LAW
OF TORT
Topics
covered (three pages)
· Tort
(definition)
· Who
is liable under Tort?
· What
does Tort cover?
· Negligence
(importance)
· Insurance
(importance)
· 1st
/3rd Party insurance difference
· How
compensation is calculated
· Is
Tort a deterrent?
· Why
Tort cases are rarely found in law records
· Effect
of other forms of compensation
Definition of Tort (including legal nuisance)
Tort is a civil law. It varies from contract in
that there is no codified, entrenched agreement. For example a road accident
comes under tort as there is no written agreement for person A not to be negligent
whilst driving etc. It consists mainly of claims for compensation. Tort also
includes legal nuisance such as when property us interfered with such as with
odious fumes emanating from a factory in the middle of a residential estate.
A Tort duty can be owed to anyone without prior
agreement which has to be present in contract law.
What does Tort cover?
Tort covers compensation (largely for personal injury),
legal nuisance, loss of earnings, claims for expenses and non-pecuniary losses
(compensation for inconvenience of the personal injury).
Importance of negligence
You can only claim from personal injury torts
if negligence has been proven.
CASE PRESCEDENT: Whitehouse V
A baby was born brain-damaged. Doctor was
accused of being negligent during delivery of the child. The defendant was
found innocent. If found guilty, compensation could have reached £200K.
Importance of insurance (automobile as example)
The vast amount of tort claims are paid by
insurance agencies. Insurance premiums paid by all motorists for example are
pooled together to create a vat of funds for insurance claims. For example if
person A was negligent whilst driving and injured someone (even a relative) it
would be sensible for the injured party to sue person A. Person A would not
pay. They would lose their no claims bonus but the compensation gained could be
much greater. Person A’s insurance would cover the entire costs. Anyone without
insurance can have assets seized if they cannot pay the costs which can be very
hefty.
Difference between 1st and 3rd
party insurance (automobile example
1st party insurance is issuing
against your own property only. For example if you damage your own car (even
through your own negligence), you are still insured for it. This is outside the
law of Tort as negligence does not have to be proven. Negligence is essential
in Tort claims.
3rd party insurance is issuing
against the legal liability against someone else or their property. For example
it covers you against your damaging someone else or their property (i.e. their
automobile).
How is the level of compensation determined?
Compensation through Tort does not depend at all
on the degree of blame (assuming there was negligence). The level of
compensation is paid according to the degree of injury. When you win in Tort
you are entitled to ‘full compensation’. It is designed to put you in the
position you would have been in before the accident. If a high earner is
injured the level of compensation will be higher than if a low earner was
injured because of compensation for loss of earnings. The non-pecuniary damages
are unlikely to vary.
Does Tort deter unsuitable conduct/actions?
Prosecution can only go some way as a deterrent
because people still drive dangerously etc. (but not everyone does notably). It
is often not a deterrent because the defendant is often not out of pocket (their
insurance agency is). Criminal law has more major deterrents because of the
ability to imprison someone or give community service. These punishments are
not available to Tort except in exceptional cases. The Law of defamation (part
of Tort) is however clearly a deterrent.
Why is Tort rarely found in the Law records?
About 98% of Tort cases are settled out of
court. This is because they are often straightforward or legal costs deter
court cases. For example many Tort cases are claiming compensation of less than
£100. It would cost an individual or collective more than that amount for legal
costs alone. Court cases can also risk failure or very high levels of
compensation (to include prosecutions legal costs) so both parties are normally
unwilling to take the risk of going to court.
Affect of other forms of compensation
Compensation can also come in the form of
occupational sick pay or by DSS benefits.
OCCUPATIONAL SICK PAY: Tort compensation will
not cover loss of earnings which occupational sick pay does. For example if an
injury prevents someone from working for three months and they have two months
occupational sick pay, Tort will only compensate them for one month. Tort costs
also differ in that they come in a single lump sum while sick pay comes in
instalments in pay cheques.
TORT 2
Topics
covered (4 pages)
· How
are legal costs paid?
· Time
delay
· Expert
witnesses
· Torts
dealing with diseases
· The
Fault principal
· Elements
of negligence
· Duty
of care
· Breach
of duty
· Causation
· Absence
of defences
· Nettleship
Vs Weston
·
· Glasgow
Corporation Vs Muir
· Rowe
Vs Ministry of Health
· Hailley
Vs LEB (
How are
legal costs paid?
Legal costs are paid by the defeated. This can
be the pursuer or the defendant. They can be paid by the following:-
v The
defeated party. If A pursues damages off B and wins A claims legal costs off
the party of B. Insurance firms would normally pay this.
v Car
insurance may include legal expenses. They can vary in the fine print.
v Trade
Union membership may enable a trade union to pay legal costs.
Cases in Tort can have significant time scales
attached. It is very rare for cases to be settled in less than two years. Tort
claims are often drawn out as Solicitors try to induce settlement without ‘full
compensation’.
Many Tort cases can also require expert
witnesses which is very costly. Examples could include a doctor to testify on
the medical logistics of whether another doctor has been negligent or not.
Torts dealing with diseases
Tort can deal with diseases but claims are
rarely bought because it is hard to prove where the disease came from and
negligence is hard to prove and it is often foreseeable by the plaintiff. Diseases
also take longer to manifest and can also arise naturally.
If negligence is proven the plaintiff (pursuer)
wins, otherwise they lose. Fault may be incredibly minor but if it is present,
negligence is proven.
· Duty
of care
· Breach
of duty
· Causation
· Absence
of defences
Each individual is bound by law to avoid
injuring another person. If a person has bought an injury about directly or indirectly,
one part of negligence is proven.
Did the defendant not attain to the duty of
care presupposed by law? If not, what standard is the defendant expected to
reach? If the defendant has not reached the standard, negligence if proven. The
degree of negligence is then irrelevant.
-
The standard that has to be reached is that of ‘the
reasonable individual’. ‘Reasonable’ implies almost perfect, not average. The
defendant has to guard against any foreseeable injury.
Questions have to be asked such as-:
q Was the
injury caused by the defendant’s negligence?
- Is the plaintiff actually to blame?
-
Was there a public-notice up warning that A is not liable
for what happens at B?
-
Was the injured party fully aware of the risk?
-
Was the injured party acting illegally when injured?
For example a burglar cannot sue in tort for falling down slippery stairs
whilst burgling the property.
N was a private driving instructor. W was a
pupil who injured N whilst driving under N’s instruction. The error was very
careless (even for a learner). The argument was whether N should be judged
against a standard of an experienced driver or that of a learner. The court of
appeals determined that the ‘reasonable’ standard was set by an EXPERIENCED
driver.
Bolton Vs Stone
Cricket club with 7 foot high fence 70 yds away
from bowling strip. Batsmen hits ball over fence and hits Mrs Bolton who makes
a claim under Tort. Claim failed because it was reasonably foreseeable on the
part of Mrs Bolton. That is she knew there was a possibility despite only a
very small one. Foreseeability concerns possibility only, NOT LIKLIHOOD.
The important areas of the case were-:
v Likelihood of harm
v Potential severity of harm
v How easy it would be to avoid damage?
v Social benefit of activity in question
While the injury was foreseeable, the risk was limited.
The chance of a particularly nasty injury is also unlikely (more likely to be a
bump or bruise). It was not practical for the cricket club to have built a
higher fence to eliminate risk. Therefore the only way to eliminate the risk
would be to stop playing cricket. Cricket was deemed a social benefit so that
was out of the question. Therefore the case failed.
Glasgow corporation Vs Muir
Went to the House of Lords. Therefore the Scottish
case was enshrined into English and Welsh common law. A manageress allowed
members of the public to carry hot tea urns. One member slipped and burned some
children. The case was to decide whether the manageress was negligent. The H of
L decided it was not reasonably foreseeable for the event to happen so the
manageress was not found liable.
Rowe Vs Ministry of Health
The case concerned the storage of anaesthetic.
It was been kept at the hospital in test tubes in an antiseptic liquid. Some of
the liquid seeped into a test tube and the injection paralysed a patient. Was
the hospital negligent? The claim failed, as it was not a foreseeable risk at
the time, as nobody knew of the possible effects. Now they do because of this
case, a similar claim would be successful.
Hailley Vs LEB (London Electricity Board)
LEB made a hole in the ground, put some fencing
around it and put up notices warning the public to prevent accidents. Mrs
Hailley who is blind walked into the hole and was injured. The LEB were found
negligent, as they did not give sufficient protection for blind people. It was
deemed very foreseeable that blind people would walk along the area.
The relevant criteria of Tort cases when read
¨ What were the relevant facts?
¨ What was the decision?
¨ What was the claim about?
¨ What was the reasoning behind the outcome?
¨ What was the ratio-decidendi-the rule of law?
¨ Was the legal reasoning consistent with other
cases?
¨ What was the underlying policy?
¨ Does the decision contribute to overall social
welfare?
TORT 3
Law of Tort
· CASE
(LIKLIHOOD OF HARM)
· Hailley Vs LEB (
· CASE
(SEVERITY OF DAMAGE)
· CASE
(IMPORTANCE OF THE OBJECTIVE)
· CASE
(SPORT)
·
· McHale Vs Watson
· Mullin Vs Richards
Case (LIKLIHOOD OF HARM)
Miller Vs
Compare to
Case (SEVERITY OF DAMAGE)
Parris Vs Stepney Borough Council
Parris was a motor mechanic with only one eye.
Normally mechanics aren’t provided goggles. Parris wasn’t and lost a lot of his
sight in an accident at work. Courts said it was negligent not to provide him
with goggles though it wouldn’t have been negligent had he two working eyes.
This was because the consequence of losing sight (partially or fully) for someone
with one working eye is more severe than someone with two working eyes.
Case (IMPORTANCE OF THE OBJECTIVE)
Watt Vs Hertfordshire County
Council
A woman was trapped under a heavy vehicle. Normally
fire brigade would use specialised equipment to lift vehicle. At the time the
equipment was in use elsewhere. To improvise the fire brigade made a makeshift
piece of lifting equipment. That equipment injured a fireman when it fell off
the fire engine. The Fireman failed in his claim for negligence because the
objective (to save the woman) was deemed worthwhile (and worth the risk) and
the injury was foreseeable by the fireman.
Case (COST AND PRACTICABILITY OF
PRECAUTIONS)
Heavy rain flooded a factory. The factory floor
was covered in sawdust to prevent slipping. There was not enough sawdust bought
to cover everywhere. Mr Latimer broke his ankle in a slip. The firm was not
negligent because the alternative would have been to close down production
which was deemed too much of an economic loss.
The Wagon Mound (No 2)
A ship called ‘The Wagon Mound’ dumped oil into
harbour due to carelessness of ship’s engineer. The Oil set fire due to welding
operations taking place in the harbour at the time. The case was about whether
it was negligent to dump the oil. The chance of the accident was very low but
I)the engineer was careless, therefore was negligent, ii) an accident would
have extreme consequences, iii)there was no social benefit from the action and
iv) it would have been very easy to avoid. The ship was deemed to be liable.
A violent prisoner with suicidal tendencies was
kept away from other potential suicides in the hospital wing due to his known
violence. He was checked on in his cell every 15 minutes by a prison officer.
In the space of one 15 minute break he managed to kill himself. Was the prison
negligent by not checking him more often? The courts said it wasn’t. The
verdict was so because of the prisons limited resources. Every 15 minutes was
deemed reasonable.
Case (SPORT)
Wooldridge Vs Sumner
Horsejumping. A Photographer inside the arena
was injured by a rider and horse when the rider lost control. The court said
there was no negligence because it is inevitable that some participants in
sporting activities will make errors. Therefore the injury was a foreseeable
risk to the photographer. For sportsmen and sportswomen negligence is only when
RECKLESSNESS is proven. Reasonable care is still needed not to endanger people
but allowance is made for sportsplayers.
Amateur football game. A bad tackle lead to a
broken leg for the person the tackle was made upon. The courts said the
participants in the sporting event accepted the risk by taking part in the
game. However in this case, the tackle was deemed RECKLESS so negligence was
found. The defendant was liable.
TAKING OUT A TORT
AGAINST A CHILD (PRINCIPALS)
Ø
Parents are not automatically
liable for their children’s actions.
Ø
Parents can be
liable for what they have or have not done.
Ø
Parents have to
take ‘reasonable care’.
Ø
Failure to
supervise may be enough for liabilty.
Ø
Very young
children cannot be personally liable.
TORT 4
· CASE
(SPORT)
· Smolden
Vs Whitworth
· CASE
(PROFESSIONALS AND OTHERS)
· Wells
Vs Cooper
· Phillips
Vs William Whiteley
· Bolam
Friern Hospital
· Wisher
Vs Essex Area Health Authority
· Whitehouse
Vs Jordan
· Bolitho
Vs City and Hackney Health Authority
· Sidaway
Vs Bethlem Royal Hospital
· RES
IPSA LOQUITUR (DEFINITION)
· RES
IPSA LOQUITUR (PRINCIPALS-3)
· Case
(RES IPSA LOQUITUR)
· Henderson
Vs Jenkins
· Ward
Vs Tesco Stores
Case
(SPORT non-participants –not spectators)
Smolden Vs
Whitworth
Schoolboy rugby player broke his neck in a
scrum. The courts deemed that the referee would have had to be very negligent
to be deemed to have not taken enough duty of care. This is due to the
inevitable risk accepted by sports players when undertaking the sport.
Case
(PROFESSIONALS AND OTHERS)
Wells Vs
Cooper
Mr Cooper did some home DIY and fixed his doors
handle. Mr Wells, a visitor injured himself as a result of a defect in the
handle (not contract because the defendant had used the wrong screws). The
claim of negligence failed because Mr Cooper was deemed to have taken
reasonable care in his DIY to meet the standard of an average amateur. The
court deemed that his undertaking the relatively simple DIY job was reasonable.
Mr Phillips had his ears pierced by a jeweller
who had often undertaken the task of piercing ears but was not of course, a
medical professional. An abcest developed and was infected. If a surgeon had
performed the piercing the chances of the injury would have been much less. The
courts deemed though that as it was reasonable for a jeweller to undertake the
action, Mr Whitely should be judged against a reasonable jeweller. Claim
failed.
Mr Bolam suffered a fracture of the pelvis
whilst undergoing surgery. The issue pertained to possible negligence of the
defendant in failure to admit a relaxant drug before the treatment, or in
failing to providing means of restraint during it. The test for whether a
claimant in a profession is negligent or not was created. The test explains
that if a responsible body of people in the same profession would have taken
the same action, there can be no negligence; otherwise there can be.
An inexperienced doctor made a mistake. The doctor
inserted a catheter into a vein instead of an artery. The issue was whether his
inexperience was an excuse for his error. The courts said that experience was
irrelevant here while the task was important. Compare this to the similar
provision in Nettleship Vs Weston. The doctor should not have undertaken the
operation if they were not prepared for it. The claim was successful.
Allegation that an obstetrician pulled for too
long and too hard on the forceps whilst delivering a child. The Bolam test was
used.
A child suffered brain damage during a cardiac
arrest. The child should have been seen too earlier. If a doctor had seen the
child earlier brain damage would have been avoided. The Bolam test was used.
Whilst most of the experts claimed they would have been on time, one didn’t.
Because of the one doctor believing they would have done the same, the court
agreed. The claim failed.
Mrs Sidaway was advised by her doctor to
undergo medical treatment to cure a problem in her arm. The doctor did not
advise her of the known risk of paralysis, which was an extremely unlikely but
still possible result of the operation. The pursuer duly was paralysed and
claimed she would not have taken the operation if she had known the risk. The
issue was whether the defendant was negligent for not informing the patient of
the risk. The court deemed that the doctor was not negligent. The reasoning was
that, 1) the chance was very small, 2) if every slight risk was made aware to
patients they would often make rash decisions not to have an operation. However
if the pursuer had actually asked if there were any risks and the doctor had
replied in the negative, there would have been negligence.
PROVIDING BREACH OF DUTY (RES IPSA LOQUITUR-the
thing speaks for itself)
This principal concerns claims where the exact
facts are unknown. If a court decides res ipsa loquitur is relevant the burden
of proof is reversed. That is the defendant is liable until proven not liable.
This is for cases where negligence is assumed but the exact facts of negligence
are unknown. There must be three principals of res ipsa loquitur for claims to
be judged upon it. Those are -:
Ø The thing that caused the injury must have been
under the defendant’s control.
Ø The sort of claim would normally only result
from negligence.
Ø Precise cause of the injury is unknown.
Case (RES IPSA LOQUITUR)
Henderson Vs Jenkins
Break failure of a lorry. The part of the
breaks situated under a lorry that could not be seen unless taking the lorry
apart corroded. Therefore there was no negligence in the service of the lorry.
The breaks failed and a person died as a result. Res ipsa loquitur was cited
and the plaintiff won.
Ward Vs Tesco Stores
Yoghurt pot on the floor was slipped upon and
the plaintiff was injured as a result of it. The plaintiff succeeded in the claim
of negligence despite the method in which the pot found itself there were
unknown. The court deemed that negligence must have been present somewhere,
although where they didn’t know.
TORT 5
· DUTY
OF CARE (brief discussion of)
· CASE
(EXPANSION OF DUTY OF CARE)
· Donoghue
V Stevenson
· Hedley
Byrne & Co. Ltd V Heller & Partners Ltd
· Dorset
V Home Office
· Anns
V Merton Borough Council
· McLaughlin
V O’Brian
· Junior
Books V Veitchi
· CASE
(RETREAT FROM ANNS)
· Sutherland
Shire Council V Heyman (The Australian case)
· Yuen
Kun-Yeu V Attorney General of Hong Kong
· Hill
V Chief Constable of West Yorkshire Police
· Caparo
V Dickman
· Murphy
V Brentwood District Council
NEW TOPIC-DUTY
OF CARE
In the Tort of negligence, for a claim to be
successful it must be proved that the defendant owed a duty of care to the plaintiff.
It also must be proved that this duty was not sufficiently met and that
negligence was the cause of the plaintiffs injury. If A injures B through
negligence but A did not owe B a duty of care, any claim upon the part of A
would fail.
Duty of care
has not always been evident in the Law of Tort as it was at one stage based
purely on common law. The first stage therefore that we shall look at is
EXPANSION.
Case
(EXPANSION-extremely important-first case)
Donoghue
Vs Stevenson
Café in
Scotland. One lady purchased a drink for the other in the café. The beneficiary
of the purchase poured the drink out and found a decomposing snail in the
drink. She claimed that it gave her shock. Previous to this case it was
impossible to claim under Tort unless a claim under contract was met. The lady
who was to consume the drink couldn’t claim in contract because she had not
purchased the drink. Her friend had and therefore could. Due to this case
manufacturers now owe a duty to the consumer as well as the purchaser. Lord
Atkins, presiding in the case said “you must take reasonable care to avoid
acts or omissions which you can reasonably foresee would be likely to injure
your neighbour” He described a ‘neighbour’ as “persons who are so
closely and directly affected by my act that I aught reasonably to have them in
my contemplation.” This meant that the Law of Tort extended to cover that
which is not in contract and extended to meet all those who could directly or
indirectly affected by ones actions when those people are deemed ‘neighbour’s.
Pure
economic loss. The plaintiffs were advertising agents who were interested in
doing some advertising in ‘Easipower’ which would see an investment by the
plaintiffs of about £100,000. The plaintiffs asked their bank, the National
Provincial Bank to obtain a reference of Easipower. The bank obtained a
reference from Easipower’s bank Heller and partners. Heller and Partners
replied “For your private use and without responsibility on the part of the
bank or its officials…….(Easipower was a) respectably constituted company,
considered good for it’s ordinary business engagements. Your figures are larger
than we are accustomed to see.” The plaintiffs claimed that there was a negligent
misstatement by the defendant. The courts held that negligent misstatements
would bring about a duty of care but not in the individual circumstances of the
case. In this case the proviso in the reference that it was “for your private
use only and without responsibility of the bank” excluded the bank from owing a
duty of care. Claim failed. Easipower was liquidated and the plaintiffs made a
£17,000 loss.
Young offenders taken to Browney island as an
exercise in rehabilitation. The negligent supervision gave way to their
escaping in the process of which they stole and damaged some boats. This was a
negligent omission on behalf of the wardens (failure to supervise them
sufficiently). The courts held that there was a duty owed by the home office.
Lord Reid said “The time has come to apply the principal in Donoghue Vs
Stevenson unless there are good reasons for not doing so” The case
recognised that public policy does exist but only to limit the scope of
negligence in this instance. It recognised that young offenders need some
freedom in order to be rehabilitated but not to excessive degrees.
Anns Vs Merton London Borough Council
A block of flats was built with inadequate
foundations. Problems arose and a large amount of money had to be paid on the
inadequate drainage system. The residents (plaintiffs) weren’t the original
residents so there was no claim in contract. The claim was that the council
were negligent in approving the deposited plans. They failed to spot the
problem. Lord Wilberforce said “for a duty to exist, you don’t have to bring
the facts of a case within the boundaries of previous authorities” This was
tantamount to allowing the Tort of negligence to expand widely. Lord
Wilberforce did however lay down a two point test for a duty to be present.
That was-:
§ “for a duty to exist, there must be sufficient
relationship of proximity or neighbourhood between the plaintiff and the
defendant”
§ “if point two (above point-point one is not
relevant here) is satisfied there must be no significant considerations which
might be negative, reduce or limit the duty”
McLaughlin V O’Brian
Psychiatric shock. Referred to as psychiatric
injury. Dealt with separately from physical injury because of the floodgates
principal. It was previously the case that you could only recover from
psychiatric injury if you saw the incident which bought it on. This case
expanded it outside those who saw the incident.
Mrs McLaughlin was taken to
the scene of an accident in which close members of her family had been
involved. She saw the aftermath (smashed car etc.) and she saw her family
members in hospital. The shock put her in hospital. The negligent driver who
caused the original accident was found liable. He was found to owe her a duty.
The claim was successful.
Junior Books V Veitchi
Negligent acts causing economic loss. Junior
Books published and sold books. They paid the defendant to lay a floor for
their warehouse. He did a substandard job and expense was taken by Junior Books
to pay someone else to do the job correctly. JB were also delayed in there
opening to the public so suffered economic loss in that respect too. The floor
layer was found to owe a duty and therefore was found liable for causing
economic loss. This huge expansion of Tort hasn’t always been accepted by the
courts ho are often unwilling to compensate for economic loss.
Case (RETREAT FROM ANNS)
Sutherland Shire Council V Heyman (The Australian
Case)
Yuen Kun-Yeu V Attorney General of Hong Kong
Economic loss. Hong Kong Investors lost money
after investing in a fraudster scheme. The commissioner for the body taking the
companies is supposed to oversee all investments to ensure everything is above
board. Yuen Kun-Yeu claimed he was owed them a duty. The claim failed because
1. Not enough proximity
2. Policy issues: it’s poor use of governernment money to bail out
investors (money could be spent on more worthy things such as health and
education). It would also have weakened the system of investment in Hong Kong
which would have been contrary to public policy.
Hill Vs Chief Constable of West Yorkshire
Peter Sutcliffe (Yorkshire Ripper) murders. The
mother of the final victim claimed the police force owed her a duty for not
catching Sutcliffe before he had murdered her daughter. The claim failed
because
1) Not enough proximity. The Police were still not certain about the
identity of the Yorkshire Ripper. They did not have him within reach (different
to Reeves Vs Metropolitan Police – TORT 6).
2) Policy Issues: If the police had been found to owe a duty, they might be
too wary in the future and therefore not do there job to as high a standard.
Police resources would have also been shifted to defending cases rather than
defeating crime in many cases as this would have opened the floodgates
principal.
Caparo Vs Dickman
Alleged negligent auditing of company annual accounts
caused economic loss to the plaintiff. The claim failed. Lord Bridge created a
new three stage test for whether a duty exists. That was-:
i.
Injury must be
reasonably foreseeable
ii.
There must be a
sufficient proximity between the parties.
iii. It must be just and reasonable for a
duty of care to exist (including policy)
Lord Bridge said “ The notions of proximity and
fairness are convenient labels to attach to the feature of different specific
situations which the law recognises pragmatically as giving rise to a duty of
care”
Murphy Vs Brentwood District Council
Plaintiff bought a property which was designed
and built by ABC homes. The council approved the design. Cracks started to
appear and the property was sold for £35,000 less than it would have been
valued at in good condition. This overruled the Anns V Merton London Borough
Council. The claim failed. There was not enough proximity between the council
and the plaintiff. If the defendant had been found to owe a duty of care the
floodgate principal could have been operative.
TORT 6
· The
ratio decidendi of duty of care
· Case
(POST MURPHY DEVELOPMENTS)
· Marc
Rich V Bishop Rock Marine
· Stovin
V Wise
· X
V Bedfordshire
· Barrett
V Enfield
· Capital
and Counties plc V Hampshire
· Clunis
V Camden and Islington Health Authority
· Reeves
V Metropolitan Police
· NEW
TOPIC-CAUSATION-DEFINITION
· Remoteness
of damage
· Legal
Causation
· The
‘but for’test
· Case
(BUT FOR TEST)
· Barnett
V Chelsea Hospital
· McWilliams
V Arrol
· Case
(APPLYING THE BUT FOR TEST)
· Bonnington
Castings V Wardlaw
· McGhee
V National Coal Board (NCB)
· Wilsher
V Essex Area Health Authority (1988 case)
· Pickford
V ICI
· Bolitho
V City and Hackney Health Authority
The ratio
decidendi of duty of care
There is no general steadfast rule anymore for determining
whether a duty is present. Case precedent is used with the vast majority of
cases. The courts are reluctant to allow duty of care to expand further.
Case (POST
MURPHY DEVELOPMENTS)
Marc Rich
V Bishop Rock Marine
Cracks developed on a ships hull. A
classification society which is an independent non-profit making organisation
appointed one of it’s surveyors to look at the ship. The surveyor advised minor
repairs whilst in dock which were made and more repairs at a later stage. The
ship sank and the cargo was lost. The owners of the ship sued for negligent
inspection which lead to the physical damage of the property. The House of
Lords held that the claim failed because-:
Ø Classification
societies are non-profit making bodies. It is against public policy to make
them liable for a duty of care because it would deter inspections.
Ø Law
of contract is the right mechanism to solve the problem. This was essentially
an economic loss case because the cargo was in no sentimental attachment to the
owner. It was merely an investment by them as it was to be sold.
Plaintiff was injured when her motorbike hit a
car. Her view at point of impact was obscured by a bank (mound) on the corner.
The local authority knew of the danger as they already had plans to remove it.
The plaintiff claimed the council owed her a duty to have removed the bank
previous to her accident. She claimed that they were in contributory negligence
to the accident. The claim narrowly failed in the House of Lords. It was held
that the local authority could only be liable if they had acted in a completely
unreliable or irrationable way. The courts are unwilling to tell local
authorities how to spend their money. It was up to the council to determine
it’s priorities, whether they lay in removing the bank or in other areas such
as health and education.
Five different cases dealt with at the same
time. All five concerned whether a local authority could be sued. Four of the
five are discussed in these notes.
Two cases involved children and the social services. One child was wrongly
taken into care for a year after wrongful allegations of sexual abuse by a member
of the household. The parents were the plaintiffs. Another case involved a
child who was being physically abused, should have but wasn’t taken into care.
The plaintiff was the child as an adult. Both claims failed as it was held that
there was no duty of Social Services to the plaintiffs. There was a policy
argument in that Social Services would not do there job as well in the future
if under threat of liability. There was also a proximity issue as the
professionals who examined the children owed a duty to the local authority, not
to the child or their parents.
Two cases involved children and education boards. One child was wrongly
diagnosed as having special needs and was therefore put in a special unit at
school. Another child was dyslexic but the LEA failed to diagnose them as such
so they didn’t receive the proper care needed. Both plaintiffs won their cases
as it was held that there was enough proximity as the LEA should have been
working for the children and there were no policy issues relevant.
Child was taken into care. The issue concerned
whether the local authority owed a duty to them as they were treated badly in
the home. When the child left at 18, he had no family or attachments and had a
psychiatric illness. The local authority made an application to strike out
(application to stop the case reaching court on grounds that the claim has no
hope of being upheld). The courts held that there was a duty so the application
failed. There is no duty of social services as to whether a child is put in
care but there is a duty to look after that child when they are in care.
Can the
Firebrigade be liable? The courts held that the Firebrigade normally don’t owe a
duty to the public for policy reasons. They do however owe a duty if their
presence makes matters worse. In this case the chief fire-officer turned off
the sprinkler system which forced the fire to spread.
Clunis was a psychiatric patient who was
negligently released from a psychiatric ward. Shortly after being released he
attacked and murdered a woman. In this case Clunis was the plaintiff claiming
that he shouldn’t have been released. Clunis was released from his custodial
sentence for the crime as the health authority was found negligent and to owe a
duty of care.
Someone committed suicide whilst in Police
custody. Did the Police owe him a duty of care not to let him kill himself. The
courts held that the Police do hold a duty of care when the risk is foreseeable
(as this was) and there is enough proximity (as there was here as the person
was in custody) and there are no policy issues (which there weren’t here).
Contrast this case to Hill V Chief Constable of West Yorkshire. In the latter
there was no proximity as the police weren’t sure of the Yorkshire Rippers
identity and location.
NEW TOPIC – CAUSATION
(DEFINED)
Factual causation is the simple fact of whether
action A lead to result B. This is not enough for liability though. There must
also be remoteness of damage or legal causation.
Remoteness of damage
If the kind of damage was an unforeseeable
result of the action then there can be no liability.
Legal Causation
For liability there must be a legal effect of
the action of A having a ‘substantial’ input into result B which the plaintiff
is taking action upon.
The ‘but for test’
If it hadn’t been for X would Y have happened. Cause
does not necessarily imply blame.
Case (BUT FOR TEST)
Barnett V Chelsea Hospital
Barnett was taken to hospital suffering from
arsenic poisoning. The doctor negligently failed to diagnose the poisoning and
Barnett died the day after. Though there was negligence and a duty of care,
there was no liability because there was no causation. That is even if the
defendant had diagnosed the patient correctly, they would have still died due
to the amount of arsenic consumed.
McWilliams V Arrol
A stealworker was negligently not supplied with
the proper safety equipment while working on the job. He fell to his death
which wearing the safety equipment would have prevented. The company proved
that he would not have worn the safety equipment anyway had he had it.
Therefore there was no causation and the defendant was not liable.
Case (APPLYING THE BUT FOR TEST)
Bonnington Castings V Wardlaw
The plaintiffs were a group of employees of a
firm. They contracted a disease of the lungs from dust inhaled at work. Some of
the dust was created by negligence, some was unavoidable in the line of work.
The House of Lords described the dust as ‘innocent dust’ and ‘guilty dust’. It
was unknown which one the disease was caused by. The courts held that you don’t
need to show the defendants negligence was the main cause of the damage but
just that it was a substantial cause. The guilty dust in this case made a
material contribution to the injuries (and eventual death). Defendants were
liable as there was causation, breach of duty and a duty of care.
McGhee V National Coal Board (NCB
Brick dust caused a skin complaint for the
plaintiff. The plaintiff was always covered in dust from work. The employers
did not provide showers. The question was what caused the disease. If it was
just the normal amount of dust which the plaintiff was regularly in contact
with, there would be no causation. If it was the dust lingering on which would
be the fault of the employer for not providing showers, there would be
causation and therefore liability. It was impossible to prove scientifically
which it was. The House of Lords held there was liability because the
defendants negligence substantially increased the risk of the disease. The
employers had the burden of proving themselves innocent from guilty which they
failed to do. Scientific ignorance was no excuse.
Wilsher V Essex Area Health Authority (1988-not
to be confused with 1996 one)
A doctor gave a baby too much oxygen. The baby
became blind. The baby could have been blinded by five other circumstances
which the doctor would not have been negligent for. The action failed because
the plaintiff failed to argue that the doctors negligence was more likely than
not to have caused the injury.
Pickford V I.C.I
Plaintiff claimed she had suffered Repetitive
Strain Injury (RSI) through long periods of having to type at work. Her
employers claimed the injury was purely psychological. The plaintiffs claim
failed because-:
· Injury wasn’t reasonably foreseeable
at the time. This case precedent would mean that it is now (as in Roe V
Ministry of Health-Tort 2)
· Judge held there was no conclusive evidence
that the injury was caused by typing. There could have been other causes.
Bolitho V City and Hackney Health Authority
Cardiac arrest case. Doctor didn’t arrive on
time. Question was, what would have happened if he had arrived on time? To save
the patient the doctor would have had to intubate (medical procedure). The
Bolam test proves that there would have been no negligence not to intubate.
Therefore the doctor did not cause the death. There is no causation so there
can be no liability. Even if the doctor had arrived on time, the patient would
have probably still died.
TORT 7
· Case
(LOSS OF CHANCE)
· Hotson
V East Berkshire Health Authority
· Novus
Actus Interveniens
· Case
(SUCCESSIVE EVENTS)
· Performance
Cars V Abraham
· Jobling
V Associated Dairies
· Baker
V Willoughby
· Case
(SELECTION AMONG OPERATIVE FACTUAL CASES)
· The
Oropesa
· Sawyers
V Essex County Council
· Rouse
V Squires
· Wieland
V Cyril Lord Carpets
· McKew
V Holland and Hannen and Cubitts
· Lamb
V London Borough of Camden
· Smith
V Littlewoods
· Topp
V London Country Bus Ltd
· Reeves
V Metropolitan Police (same case as in Tort 6)
Case (LOSS
OF CHANCE)
Hotson V
East Berkshire Health Authority
Accidental injury to the hip. Plaintiff had a
75% chance of being permanently disabled as a result of the injury. The
hospital were negligent in treating him as he waited for too long without due
cause. The lack of immediate treatment (which he should have had) made his
chance of being permanently disabled, 100%, which he duly was. The Court of
Appeal gave awarded him 25% compensation (of full compensation) for his lost
chance. The House of Lords overruled the judgement upon appeal and held that no
compensation was due. The rule was that compensation could be all or nothing.
This is when the chain of causation is broken. Deliberate
acts normally break the chain. Notable exceptions to this rule are situations
where there is a duty to prevent the deliberate act. For example in Home Office
V Dorset Yacht Company (Tort 5), the deliberate act by the young offenders of
theft was not novus actus interveniens because the Home Office held a duty of
care not to let them do as they did.
Case
(SUCCESSIVE EVENTS)
Performance
Cars V Abraham
Plaintiff’s car was damaged through defendant’s
negligence. It had to be re-sprayed. Before the re-spray happened, someone else
ran into plaintiff’s car. It would have needed re-spraying again. Was the
second negligent driver liable for the cost of re-spraying? The courts held no.
It needed re-spraying anyway. You have to take your victim as you find them.
Tort is about compensation, not punishment. There is no need to be compensated
for something that didn’t in effect matter because of previous actions.
Plaintiff suffered a back injury due to
defendants’ negligence. The plaintiff’s earning ability was reduced by 50% as a
result. Three years later (before case had found it’s way to trial), the
Plaintiff developed an unrelated back injury which prevented him from working
altogether. The court held that the defendant was only liable for the three
years from the original accident to the second one.
First event: Plaintiff injured leg in a car
accident. Use of half the leg was lost. The defendant was ordered to pay
compensation for the half of the leg.
Second
event: Plaintiff injured in the same leg after being shot by a criminal while
he worked as a security guard. The whole leg had to be amputated. The robber
was only liable (in criminal law so no compensation in Tort) for the second
half of the leg. Who was liable for the first half of the leg (which the
defendant injured in the first event) after the second event.
The court
held that the defendant who caused the original injury must continue to be
liable for that half of the leg because the second event was Criminal, not
Tortuous. In Jobling, it was an accident. Here the shooting was not so the
Jobling dictum could not be followed.
Case
(SELECTION BETWEEN OPERATIVE CASES)
Collision between two ships to negligence of
the Oropesa. Captain of damaged ship set off in a lifeboat to the Oropesa to
discuss insurance etc. On his journey the lifeboat capsized and the captain
drowned. Was the Oropesa liable for the death? The court held it was. The
captain’s response was a reasonable response to an emergency situation that he
would not have been in had it not been for the Oropesa’s original negligence.
The chain of Causation was not broken.
Mrs Sayers was locked inside a public toilet cubicle
due to local authorities negligence (lock’s didn’t work properly). She
attempted to climb out by putting her weight on a toilet roll holder. She fell
and injured herself. Was the council liable for her injury? The answer was that
they were. Climbing on the toilet roll holder was a reasonable response.
Driver 1 negligently caused a car crash. A
following car crashed into the back of it (chain of causation not broken). The plaintiff
parked nearby and walked towards the accident to go and help. A truck nearby
turned it’s lights on to illuminate the scene. Another truck driver (Driver 2)
who was not paying attention (therefore negligent) ran the plaintiff who was on
foot over and killed him. Was the original negligence of Driver 1 enough to
leave them liable for the death of the plaintiff?
The courts
held “if you drive negligently and cause an obstruction it is reasonably
foreseeable that others might drive negligently and make the situation worse”
The negligence of the Driver 2 was not enough to completely constitute a novus
actus interveniens. Driver 2 had to pay 75% compensation and Driver 1 had to
pay 25% compensation.
Plaintiff suffered a neck injury due to
negligence of the defendant. Plaintiff also wore bifocal lenses. The injury
changed the angle of join on the lenses, which made it awkward to judge lengths
etc. Whilst leaving hospital, plaintiff tripped on a curb and was injured as a result.
Was the defendant liable for the second injury? The answer was yes. It was
reasonable for the plaintiff to attempt to cross the curb and the injury was
foreseeable.
Plaintiff suffered an injured leg to due
defendants negligence. The plaintiff later tried to descend some stairs without
assistance of any kind. He fell and suffered further injuries. It was
unreasonable for the plaintiff to put himself or herself in that position so
there was 100% contributory negligence. The defendants were not liable. The
chain of causation had been broken. Novus Actus Interveniens.
The Plaintiff went abroad and Let out her
house. The local authorities negligence led to the house starting to subside.
The tennants moved out. The house became unoccupied. Squatters moved in and
damaged the house. Were the council liable for the deliberate damage to the
house by the squatters? The court said it was foreseeable but very unlikely.
The remoteness of the likelihood of squatters moving in and causing damage
meant that a duty was not owed.
Defendants purchased a cinema with the
intention of demolishing it and building a supermarket. The Cinema was left
unoccupied for a substantial period of time. Vandals broke in and set fire to
it. The fire spread and set fire to plaintiffs adjoining property. Plaintiffs
argued that Littlewoods were responsible. The courts rejected the claim.
Littlewoods could only be responsible if they should have been aware of the
specific risk which they weren’t and shouldn’t have been.
Topp V
London Country Bus Ltd.
A minibus was left unoccupied outside a public
house with the keys in the door due to negligence. It was stolen, driven fast
and killed the plaintiff in a hit and run. Was the owner of the bus (the
defendant) liable. The answer was no. The deliberate act of theft constituted
novus actus interveniens.
Reeves V
Metropolitan Police (same case as in Tort 6)
Case concerning the suicide
in Police custody. It was argued by the defendant that the act of Suicide
constituted novus actus interveniens due to it’s being a deliberate act. The
court rejected the argument because the Police owed a duty to prevent that very
deliberate act. Same principal as that discussed in the definition of Novus
Actus Interveniens above citing the case Home Office V Dorset Yacht Company.
TORT 8
· REMOTENESS
OF DAMAGE DEFINED
· Case
(THE TWO APPROACHES)
· Re
Polemis
· The
Wagon mound (1)
· Case
(APPLYING THE WAGON MOUND TEST)
· Smith
V Leech Brain
· Robinson
V Post Office
· Hughes
V Lord Advocate
· Doughty
V Turner
· Tremain
V Pike
· Jolly
V Sutton London Borough Council
· Bryson
V Brown
· Page
V Smith
· Liesbosch
Dredger V S.S Edison
NEW
TOPIC-REMOTENESS OF DAMAGE
An accident may have far reaching consequences for
the plaintiff. It might be thought to be unrealistic to expect the defendant to
pay for all the consequences of the negligent act. The doctrine of remoteness
of damage limits the defendants liability to that type of damage which could
reasonably have been forseen as a result of the negligent act.
Re Polemis
Defendant negligently dropped a plank of wood
into the plaintiffs hold. That induced sparks which ignited the petrol vapour
there which caused a fire and destroyed the whole ship. The defendant was
liable for all of the damage incurred. As long as there is some damage which
can be foreseen as a result of the negligence, however minor, the defendant is
liable for all damage which results directly from it.
Wagon mound (1)
Overruled Polemis. Defendants owners of the S.S
Wagon mound. They negligently allowed a quantity of bunkering oil to spill into
a harbour. Some drifted over to a nearby wharf where welding was carried out.
The owner of another ship asked the oil manufacturers whether it was safe to
continue welding there. They were told yes. A fire broke out damaging property
due to some molten metal falling on some cotton waste laying on a piece of
debris. There was no liability. The circumstances were unforeseeable which was
a novus actus interveniens act. Viscount Simmonds of the Privy council said “to
hold B liable for consequences however unforeseeable of a careless act if, but
only if, he is at the same time liable for some other damage however trivial,
appears neither logical or just.”
Case (APPLYING THE AGON MOUND TEST)
Smith V Leech Brain
Plaintiff suffered a small burn as a result of
his employers negligence. He was already suffering from pre-malignant changes. The
burn was the promoting agent in the development of cancer from which he died.
The defendants could reasonably foresee the burn. The ‘Egg shell skull’ rule
(take the plaintiff as you find them) was applied. The defendants were liable
for the death.
Robinson V Post Office
Plaintiff suffered a trivial injury (cuts) due
to falling off a ladder. His fall was due to his employers negligence. The cut
could have been
foreseen .He did however require an anti
tetanus jab. He suffered an allergic reaction to the jab which gave him a
severe injury. The doctor failed to do an allergy test. Even if he had done an
allergy test the results would have taken too long so the jab would have still
be had. Therefore the doctors negligence did not break the chain of causation.
The plaintiffs final injury was paralysis. The eggshell skull rule was followed
so the defendants were liable for the paralysis. SOME INJURY HAD TO BE
FORESEEN.
Hughes V Lord Advocate
The defendants erected a shelter over a manhole
in the course of their work. They left it unattended with four parafin lamps (1
at each corner). The ladder from the manhole had been removed. An eight and a
ten year old picked up a lamp and tied it to a rope. They lowered it into the
hole and followed. When they re-emerged the lamp was knocked back into the hole
which caused an explosion. The plaintiff fell back into the hole and was badly
burnt. The defendants were liable because the type of injury was foreseeable
despite the method of injury not being foreseeable.
Doughty V Turner
Defendants had two cauldrons containing Sodium
cyanide powder which was heated by two electrodes to eight hundred degrees
Celsius. Each bath had an asbestos compound cover. It was not known at the time
that the compound changes and emits steam at 500 degrees Celsius. The cover of
one cauldron was negligently allowed to slip into one bath. It caused an
eruption which injured the plaintiff who was standing nearby at the time. The
claim failed because the type of injury as well as the method it was bought
about was unforeseen. There was no liability. NB: Now the risk is known, it
would be foreseen.
Tremain V Pike
Disease at a farm was bought about by contact
with rats urine. The disease was not known about at the time. It was
foreseeable that disease could be spread by rat bite or food contamination but
tnot through contact with rat urine. Courts held no liability because the
precise was the disease was bought about could not have been foreseen.
Jolley V Sutton London Borough Council
The council owned a piece of land where a
lifeboat had been left abandoned for a number of years. Council knew it was
potentially dangerous to children but made no attempt to secure it. The
plaintiff tried to repair the boat. Children trying to repair it jacked up the
boat using a car jack and a plank of wood. It collapsed and a child was
injured. The council were not liable as they couldn’t foresee the injury
happening. This differs to Hughes V Lord Advocate in that in Hughes the SAME
injury was foreseeable though not the method by which it was bought about.
Bryson V Brown
The plaintiff suffered a minor injury. This
injury lead to emotional stress which gave a more serious psychological injury.
Some psychological injury could have been reasonably foreseen. The egg shell
skull rule applied. The defendant was liable for the psychological injury.
Page V Smith
An accident occurred in which the plaintiff was
NOT injured. It was foreseeable that they could have been injured. The
plaintiff had suffered from ME but it had been in remission for a very long
time. The accident triggered the recurrence of the ME. It was so bad that it
might have prevented him from ever working again. The courts held that it was
only necessary to foresee some physical or psychological injury for the
resulting injury to be covered by liability. Therefore the defendants were
liable because physical injury could have been foreseen.
Liesbosch Dredger V S.S. Edison
Defendants negligence caused the plaintiffs
Dredger to sink. Plaintiff couldn’t afford a new one and had to hire one to
conclude an existing contract. Hiring eventually cost more that buying a new
one would have. They only got compensation for the cost of the new dredger. This
is a limit on the Egg shell skull rule.
TORT 9
· DEFENCES
TO NEGLIGENCE
· Contributory
Negligence
· Law
reform (contributory negligence) Act 1945
· Case
(CONTRIBUTORY NEGLIGENCE)
· Stapley
V Gypsum Mines
· Froom
V Butcher
· Owens
V Brimmell
· Gough
V Thorne
· Volenti
(defence of consent)
· Case
(Volenti)
· Dann
V Hamilton
· Nettleship
V Weston
· Bowater
V Rowley Regis
· ICI
V Shatwell
· Johnstone
V Bloomsbury Health Authority
· Baker
V Hopkins
· Reeves
V Commissioner of Police
· Road
Traffic Act, s 149
DEFENCES
TO NEGLIGENCE
Once the plaintiff has established that the
defendant owed the plaintiff a duty of care, that the defendant has breached
the duty, that the breach was the causation an that the plaintiffs damage was
not too remote, then the plaintiff has established a prima facie case. It is
now up to the defendant to reduce the plaintiffs compensation due to a defence
to negligence.
Law Reform
(Contributory Negligence) Act 1945.
Previous to this act all claims got full
compensation (in so far as possible) or nothing at all. This act allowed for
compensation to be reduced. Contributory negligence refers to the plaintiffs
increasing the extenct of their own injury. It does not concern the plaintiffs
contribution to the negligent act. In order to be contibutorally negligent you
have to foresee the damage to yourself. The test is what the individual
concerned would foresee, not what the reasonable person would foresee.
Case
(CONTRIBUTORY NEGLIGENCE)
Jones V
Livox Quarries
The plaintiff worked in a quarry with a traxcavator
(vehicle). He was in a dangerous position on the traxcavator due to his own
negligence. He was injured when hit by a vehicle from behind. He was 20%
contributory negligence. It was a foreseeable risk which he willingly accepted
by taking it. Therefore he was volenti.
Stapley V Gypsum Mines Ltd.
Stapley and Dale were employees of the
defendants. They were told to remove a dangerous part of a roof. It was
reasonable for that request to have been made of them. They undertook the task
but soon gave up and continued with their other duties. The roof collapsed and
Stapley was killed. The House of Lords held that the employers were liable for
Dales negligence in agreeing to cease work on the roof. However Stapley was
contributory negligent due to his willingly leaving the roof. He was held
Volenti.
Froom V Butcher
Plaintiff was in a vehicle collision due to the
defendants negligence. The plaintiff was not wearing a seatbelt. If they had
been wearing a seatbelt, the severity of the injury would have been reduced.
They still would have been injured though. A test was created. If the injury
sustained would have been reduced by wearing a seatbelt there is 15%
contributory negligence. If the injury would have been avoided by wearing a
seatbelt there is 25% contributory negligence. In this case the plaintiff was
15% contributory negligent. The defendant was 100% causation and 85% negligent.
Owens V Brimmell
Cardiff Pub Crawl. Defendant (driver) and
Plaintiff (passenger) both drunk after pub crawl. Plaintiff consented to being
driven home by drunken defendant. The defendant crashed giving the plaintiff
injuries. The plaintiff tried to sue the defendant for damages resulting from his
negligent action. Normally the plaintiff would have been 20% contributory
negligent. Here, the defendant was so drunk that the plaintiff was grossly
incompetent in accepting the lift and so was volenti. It was held that he
accepted the risk. Normally cases like this would not be volenti cases but this
one was due to the severity of the risk undertaken.
Gough V Thorne
A thirteen year old girl was crossing over the
road. The driver of a stationary lorry beckoned her to cross over the road. She
did so but was hit by an oncoming vehicle which the lorry driver should have
been aware of but wasn’t. She was injured. The courts held that she must be
judged (for Volenti purposes only) against an average 1 year old girl, not a
paragon of prudence or a worthless wreck but an average child of her age.
VOLENTI NON FIT INUIRIA (the defence of
consent)
If you willingly consent to accepting a risk
which you are aware of you cannot claim in tort.
Case (VOLENTI)
Dann V Hamilton
Plaintiff knew the defendant was intoxicated
and yet still accepted ride in his car. The defendants negligence caused a
crash which injured the plaintiff. The plaintiff knew of the risk but did not
accept it. There was therefore no volenti. There was however 20% contributory
negligence on behalf of the plaintiff.
Nettleship V Weston
Case from earlier notes. Driving instructor
injured by grossly negligent actions of tutee on third lesson who’s actions
were judged against a competent driver (as the reasonable driver). One question
was whether the instructor was volenti. The courts held he was not. By his
action of investigating his liability before the started instructing he did not
except the risk. He was aware of the risk but he did not accept it. Both
constituent elements are needed to establish volenti.
Bowater V Rowley Regis
The plaintiff worked for the defendant. In the
course of the plaintiffs work they were told to take out a horse which was
known to be dangerous. The plaintiff argued against his duty but carried it out
at the defendants insistence. The horse injured the plaintiff who tried to sue
their employers. The courts held there could be no volenti as it was the
plaintiffs job. He was aware of the risk but could not accept it because he had
no choice. The defendants were wholly liable. There was no volenti.
ICI V Shatwell
Normally employers are liable for
their employees actions in Tort. The facts of this case are-: Two brothers deliberately
disobeyed instructions from their employers not to take certain actions due to
the risk of doing so. They were both injured. Each of the two brothers were
negligent to the other. The courts held that the deliberate disobedience of the
orders gave a volenti case. The plaintiffs were volenti so the defendants were
not liable. The brothers knew the risk and yet still consciously accepted it.
By that action they accepted the risk.
Johnstone V Bloomsbury Health
Authority
Junior doctors. Issue of working
hours. The question was whether their employers could legally require excessive
working hours off them that could be detrimental to their health. The employers
claimed the junior doctors had entered into a written contract to work the
hours. Courts held there was no volenti because the long hours worked would
become a Tort. The plaintiff would lose in contract but won in Tort. The
defendants were liable.
Baker V Hopkins
The defendant had adopted a
dangerous system of working which included lowering a petrol engine down a well
which emitted poisonous fumes. Two of the defendants workmen were overcome by
the fumes. A doctor attempted a rescue by going down the well. The doctor was
overcome with the fumes and claimed against the defendants. The defendants
claim of Volenti claimed. You cannot be volenti when the plaintiff is
impulsively acting to save life. This was a public policy argument. The doctor
knew of the risk and accepted it but there was still no volenti because of the
reason for his ascending the well. The defendants were liable for the doctors
injuries.
Morris V Murray
Plaintiff and defendant were both drunk. The
defendant had consumed the equivalent to seventeen whiskies. The defendant then
invited the plaintiff for a ride in his private plane for which he held a
pilots license. The plaintiff agreed to the ride. The defendant crashed and the
plaintiff was injured. The plaintiff tried to sue the defendant for his injury.
There was no liability because the plaintiff was volenti. He knew of the risk
and accepted it. NB: if this was in a car (‘on the public highway’) the
plaintiff couldn’t have been volenti due to the Road Traffic Act 1988, s 149.
Reeves V Commissioner of Police
Suicide in police custody case (as in earlier
notes). The question was whether the plaintiff was Volenti or not (in accepting
the risk of trying and succeeding to commit suicide). There was no volenti
because the plaintiff was not of stable mind. It was also the case that it
would be unconscionable to allow the claim of volenti. The duty of care of the
police was to prevent the very action of suicide.
1988 ROAD TRAFFIC ACT, s 149
The defence of Volenti cannot apply for
accidents on the public highway. For example if Morris V Murray had been in a
car (not a private aircraft) there would have been liability.
TORT 10
· EXCLUSION
OF LIABILITY
· Unfair
contract terms act, s 2
· Case
(EXCLUSION OF LIABILITY)
· Ashdown
V Samuel Williams
· White
V Blackmore
· Burnett
V BWB
· Smith
V Bush
· Case
(EXCLUSION NOTICES FROM WARNINGS)
· Roles
V Nathan
· EX
TURPI CAUSA OR ILLEGALITY
· Case
(EX TURPI CAUSA)
· Ashton
V Turner
· Pitts
V Hunt
· Reeves
V Commissioner of Police
· Clunis
V Camden and Islington HA
· Revil
V Newbery
EXCLUSION
OF LIABILITY
Liability can have blanket exclusion or partial
exclusion. Restrictions apply.
Unfair Contract
Terms Act 1977 (section 2)
NB: only applies to businesses. Businesses
include local government authorities and educational establishments. Section
2(1) covers death and personal injury. Section 2(2) covers economic loss and
damage to personal property. Section 2(2) applies the reasonableness test;
section 2(1) doesn’t).
s2(1): A
person cannot by reference to …. a notice exclude or restrict
his liability for death or personal injury due to negligence.
s2(2): In the
case of other loss or damage (property or economic loss), a person cannot so
exclude or restrict his liability for negligence except insofar as the term or
notice satisfies the requirements of reasonableness.
Case
(EXCLUSION OF LIABILITY)
The following dates are important as the Unfair Contract Terms act 1977 applies in some of them and doesn’t in others.
Ashdown V
Samuel Williams (1957)
Plaintiff used a shortcut across a railway line
on way to work. The occupier had erected a sign excluding liability for all
injury (however caused and whatever type) on those grounds. The plaintiff saw
the sign but didn’t read it all because it was extremely exhaustive. She was
later injured by an oncoming shunting truck. There was no liability. A two
stage test for notices was set.
1) It must cover the particular
injury (this one included all injuries).
2) Occupier must take reasonable
tests to bring the notice to the attention of all those affected by it (which
they did here-the fact that the plaintiff did not read the whole notice did not
stand up in court as the plaintiff had the opportunity to read all of it).
Plaintiff
competitor and member of a Jalopy racing club. He competed in the morning and
watched a race in the afternoon for free. He was given a free ticket. The
reverse of the ticket excluded liability for all personal injury. There was
also a warning notice stating ‘WARNING TO THE PUBLIC! The negligence of the
defendants in erecting the barrier rope lead to stakes being made tense by a
wayward car. The plaintiff was catapulted into the air and killed. . There was
no Volenti as the plaintiff was unaware of the risk as the origin of the
tension on the ropes was from a car over half a mile away and he didn’t know of
the negligent erection of the stakes and rope. However, the exclusion notice
was enough to save the defendants. There was no liability.
The Plaintiff was employed to work on a barge.
He was injured on a lock in the course of his work due to the defendants
negligence. The plaintiff could reasonably be expected to attempt to be around
the lock as it was part of his job. Therefore Volenti could not apply. There
was an exclusion notice. The courts held that the defendants could not rely on
their exclusion notice as the plaintiff had to enter the lock to perform his
job.
Smith V Bush (1989)
Pure economic loss (governed by Unfair Contract
Terms Act 1977 s2(2). A surveyer working for a building society had an exclusion
notice excluding liability from negligent surveying. The plaintiff tried to
gain compensation for negligent surveying. The question faced by the courts was
whether it was reasonable for the surveyer to rely on his notice. The courts
held that it was unreasonable for the reliance because the plaintiff had to
(reasonably) use the building society to provide a surveyer.
Case (DISTINGUISHING EXCLUSION NOTICES FROM
WARNINGS)
Roles V Nathan (1963)
Two chimney sweeps were warned of danger from some
fumes. Nevertheless they went back to finish a job against instructions and
were killed. The question faced was whether the warning notice enabled them to
be reasonably safe. The answer was ‘yes’. They were volenti. There was no
liabilty.
EX TURPI CAUSA (OR ILLEGALITY)
You cannot claim in Tort if you were acting
illegally at the time of the injury or you were acting against the public
morals (i.e. involved in Sado-Masachism-which would also be Volenti).
Case (EX TURPI CAUSA)
Ashton V Turner
Plaintiff was a passenger in a getaway car
fleeing from a burglary. Passenger injured due to the drivers negligence in
driving. Courts said there was no liability because no duty was owed because of
the illegality of the burglary which was still taking place in the form of
fleeing from the scene of the crime.
Pitts V Hunt
Plaintiff was a pillion passenger on a
motorbike. The plaintiff was willing the driver to scare other drivers on the
road which he attempted to do. In the process, the plaintiff was injured due to
the defendants negligence riding. The way the vehicle was driven was illegal
(which the plaintiff was a consenting party to) so there was no liability). It
also didn’t help that both the plaintiff and the defendant were sixteen
(therefore the defendant had no driving license or insurance).
Reeves V Commissioner of Police (same case as
in earlier notes)
Suicide in Police custody case. Defendant knew
plaintiff was a potential suicide. Suicide is ILLEGAL but here the duty of care
was to stop that very illegal act so it would be unconscionable to allow Ex
Turpi Causa.
Clunis V Camden and Islington Health Authority
Plaintiff (Christopher Clunis-well known case)
was released from a psychiatric ward by the defendants. He then murdered someone
at a railway station and was convicted for manslaughter. He claimed the
defendants were responsible for his crime. The claim failed because of the
illegal act itself. It also failed because no duty of care was owed by the
health authority.
Revill V Newbery
Plaintiff was a burglar. He burgled an
allotment shed where he found the owner asleep with a gun. The owner shot him
in the leg so he sustained a serious injury. The plaintiff sued for damages
from the defendant. He won one third compensation because the defendants
actions were disproportionate to the plaintiffs original crime. However he
still lost two thirds of his compensation due to his ex turpi causa illegal
act.
Morris V Murray
Plaintiff and defendant were both
drunk. The defendant had consumed the equivalent to seventeen whiskies. The
defendant then invited the plaintiff for a ride in his private plane for which
he held a pilots license. The plaintiff agreed to the ride. The defendant
crashed and the plaintiff was injured. The plaintiff tried to sue the defendant
for his injury. There was no liability because the plaintiff was volenti. He
knew of the risk and accepted it. NB: if this was in a car (‘on the public
highway’) the plaintiff couldn’t have been volenti due to the Road Traffic Act
1988, s 149.
TORT SHORTS
1) Nettleship V Weston:
Driving instructor-appropriate standard. T2 (22)
2) Bolton V Stone: P hit by
c-ball outside ground. Foreseeable. T2
3) Glasgow Corp. V Muir: Hot
tea urns spilt on kids. Not f-seeable. T2
4) Roe V Ministry of
Health: Storage of anaesthetic Not f-seeable. T2 (50,69,70)
5) Miller V Jackson:
C-balls often into garden. F-seeable. T3
6) Hailley V L.E.B: Blind
lady walked into hole. F-seeable. T3
7) Parris V Stepney BC:
Mechanic with one working. Goggles. Severity. T3
8) Watt V Hertfordshire CC:
F-brigade improvised. Objective worth risk. T3
9) Latimer V AEC: Sawdust
on factory floor. Economic loss alternative. T3
10) Wagon Mound (2):
Dumping of Oil. Careless + negligent engineer. T3
11) Knight V Home Office:
Suicidal prisoner. Every 15 minutes. T3
12) Wooldridge V Sumner:
Horsejumping. Photographer. Recklessness? T3
13) Condon V Basi: Amateur
football challenge was reckless. T3
14) Carmarthenshire CC V
Basi: Child. Truck Swerved. School negligent. T3
15) Phillips V Rochester
Corp.: Kids fell in large hole. Parents negligent. T3
16) McHale V Watson: 12 yr
old threw sharp metal. Hit girl. Not negligent. T3
17) Mullin V Richards: 15
yr olds fencing. Plastic rulers. 50% cont. neg. T3
18) Smolden V Whitworth:
Kids at rugby. Level of supervision 2 b neg? T4
19) Wells V Cooper: Home
DIY on door. Screws. Reasonable 2 attempt. T4
20) Phillips V William
Whiteley: Jeweller. Pierced ears. Reas. 2 attempt. T4
21) Bolam V Friern
Hospital: Test. Reas. body in same profession. T4 (23,24,51)
22) Wilsher V Essex AHA:
Inexperienced doc judged against experience. T4 (1)
23) Whitehouse V Jordan:
Bolam Test was used. T4 (21,24,51)
24) Bolitho V City &
Hackney HA: Bolam Test failed (1 dissenter). T4 (21,23,51)
25) Sidaway V Bethlem Royal
Hosp: Informing of slight risk. Not neg. T4
26) Henderson V Jenkins:
Break failure of Lorry. RES IPSA LOQUITUR. T4
27) Ward V Tesco Stores:
Yoghurt Pots on floor. RES IPSA LOQUITUR. T4
28) Donoghue V
Stephenson: Neighbourhood principal. Tort extended 2 consumer. T5 (30)
29) Hedley Byrne
& Co Ltd V Haller and partners Ltd: Ec.loss.Easipower. T5
30) Dorset Yacht
Co V Home Office: Young offenders. Neigh. princ followed. T5 (28)
31) Anns V
Merton LBC: D of C test. Proximity + no significant public policy. T5
(34,35,37)
32) McLaughlin V
O’Brian: Psychiatric shock. Aftermath of accident. Durt present. T5
33) Junior Books
V Veitchi: Economic Loss from floor laying. Duty present. T5
34) Yuen-Kun-Yeu
V AG Hong Kong: Economic loss. Failed Anns Test. T5 (31)
35) Hill V Chief
Const. of W Yorkshire: Peter Sutcliffe. No proximity. Failed Anns. T5 (31)
36) Caparo V
Dickman: New 3 stage D of C test. F-seeability, proximity + p-policy. T5
37) Murphy V
Brentwood District Council: Opposed Anns. Not enough proximity. T5
38) Marc Rich V
Bishop Rock Marine: Inspection of ship. Classification soc. P-policy. T6
39) Stovin V
Wise: Mound on roadside. Where should C’s money go? Public Policy. T6
40) X V
Bedfordshire: Social Services don’t hold duty at first. Schools do. 5 cases. T6
41) Barratt V
Enfield: Social Services only have duty when child is in their care. T6
42) Capitol and
Counties Plc V Hampshire: Fire brigade’s duty is 2 not make things worse. T6
43) Clunis V
Camden and Islington HA: Chris Clunis murder. Duty not to release him. T6
44) Reeves V
Commissioner of Police: Suicide in Police custody. Proximity present. T6
45) Barnett V
Chelsea Hospital: Arsonic poisoning. Docs neg care. Would have died anyway. T6
46) McWilliams V
Arrol: Steelworker wouldn’t have worn helmet if provided. Fell 2 death. T6
47) Bonnington
Castings V Wardlaw: Lung disease from dust. Innocent+Bad dust. T6
48) McGhee V
National Coal Board: Brickdust. No showers. Substantially increased risk. T6
49) Wilsher V
Essex AHA: Baby 2 much Oxygen. 4 other poss causes of blindness. T6
50) Pickford V
ICI: RSI from typing. Not foreeseeable.T6 (4,69,70)
51) Bolitho V
City & Hankney BC: Cardiac arrest. Failed Bolam Test. T6 (21,23,24)
52) Hotson V
East Berkshire HA: 75% chance of being perm injured anyway. T7
53) Performance
Cars V Abraham: Car which needed respray hit before done. T7
54) Jobling V
Assocaited Daries: Disabled person inj. 3 years later. Earning capacity. T7
(55)
55) Baker V
Willoughby: 2nd event criminal not tort so 1st def. still
liable 4 injury.T7 (54)
56) The Oropesa:
Ship collision. Lifeboat to discuss insurance. Death. Not Nov. act. inter.. T7
57) Sawyers V
Essex CC: Public toilet lock in. Climbing on t-roll handle reasonable. T7
58) Rouse V
Squires: Trucks, bystander. Cont.negligence. Not enough 4 nov. act. inter. T7
59) Wieland V
Cyril Lord Carpets: Neck injury. Bifocals. Trip on curb. Not nov act inter. T7
60) McKew Holland
and Hannan and Cubits: Descended stairs. Not reas-ble. Nov.act.inter. T7
61) Lamb V
London Borough of Camden: House subsision while vacant. Squatters. Remote. T7
62) Smith V
Littlewoods group: Vandals. Fire. Vacant Cinema. Adjoining property. N/forsee.
T7
63) Topp V
London Country Bus Ltd: Minibus with keys. Stolen. Deliberate action = NAI. T7
64) Re Polemis:
Plank dropped. Ignited petrol. Destroyed ship. Liable. T8 (65)
65) Wagon Mound
(1): Overruled Re Polemis. Foreseeability the key issue. T8 (64)
66) Smith V
Leech Brain: Burn on lip started Cancer. Egg shell skull rule. T8
67) Robinson V
Post Office: Cut. Allergy to tetanus jab. Paralysis. Egg shell skull rule. T8
68) Hughes V
Lord Advocate: Kids. Manhole. Explosion. Type of inj, not method
important.T8(71)
69) Doughty V
Turner: Cauldrons with covers. Risk not known. Too remote. T8 (4,50,70)
70) Tremaine V
Pike: Rat Urine. Risk not known. T8 (4,50,69)
71) Jolley V
Sutton LBC: Abandoned boat unsafe. Type of injury not f-seeable. N/liability.
T8(68)
72) Bryson V
Brown: Minor phys. injury lead 2 major psych. injury. Egg Shell Skull rule. T8
73) Page V
Smith: ME recurred by close accident (avoided). Egg Shell Skull rule. T8
74) Liesbosch
Dredger V S.S Edison: Limit on E-shell s-rule. HP costs not paid. T8
75) Jones V
Livox Quarries: Traxcavator in quarry. Man hanging on carelessly 20% cont. neg.
T9
76) Stapley V
Gypsum Mines Ltd: Disobeyed orders to fix roof. Death. 50% Cont.neg. T9 (82)
77) Froom V Butcher:
Seatbelt % test. T9
78) Owens V
Brimmell: Cardiff Pub crawl. Severity of the known risk before 96 act-Volenti.
T9
79) Gough V
Thorne: Girl crossed road. Lorry driver beckoned her. Volenti 2 age group. T9
80) Dann V Hamilton:
Plaintiff accepted lift off drunk. No Volenti as after 1996 act. T9
81) Bowater V
Rowley Regis: Bolting horse. No volenti as no acceptance. Job. T9 (81)
82) ICI V
Shatwell: Plaintiff disobeyed orders. Therefore Volenti. T9 (76)
83) Johnstone V
Bloomsbury HA: Junior docs. Working hrs. N/claim in contract. Tort-YES. T9
84) Baker V
Hopkins: Doc in well injured. No Volenti when attempting to save a life. T9
85) Morris V
Murray: Private plane (not inc. in 96 act). Both very drunk. Volenti. T9
86) Ashdown V
Samuel Williams: Long, boring exclusion notice. 2 stage test created. T10
87) White V
Blackmore: Jalopy racing. Competitor a spectator? Included in exclusion? T10
88) Burnett V
British Waterways Board: Lock. Doing job. N/acceptance. N/Volenti. T10 (81)
89) Smith V
Bush: B-societies surveyor had economic exclusion notice. Failed 74 act s2(2)
T10
90) Roles V
Nathan: Chimney Sweeps warned in writing. Ignored it therefore Volenti. T10
91) Ashton V Turner:
Passenger tried to sue getaway driver. Ex turpi causa. T10
92) Pitts V
Hunt: Passenger on bike willing dangerous driving injured. Ex turpi causa. T10
93) Clunis V
Camden and Islington HA: Chris Clunis murder. Ex turpi causa. T10.
94) Revil V
Newbury: Burglar shot in shed. Disproportionate to crime. Won claim. T10
TORT JANUARY ASSIGNMENT 2000
Question 2
In this case, Colin and Derek are attempting to
gain recourse for their injuries and the damage to Derek’s automobile. Collins
claim is against the organiser and Fred for Fred’s negligent driving resulting
in his original injury and against the health authority for his brain damage.
Derek’s claim is against the organiser and Fred for his injury and against the
emergency services for the severity of his injury being worsened by their
taking so long to arrive to help.
Colin
claims that the organiser is responsible for Fred’s dangerous driving with Fred
being the second defendant. The claim is not against Derek because his wayward
driving was as a direct result of Fred’s driving. Therefore there was no break
in the chain of causation (novus actus interveniens) as in the authority of Rouse
V Squires.
Colin will
point to Fred’s driving as reckless (Wooldridge V Sumner and Condon V
Basi). The claim will be successful because of the authority of Wilks V
Cheltenham Home Guard Motor Cycle & Light Car Club where it was said
that the proper standard of care is one of reasonableness in all circumstances.
In Wilkes, the defendant was involved in a fast moving, competitive sport in an
all out effort to win. Fred was therefore negligent because he was reckless.
The
organiser will rely on the exclusion notice. Firstly Colin as marshal is
included in “persons attending this event” due to White V Blackmore.
Colin cannot rely on the 1977 Unfair Contract Terms Act s2(1) due to s14 which
defines a “business” as “a profession and the activities of any government
department or local or public authority.” Though there is no thorough
definition of a business, the present case cannot be accepted as being business
activity due to its lack of permanence and charitable intentions and being free
entrance. The organiser cannot claim volenti on behalf of Colin because he was
standing by the crash barrier as part of his job. He therefore did not
willingly accept the risk though aware of it. This is shown in Bowater V
Rowley Regis and Burnett V British Waterways Board.
The
exclusion notice does pass the test laid down in Ashdown V Samuel Williams.
It does cover the particular injury by reference
to
“personal injuries or death.” The organiser has also taken reasonable steps to
bring the notice to the publics attention by displaying it “at the entrance to
the land.” Therefore the notice is legal and can be enforced as it does not
come under the 1977 Unfair Contract Terms Act and it is not unreasonable to
erect a notice of that sort.
Colin will
claim that the Health Authority is liable for his mistreatment resulting in his
permanent brain damage. Firstly it has to be ascertained whether the injury was
foreseeable. If it was not there is no duty of care as in Roe V Ministry of
Health, Pickford V ICI, Doughty V Turner and Tremaine V Pike. If it
was a foreseeable risk the Bolam test from Bolam V Friern Hospital. If
however, even one of the body of reasonable medical practitioners claims they
would have done the same, there is no duty (Bolitho V City & Hackney
Health Authority). If they all agree that they would have done otherwise,
thus saving the patient, Colin will be successful in his claim (Whitehouse V
Jordan).
Derek’s
claim against the organiser is firstly for his injury sustained because of his
own driving. The organiser will successfully claim that his participating in
the conditions made him Volenti. He knew the risk and by undertaking it,
accepted it. He may however be successful in claiming that a safety helmet was
not provided but should have (if one wasn’t which is likely, as head injuries
should only come about in accidents under exceptional circumstances). If it is
proven he should have been provided with one and would have worn it (Parris
V Stepney Borough Council). If however one was provided but not worn or it
could be proven one would not have been worn if provided, the claim would fail
as in McWilliams V Arrol.
It must be
considered though that Derek might have been wearing a crash helmet at the
time. If that is the case, he had little resistance to the impact of the crash
compared to that which most people would have had. This concerns the ‘Egg shell
skull rule.’ The defendant must take the plaintiff as they find him (Robinson
V Post Office, Smith V Leech Brain, Page V Smith and Bryson V Brown).The
defendant could be liable for the injury.
Equally
the organiser may argue that Derek should not have reasonably attempted the
race if he knew of a frail head defence (McKew V Holland and Hannen and
Cubitts). If Derek
successfully
argues that he should reasonably have attempted the race with his condition,
the organisers claim fails (Wieland V Cyril Lord Carpets).
Derek
would claim that the organiser owes a duty of care to him to provide a medical
team on site. There was negligence due to the test in Bolton V Stone.
The risk was foreseeable (as proven by the existence of the exclusion notice),
there was sufficient likelihood of harm, the ease of getting a medical team and
the social benefit is not enough to reduce the scope of the duty or prevent
breach).
Caparo V
Dickman states a three stage test for duty of care.
In this case, the injury was foreseeable. The method may not have been but the
type of injury was (Hughes V Lord Advocate). There is sufficient
proximity between the parties as defined by Lord Atkin in Donoghue V
Stephenson. He said “you must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour.” He went on to describe a ‘neighbour’ as persons who are so
closely and directly affected by my act that I ought reasonably to have them in
my contemplation.” The third stage of being just and reasonable to impose a
duty is present here because of the severity of damage of any potential
accident. In Caparo, Lord Bridge said, “The notions of proximity and
fairness are convenient labels to attach to the feature of different specific
situations which the law recognises pragmatically as giving rise to a duty of
care.” The objective of raising money for charity, though a worthy one, is
not worthy of the risk taken because of the severity of any foreseeable
injuries. This cannot follow Watt V Hertfordshire County Council because
the objective here is not worth the risk.
If a
medical team had been provided it is unclear what help they could have given. A
reasonable action by the organiser would have been to employ a body of
reasonably skilled medics. That does not however mean that they would have had
the expert knowledge, skills or equipment to carry out any pre-surgery actions.
It is likely that the severity of the injury would call not only for immediate
medical treatment, but immediate skilled medical treatment with expensive
equipment normally only found in hospitals. If that is the case, the
organiser’s breach of duty is irrelevant. It is not reasonable to expect
expensive surgical equipment and skilled practitioners to be on hand. That risk
of not having them is worth it as in Latimer V AEC.
As with
Colin, the exclusion would effectively prevent liability for the organiser (Ashdown
V Samuel Williams). However it is arguable that the event could be classed
as a business, though unlikely. Non-profit organisations such as Oxfam are
classed as businesses as are
some
Stately homes which admit the public once a year. If it is classed as a business
it comes under section 2(1) of the 1977 Unfair Contract Terms Act which states “A
person cannot by reference to….a notice exclude or restrict his liability for
death or personal injury due to negligence.” If this is followed, the
organiser must be liable for the original injuries to Colin and Derek. The
organiser is not liable though for the brain damage to Colin because of the
hospitals negligence being a Novus Actus Interveniens as in Wieland V Cyril
Lord Carpets. The organiser would be liable for Derek’s entire injury
despite his wearing a helmet (or seatbelt) or not and the long length of time
it took for the emergency services to arrive.
Whether
the event is classed as a business event or not, the organiser could still be
liable for the damage to both cars. Derek’s claim will be against the organiser
of the event unless their first party insurance covers damage while off the
public highway whilst racing which is unlikely. If the event is classed as a
business, the economic damage comes under section 2(2) of the Unfair Contract
Terms Act 1977 which states “In the case of other loss or damage (property
or economic loss), a person cannot so exclude or restrict his liability for
negligence except insofar as the term or notice satisfies the requirements of
reasonableness.” As the exclusion notice in this case does not mention any
economic or property loss or damage, the organiser is liable.
Derek will
also claim that the emergency services took too long to get to the scene of the
accident. Twenty minutes is too long my normal standards and they should have
been ready and aware of the risk (unless they weren’t informed by the organiser
who would be negligent). His claim will fail though because they did not make matters
worse (Capitol and Counties Plc V Hampshire).
As an
overview it is likely that the following would be the results in this case.
Colin would be able to claim full compensation for his brain damage from the
Health authority. That would include non-pecuniary losses, loss of earnings,
legal expenses and medical expenses). Any sick benefit would be deducted from
his compensation and any other monies such as DSS benefits and personal health
care but are taken into account when calculating
compensation
to put him the position he was in before the accident. He would not be able to
recover in Tort for the original injury because it is unlikely the event would
be classed as a business activity and therefore the exclusion notice is not
invalid under the 1977 Unfair Contract Terms Act. Derek would be able to gain
compensation off the organiser of the event for his financial loss for the
damage to his car or from his automobile insurance if it includes this method
of damage. He would not be able to recover in Tort for his injury due to the
exclusion notice, as it is likely the event would not be classed as a business
activity. He would not be able to recover anything from the emergency services.