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DELICT: NEGLIGENCE
- 1) Duty of care
- *Foreseeability > Bourhill v Young 1942
*Proximity > Donoghue v Stevenson1932
*Fair, just and reasonable > Mitchell v
Glasgow City Council 2009
- 1) Pure economic Loss
- "Loss to the pursuer which is does not arise from
physical damage to property or injury. E.G= loss of
profit, loss of gain, expenditure. *Unintentional
(negligently caused economic loss) is recoverable
since the 1960s (Hedley-Byrne) HL
- Hedley- Byrne v Heller [1964] = HB Asked for credit reference
from their Bank regarding an advertising comp– (Upon
receiving positive financial info, advertising orders were made)
But Advert. company went bust. Wanted to sue the bank, but
there was an express disclaimer in bank approval HELD=
Because of express disclaimer, the bank could not be liable.
But important announcements on “duty of care” (in obiter
dicta) “negligent representation” can give rise to duty in where
there has been pure economic loss. ** This case recorded
high authority with subsequent cases like (Esso Petroleum v
Mardon)
- (ii) Negligent provision of
services (White v Jones [1995])
(Junior Books v Veitchi 1982)
- White v Jones [1995] Solicitor was
asked to prepare a will, but
negligently failed to do so before the
testator died. Two claimants who
were to benefit under the will sued in
negligence. Held: On the question of
whether the solicitor D owed the
beneficiaries a duty of care, there
was no clear precedent. The majority
of the House agreed that the
beneficiaries should succeed. D lost
- White v Jones [1995] Solicitor was
asked to prepare a will, but
negligently failed to do so before the
testator died. Two claimants who
were to benefit under the will sued in
negligence. Held: On the question of
whether the solicitor D owed the
beneficiaries a duty of care, there
was no clear precedent. The majority
of the House agreed that the
beneficiaries should succeed. D lost
- **Caparo v Dickman [1990] UKHL** C
Bought shares in fidelity company
(accounts were misleading. Action brought
against the auditors (Argued they were
careless, and overvalue the company)
HELD: case was unsuccessful but
(important for negligent misrepresentation
and economic loss) Lord Bridge asked
(whether is ‘fair just and reasonable’)
Test: pursuer must establish* (proximity,
foreseeability, fair just and reasonable)
- (ii) Negligent provision of
services (White v Jones [1995])
(Junior Books v Veitchi 1982)
- (Hedley Byrne v Heller) (Spart
Steel v Martin) (Murphy v
Brentwood) (White v Jones)
- (i) Negligent misrepresentation
- East Lothian AA v Haddington 1980=
Fishing in river Tyde – pollution of river Held-
could not sue the council (property belonging
to another) ‘fishing permits’ not enough- No Duty of care
- *Spartan Steel v Martin [1973] Facts:
Defendants were employed working on road –
during works they cut an electricity cable –
affecting a nearby factory Factory which
suffered a Power shut and lost 400 pounds.
Held = Claimant could recover money
(foreseeable financial damage, derived from
damage to their property) But could not
recover category (1700 pounds) category of
profits where there was no ‘property damage’
- *Murphy v Brentwood DC [1991] = Plaintiff bought a
new house (that had several structural problems)
Council had approved the defective plans. Plaintiff
did not have funds to repair the house – House was
sold for a £35.000 loss. Court agreed that this
amounted to serious economic loss (assets worth
less) (POST CAPARO) Court considered whether
money could be repaid from Council – House of
Lords “expressly overruled” Anns v Merton *Held –
law of contract better be used here- No reason to
extend liability further under the law of Tort Court
sought no reason, why individuals should bypass
the role and assurances of builder as part of
contracts per Lord Bridge (p 475) + Pure Economic
loss does not have to be justified i.e. damage to
property/ unnecessary expenditure) per Lord Oliver
- Defective buildings
- Defective buildings
- *Dynamco v Holland 1971 =Power cable cut
– affected residents nearby, but no major
damage Held- could not recover
- *Murphy v Brentwood DC [1991] = Plaintiff bought a
new house (that had several structural problems)
Council had approved the defective plans. Plaintiff
did not have funds to repair the house – House was
sold for a £35.000 loss. Court agreed that this
amounted to serious economic loss (assets worth
less) (POST CAPARO) Court considered whether
money could be repaid from Council – House of
Lords “expressly overruled” Anns v Merton *Held –
law of contract better be used here- No reason to
extend liability further under the law of Tort Court
sought no reason, why individuals should bypass
the role and assurances of builder as part of
contracts per Lord Bridge (p 475) + Pure Economic
loss does not have to be justified i.e. damage to
property/ unnecessary expenditure) per Lord Oliver
- (i) Damage to property not belonging to the
pursuer --
- *Spartan Steel v Martin [1973] Facts:
Defendants were employed working on road –
during works they cut an electricity cable –
affecting a nearby factory Factory which
suffered a Power shut and lost 400 pounds.
Held = Claimant could recover money
(foreseeable financial damage, derived from
damage to their property) But could not
recover category (1700 pounds) category of
profits where there was no ‘property damage’
- Courts reluctant to recognise duty to
economic loss
- Hedley- Byrne v Heller [1964] = HB Asked for credit reference
from their Bank regarding an advertising comp– (Upon
receiving positive financial info, advertising orders were made)
But Advert. company went bust. Wanted to sue the bank, but
there was an express disclaimer in bank approval HELD=
Because of express disclaimer, the bank could not be liable.
But important announcements on “duty of care” (in obiter
dicta) “negligent representation” can give rise to duty in where
there has been pure economic loss. ** This case recorded
high authority with subsequent cases like (Esso Petroleum v
Mardon)
- "Loss to the pursuer which is does not arise from
physical damage to property or injury. E.G= loss of
profit, loss of gain, expenditure. *Unintentional
(negligently caused economic loss) is recoverable
since the 1960s (Hedley-Byrne) HL
- 2) Psychiatric Harm
- (Alcock v Chief Constable) (White v Chief
Constable) Page v Smith) ***b=(McLoughlin v
O’Brian) (Roberston v Forth Road Bridge
Board) (Barber v Somerset)
- *Alcock v Chief Constable [1992] Hillsborough
disaster= too many fans allowed into the
ground, due to negligence on the part of the
police) Those affected were watching the
game on tv (passive and unwilling witnesses
would be secondary victims) law imposes a
duty in relation to physical harm, but also to
psychiatric harm
- *White v Chief Constable of S
Yorks [1999] Police officers
suffering for “trauma” following
Hillsborough disaster (complex
claim that would result in
controversy) Chadwick was
considered and was
“distinguished” – In this case
HELD- Only people in close
connection can be regarded as
“primary victim” – policemen not
immediate risk of physical harm
(Chadwick was however)!!
- *Page v Smith [1996]
Car collision – plaintiff argued
he suffered from a condition that
arose from the accident HL= held
Plaintiff could recover, because
other driver could have foreseen
that negligent driving would
result in some form of harm
- *Page v Smith [1996]
Car collision – plaintiff argued
he suffered from a condition that
arose from the accident HL= held
Plaintiff could recover, because
other driver could have foreseen
that negligent driving would
result in some form of harm
- *Alcock HELD:(If the relationship is
established, it could apply to a ‘fiancée’ =
BUT siblings Not to be regarded as “close
enough”) colleagues and friends Not close
enough
- *White v Chief Constable of S
Yorks [1999] Police officers
suffering for “trauma” following
Hillsborough disaster (complex
claim that would result in
controversy) Chadwick was
considered and was
“distinguished” – In this case
HELD- Only people in close
connection can be regarded as
“primary victim” – policemen not
immediate risk of physical harm
(Chadwick was however)!!
- a) Primary
Victims
- Victims who have been put in range of
physical danger but who suffer only psychiatric
harm. Duty of care is generally recognised.
- Victims who have been put in range of
physical danger but who suffer only psychiatric
harm. Duty of care is generally recognised.
- b) Secondary Victims
- McLoughlin v O’Brian [1983] Car
collision = Wife found out in hospital
that one of her children had died, and
her husband was waiting for treatment
(Proved disturbing) “two hours after the
accident” – Resulted in long term
psychiatric damage Held: by HL ‘duty
of care’ could be owed by the driver of
the vehicle to those ‘directly affected by
negligence’ – Lord Rotherford,
“external events on the mind” can have
detrimental effects -- >Positive
psychiatric illness” = there was enough
proximity, to include (Mrs McLoughlin)
within the range of duty (she was there
soon after the accident, and had
contact with the victims) Close tie of
love and affection
- Robertson v Forth Road Bridge Joint Board
1995 Woker lifted with metal sheet from
truck over bridge and died)“proximity
question? HELD= work colleague NOT
CLOSE ENOUGH Must meet “Alcock criteria”
- Barber v Somerset [2004] C was a teacher –
working almost 71 hours a week (he told his
employer he suffered from overwork; certified
by GP Took time out-then went back. Lost it
and grabbed a pupil (later left the school)
Could he claim damages for psychiatric harm?
YES= assessment made reference to “conduct
of the reasonable and prudent employer,
taking positive thought for the safety of his
workers in the light of what he knows or ought
to know” (Lord Walker at para 65)
- Cross v Highland and Islands Enterprise
2001= Family sought damages, following
Suicide of victim- (two months before death,
he attended a meeting with stress advisor)
committed Sui two months after returning to
work HELD= Employers not liable – Court not
satisfied that stress was due to work
(relatives could not prove causal connection)
*Important factor Defendants did not know
about “severity” of stress (they are entitled to
assume the employee can cope)
- Cross v Highland and Islands Enterprise
2001= Family sought damages, following
Suicide of victim- (two months before death,
he attended a meeting with stress advisor)
committed Sui two months after returning to
work HELD= Employers not liable – Court not
satisfied that stress was due to work
(relatives could not prove causal connection)
*Important factor Defendants did not know
about “severity” of stress (they are entitled to
assume the employee can cope)
- Barber v Somerset [2004] C was a teacher –
working almost 71 hours a week (he told his
employer he suffered from overwork; certified
by GP Took time out-then went back. Lost it
and grabbed a pupil (later left the school)
Could he claim damages for psychiatric harm?
YES= assessment made reference to “conduct
of the reasonable and prudent employer,
taking positive thought for the safety of his
workers in the light of what he knows or ought
to know” (Lord Walker at para 65)
- Robertson v Forth Road Bridge Joint Board
1995 Woker lifted with metal sheet from
truck over bridge and died)“proximity
question? HELD= work colleague NOT
CLOSE ENOUGH Must meet “Alcock criteria”
- Alcock: 1. Close tie of love and affection to primary
victim 2. Witness the event with their own
unaided senses 3. Proximity to the event or
its immediate aftermath 4. The psychiatric
injury must be caused by a shocking event
- McLoughlin v O’Brian [1983] Car
collision = Wife found out in hospital
that one of her children had died, and
her husband was waiting for treatment
(Proved disturbing) “two hours after the
accident” – Resulted in long term
psychiatric damage Held: by HL ‘duty
of care’ could be owed by the driver of
the vehicle to those ‘directly affected by
negligence’ – Lord Rotherford,
“external events on the mind” can have
detrimental effects -- >Positive
psychiatric illness” = there was enough
proximity, to include (Mrs McLoughlin)
within the range of duty (she was there
soon after the accident, and had
contact with the victims) Close tie of
love and affection
- (Alcock v Chief Constable) (White v Chief
Constable) Page v Smith) ***b=(McLoughlin v
O’Brian) (Roberston v Forth Road Bridge
Board) (Barber v Somerset)
- 4) Duty of Care and Omissions
- *Gibson v Strathclyde Police 1999 Duty of
care recognised. Heavy rain cause a
bridge over river Kelvin to collapse. Police
officers left their lights-on one end, but left
no warning on other. Victims in a car drove
off bridge (some had suffered physical and
psychiatric harm) Held: Lord Hamilton, saw
that there was (foreseeability, proximity) –
police officers had assumed responsibility
of the hazard (fair and just). *Sweeny case:
only in exceptional circumstances are the
police bound
- Osman v UK (2000) There should be
no blanket immunity – victim had to
have their day in court (victim had to
have a fair hearing) Duty can only be
established to the courts satisfaction ***
Police are not entirely absolved
- *Burnett v Grampian Fire and Rescue
Service 2007 =Firemen are under a duty
not to make situation worse, but also to
put out the fire.
- Kent v Griffiths [2001] Time for ambulance
to get there (lady miscarried her baby) If
ambulance had attended earlier then she
might have been better HELD= ambulance
service could owe a duty of care
Distinguished from the police (ambulances)
have a higher expectation of a duty of care
- iv) Duty to prevent harm by third parties
- *Dorset Yacht v Home Office [1970] Young offenders left
unsupervised. Seven of them escaped and stole a boat which collided
with a Yacht. The Home Office owed a duty of care for their omission
as they were in a position of control over the 3rd party who caused the
damage. It was foreseeable that harm would result from their inaction.
- Horsley v McLaren (The Ogopogo) [1972] No duty = Defendant Invited
guests to cruise – one passenger fell – another tried to save him (he
died of shock and hypothermia). Relatives sued the boat owner HELD:
No general duty to rescue others in common law • Boat owner under
duty to do their best for a passenger who goes overboard, but this is
not an obligation to undertake the best rescue method available.
- Barrett v MOD [1995] MOD was liable= Serviceman got drunk and
was left in his room to recover. He asphyxiated in his own vomit
Held= People are under no duty (since the drinking was self-caused)
But the stage when they started looking after him, then ‘once you
have assumed responsibility’ then you come under duty
- Barrett v MOD [1995] MOD was liable= Serviceman got drunk and
was left in his room to recover. He asphyxiated in his own vomit
Held= People are under no duty (since the drinking was self-caused)
But the stage when they started looking after him, then ‘once you
have assumed responsibility’ then you come under duty
- *Maloco & Smith v Littlewoods 1987 (HL) >>Leading Scottish cases: Regal cinema in Dumferline closed
(1976) building sold to littelwoods to be converted into supermarket. Conversion would take time, so building
left unused > Area for mischief ‘local teenagers’-Building burnt down (malocco sued Littlewoods) HELD:
Pursuer not able to prove, that owners knew about local kids. (NO DUTY OF CARE) (maybe under the law of
nuisance, you can’t put your property in a way that affects your neighbour) There should be no liability for the
action of third parties “except in exceptional circumstances” Lord Mackay, said it came down to “foreseeability”
- DUTY TO RESCUE
- Horsley v McLaren (The Ogopogo) [1972] No duty = Defendant Invited
guests to cruise – one passenger fell – another tried to save him (he
died of shock and hypothermia). Relatives sued the boat owner HELD:
No general duty to rescue others in common law • Boat owner under
duty to do their best for a passenger who goes overboard, but this is
not an obligation to undertake the best rescue method available.
- *Dorset Yacht v Home Office [1970] Young offenders left
unsupervised. Seven of them escaped and stole a boat which collided
with a Yacht. The Home Office owed a duty of care for their omission
as they were in a position of control over the 3rd party who caused the
damage. It was foreseeable that harm would result from their inaction.
- AMBULANCE
- iv) Duty to prevent harm by third parties
- FIRE BRIGADE
- Kent v Griffiths [2001] Time for ambulance
to get there (lady miscarried her baby) If
ambulance had attended earlier then she
might have been better HELD= ambulance
service could owe a duty of care
Distinguished from the police (ambulances)
have a higher expectation of a duty of care
- Van Colle v Chief
Constable Hertfordshire
Police [2008] HL
*Conjoined cases (Van
Colle, jr) was to stand on
theft trial. He was
threatened by the
accused in the case.
Police did not provide
him with protection,
despite known threats
-VC was shot dead.
***Mr.Smith reported that
former partner had
harassed him, but police
ignored it -- Mr.Smith was
subsequently assaulted
HELD:(Van Colle) Bar is
high, where there is clear
threat of murder- NO
liability --Mr.Smith case
brought under the law of
negligence No liability
There must be
exceptional
circumstances. Lord
Hope “a robust approach
is needed”
- *Burnett v Grampian Fire and Rescue
Service 2007 =Firemen are under a duty
not to make situation worse, but also to
put out the fire.
- POLICE
- Osman v UK (2000) There should be
no blanket immunity – victim had to
have their day in court (victim had to
have a fair hearing) Duty can only be
established to the courts satisfaction ***
Police are not entirely absolved
- (Gibson v Strathclyde) (Osman
v UK) (Burnett v Grampian Fire)
(Kent v Griffiths) (Dorset Yacht v
Home Office) (Maloco v
Littlewoods) (Horsley v McLaren:
The Ogopogo)
- *Gibson v Strathclyde Police 1999 Duty of
care recognised. Heavy rain cause a
bridge over river Kelvin to collapse. Police
officers left their lights-on one end, but left
no warning on other. Victims in a car drove
off bridge (some had suffered physical and
psychiatric harm) Held: Lord Hamilton, saw
that there was (foreseeability, proximity) –
police officers had assumed responsibility
of the hazard (fair and just). *Sweeny case:
only in exceptional circumstances are the
police bound
- 3) Public Authorities
- (X v Bedfordshire CC) (Connor v Surrey)
(Stovin v Wise) (Anns v Merton) (Mitchel v
Glasgow CC)
- Obstacles to duty of care with a Public Authority (a)
Policy arguments (b) statutory framework (c) policy
matters & 'operational matters' (d) Human Rights
- (a) Policy arguments
- X v Bedforshire CC [1995] Local authorities failed in
their duties to children, under the Childcare Act (local
authority brought to court) Held: Not fair to impose a
duty on (Council) – Lord Brown justified action in the
ambit of statutory discretion – distinguished between
“policy type decisions” and “operational types
decisions” (..see Z v United Kingdom (2002)
- Connor v Surrey [2010] Former head teacher sued
Surrey CC for negligence over her depression. CA
upheld that Council should have taken steps to protect
her mental health. This was a pre-existing private law
duty of care. Upheld damages for £390.000
- *Stovin v Wise [1996] Collision with
motorbike (C) sued council because of
obstruction on blind junction – [Highways
Act] gave the authority a discretion to order
‘obstructions’ to be removed Held= this could
distort the manner in which local authorities
spend their resources.
- (c) operational matters
- Murphy v Brentwood 1991 HL - Expressly overruled Anns v
Merton: regarding Council liability to tenants over building work
- (d) Human Rights
- *Mitchell v Glasgow CC 2009 (HL) Problem tenant in social
housing – his behaviour had been extremely anti-social i.e.
making threats to neighbours. Meeting to warn him of
possible ‘eviction’ .He later murders next door neighbour.
Family of victim bring case forward- argument of a ‘duty to
warn’ (Proximity, foreseeability) Held= Not fair just and
reasonable, to put liability on the landlords.Idea that landlord
acts as guarantors to prevent ‘violence’ from their tenants – is
far too broad (potentially widened duty of care too far “open
ended”) >> (Dorset Yacht case) was Distinguished here,
because there - the authorities did have a duty to look after
the minors and their behaviour
- *Mitchell v Glasgow CC 2009 (HL) Problem tenant in social
housing – his behaviour had been extremely anti-social i.e.
making threats to neighbours. Meeting to warn him of
possible ‘eviction’ .He later murders next door neighbour.
Family of victim bring case forward- argument of a ‘duty to
warn’ (Proximity, foreseeability) Held= Not fair just and
reasonable, to put liability on the landlords.Idea that landlord
acts as guarantors to prevent ‘violence’ from their tenants – is
far too broad (potentially widened duty of care too far “open
ended”) >> (Dorset Yacht case) was Distinguished here,
because there - the authorities did have a duty to look after
the minors and their behaviour
- (d) Human Rights
- Murphy v Brentwood 1991 HL - Expressly overruled Anns v
Merton: regarding Council liability to tenants over building work
- (c) operational matters
- (b) Statutory framework
- *Stovin v Wise [1996] Collision with
motorbike (C) sued council because of
obstruction on blind junction – [Highways
Act] gave the authority a discretion to order
‘obstructions’ to be removed Held= this could
distort the manner in which local authorities
spend their resources.
- Connor v Surrey [2010] Former head teacher sued
Surrey CC for negligence over her depression. CA
upheld that Council should have taken steps to protect
her mental health. This was a pre-existing private law
duty of care. Upheld damages for £390.000
- X v Bedforshire CC [1995] Local authorities failed in
their duties to children, under the Childcare Act (local
authority brought to court) Held: Not fair to impose a
duty on (Council) – Lord Brown justified action in the
ambit of statutory discretion – distinguished between
“policy type decisions” and “operational types
decisions” (..see Z v United Kingdom (2002)
- (a) Policy arguments
- Obstacles to duty of care with a Public Authority (a)
Policy arguments (b) statutory framework (c) policy
matters & 'operational matters' (d) Human Rights
- (X v Bedfordshire CC) (Connor v Surrey)
(Stovin v Wise) (Anns v Merton) (Mitchel v
Glasgow CC)
- 2) Psychiatric Harm
- 1) Pure economic Loss
- *Foreseeability > Bourhill v Young 1942
*Proximity > Donoghue v Stevenson1932
*Fair, just and reasonable > Mitchell v
Glasgow City Council 2009
- 2) Standard of Care
- Standard of care required of the defender in the circumstances of the case
- A.Voluntary behaviour? (Waugh v
James Allan) (Mansfield v
Weetabix) B. Standard of Care (Muir
v Glasgow Corporation) (Roe v
Ministry of H) C. Particular cases
(Bolitho v Hackney HA)
- Mansfield v Weetabix [1997]NO breach when D drove
his lorry into a shop . At the time of the incident the
defendant was in a hyperglycaemic state. He was
unaware of this. Held: The defendant was not in breach
of duty -Standard of care was that expected of a
reasonably competent driver unaware that he is suffering
from a condition that impairs his ability to drive."
- (Waugh v James Allan) Lorry driver suffered a
gastric attack. Once he felt better, he drove on. In
fact he had thrombosis and shortly after he died at
the wheel. The lorry swerved and seriously injured
a pedestrian. Held: No breach of duty in this case.
Medical evidence revealed the driver had no
reason to anticipate the thrombosis and had
therefore acted reasonably in driving the lorry after
feeling better. The act was involuntary and there
was therefore no breach of the duty of care. If,
however, the driver had known of condition, then
the act of driving while unfit would have been a
voluntary act that amounted to a breach of duty.
- A. Preliminary question. VOLUNTARY BEHAVIOUR?
- A. Preliminary question. VOLUNTARY BEHAVIOUR?
- (Waugh v James Allan) Lorry driver suffered a
gastric attack. Once he felt better, he drove on. In
fact he had thrombosis and shortly after he died at
the wheel. The lorry swerved and seriously injured
a pedestrian. Held: No breach of duty in this case.
Medical evidence revealed the driver had no
reason to anticipate the thrombosis and had
therefore acted reasonably in driving the lorry after
feeling better. The act was involuntary and there
was therefore no breach of the duty of care. If,
however, the driver had known of condition, then
the act of driving while unfit would have been a
voluntary act that amounted to a breach of duty.
- Muir v Glasgow Corpn. [Leading case] Church
group had a Sunday picnic in King's Park,
Glasgow. When it began to rain. Mrs
Alexander, invited party inside her tea room.
Access to the tea room was through a narrow
passage where children were queuing for
sweets. Two members of the party carried a
tea-urn of boiling water dropped it, scalded
several children. HL held no breach of duty Mrs
Alexander was entitled to assume that the
tea-urn would be carried by responsible
persons and that if carried with reasonable
care would cause no harm to the children. A
reasonable person in her position would not
have foreseen as a possibility, let alone a
probability, that the urn would slip***** Muir v
Glasgow ***authority that before a breach of a
duty of care can arise the defender's conduct
must be a reasonable and probable
consequence of the act. The test is objective
(reasonable foresight of the Reasonable
Person)
- McHale v Watson [1966] Aus case = two young children playing tag. Watson12 years old threw a sharpened
metal rod that bounced off and hits McHale in the eye causing permanent blindness. Should children be assessed
as adults on standard of care? HELD: NO, Watson acting as a normal 12 year old boy would, and cannot be
expected to have the perceptions of risk of an adult . The act was not done intentionally, and a "reasonable" 12
year old boy would not expect that outcome. **Mullin v Richards [1998] The standard of care of a 15 year old girl
was judged by the standard of a reasonable 15 year old. Sword fighting with rulers, one girl is injured in the eye
when the plastic ruler breaks.
- Bolitho v Hackney HA [1998] No Duty- Applying Bolam test
regarding failed intubation of deceased child
- C. Particular cases
- Bolitho v Hackney HA [1998] No Duty- Applying Bolam test
regarding failed intubation of deceased child
- B. Standard of Care
- Before there is a breach of a duty of care, harm to the
pursuer must be a reasonable and probable consequence of
the acts or omissions of the defender.
- Before there is a breach of a duty of care, harm to the
pursuer must be a reasonable and probable consequence of
the acts or omissions of the defender.
- McHale v Watson [1966] Aus case = two young children playing tag. Watson12 years old threw a sharpened
metal rod that bounced off and hits McHale in the eye causing permanent blindness. Should children be assessed
as adults on standard of care? HELD: NO, Watson acting as a normal 12 year old boy would, and cannot be
expected to have the perceptions of risk of an adult . The act was not done intentionally, and a "reasonable" 12
year old boy would not expect that outcome. **Mullin v Richards [1998] The standard of care of a 15 year old girl
was judged by the standard of a reasonable 15 year old. Sword fighting with rulers, one girl is injured in the eye
when the plastic ruler breaks.
- Standard of care required of the defender in the circumstances of the case
- 3) Causation
- A. FACTUAL CAUSATION
- "BUT FOR TEST" = But for the defender's
wronful conduct, the harm would not have
occurred
- Barnett v Chelsea & Kensington Hospital [1969] Mr
Barnett went to hospital complaining of severe
stomach pains. Doctor ordered for him to go home
and contact his GP in the morning. Mr Barnett died
five hours later from ARESENIC Poisoning. Even if
doctor had examined Mr Barnett, he couldn't have
saved him. Held: The hospital was not liable as
doctor's failure to examine the patient did not cause
his death. 'But For' the omission of the doctor, the
patient would have still died.
- "Material contribution" TEST
- Wardlaw v Bonnington Castings [1956] C sought
damages for repiratory disease from silica dust particles
inhaled at work. Two sources: A pneumatic hammer and
swing grinders. *Bonnington were liable only in respect
of dust from the grinders. HL held that both sources had
contributed to contraction of the disease. But Lord Reid
held “difficult, which was the most probable source was
for the disease. Held: On the balance of probabilities,
dust from the grinders had materially contributed to the
injury, thus causation had been established.
- "Material increase in risk" TEST
- McGhee v National Coal Board [1973] Held: a material increase
in the risk of injury was equivalent to material contribution to
damage.. An employee contracted dermatitis from brick dust at
work. This caused minor abrasions of the skin; the only way of
avoiding the problem was by washing. There were no adequate
washing facilities at the workplace and the employee was unable to
wash until he went home. HELD= McGhee could recover because
the defendant’s failure to provide facilities materially increased the
risk of the condition.That was sufficient to prove causation.
- Multiple sources of harm and multiple wrongdoers
- Fairchild v Glenhaven Funeral Services Ltd [2003] Employees developed mesothelioma
from asbestos dust while at work, but there was uncertainty as to which of several
employers was responsible for the exposure that caused the disease. HL HELD where
there had been exposure by different employers but the precise causative point could not
be identified, it was sufficient to find that each employer had materially increased the risk
of contracting the disease.*HL explicitly accepted that the above exception arises by
virtue of “a strong policy argument in favour of compensating those who suffered grave
harm, at the expense of their employers who owed them a duty to protect them against
that very harm".The test applied in these cases is less stringent.
- Fairchild v Glenhaven Funeral Services Ltd [2003] Employees developed mesothelioma
from asbestos dust while at work, but there was uncertainty as to which of several
employers was responsible for the exposure that caused the disease. HL HELD where
there had been exposure by different employers but the precise causative point could not
be identified, it was sufficient to find that each employer had materially increased the risk
of contracting the disease.*HL explicitly accepted that the above exception arises by
virtue of “a strong policy argument in favour of compensating those who suffered grave
harm, at the expense of their employers who owed them a duty to protect them against
that very harm".The test applied in these cases is less stringent.
- Multiple sources of harm and multiple wrongdoers
- McGhee v National Coal Board [1973] Held: a material increase
in the risk of injury was equivalent to material contribution to
damage.. An employee contracted dermatitis from brick dust at
work. This caused minor abrasions of the skin; the only way of
avoiding the problem was by washing. There were no adequate
washing facilities at the workplace and the employee was unable to
wash until he went home. HELD= McGhee could recover because
the defendant’s failure to provide facilities materially increased the
risk of the condition.That was sufficient to prove causation.
- "Material increase in risk" TEST
- Wardlaw v Bonnington Castings [1956] C sought
damages for repiratory disease from silica dust particles
inhaled at work. Two sources: A pneumatic hammer and
swing grinders. *Bonnington were liable only in respect
of dust from the grinders. HL held that both sources had
contributed to contraction of the disease. But Lord Reid
held “difficult, which was the most probable source was
for the disease. Held: On the balance of probabilities,
dust from the grinders had materially contributed to the
injury, thus causation had been established.
- "Material contribution" TEST
- Barnett v Chelsea & Kensington Hospital [1969] Mr
Barnett went to hospital complaining of severe
stomach pains. Doctor ordered for him to go home
and contact his GP in the morning. Mr Barnett died
five hours later from ARESENIC Poisoning. Even if
doctor had examined Mr Barnett, he couldn't have
saved him. Held: The hospital was not liable as
doctor's failure to examine the patient did not cause
his death. 'But For' the omission of the doctor, the
patient would have still died.
- "BUT FOR TEST" = But for the defender's
wronful conduct, the harm would not have
occurred
- B. LEGAL CAUSATION
- Significance attributed to a factual cause (causa
causans: causing cause) **OR Further conduct?
Novus actus interveniens that breaks the chain
- Corr v IBC Vehicles Ltd [2008] HL =C suffered an
accident at work 5 years earlier. This triggered
feelings of depression (finally threw himself of a
multi-story car park). It was found his depression
was a direct cause of his injury. Employer liable for
damages
- Grant v Sun Shipping 1948 SC. Ship in dock
being unloaded. A ship labourer (pursuer) fell
through a hatch door left open. (1) Repairers
left the door open (2) crew did not check (3) the
labourer was no careful. Held 75% blame for
repairers – 25%
- Anderson v St Andrew’s Ambulance Association
1942 SC (Two drivers at fault in causing
collision in which passenger was injured. Liability
split 50/50.) Crash at a junction (both drivers of
bus and the ambulance were liable)
- Phee v Gordon 2013 SLT (Golfer injured in the
eye by stray golf ball. Golfer who hit the shot
20% liable; golf club 80% liable in view of
hazardous lay-out of course.)
- Phee v Gordon 2013 SLT (Golfer injured in the
eye by stray golf ball. Golfer who hit the shot
20% liable; golf club 80% liable in view of
hazardous lay-out of course.)
- Anderson v St Andrew’s Ambulance Association
1942 SC (Two drivers at fault in causing
collision in which passenger was injured. Liability
split 50/50.) Crash at a junction (both drivers of
bus and the ambulance were liable)
- Grant v Sun Shipping 1948 SC. Ship in dock
being unloaded. A ship labourer (pursuer) fell
through a hatch door left open. (1) Repairers
left the door open (2) crew did not check (3) the
labourer was no careful. Held 75% blame for
repairers – 25%
- Corr v IBC Vehicles Ltd [2008] HL =C suffered an
accident at work 5 years earlier. This triggered
feelings of depression (finally threw himself of a
multi-story car park). It was found his depression
was a direct cause of his injury. Employer liable for
damages
- Significance attributed to a factual cause (causa
causans: causing cause) **OR Further conduct?
Novus actus interveniens that breaks the chain
- C. RES IPSA LOQUITOR:
case speaks for itselt
- Scott v St Katherine Docks Co (1865)
Bag of sugar fell on passer by. Court
held that bags don’t fall for no reason,
the court held the warehouse owners
were liable)
- *McDyer v Celtic Football Club 2000= Lump of wood fell
on pursuer. Celtic FC admitted they had control over
premises. They accepted bits of wood don’t normally fall.
HELD= Court accepted that there was an inference of
fault that could not be rebutted thus the doctrine of RES
IPSA LOQUITUR stood. Damages awarded £85.000
- McQueen v The Glasgow Garden Festival 1995
Pursuer attended a Glasgow firework display. She
was injured by flying shrapnel – Tried to use
under res ipsa loquitur – **But court Held,
numerous reasons could have caused this
(competing explanations) could not bring the res
ipsa loquitur into play.
- McQueen v The Glasgow Garden Festival 1995
Pursuer attended a Glasgow firework display. She
was injured by flying shrapnel – Tried to use
under res ipsa loquitur – **But court Held,
numerous reasons could have caused this
(competing explanations) could not bring the res
ipsa loquitur into play.
- *McDyer v Celtic Football Club 2000= Lump of wood fell
on pursuer. Celtic FC admitted they had control over
premises. They accepted bits of wood don’t normally fall.
HELD= Court accepted that there was an inference of
fault that could not be rebutted thus the doctrine of RES
IPSA LOQUITUR stood. Damages awarded £85.000
- Scott v St Katherine Docks Co (1865)
Bag of sugar fell on passer by. Court
held that bags don’t fall for no reason,
the court held the warehouse owners
were liable)
- A. FACTUAL CAUSATION
- 4) Remoteness
- Overseas Tankship v Morts Dock (Wagon Mound)
Defenders spilt oil into the harbour. When the oil spill
occurred, operations were stopped. Operators of the wharf
assured him that he could restart work again involving
welding. Later some cotton fabric caught fire, and the
whole area light up. (It was thought that oil and water do
not ignite) = Held- foresight of the reasonable man, can
alone determine foreseeability >> damage was too
remote.
- Blaikie v BTC 1961 = not a probable
consequence of negligence that
someone would die of a heart attack
- *Hughes v Lord Advocate 1963= 8 year old playing with a friend. BT
was working on cables which were on the ground. One Saturday
workers went for a tea break – they left holes unmanned but had
covered them and left 4 paraffin lights around the whole. 8-year-old
pursuer Hughes- pushed one of the lamps, which resulted in an
explosion, the boy falls and suffers injuries. Question, was this injury
reasonably foreseeable? Held = foreseeable that the paraffin lamps
might explode or draw attention, this could reasonably have been
foreseen.
- Robinson v Post Office [1974] = Injury to leg worsened due
to injection (but this was regarded as a standard procedure
‘anti-tetanus’ . Defender does not escape liability
- "thin skull rule"
- "thin skull rule"
- Robinson v Post Office [1974] = Injury to leg worsened due
to injection (but this was regarded as a standard procedure
‘anti-tetanus’ . Defender does not escape liability
- Harm must be foreseeable
- *Hughes v Lord Advocate 1963= 8 year old playing with a friend. BT
was working on cables which were on the ground. One Saturday
workers went for a tea break – they left holes unmanned but had
covered them and left 4 paraffin lights around the whole. 8-year-old
pursuer Hughes- pushed one of the lamps, which resulted in an
explosion, the boy falls and suffers injuries. Question, was this injury
reasonably foreseeable? Held = foreseeable that the paraffin lamps
might explode or draw attention, this could reasonably have been
foreseen.
- Foreseeability Test
- Blaikie v BTC 1961 = not a probable
consequence of negligence that
someone would die of a heart attack
- Overseas Tankship v Morts Dock (Wagon Mound)
Defenders spilt oil into the harbour. When the oil spill
occurred, operations were stopped. Operators of the wharf
assured him that he could restart work again involving
welding. Later some cotton fabric caught fire, and the
whole area light up. (It was thought that oil and water do
not ignite) = Held- foresight of the reasonable man, can
alone determine foreseeability >> damage was too
remote.
- 5) DEFENCES
- A. CONTRIBUTORY NEGLIENCE
- Seat belt cases ** Pace v Cully 1992 SLT (Police
had advised local taxi drivers not to wear belts in case of
passengers attacking them) Was this contributory
negligence? Held:Could not be said this was unreasonable –
but contributory negligence was rejected
- Children and contributory negligence ***Harvey v
Cairns 1989 (Six year old stepped into the path of
vehicle travelling at 30 mph. Child was killed. Court
held= child should have developed enough awareness
that stepping off the kerb was not a good decision.
(Damages reduced by two-thirds)
- Galbraith’s Curator v Stewart (No 2) 1998 SLT (Eight
year old injured while playing on pipes left in street
overnight. No contributory negligence. Child did not
have capacity to recognise risk involved.) Court
applied test of= a reasonable child of that age, and
what he would be attuned to.
- Galbraith’s Curator v Stewart (No 2) 1998 SLT (Eight
year old injured while playing on pipes left in street
overnight. No contributory negligence. Child did not
have capacity to recognise risk involved.) Court
applied test of= a reasonable child of that age, and
what he would be attuned to.
- Children and contributory negligence ***Harvey v
Cairns 1989 (Six year old stepped into the path of
vehicle travelling at 30 mph. Child was killed. Court
held= child should have developed enough awareness
that stepping off the kerb was not a good decision.
(Damages reduced by two-thirds)
- Seat belt cases ** Pace v Cully 1992 SLT (Police
had advised local taxi drivers not to wear belts in case of
passengers attacking them) Was this contributory
negligence? Held:Could not be said this was unreasonable –
but contributory negligence was rejected
- B. VOLENTI NON FIT INIURIA
- Titchener v British Railways
Board 1984 (HL) (Fifteen year
old crossing railway line should
have known she might get hit by
a train.) Girl had trespassed with
a boy, to enter a shed in the
property of British Railways. She
said they failed in their duty of
care HELD= Obvious hazard, no
need to show this. In court (said
she took her chance) held: A
person who takes a chance
necessarily consents to take
what comes.”
- Reeves v Commissioner
of Police [2000] Victim had
been on (suicide watch)
–But managed to hang
himself in cell. Police tried
to invoke the defence of
(Volenti injuria) and
(contributory negligence) =
Court dismissed the first,
but said there could be
50/50 contributory
negligence. (Pursuer was
out to kill himself, and
harm himself) Failed to
take concern for his safety
*** Police argued
(Volenti) HELD= No- police
had an specific duty to
protect the man from a
deliberate act of “suicide”
– thus would be illogical to
exempt them from liability
- Reeves v Commissioner
of Police [2000] Victim had
been on (suicide watch)
–But managed to hang
himself in cell. Police tried
to invoke the defence of
(Volenti injuria) and
(contributory negligence) =
Court dismissed the first,
but said there could be
50/50 contributory
negligence. (Pursuer was
out to kill himself, and
harm himself) Failed to
take concern for his safety
*** Police argued
(Volenti) HELD= No- police
had an specific duty to
protect the man from a
deliberate act of “suicide”
– thus would be illogical to
exempt them from liability
- Titchener v British Railways
Board 1984 (HL) (Fifteen year
old crossing railway line should
have known she might get hit by
a train.) Girl had trespassed with
a boy, to enter a shed in the
property of British Railways. She
said they failed in their duty of
care HELD= Obvious hazard, no
need to show this. In court (said
she took her chance) held: A
person who takes a chance
necessarily consents to take
what comes.”
- C. ILLEGALITY
- Taylor v Leslie 1998 (Passenger allowed
himself to be driven by under-age,
uninsured driver – conduct not particularly
reprehensible in community (Orkney).)
Driver of the car was 16 (not qualified to
drive) he wasn’t wearing a seat belt.
Illegality defence could not be applied
given the crime HELD = This was not
serious criminal activity, and the parents
of the victims were not barred from
seeking damages- but they were reduced
50% due to contributory negligence.
- Revill v Newbery [1996] (Newbery’s
allotment repeatedly vandalised.
Newbery fired shotgun during
attempted burglary. Burglar injured.
Burglar awarded damages, but
reduced by 2/3 for contributory
negligence. (despite contributory
negligence, still had to pay 4000
pounds) Vandalising an allotment is
bad, but it doesn’t merit getting shot.
- Revill v Newbery [1996] (Newbery’s
allotment repeatedly vandalised.
Newbery fired shotgun during
attempted burglary. Burglar injured.
Burglar awarded damages, but
reduced by 2/3 for contributory
negligence. (despite contributory
negligence, still had to pay 4000
pounds) Vandalising an allotment is
bad, but it doesn’t merit getting shot.
- Taylor v Leslie 1998 (Passenger allowed
himself to be driven by under-age,
uninsured driver – conduct not particularly
reprehensible in community (Orkney).)
Driver of the car was 16 (not qualified to
drive) he wasn’t wearing a seat belt.
Illegality defence could not be applied
given the crime HELD = This was not
serious criminal activity, and the parents
of the victims were not barred from
seeking damages- but they were reduced
50% due to contributory negligence.
- D. PRESCRIPTION AND LIMITATION
- Prescription (Scots law) = obligation
to make reparation disappears (5 year
prescriptive period)
- Morrison:Gael Home Interiors v
ICL Plastics 2013 SLT Explosion –
defendants prosecuted under
health and safety. Pursuer raised
the action in July 2009 (original
explosion was in may 2004) Held:
by the time there was a criminal
prosecution, they were aware the
accident had happened due to
some neglect or fault. The
explosion was caused by the
defendants default.
- Morrison:Gael Home Interiors v
ICL Plastics 2013 SLT Explosion –
defendants prosecuted under
health and safety. Pursuer raised
the action in July 2009 (original
explosion was in may 2004) Held:
by the time there was a criminal
prosecution, they were aware the
accident had happened due to
some neglect or fault. The
explosion was caused by the
defendants default.
- Prescription (Scots law) = obligation
to make reparation disappears (5 year
prescriptive period)
- A. CONTRIBUTORY NEGLIENCE
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