landlords (including local authorities) to third parties.
The House of Lords unanimously ruled that the Council did not owe a duty of care to Mr. Mitchell.
They relied on the Caparo v Dickman three-stage test:
Foreseeability: The loss must be foreseeable.
Proximity: The relationship between the parties must be sufficiently proximate.
Fairness and reasonableness: It must be fair, just, and reasonable to impose the duty.
“If common place situations of that kind [injuries in the course of employment and road traffic accidents] had to be analysed, the conclusion would be that the duty is owed not simply because loss, injury or damage is reasonably foreseeable. It is because there is a relationship of proximity between the employer and his employees and the driver and other road users. This is sufficient in law to give rise to a duty of care. The duty is created by the relationship, and the scope of the duty is determined by what in the context of that relationship is reasonably foreseeable.” per Lord Hope (at 16)
Hill v Chief Constable of West Yorkshire [1989] AC 53
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. Sufficient proximity between police officers and victims of crime must be established.
The attacker had allegedly committed several murders against young women in the same area before the deceased’s murder.
The plaintiff claimed damages against the defendant for negligence, arguing that the police had failed to apprehend the attacker and prevent her daughter’s murder.
Do the police owe a general duty of care to apprehend an unknown criminal?
Do the police owe a duty of care to individual members of the public who suffer injuries due to criminal activity?
The appeal was dismissed.
The police could be liable in tort to persons injured directly due to their acts and omissions.
However, the police do not owe a general duty of care to apprehend an unknown criminal.
They also do not owe a duty of care to individual members of the public who suffer due to criminal activity.
Exception being when the failure to apprehend the criminal creates an exceptional added risk.
Bolton v Stone [1951] AC 850
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.
Probability of Injury
The claimant was injured when a cricket ball from a neighboring pitch flew into her outside her home.
The cricket field had a 17-foot gap between the ground and the top of the surrounding fence.
Although balls occasionally cleared the fence and landed in yards, such incidents were rare.
The claimant sued the cricket club for negligence.
The central issue was whether the cricket club breached its duty of care.
Specifically, what factors determine how a reasonable person would behave in such circumstances?
The House of Lords held that the cricket club was not negligent.
Relevant factors included:
Likelihood of harm: The risk of harm was very low.
Practical precautions: Erecting a higher fence was impractical.
Socially useful service: The cricket club served the community.
A reasonable cricket club would not have acted differently.
The Wagon Mound No2 [1967] 1 AC 617
Failure to guard against foreseeable, but improbable risks may require justification.
See Lord Reid
The defendant’s vessel, The Wagon Mound, leaked furnace oil at a wharf in Sydney Harbour due to a failure to close a valve.
Some cotton debris became entangled in the oil.
Sparks from welding ignited the oil, leading to rapid fire the cause destruction to boats and the wharf.
The central issue was whether the defendant’s actions constituted negligence or nuisance.
Specifically, the court considered whether the damage caused by the oil spill was reasonably foreseeable.
The Privy Council held that the defendant was liable in nuisance to pay damages.
A reasonable person in the position of the defendant’s chief engineer would have been aware of the risk of the oil igniting on water.
The injury was reasonably foreseeable.
Neglecting the risk was unreasonable, as eliminating it presented no difficulty, disadvantage, or expense.
Hughes v Lord Advocate 1963 SC (HL) 31
“……of course the pursuer has to prove that the defender’s fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way”.
Lord Reid
Workmen employed by the defendant were working on a manhole cover.
During a break, they left the hole encased in a tent with nearby lights to make it visible to oncoming vehicles.
Two young boys encountered the uncovered and unattended manhole and climbed down to see inside.
They brought with them one of the paraffin lamps left out by the workmen.
The lamp was dropped, causing a significant explosion that left both boys with extensive burn injuries.
The central issue was whether a party could be found liable for injuries that could not have been specifically envisaged as resulting from their actions.
The focus was on whether the kind of injury was a foreseeable consequence.
The House of Lords found for the claimants.
While it was indeed reasonably unforeseeable that a dropped lamp in the manhole would cause an explosion of the size that occurred, it was reasonably foreseeable that a person might burn themselves on the unattended paraffin lamps.
The emphasis was on the foreseeability of the kind of damage, rather than the specific actual damage, as the latter standard was considered too high.
McKillen v Barclay-Curle & Co Ltd 1967 SLT 41
Reasonable Foreseeability - particular characteristics of the pursuer?
[The defender]..must take his victim as he finds him, and if his victim has a weak heart and dies as a result of the injury the negligent man is liable in damages for his death, even although a normal man might only in the same circumstances have sustained a relatively trivial injury” (at 42)
The plaintiff, Mr. McKillen, suffered an accident where he fractured a rib.
This accident reactivated his pre-existing tuberculosis.
He sought damages from the defendant, Barclay-Curle & Co Ltd.
The central issue was whether a negligent party is only liable for physical injuries that a reasonable person would foresee as likely to result from their actions.
The court held that it has never been the law of Scotland that a negligent person is only liable for physical injuries that are reasonably foreseeable.
In other words, the defendant’s liability extends beyond injuries that a reasonable person would foresee.
The focus should not be limited to direct consequences but also consider broader implications.
Waugh v James K Allan Ltd 1964 SC (HL) 102
Breach of Duty - ‘Standard of Care’
To breach a duty the conduct must have been voluntary.
The case involved a lorry driver who had been feeling sick due to a gastric upset.
Despite feeling unwell, the driver got behind the wheel of his truck.
He was sweaty and off-color.
After driving a short distance, the lorry swerved, mounted a pavement, and hit a pedestrian.
The lorry driver died at the wheel during the incident.
The central issue was whether the lorry driver’s employer (James K Allan Ltd) could be held vicariously liable for the driver’s actions.
The court found that there was no liability on the part of the employer.
The driver’s illness was not foreseeable, and therefore, there was no duty of care owed to the pedestrian.
The court concluded that the drivers actions did not amount to negligence, and the employer was not liable for the accident.
Nettleship v Weston [1971] 2 Q.B. 691
Breach of Duty
“Standard of Care”
The case involved a learner driver and her passenger (the claimant).
The claimant was a friend of the defendant and was teaching her to drive.
Prior to their arrangement, the claimant sought assurances that the defendant had appropriate insurance.
During a lesson, the defendant panicked while executing a simple maneuver at slow speed, causing the car to crash into a lamppost and injuring the claimant.
The defendant was subsequently convicted of driving without due care and attention.
The central issues were:
Should the defendant be held to the same standard as any other driver?
Had the claimant accepted the risk of being injured?
Was the defendant solely responsible, considering she was not in complete control of the vehicle?
The court held that:
The defense of volenti non fit injura (consent to risk) was not applicable.
The duty of care owed by a learner driver to the public (including passengers) should be measured against the same standard applied to any other driver.
Both the learner and the instructor were jointly responsible for the ancient, leading to a 50% reduction of damages for contributory negligence.
Lamond v Glasgow Corporation 1968 SLT 951
The Probability of Injury
- illustrates the ‘calculus of risk’ approach
The greater the risk the greater the amount of precautions should be taken.
Paris v Stepney BC [1951] AC 367
The potential magnitude of harm if injury occurs
- where there is a known vulnerability of the pursuer
The claimant had suffered damage to one of his eyes in war. He was employed in a garage, but was not provided safety goggles while working with dangerous equipment. As a result, he was blinded when a piece of metal hit him in his undamaged eye. The claimant sued his employer in the tort of negligence.
Establishing the tort of negligence involves establishing that the defendant owed the claimant a duty of care, which they breached in a manner which caused the claimant recoverable harm. To establish a breach of any duty owed, the claimant must establish that the defendant failed to act as a reasonable person would in their position.
HL said that even where a disability doesn’t make risk of injury more likely, the fact that it may make the resulting injury more serious is a factor in determining whether the employer should have taken precautions and was negligent.
In this case, the potential seriousness of the injury, despite relative improbability, meant that Defendant should have taken precautions, i.e. given Plaintiff goggles.
Because the claimant had sight only in one eye, there was a strong potential that the harm would be particular great: more so than would be inflicted on a normally-sighted person. This meant that a reasonable person would take greater steps than usual to protect him.
St George v Home Office [2008] EWCA Civ 1068
The potential magnitude of harm if injury occurs
- where there is a known vulnerability of the pursuer
Brisco v SofS for Scotland 1997 SC 14
Reasonable Precautions
A prison officer was engaged in a simulated riot situation in the exercise of his duties with the prison service. During the course of the simulated riot a heavy fencepost had been dropped on to the officer which resulted in him sustaining injury to his left foot. The officer thereafter brought an action of reparation against the Secretary of State for Scotland in which he argued that the dropping of heavy items in the simulated riot condition was not reasonably required during training in order to enable officers to perform well in an actual riot. The Secretary of State argued that although injury was foreseeable, the magnitude of risk was small and that, given the clothing worn by the officers, the risk of serious injury being sustained was remote. The Lord Ordinary agreed and assoilzied the Secretary of State. The officer reclaimed.
Latimer v AEC Ltd [1953] AC 643
Reasonable Precautions
The complainant was working on nightshift after the flooding and when he was moving a heavy barrel, the slipperiness of the floor caused him to fall. He fell on his back and the barrel proceeded to crush his ankle.
The trial judge had held that the defendants were in breach of their common law duty of care and were liable for damages. The defendants appealed this decision. The issues of this case surrounded the seriousness of the factory conditions and address the question; if all possible safety measures had been completed to protect workers, should the defendants have closed the factory down.
The appeal was allowed. It was held that the defendants had not been negligent and they had taken all reasonable precautions that could have taken to minimise any possibility of risk to their employees. Thus, there was no breach of their duty of care and it was not reasonable to shut down the entire factory. This case states that an employer only had to take steps to minimise risk that a reasonable person would do in the circumstances.
Collins v First Quench Retailing Ltd 2003 SLT 220
Reasonable Precautions
In this case, Jackie Collins (P) was the manager of an off licence in Edinburgh, P sought damages from the employers for psychiatric injuries when she was the victim of an armed robbery. When working alone, 2 men burst in and P was threatened with a knife and thrown into the shelves. -She argued that the managers of the company had failed to take sufficient measures to protect their staff. Jackie pointed to two things that the reasonable employer would have done: 1) had a system of double manning (nobody ever working alone) and (2) security screens or grills that separate the staff from customers. P pointed to the fact that there had been a history of robberies. -The defenders argued that this was not reasonable, and the cost would have been unreasonable. -The courts sided with P and held D liable and said that the violencewas foreseeable due to the manning levels and history. Lord Carloway said that the employment of 2 members of staff would have reduced the risk of attack and would fall in line with police advice. However, they installations of screens was not reasonable as the cost was too great.
-Therefore, they found that a reasonable employer (non-negligent employer) would have set in place the first precaution and not the second
Harris v Perry [2008] EWCA Civ 907
Setting the Standard of Care
Parents invited some of their children’s friends to a 10th birthday party. They hired a bouncy castle and a bungee jump. The accident occurred on the bouncy castle, while three children were playing on it. One child hit another boy on the forehead with his heel, while doing somersaults. The boy (the claimant) was aged 11. He suffered very serious head and skull injuries, leaving him in need of constant care. At the time, one of the host parents was supervising the children on the bouncy castle and the bungee jump. When the accident occurred, she was attending to a child on the bungee jump and her back was turned to the bouncy castle.
Through his mother, the claimant made a negligence claim against the parents, seeking compensation for the injuries suffered in the accident.
The Court of Appeal overturned the judge’s decision. The key questions were what proactive steps reasonable parents should have taken for a child of the claimant’s age playing on a bouncy castle, and secondly what risks ought to have been foreseen, associated with the use of a bouncy castle. The judge had imposed an unreasonably high standard of care on the parents to supervise the children constantly.
It was not reasonably foreseeable that an accident causing injuries of this severity would occur. It is not possible to preclude all risk that children playing together in this way might injure themselves or each other, and in any event it was not in the public interest to impose this high a duty of care on parents. The parents were acting reasonably in concluding that the bouncy castle and bungee jump could be supervised by one adult at the same time. The Court of Appeal described this as a freak and tragic accident that occurred without fault.
Anderson v Imrie [2018] CSIH 18
Setting the Standard of Care
In an action by a pursuer, now aged 21, seeking damages from the defenders in respect of injuries to his skull and brain sustained when aged 8 when heavy gate fell on him at the farm where the defenders lived, the court held that the defenders were occupiers of the farm at the material time for the purposes of the Occupiers’ Liability (Scotland) Act 1960; the first defender was not in breach of the duty he owed as an occupier of the farm to the pursuer but his wife, the second defender, who had assumed responsibility for looking after the pursuer on the day of the accident was in breach and was also negligent at common law; and the pursuer was 25% to blame for the accident: the court made awards of £30,000 for solatium and £285,760 for future loss of earnings.
Brown v Rolls Royce 1960 SC (HL) 22
Standard of Practice
- What if there is a common/usual practice?
A workman, who had contracted industrial dermatitis in the course of his employment, brought an action of damages against his employers on the ground that they had been negligent in failing to provide him with barrier cream. A proof was led in course of which the pursuer led evidence to the effect that it was common practice for employers to supply barrier cream to employees who did the same kind of work as the pursuer. The defenders admitted that barrier cream was in common use as a prophylactic against industrial dermatitis; but they contended that it was not an effective prophylactic. They themselves operated a system based on the provision of adequate washing facilities which they claimed was effective as a precaution against dermatitis. The pursuer, founding on Morton v. William Dixon, Limited, 1909 S. C. 807, maintained that the defenders’ failure to provide barrier cream constituted a fault of omission which amounted to negligence in the circumstances.
The Oropesa 1943 1 All ER 211
Causation
Novus actus interveniens
“To break the chain of causation it must be something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic. I doubt whetherthe law can be stated more precisely than that.” Per Lord Wright
The issues surrounded who was responsible for the death of the seamen, whether it was the Oropesa captain or the Manchester Regiment captain. Advice was sought on whether the captain’s actions of leaving the sinking vessel broke the chain of causation.
It was held that the deaths of the seaman were directly caused by the negligence of the Oropesa. There was no novus actus interveniens. The captain’s decision to leave the boat naturally resulted from the emergency of the severe damage caused by the Oropesa. Thus, there was no break in the chain of causation by the captain. Lord Wright stated that in order to break the chain of causation, the action had to be ‘unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic’ [25].
McWilliams v Archibald Arrol & Co (1962) SC (HL) 70
Factual Causation
causa sine qua non
The claimant was an experienced steel erecter who fell 70 feet to his death from a steel tower he was working on. His employer had failed to provide him with a safety harness and his widow sought damages at common law and for breach of statutory duty for failing to provide appropriate safety equipment, given the height at which her husband was working. The trial judge held breach of duty was established but the claimant would not have worn a belt even if one had been provided, her claim, therefore, failed on causation. The widow appealed.
The widow’s appeal was dismissed by the House of Lords. Although she had successfully established breach of duty, it was reasonable to infer the deceased would not have worn the harness had one been provided and he would, therefore, have suffered the same injury in any event.
Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428
Factual Causation
causa sine qua non
3 nightwatchmen went to the hospital casualty department complaining of vomiting after drinking tea
They were turned away by the hospital
One of them died from Arsenic poisoning, his heirs sued the hospital for negligence
The hospital was not liable due to lack of causation
On the balance of probability, as he would have died anyways since the antidote for arsenic could not have been delivered before his death
McTear v Imperial Tobacco Ltd (2005) 2 SC 1
Factual Causation
- causa sine qua non
Alfred McTear sued Imperial Tobacco Limited (ITL), claiming that his lung cancer was caused by smoking cigarettes manufactured by ITL. After Mr. McTear’s death, his widow pursued the case. Mrs. McTear claimed that throughout the period during which her husband smoked, ITL was negligent in selling cigarettes or in selling them without appropriate warnings. The Court ruled in favor of ITL because the Mrs. McTear could not prove that her husband was not aware of the dangers associated with smoking and thus she had failed to establish the elements necessary for a successful claim. Significantly, the Court held, among other things, that there is no causal connection between smoking and disease and that “epidemiology cannot be used to establish causation in any individual case . . . .”
Sayers v Harlow UDC (1958) 1 WLR 623
reasonably foreseeable conduct of victim (no novus actus interveniens)
Were the attempts of the plaintiff to climb over the door of the toilet cubicle natural and probable consequences of the negligent act of the defendant?
The appeal was allowed.
(1) In determining the remoteness of the damage, the court needs to balance the risks taken by the plaintiff against the consequences of the defendants’ breach of duty.
(2) The plaintiff did not take a risk that was disproportionate to the necessities of her situation. Therefore, the injury that the plaintiff sustained was not too remote from the negligent act of the local authority.
(3) However, on the facts, the plaintiff is guilty of contributory negligence, as having realised that she could not climb over the door, she should have appreciated that she could not rely entirely on the toilet roll holder to support her weight. Hence, she was 25 per cent to blame for the accident.
McKew v Holland Hannen & Cubitts 1970 SC (HL) 20
unreasonable conduct of victim (is novus actus interveniens)
While the defendant accepted liability for the leg injury resulting from the accident at work, the issue in this case concerned the ankle fracture sustained in the second incident. The defendant disputed liability for the act by the complainant. The court must answer whether this was a new intervening act that would break the chain of causation and whether damages were recoverable for the complainant’s ankle injury.
While the employer was negligent and liable for the initial injury, the new action by the complainant was a novus actus interveniens that broke the chain of causation. The complainant had taken an unreasonable risk that could not be foreseen and the defendant could not be liable for the ankle injury. Lord Reid made it clear that an injured person should act reasonably and carefully in his recovery. Trying to descend steep steps unaided with the possible of his leg giving way was an example of unreasonable behaviour.
Allan v Barclay (1864) 2 M 873
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”. Lord Kinloch
This approach equates direct consequences with those that are reasonably foreseeable
Simmons v British Steel plc (2004) SC (HL) 94
Reviewes 30s judgement
Liability limited to foreseeable consequences (see full test per Lord Rodger at para 67)
S was employed at a steelworks in Cambuslang. He suffered a severe blow to the head which caused headaches, dizziness and blurred vision for several weeks. His employers were found liable for this injury and S was awarded £3,573 compensation.
After the accident, S, who had earlier warned British Steel of the danger inherent in the procedure which caused the accident, became angry that the accident had occurred when it could easily have been avoided. This anger exacerbated S’s pre-existing skin condition — psoriasis — and as a result the employer’s Medical Officer had refused to allow him to return to work.
S’s prolonged absence from work made him become preoccupied with the accident and more angry, particularly with the employer’s personnel department’s failure to visit him. This resulted in a deterioration of his mental state and a severe depressive illness.
S claimed compensation for his mental illness. At first instance his claim was dismissed on the basis that he had not established that his mental condition was directly attributable to the accident, given that it was some time after the accident that his anger had exacerbated the psoriasis which led to his absence from work and the deterioration in his mental state. An appeal was allowed. The Scottish court ruled that S’s psoriasis had worsened within a matter of days and there was a direct causal link between the accident and S’s dermatological and psychiatric conditions.
British Steeles appeal to House of Lords dismissed.
Kyle v P&J Stormonth-Darling 1993 SC 57
Remoteness
– loss of chance
- Deprivation of legal right
Failure to launch court appeal papers, whole appeal was abandoned- loss of chance to advance his claim- deprivation of legal right
Campbell v F&F Moffat 1992 SLT 96
Remoteness
– loss of chance
- Utterly speculative
Gregg v Scott [2005] 2 AC 176
Remoteness
- loss of chance
- no remedy simply for reduction in the chance of recovery from illness
Medical Negligence
- ‘Loss of a chance’
- tricky application of the balance of probabilities.
The claimant, Gregg, noticed an unusual lump under his arm and subsequently sought a medical opinion regarding it. His doctor incorrectly and negligently diagnosed the lump as benign. In fact, the lump was a malignant cancer which was not discovered for a further nine months, resulting in a sizable delay in when the claimant begun receiving the correct treatment for the lump.
Could a claimant successfully claim for their ‘loss of a chance’, that is a greater likelihood of having survived treatment.
The House of Lords held (in a notably and controversially split 3 – 2 decision) cited Hotson v East Berkshire Area Health Authority [1987] AC 750 with approval. Thus, whilst the defendant had indeed been negligent in his original assessment, it remained that loss of a chance was not a form of injury for which one could claim damages for tortious negligence in relation to medical problems.
Anns v Merton London Borough Council [1978] AC 728
The Development of Judicial Thinking
- Proximity/foreseeability of harm
The local authority approved building plans for a block of flats and the flats were built later that year. However, by 1970 structural movement had begun to occur in the properties causing cracking to the walls and other damage, causing the properties to become dangerous. The claimant tenants in the flat began proceedings in 1972 in negligence against the council on the basis that the council had failed to properly inspect the building walls properly in order to ensure that the foundations were laid to the correct depth shown in the plans.
There were two specific issues. (1) Whether the council owed a duty of care to the claimants in respect of the incorrect depth of the foundations laid by the third-party builder. (2) Whether the claim was statute barred.
(1) It was held that the council may be liable in negligence, but in limited circumstances. The relevant legislative provisions with regard to inspection did not place a duty on the council to inspect the walls, but did allow it the power to, if it considered inspection necessary. Therefore, failing to inspect would not render the council liable unless it was considered that it had failed to properly exercise its discretion to inspect and that they had failed to ensure proper compliance with building regulations. If inspections were carried out, the council retained discretion as to the manner of the inspections. If this discretion was not genuinely exercised, the council may be liable in negligence. (2) The claim was not statute barred, the limitation period running from the date at which the dangerous state of the property became apparent.
Caparo Industries plc v Dickman [1990] 2 AC 605
The Development of Judicial Thinking
- Proximity, forseeability of harm, fair just and reasonable.
significant legal case that established the tripartite test for determining the duty of care owed in negligence cases. This test departs from previous approaches by starting with the assumption that no duty of care is owed unless specific criteria are met: foreseeability, proximity, and fairness. In Caparo, a firm of accountants was found not to owe a duty of care to shareholders for negligent misstatements in an audit report. The House of Lords held that for a duty of care to exist, there must be proximity, knowledge of the report’s audience and purpose, and reliance by the claimant. However, critics argue that Caparo complicates the established “neighbour” principle from Donoghue v Stevenson.
Analysis of Caparo reveals that while it introduced a general duty of care test, its application is unclear, especially in cases of physical injury. Some argue that economic loss and personal injury should be treated differently under negligence law. Recent cases, such as Arthur JS Hall & Co. v Simons and Customs & Excise v. Barclays Bank, have shown judges bypassing the tripartite test for a simpler analysis of the best legal result based on the specific circumstances. Additionally, Henderson v Merrett Syndicates Ltd indicated that in some cases, the Caparo test is set aside in favor of other legal principles like the Hedley Byrne principle.
The evolving nature of negligence law is highlighted by Coulthard and others v Neville, which suggests that judges increasingly use discretion to achieve the best legal outcome based on case specifics, thus limiting the applicability of Caparo. Overall, while Caparo introduced a significant legal test, its application is subject to judicial discretion and adaptation based on individual case circumstances.
McDyer v The Celtic Football and Athletic Company Limited 2000 S.L.T. 736
Occupiers Liability
an example of difficulties in identifying who had the requisite control over the premises to be deemed an occupier.
While attending Celtic Park for the opening ceremony of the European Summer Special Olympic Games, Mr McDyer sustained a disabling hand injury after he was struck by a piece of timber which had fallen from the stadium canopy. It was understood that the timber had been used to attach temporary banners to the canopy. Mr McDyer sued Celtic (as owners and usual occupiers of the stadium) and the organisers of the event under the 1960 Act.
However, mid-way through the proof (trial), the case against Celtic was abandoned, as it became clear that they were not an occupier at the material time. The case against the organisers, however, succeeded and Mr McDyer was awarded damages.
This case demonstrates that (i) the owner of premises is not always the occupier and (ii) the question of who is an occupier may depend on control of the premises at the material time. It should be noted that there can be more than one occupier at a time.
Scott v London and St. Katherine’s Docks (1865) 3 Hurl. &C. 596
‘The facts speak for themselves’
“But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.“
The claimant was a dockworker who was injured when large, heavy bags of sugar fell from the defendant’s crane and hit him. The claimant sued the defendant in the tort of negligence.
The High Court held that a finding of liability was possible in this case.
The court relied on the doctrine of res ipsa loquitur (literally ‘the thing speaks for itself’). This doctrine holds that if the defendant was in control of a situation, and an accident occurs which would not normally occur in the absence of carelessness of some kind but the cause of the accident is unknown, the burden of proof shifts to the defendant to adduce evidence that he was not negligent. If he cannot, a breach of duty will be made out. If he can, the court must assess this evidence to determine whether it is still reasonable to presume negligence.
The court held that this accident was clearly the sort of thing which would not occur if someone had not been negligent. As the defendant was not able to prove that it had not breached its duty to the claimant, it was liable.
Ward v Tesco Stores [1976] 1 W.L.R. 810
Negligence
- Res Ipsa Loquitor
The claimant was injured when they slipped on spilled yoghurt in the defendant’s store. The defendant adduced evidence that they regularly inspected and cleaned the floors and had policies requiring staff to deal with spillages as soon as they were detected. However, they gave no evidence on when that particular floor had last been inspected or cleaned. The claimant sued the defendant in the tort of negligence.
To prove negligence, the claimant must show that the defendant breached their duty of care: that the defendant failed to act as a reasonable person would in their position.
Where it is not possible for the claimant to prove what the accident’s cause was, the court will presume breach 1) if the defendant was in control of the situation and 2) the accident was not one which normally occurs without carelessness. This is the doctrine of res ipsa loquitur.
The issue was whether these facts satisfied the requirement that the accident be one which does not normally occur without negligence.
The Court of Appeal held that this was an appropriate case for res ipsa loquitur. The second requirement is made out whenever an event occurs which is unusual and (in the absence of a contrary explanation) is more likely to be due to negligence than anything else.
Here, the area was under the defendant’s control and while it was unknown how long the spill had been there, it was likely that it had been there long enough to be dealt with. As such, this accident was one which would not normally occur without negligence. The burden of proving that it had not been there that long was therefore on the defendant.
Dawson v Page 2003 SC 482
Negligence
- Legal control over a property
Mr Dawson worked as a self employed courier and was delivering a package to Ms Page’s cottage. Building works were taking place at the cottage and the surroundings resembled a building site. After making two unsuccessful visits to the cottage to deliver the package, Mr Dawson left the package under an oil storage tank in the back garden. As he was leaving the cottage he slipped on a wet plank over a trench in the garden and injured his hand.
Mr Dawson’s claim for damages failed in the Outer House. After noting wet planks are slippery and a notice is not required to point that out, Lord Glennie found that there was no requirement on Ms Page to exclude people from the site or give warning of the risks. The Inner House observed that the fundamental aim of the 1960 Act had been to the restore a broad test of reasonableness in relation to such claims and rejected Mr Dawson’s appeal which was based the argument that Lord Glennie should not have reached the conclusion that a state of affairs which is obvious is not a danger.
Maloco v Littlewoods Organisation Ltd [1987] A.C. 241
Negligence
- No liability for the intentional actions of trespassers
The defendant purchased a disused cinema with the intention of turning it into a supermarket. Five weeks after the defendant entered the building for the first time, it was set on fire by intruders and destroyed. As a result, the adjacent buildings were also affected and damaged. The cinema building was a target to vandals and children who often played there, but the defendants had had no knowledge of previous attempts to start fire at the cinema buildings.
Does the occupier of a property owe a duty of care to the adjoining occupiers in respect of acts of trespass on his property resulting in damage to the adjoining properties?
The appeals were dismissed
(1) Whether an occupier of a property owe a duty of care to the adjoining occupiers in respect of acts of trespass on his property resulting in damage to the adjoining properties depends on the circumstances of the case and socially accepted standards of behaviour.
(2) Cases where a duty of care exists are likely to be rare.
(3) The defendants were not aware of previous attempts of vandals to start fire and as such, the building did not present an obvious fire risk, so the defendants were not under any duty to anticipate the possibility of fire and take measures to prevent the entry of vandals.
Titchener v British Railways Board 1984 SC (HL) 34
Duty of Care
- Positive duty on occupiers
- Burden of proof is on the pursuer
Defences
- Volenti non fit injuria
The appellant was struck by a train and was very seriously injured. This had taken place whilst the appellant was crossing a railway line between two suburban stations. This route had to be accessed by climbing an embankment and cutting through a gap in a fence. The fence had fallen into disrepair and had not been maintained by the respondent. The appellant brought an action under the Occupiers Liability (Scotland) Act 1960, claiming that the accident was caused by a failure to maintain the fence. The trial judge found for the respondents. The decision was subsequently appealed.
The court was required to weigh whether a duty was owed by the defendant to the claimant and importantly, whether they had discharged this duty by erecting a fence to prevent the public cutting across the railway line. In compiling their decision, the court would also have to decide as to whether the disrepair of the fence could fall under the defendant’s liability.
The appeal was dismissed. The duty that would have been owed under the Occupiers Liability (Scotland) Act 1960 was meant for specific individuals entering the premises in question. The respondents discharged their duty of care by building a fence which was deemed to constitute a sufficient warning to keep people out of the property. There was no duty to maintain the fence in a reasonable state of repair. Moreover, it was deemed that if there had been, the appellant was deemed to have accepted the risks of crossing the train line.
Taylor v Glasgow Cooperation 1922 1 AC 44
Occupiers Liability
- Dangers
The father of a seven-year-old boy sued the Glasgow Corporation for damages following the death of his son who died as a result of eating berries from a poisonous plant that was growing in the Botanic Gardens in Glasgow. The gardens were open to the public and managed by the defendant. The father argued that the defendants allowed children to pass through their grounds frequently yet did not take any action to warn or alleviate the danger caused by the poisonous plant to children. The plant was enclosed by a wooden fence which was open to the public and easily accessed by children.
The question for the court was whether this raised any grounds of appeal for there to be a trial against the defendants for their liability. It was important for the court to consider in this case whether the defendant was negligent in the death of the claimant. It was particularly important to understand the steps that the defendant had taken to prevent the danger caused by the fact that the poisonous berries in question would be particularly attractive to young children.
The court held that the Glasgow Corporation was liable in this instance. They had permitted children to go on to the land and it is understandable that the berries would have appealed to visiting children, thus representing a danger. The defendants were aware of this danger caused by the poisonous berries and did nothing to prevent the damage. On this basis, the action was required to proceed to trial.
Tomlinson v Congleton [2004] 1 A.C. 46
Occupiers Liability
- Dangers
Congleton Borough Council had attempted to turn a disused quarry into a beauty spot and country park by turning the quarry into an artificial lake. The council prohibited swimming, recognising the lake to be dangerous for swimmers and had prominent signs prohibiting swimming, as well as park rangers who sought to prevent swimming. The claimant, ignoring these signs dived in and broke his neck. He sought damages in negligence under the Occupiers Liability Act 1957. The Court of Appeal held that he was a trespasser and so the case fell under the Occupiers Liability Act 1984. Under the provisions of this act, the claimant was awarded damages, but these were reduced by two-thirds under the Law Reform (Contributory Negligence) Act 1945. The council appealed to the House of Lords.
Whether the premises created a risk that the claimant should have been able to expect protection from, even as a trespasser under s1(3)(c) Occupiers Liability Act 1984. Whether the Council had taken such steps as were necessary to reduce the risk under s1(4) of the Act.
The appeal was allowed. The council had no liability to the claimant. The risk of danger was so obvious that it could be said that no risk arose from the state of the premises under s1(3) Occupiers Liability Act 1984. Instead, the risk arose from the claimant’s own actions who voluntarily engaged in this risk. The respondent was a man of full capacity who voluntarily engaged in an activity which had an inherent risk in it. There was nothing inherent about the state of the premises which rendered them any more dangerous than could be expected, and no question of the council being expected to take any further steps to ensure that trespassers did not use the lake.
Michael Leonard v The Loch Lomond & The Trossachs National Park Authority [2014] CSOH 38
Occupiers Liability
- Dangers
The claimant, Michael Leonard, had been walking on a stretch of the West Highland Way above the east shore of Loch Lomond when he was injured in an accident. He was aged 12 at the time. He had walked ahead of his family and was out of sight when the accident happened. He was found unconscious and injured on a road below the path on which he was last seen walking. He did not remember what had happened and there were no witnesses of the accident. It was claimed that the NPA was in breach of its common law duty of care and its statutory duty of care under the Occupiers’ Liability (Scotland) Act 1960 because there were uneven steps on the path and tripping hazards as a result of which the claimant must have tripped and fallen down the steep slope by the side of the path to the road below. There was no handrail and no barrier to prevent him from falling onto the road.
Decision: Lord Uist said that the mechanics of the accident had not been proved. It was up to the claimant to establish the circumstances of the accident on the balance of probabilities, but he had failed to do so in this case. There was no evidence about where any trip or fall had occurred, or even whether it had occurred on the path, or what caused any such trip or fall. There were other possibilities that could account for him being found injured on the road. His claim, therefore, failed on this basis.
However, the Judge said that even if the circumstances of the accident had been established, the NPA would not have been in breach of its duty of care because:- the path had been constructed using a method (stone pitching) that was accepted practice for paths in such a location, and it had been constructed to acceptable standards.
– previous court decisions had shown that there is no duty to protect against obvious or familiar natural features. The fact that the path was not a natural feature made no difference. It was enough that it had become an obvious part of the landscape and use of the path didn’t involve exposure to any special or unfamiliar hazard. People venturing onto the hill must be taken to have accepted the risk of using the path.
– there was no need to provide a handrail or barrier because there was no need to fence off an obvious danger
Taylor Neilson Barratt v Spice Lounge (Scotland) Ltd 2017
Defences
- Contributory Negligence
The pursuer was a 17-year-old woman who fell and seriously injured her arm and jaw when walking along a private roadway at the back of the defender’s restaurant at night. The route was intended to provide access for restaurant deliveries. She could have walked along the public pavement which was well lit. Her route was, however, a known shortcut for pedestrians. The pursuer claimed that a combination of the road being uneven and inadequately lit rendered the route dangerous.
By contrast, in the present case, the Sheriff was willing to conclude that the most likely cause was the uneven ground.
However, the fact that the pursuer had fallen on uneven ground was not sufficient to establish the presence of a danger. Sheriff McGowan referred to Dawson v Page [2012] CSOH 33, which provides that a route is only dangerous if it contains a feature that is unexpected, obscured or otherwise not reasonably anticipated by users. Lighting will only be necessary if use at night is foreseeable.
The Sheriff rejected the pursuer’s and her mother’s evidence that the roadway was “pitch black”. He preferred the evidence of two eyewitnesses, who commented that although the path was dark, there was a lamppost at the top of the street providing light; that they were generally aware of the ground beneath them; and that they did not have any problems walking down the roadway themselves. Accordingly, there was no danger on the roadway and there was no duty on the defender to provide additional lighting.
Although the pursuer’s case failed Sheriff McGowan commented that the time advantage of using the shortcut was “negligible” and the fact that there was an alternative and safer route nearby was important. It was also significant that, on the pursuer’s evidence, the route was dark and potential hazards would be obscured. He concluded that had the pursuer established liability, he would have reduced the damages awarded by 70%.
Various Claimants v The Institute of the Brothers of Christian Schools [2012] UKSC 56
Vicarious Liability
- there must be a relationship between the defender and the wrongdoer
- the relationship between the defender and the wrongdoer must be connect to their act/omission - ‘in the course of employment’.
Vicarious liability can arise even in the absence of an employment contract where there is a relationship sufficiently akin to employment
Acts of sexual abuse are deemed to have a sufficiently close connection to the relationship of employment where there is a significant creation or enhancement of risk of abuse by the relationship (“close connection” test)
A large number of men (C) alleged historical sex abuse at St William, a school for juveniles, by brothers of the Institute of the Brothers of the Christian Schools who were the headmaster and staff (the “Institute”)
The Institute did not own the school but their members acted as the headmaster and teachers of the school
The members were contractually employed not by the Institute but by St William
It had been held that the owner of St William was vicariously liable
Was the Institute also vicariously liable for the tortious acts of the brothers?
The institute was vicariously liable.
Cox v Ministry of Justice [2016] UKSC 10
Employers Liability
- The Control Test
Cox was working in a prison kitchen with a catering assistant and 20 prisoners under her direction. During the course of this work a prisoner fell and dropped a sack of kitchen supplies on her – injuring her. It is accepted that the prisoner was negligent.
The question before the Court therefore, was a straightforward one – whether the prison service was vicariously liable for the act of a prisoner in the course of his work in a prison kitchen, where the act was negligent and caused injury to a member of the prison staff.
Prisoners are in a relationship akin to employment to the Ministry of Justice when carrying out their duties
They are placed by the prison service in a position where there is a risk that they may commit a variety of negligent acts within the field of activities assigned to them
T was working under the direction of the prison staff
Although the prisoner’s activities have the objective of rehabilitation, it is not the only objective, they also form part of the operation of the prison, and are of direct and immediate benefit to the prison service itself: [34]
It does not matter that the activity is not for the purpose of profit: [35]
D was vicariously liable
Kerby v National Coal Board 1958 SC 514
Employers Liability
- ‘In the Course of Employment’
The Kirby v NCB (1958) case involved miners who took a break from work and went to smoke in an unauthorised area. As a result of smoking, there was an explosion and Kirby was injured.
It was held that NBC was not vicariously liable in this case because smoking in the mines was expressly forbidden by statute.
Century Insurance Co. v Northern Ireland Road Transport Board [1942] AC 509
Employers Liability
- ‘In the Course of Employment’
The driver of a petrol lorry, while transferring petrol from the lorry to an underground tank in C’s garage, struck a match to light a cigarette and threw it on the floor causing an explosion
D was vicariously liable as the driver’s act was done in the course of his employment
The act of smoking and throwing the lighted match was part of the act of filling the tank which is within the scope of the driver’s employment
The act could not be treated as a separate act from the circumstances, it was a negligent method of conducting his work
Lister v Hensley Hall [2002] 1 AC 215
Employers Liability
- ‘Close Connection’
- Wrongful behaviour that is closely connected to employment can be counted as within the scope of employment.
- Thus, the employer can be vicariously liable.
A warden was employed at an annex of a boarding school for boys and responsible for the day-to-day running of the school, discipline of the boys, organisation of their daily activities, as well as supervision and care of the boys after school hours. Between 1979 and 1982, the warden had sexually abused a number of the boys, yet unbeknownst to his employers. The sexual abuse took numerous forms and was usually administered in the context of the warden’s control and discipline at the boarding school.
The question arose as to whether the employers of the warden may be held vicariously liable for their employee’s intentional sexual abuse of school boys placed under his care.
The House of Lords held that vicarious liability can arise for unauthorised, intentional wrongdoings committed by an employee acting for his own benefit, in so far as there exists a connection between the wrongdoings and the work for which he was employed to render it within the scope of employment. The Court rejected the restrictive view that vicarious liability could only arise when the employee is acting for his employer’s benefit. On the facts of the case, the Court held that there was a sufficient connection between the work that the warden was employed to do and the abuse that he committed to render it within the scope of employment. The abuse was committed at the time, premises and during the course of the warden’s care of the boys. The warden’s function was to care for the boys and the fact that he performed that function in an abusive manner does not sever the connection with his employment for the purposes of vicarious liability. Accordingly, the employers were held liable.
Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12
Employers Liability
- Vendettas or Frolics
L, a British Virgin Islands policeman, abandoned his post and travelled to another island. He went into a bar, where his former partner worked as a waitress, and opened fire with a police service revolver. The plaintiff, Hartwell, was a British tourist who was at the bar and was shot and wounded by the policeman. L pleaded guilty to the charges of unlawful and malicious wounding and having a firearm with intent to do grievous bodily harm. Hartwell brought civil proceedings against L and the Attorney General of the British Virgin Islands as a representative of its government. The court held in favour of the plaintiff. The Attorney General appealed to the Privy Council submitting that the government owed no duty of care to the plaintiff in respect of the persons to whom the police entrusted firearms as there was no sufficiently proximate relationship between the police and Hartwell.
Acting on a personal vendetta makes it difficult to establish vicarious liability
When entrusting an officer with a firearm, do the police owe a duty to take reasonable care to see that the officer was a suitable person to be entrusted with a dangerous weapon?
The appeal was dismissed.
(1) Referring to Home Office v Dorset Yacht Co Ltd [1970] AC 1004, the police owe a duty of care to the public at large to take reasonable care to see that police officers to whom they entrusted weapons were suitable. The wide reach of the duty is proportionate to the gravity of the risk.
(2) The police was negligent in permitting L to have access to a revolver, given that they knew or ought to have known that he was not a fit and proper person to be entrusted with a gun because, until his domestic problems were resolved, he was volatile and unstable. The standard of diligence expected of a reasonable person when entrusting another with a firearm was high. The police are therefore, liable in negligence.
Bernard v Attorney General of Jamaica [2004] UKPC 47
Employers Liability
- Vendettas or Frolics
A close connection between the employment and the activity can be made through purporting to be acting in the course of employment.
The Claimant was waiting in a queue to use a pay telephone in the Central Sorting Office in Kingston when suddenly a policeman intervened announcing himself as “police.” The Claimant refused and was shot in the head by the policeman. When he recovered consciousness in hospital, he found himself arrested by the same policeman for allegedly assaulting a police officer. The charges were later dropped and the policeman dismissed from the force. No criminal charges were brought against him and he later disappeared. The Claimant sued the Attorney General of Jamaica on the grounds that he was vicariously liable for the policeman’s actions. The trial judge concluded that the Attorney General was vicariously liable, but the Court of Appeal set aside this decision. However they expressed concern about the actions of agents of the Jamaican government and referred to a United Nations report on the issue of summary executions and disappearances on the island. The Court of Appeal recommended an ex gratia payment be made, which the Jamaican government duly did. The Claimant appealed to the Privy Council.
- The Privy Council quashes the Court of Appeal’s decision and restores the trial judge’s judgment, finding vicarious liability established based on the constable’s actions as a policeman and the risks created by the police authorities.
- The Court emphasizes that the policy rationale behind vicarious liability is not based on vague notions of justice but on the risks created by the employer.
- The Board concludes that the trial judge was justified in finding vicarious liability and that the Court of Appeal erred in allowing the appeal.
Kennedy v Cordia (Services) [2016] 1 W.L.R. 597
Employer’s Duty of Care to Employees
- Employers have a duty to take reasonable steps to ensure safe working conditions.
The Supreme Court unanimously allowed Ms Kennedy’s appeal upholding the first instance finding that her employer, by failing to provide protective footwear, was liable for injury which she sustained at work
Wilsons & Clyde Coal Co Ltd v English [1938] A.C. 57
Employer’s Duty of Care to Employees
- Employers cannot delegate their way out of their duty of care.
The defendants had employed the complainant, Mr English. He was working on a repair to an airway on the Mine Jigger Brae, which was used as part of the haulage system. He was going to the bottom of the mine pit when the haulage was started. Although he had tried to evade the danger through a manhole, he was trapped by machinery and it crushed him to death. The defendants and employers, Wilsons & Clyde Co Ltd, tried to claim that it was Mr English’s own negligence that had resulted in his death; he could have taken an alternative route or alerted the employee in charge of the machinery for it to be stopped.
It was held that the defendants had delegated the organisation of a safe working system to one of their employees on the site and they had taken all reasonable steps to ensure they entrusted this duty to an experienced employee. Thus, they were held not to be liable for damages. The complainant appealed on the issue of whether employers had a non-delegable duty of care towards the safety of workers.
The House of Lords decided that Wilsons & Clyde Co Ltd, as an employer, had a duty of care to ensure a safe system of work and this duty could not be fully delegated to another employee. Thus, the defendants always remain responsible for a safe workplace for their employees and are vicariously liable for any negligence of another. This duty includes three aspects; providing proper materials, employing competent workers and providing valuable supervision. The defendants were liable for damages.
Davie v New Merton Board Mills Ltd. and Another Respondents [1959] 2 W.L.R. 331
Employers Liability
- Safe Equipment
No liability for a defective tool that was sourced from reputable manufacturers and suppliers.
The House of Lords found the employer not liable when an employee suffered injury at work ashe was using a defective tool provided by the employer. The plaintiff was using a metal tool provided by his employer which, because it had been manufactured at the incorrect temperature, was too hard to be safe to use.
When the plaintiff struck his hammer against the tool a piece of metal flew into his left eye and caused blindness in that eye. Because the fault in the tool could not be detected with reasonable inspection and the employer had bought it froma reputable supplier, the employer was not held liable.
However, the effect of Davie was subsequently reversed by the Employers’ Liability (Defective Equipment) Act 1969, s 1(1). The position now is that if an employee is injured in the course of his employment by a defect in equipment provided by his employer and he can prove that the defect was caused by the fault of some third party (usually the manufacturer), then the employer will be liable.
McGregor v AAH Pharmaceuticals Ltd (1996)
Employers Liability
- Safe systems and competent employees
Employers have a duty to provide and implement a safesystem of working.
Safe system - must have a safe system AND insure that it is implemented
Concerning this case, there was a bonus scheme that incentivised employees to retrieve items of stock from shelves quickly. It was well known, that although employees were told to use ladders, they would just climbup the shelves to save time. One employee fell and raised an action.The bonus scheme and a lack of ladders meant that the system was unsafe, and the employers knew that most employees did not use the ladders. This was a breach.
Wilson v Merry & Cunningham (1866-69) L.R. 1 Sc. 326
Employers Liability
- Duty to employ competent individuals
Hatton v Sutherland [2004] 1 W.L.R. 1089
Employers Liability
- Psychiatric Injury
- Employers have a duty of care to take reasonable steps to avoid injuring employees’ mental health
- Employers are entitled to take what an employee says at face value and to assume that they can handle the normal preassures of the job.
- The employee must show that there were reasonable steps that the employer did not take.
Keen v Tayside Contracts 2003 S.L.T. 500
Employers Liability
- Psychiatric Injury
- PTSD/ ‘nervous shock’
A (and others) v National Blood Authority [2001] 3 All E.R.289
Product Liability
- contaminated blood
B (a child) v McDonald’s Restaurants Ltd [2002] EWHC490
Product liability
- hot drinks
Caparo Industries Plc v Dickman [1990] UKHL 2
The introduction discusses the landmark case Caparo Industries plc v Dickman, which established the tripartite test for establishing a duty of care. This test, departing from previous precedents such as Donoghue v Stevenson and Anns v Merton London Borough Council, presumes no duty of care unless the criteria of foreseeability, proximity, and fairness are met. However, the Caparo approach has been criticized for complicating the “neighbour” principle and diverging from precedent. The case involved Caparo buying shares in a company based on an audit report, which misrepresented the firm’s profits, leading to losses for Caparo. The House of Lords ruled that no duty of care was owed to shareholders, highlighting factors such as proximity and knowledge of reliance on the report. Despite Caparo’s significance in establishing a general duty of care, its application remains unclear, especially in cases involving physical injury. Some judges and academics argue for a simpler approach or reliance on existing principles like Donoghue. Recent cases demonstrate a trend towards judges exercising discretion based on the specifics of each case, limiting the application of Caparo and emphasizing pragmatism in legal development.
Worsley v Tambrands Ltd [1999] EWHC 273 (QB)
Product Liability
- Tampons
Hunter v Hanley 1955 SC 200
Medical Negligence
Lord Clyde (at 206)
“To establish liability by a doctor where deviation from normal practice is alleged, three factors require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly ( and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There isclearly a heavy onus on a pursuer to establish these three facts, and without all threehis case will fail.”
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Standard of Care in Professional Negligence
“…The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art” (at 586)
No negligence simply where there is a contrary body of opinion.
The defendant was the body who employed a doctor who had not given a mentally-ill patient (the claimant) muscle-relaxant drugs nor restrained them prior to giving them electro-convulsive therapy. The claimant suffered injuries during the procedure. The claimant sued the defendant, claiming the doctor was negligent for not restraining them or giving them the drug.
Establishing the tort of negligence involves establishing that the defendant breached their duty of care to the claimant. To establish breach, the claimant must establish that the defendant failed to act as a reasonable person would in their position. This standard is higher in the case of professionals: they must act as a reasonable professional would.
The issue in this case was how to assess the standard of care imposed on a professional defendant where a substantial portion of professionals opposed a particular practice, while others did not.
The High Court held that the doctor had not breached his duty to the patient, and so the defendant was not liable.
McNair J set out the test for determining the standard of care owed by medical professionals to their patients (sometimes referred to as the ‘Bolam test’). The 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. If this is established, it does not matter that there are others with expertise who would disagree with the practice.
As the methods used in this case were approved of by a responsible portion of the medical profession, there was no breach.
Gordon v Wilson 1992 SLT 849
Professional Negligence
- Challenges from the Pursuer Perspective
Honisz v Lothian Health Board [2006] CSOH 24 at 39
Professional Negligence
- Professional negligence cannot be established by preferring one body of opinion over another.
Bolam; R v Bateman
We have established that a professional must adopt a course of conduct which can be endorsed by a responsible body of other professionals (Hunter) – there is no expectation of exceptional skill, only the ordinary skill of an ordinarily competent professional.
A qualified medical practitioner was convicted of gross negligence manslaughter arising out of the delivery of a patient in child birth, Ms. Harding. During the delivery of her child, the doctor eventually resorted to an operation which required ‘considerable force.’ The delivered child was dead. During the operation, the doctor accidentally removed a portion of Ms. Harding’s uterus. Initially refusing to do so, the doctor eventually transferred Ms. Harding to an infirmary where she was found unfit to undergo an operation and died two days later. A post mortem examination revealed various internal ruptures and substantial removal of the uterus.
The issue concerned the criminal liability of the doctor for the death of Ms. Harding due to the internal ruptures, substantial removal of the uterus, and delay in admitting her to an infirmary. The appeal considered whether the jury’s instructions concerning the level of negligence warranting criminal liability for manslaughter.
The Court held that in order to establish criminal liability for manslaughter by negligence, it must be proven that (1) the doctor owed a duty of care to his patient, (2) this duty was not discharged, (3) this failure to discharge his duty caused the death, and, (4) a gross level of negligence to satisfy the mens rea element of the crime. In doing so, the Court distinguished between civil liability warranting compensation pursuant to an assessment of the damage and criminal liability which requires mens rea concerning the degree of negligence. Considering this distinction between negligence giving rise to compensation and negligence constituting a crime, the Court of Appeal found the judge in first instance misdirected the jury and quashed the guilty verdict.
Wilsher v Essex Area Health Authority [1987] QB 730
Professional Negligence
- Inexperienced professional
An infant was delivered prematurely and shortly after was administered oxygen by a junior doctor, accidentally providing too much. The baby was later diagnosed with a retinal condition, which severely limited his sight. Five potential causes or factors were identified to explain the condition, four relating to his premature birth and the fifth being the junior doctor’s actions.
Whether the health authority for which the junior doctor worked could be held liable for his actions where it could not be definitively stated what the chief cause of the injury was. Moreover, should a junior doctor be held to the same professional standards as a fully qualified doctor. Further, should the burden of proof regarding the potential relationship between the negligent actions and the injuries fall to the claimant or the defendant.
At first instance the Court found the defendant, Essex Area Health Authority, liable for the infant’s injuries, citing McGhee v National Coal Board [1973] 1 WLR 1 as laying down the precedent that where there existed a plurality of possible causes, the burden fell to the defendant to prove that their actions had not been the but for or material cause of the injury.
The House of Lords subsequently allowed the defendant’s appeal and overturned the first instance judgment stating that whilst the health authority could be held liable for the junior doctor’s actions as junior doctors owed the same duty of care as a fully qualified doctor, the case of McGhee had been wrongly interpreted at first instance; regardless of the number of potential causes of injury, it always falls to the claimant to establish the likelihood of causation.
Sidaway v Bethlem Royal Hospital Board of Governors [1985] AC 871
Professional Negligence
There will be no distinction regarding experience, but there is specificityregarding specialities
JG Martin Plant Hire Ltd v Macdonald 1996 SLT 1192
Professional Negligence
Where there is a contractual relationship, a pursuer may base an action on both the law of delict and breach of contract.
Hedley Byrne & Co Ltd v Heller & Partners Ltd 1964 AC 465
Professional Negligence
- Established that a party may be liable for negligent advice, even without a contractual relationship.
liability will exist for advice, just as foracts
In 1963, the House of Lords established that in certain circumstances, pure economic loss in tort could be recoverable in English law if a duty of care arose in the making of statements. This was exemplified in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd, where a negligent misstatement led to financial loss. The court laid out four conditions for pure economic loss to be recoverable: a fiduciary relationship, voluntary assumption of risk, reliance on advice, and reasonableness of that reliance.
Following Hedley Byrne, there were developments in tortious liability, including cases involving defective products and negligent oversight. However, subsequent cases such as Caparo Industries plc v Dickman refined the test for establishing proximity in misstatement cases. Additionally, the case of Henderson v Merrett Syndicates Ltd (No. 1) expanded liability to situations where there was an assumption of responsibility for another’s affairs, even without explicit advice being relied upon.
Despite limitations set by Caparo, later decisions have extended the duty of care in various contexts, including writing references, advice on pension rights, and expert witnesses. Notably, in ‘will cases,’ such as White v Jones, solicitors were held liable for economic loss resulting from negligent provision of services, despite potential conflicts of interest.
In conclusion, Hedley Byrne created a cause of action for loss based on reliance on statements outside of contract law. However, its application has fluctuated over the years, leading to liability for negligent statements made in a fiduciary capacity and beyond, into the realm of professional services.
Galoo Ltd v Bright Graham Murray [1994] 1 WLR 1360
Professional Negligence
- Need for pursuer to establish they were going to rely on the defender’s statements
McFarlane v Tayside Health Board [2000] 2 AC 59
Professional Negligence
Steel v NRAM [2018] 1WLR 1190
Professional Negligence
Reliance on misstatements, and the assumption of responsibility for the accuracy of a statement on the part of a defender,
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145
Professional Negligence
- an expansion of the Hedley Byrne criteria.
Wilsher v Essex Health Authority (1987)
Medical Negligence
- Breach of the duty of care - novice?
Medical Negligence
- Where there are many contributing factors, causation will be proven where the breach made a material contribution to the injury OR where it can be shown that the breach amounted to a material increase to the risk of injury
An infant was delivered prematurely and shortly after was administered oxygen by a junior doctor, accidentally providing too much. The baby was later diagnosed with a retinal condition, which severely limited his sight. Five potential causes or factors were identified to explain the condition, four relating to his premature birth and the fifth being the junior doctor’s actions.
Whether the health authority for which the junior doctor worked could be held liable for his actions where it could not be definitively stated what the chief cause of the injury was. Moreover, should a junior doctor be held to the same professional standards as a fully qualified doctor. Further, should the burden of proof regarding the potential relationship between the negligent actions and the injuries fall to the claimant or the defendant.
At first instance the Court found the defendant, Essex Area Health Authority, liable for the infant’s injuries, citing McGhee v National Coal Board [1973] 1 WLR 1 as laying down the precedent that where there existed a plurality of possible causes, the burden fell to the defendant to prove that their actions had not been the but for or material cause of the injury.
The House of Lords subsequently allowed the defendant’s appeal and overturned the first instance judgment stating that whilst the health authority could be held liable for the junior doctor’s actions as junior doctors owed the same duty of care as a fully qualified doctor, the case of McGhee had been wrongly interpreted at first instance; regardless of the number of potential causes of injury, it always falls to the claimant to establish the likelihood of causation.
Hunter v Hanley
Medical Negligence
- The Standard of Care
“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men …..The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.” (per Lord Clyde at 217)
“It follows from what I have said that in regard to allegations of deviation from ordinary professional practice….such deviation is not necessarily evidence of negligence……..To establish liability by a doctor where deviation from normal practice is alleged, three factors require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly ( and this is of crucial importance)it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on a pursuer to establish these three facts, and without all three his case will fail.” (per Lord Clyde at 217)
olam v Friern Hospital Management Committee [1957] 1 WLR 583
Standard of Care
“a man need not possess the highest expert skill … it is sufficient if he exercises the ordinarily skill of an ordinary competent man exercising that particular art… [and acts] in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art… a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.” (McNair J)
The defendant was the body who employed a doctor who had not given a mentally-ill patient (the claimant) muscle-relaxant drugs nor restrained them prior to giving them electro-convulsive therapy. The claimant suffered injuries during the procedure. The claimant sued the defendant, claiming the doctor was negligent for not restraining them or giving them the drug.
Establishing the tort of negligence involves establishing that the defendant breached their duty of care to the claimant. To establish breach, the claimant must establish that the defendant failed to act as a reasonable person would in their position. This standard is higher in the case of professionals: they must act as a reasonable professional would.
The issue in this case was how to assess the standard of care imposed on a professional defendant where a substantial portion of professionals opposed a particular practice, while others did not.
The High Court held that the doctor had not breached his duty to the patient, and so the defendant was not liable.
McNair J set out the test for determining the standard of care owed by medical professionals to their patients (sometimes referred to as the ‘Bolam test’). The 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. If this is established, it does not matter that there are others with expertise who would disagree with the practice.
As the methods used in this case were approved of by a responsible portion of the medical profession, there was no breach.
Montgomery
Medical Negligence
- Material Risks
“The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should be reasonably aware that the particular patient would be likely to attach significance to it” (para 87)
McCulloch v Forth Valley Health Board [2023] UKSC 2
Medical Negligence
Confirms that the Bolam test remains in place where a doctor decides whether to disclose alternative treatments
Barnett
Medical Negligence
- it must be established that it is more than 50% probable that but for the wrongdoing the damage would not have occurred (‘balance of probabilities’)
Sabri-Tabrizi v Lothian Health Board
Medical Negligence
- Intervening Acts: Novus Actus Interveniens
