Week 15: Negligence - Breach of Duty Flashcards
Waugh v James K Allan Ltd 1964
Principle Established:
* To breach a duty the action/conduct must have been voluntary.
Facts:
o Case involved a lorry driver who was sick , he shortly after got behind the wheel of his lorry , after driving about a ¼ of a mile the lorry swerved and mounted a pavement hitting a pedestrian , the driver died at the wheel of a heart attack .
o The claim was that the driver was negligent , court found there was no liability as the driver was 44 with good health , a reasonable man would not think he was this seriously ill .
o The conduct was not voluntary.
When is a duty of care considered to be breached?
When conduct ‘falls short’ of the standard care
Is the standard of care objective or subjective?
Objective.
Ordinary reasonable person test applied.
Does the standard vary according to the risk.
Yes.
‘There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved’
Nettleship v Weston [1971]
This case concerned a learner driver crashing
Among other conclusions the court declared that learner drivers should be held to the same standard than that of an experienced driver.
The court further declared that the teacher too was culpable and therefore a reduction in damages by 50% was warranted.
Who is the onus on?
The persuer
What are the three primary considerations when examining the standard of care.
- Probability of injury
- Potential magnitude of harm if injury occurs
- Practicality and cost of ‘reasonable’ precautions
Bolton v Stone 1951
- The House of Lords held that the cricket club was not in breach of their duty.
- The following factors were held to be relevant to whether a defendant is in breach of their duty of care:
o The likelihood of harm;
o What precautions were practical for a defendant to take in terms of cost and effort;
o Whether the defendant provides a socially-useful service.
Lamond v Glasgow Corporation 1968
- Golfer on course owned by Glasgow corp hit a ball and hit a passer by on the head who was walking next to it.
- They said that this was reasonably foreseeable as the footpath was struck around 6000 times a year, roughly 20 times a day.
- Therefore, there was a duty of care and precautions should have been taken.
- Contrasts Bolton v Stone.
St George v Home Office
Principle: Where there is a known vulnerability of the pursuer
- The more serious the potential harm, the more serious precautions the defender is expected to take
- A prisoner who fell out of a top bunk bed while suffering a withdrawal seizure, thereby
- sustaining a head injury that resulted in brain damage, should not have his damages reduced for contributory negligence.
- Although he was at “fault”, within the meaning of the Law Reform (Contributory Negligence) Act 1945 s.1(1) , in becoming addicted to drugs and alcohol in his mid-teens, the addiction was not a potent cause of the injury.
- Similar to Paris v Stepney BC, the duty is not owed to the ‘ordinary’ person, it is owed to that particular actor. In this circumstance the actor was suffering from withdraw and was therefore more susceptible to seizures and additional safeguards should have been implemented.
What are the two aspects of causation?
Facts and Law.
What is meant by factual causation?
What CAUSAL CONNECTION exited between the breach of duty and the harm complained of
‘But for’ the breach…
What is meant by lawful causation?
Was the original act of negligence an effective cause of the resultant harm?
Immediate/dominate/effective cause
Novus actus interveniens
Something that breaks the chain of causation.
What is considered to have broken the chain of causation?
i will call ultroneous (voluntary), something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic.
McWilliams v Archibald Arrol & Co (1962)
- Was the breach (failure to provide safety belt) the causa sine qua non of his death
- Not liable, as even had they given the deceased a safety belt he would not have worn it
- Employers don’t have a duty to exhort their employees into wearing PPE
- Novus actus interveniens
Barnett v Chelsea & Kensington Hospital Management Committee
- Was the failure to treat the causa sine qua non of his death? Or did the arsenic poisoning cause’ the death?
- Doctor failed to examine a patient, reffering him to his personal physician
- However the case failed, as even if he had received medical treatment he would have died regardless
- Causation not established.
McTear v Imperial Tobacco ltd
- Was the spouse able to show that her husband would not have died of lung cancer had he not smoked the defender’s brand of cigarette
- Persuer failed to evidence that the defendants cigarettes were the direct cause of her husband’s death
- Causation not established.
Fairchild v Glenhaven Funeral Services 2002
- Exposure to asbestos – career span/succession of different employers/different workplaces
- Did all employers – materially increase the risk?
- Could not prove balance of probabilities that working for the employer caused illness.
- Usual ‘but for’ test of causation should be relaxed on policy grounds to allow claimants to recover
- Followed precedent established in McGhee and Bonnington Castings.
Sayers v Harlow UDC [1958]
o Reasonably foreseeability conduct of victim (no novus actus intervenians)
- Cubicle case
- S, finding herself locked in the cubicle of a public lavatory owing to the defective state of the lock, and having been unsuccessful in attracting assistance, attempted to escape by climbing over the door.
- To do this, she stood with one foot on the toilet seat and the other on a revolving toilet roll holder, whilst holding onto a pipe and the door with her hands.
-She then realised that this method of escape was not possible.
-On climbing down again she placed some weight on the toilet roll holder, which rotated, causing her to fall to the ground and she was injured.
-The issue was whether her attempts to climb out of the toilet cubicle which led to her injury were a natural and probable consequence of the negligent act of the lavatory owner, the respondent local authority. - Therefore, the injury was not too remote from the negligent act of the local authority who operated the lavatory
McKew v Holland Hannen & Cubitts 1970
o Unreasonable conduct of victim (is novus actus interveniens)
- Appellant was the victim of a workplace accident, which the respondents were admittedly guilty of
- Injury caused his leg to give way
- Leg gave way when descending stairs
- Appellant decided to jump as opposed to fall
- Causation broken, not liable.
- This contrasts Sawyers.
Simmons v British Steel Plc (2004)
Liability limited to foreseeable consequences (para 67)
- Workplace accident resulted in depressive state and worsening of a skin condition
- Despite skin condition being pre-existing, held that there was in fact causation.
Kyle v P&J Stormotnth-Darling 1993
‘Depravation of legal right’
- Solicitor failed to submit papers
- Litigation failed, despite appellant being wronged.
Campbell v F&F Moffat
‘Utterly speculative’
- Man made redundant
- Mills later closes
- Seeks damages in the amount of redundancy payment his former colleagues received
- Speculative.
- Example of a ‘loss of chance’
