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Negligence - From: 1980 To: 1984

This page lists 31 cases, and was prepared on 02 April 2018.

 
Chappell v Cooper [1980] 1 WLR 958
1980
CA
Roskill LJ, Ormrod LJ
Limitation, Negligence
The plaintiff's writ had not been served within the required time, and it had become too late to extend its validity. The plaintiff isued a second writ. The defendant argued limitation. Counsel for the plaintiffs sought to distinguish Walkley on the very narrow ground that there was no question of the first action having being struck out or discontinued. Held: (Roskill LJ) "…I cannot accept the submission that [Walkley] is a decision only on the facts of that case. It seems to me plainly a decision on principle that if a plaintiff starts but then does not for any reason proceed with an action, whether it is because the plaintiff chooses not to serve or his solicitors fail to serve the writ timeously or because the action is subsequently struck out for want of prosecution, or because for good reason or bad the plaintiff or his solicitors give notice of discontinuance, it is not open to the plaintiff thereafter to seek to take advantage of the provisions of section [33] … because as their Lordships have laid down (and we are of course bound by their decision) the cause of his prejudice is not the provisions of section [11], that is to say, the existence of the primary limitation period, but is the act or remission of himself or his solicitors in acting or failing to act as he or they have done in relation to their action."
1 Cites

1 Citers


 
Wyong Shire Council v Shirt
1 May 1980

Stephen, Mason, Murphy, Aickin and Wilson JJ
Commonwealth, Negligence
(High Court of Australia) Mason J: 'In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not of itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.' Held: 'Lying at the heart of this matter, however, is the necessity to ensure, as far as possible, that consumers are not unnecessarily or, through no fault of their own, unknowingly exposed to the risk of injury or other adverse consequences being suffered by reason of their use of products available to them in the marketplace.' and 'As a general proposition it appears to me to be obvious that where possible consequences of the contraction of a condition include death, even though the risk of any contraction may be very small, a potential purchaser is, at least, entitled to know of the existence of that risk and to be able to choose whether or not it will be accepted.'
1 Citers

[ Austlii ]
 
Evans v London Hospital Medical College and Others [1981] 1 WLR 184; [1981] 1 All ER 715
1981

Drake J
Negligence, Torts - Other
The defendants employed by the first defendant carried out a post mortem on the plaintiff's infant son. They found concentrations of morphine and told the police. The plaintiff was charged with the murder of her son. After further investigation no evidence was offered and she was acquitted. She claimed damages for negligence against the defendants in allowing the organs removed from her son's body to become contaminated with morphine and in failing to appreciate that the high concentration of morphine revealed by analysis was unlikely to have existed while he was still alive. Held: Immunity from suit was available to potential witnesses in criminal proceedings at a time when such proceedings were merely in contemplation but had not yet commenced, and covers all conduct that can fairly be said to be part of the investigatory process.
Drake J said: "If this object is to be achieved I think it essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not any criminal offence has been committed . . If immunity did not extend to such statements it would mean that the immunity attached to the giving of evidence in court or the formal statements made in preparation for the court hearing could easily be outflanked and rendered of little use. For the same reason I think that the immunity must extend also to the acts of the witness in collecting or considering material on which he may later be called to give evidence. If it does not so extend then a convicted person could, for example, sue the police officers for the allegedly negligent manner in which they had investigated the crime, by complaining that they had wrongly assessed the evidential value of certain matters or had failed to interview possible witnesses whose evidence was thought by the accused to be favourable to him."
1 Citers



 
 Lamb v Camden London Borough Council; 1981 - [1981] 2 All ER 408; [1981] 2 WLR 1038
 
Dunlop v Woolahara Municipal Council [1981] 1 All ER 1202
1981
PC
Lord Diplock
Negligence, Local Government
A council had no liabiity in a private action for damages for a breach of statutory duty in its handling of a planning application. While doubting that it was so, Lord Diplock left open the question whether an individual injuriously affected by either the refusal of planning permission on the part of a planning authority or by the grant of planning permission to neighbouring property owners had a right of action for damages against the planning authority.
1 Citers



 
 Crossley v Rawlinson; 1981 - [1981] 3 All ER 674 DC
 
Ashton v Turner [1981] QB 137; [1980] 3 All ER 870
1981
QBD
Ewbank J
Road Traffic, Negligence
The plaintiff sought damages after being injured as a passenger in a car. He and the driver had both just been involved in a burglary, and the driver, who had taken alcohol was attempting to escape. The driver was driving very dangerously in order to avoid their arrest after two taxi drivers had tried to block the car. Held: The claim failed. As a matter of public policy the law would not recognise a duty of care owed by one participant in a crime to another: "a duty of care did not exist between the first defendant and the plaintiff during the course of the burglary and during the course of the subsequent flight in the get-away car."
He held in the alternative that, even if a duty of care was owed, the Claimant had willingly accepted as his the risk of negligence and injury resulting from it.
Road Traffic Act 1972 148(3)
1 Citers


 
Solloway v Hampshire County Council (1981) 79 LGR 449; [1981] 1 WLR 1
1981
CA
Dunne LJ, Sir David Cairns
Nuisance, Local Government, Negligence
Tree root damage had occurred following two successive very hot and dry summers in 1975 and 1976, in an area where the subsoil was almost all gravel but where, as it happened, under the plaintiff's house there were pockets of clay. An issue arose as to the foreseeability of there being pockets of clay in the gravel upon which the damaged houses predominantly sat. Another issue concerned the question whether any operation on the trees, short of felling them, would have eliminated the risk posed by the roots if there were exceptionally dry weather and if those roots were passing through clay. At first instance, judgment was given for the plaintiffs in nuisance. Held: The council's appeal succeeded. The judge had been wrong to hold that damage to the plaintiff's house from the tree roots was a reasonably foreseeable risk. The existence of clay pockets under a house such that of the plaintiff was no more than an outside chance, and balancing that risk with the steps that would have been necessary for the defendants to have dealt with the risk, there was no breach of duty on the part of the defendant council.
Dunne LJ said: "The duty in respect of the nuisance arises if the encroachment of the roots is known, or ought to be known, to the owner, occupier or other person responsible for the tree and its maintenance, if the encroachment is such as to give rise to a reasonably foreseeable risk that such encroachment will cause damage."
Sir David Cairns said: "To say that a risk of damage is reasonably foreseeable means that it is foreseeable, not merely as a theoretical possibility but as something, the chance of which occurring, is such that a reasonable man would consider it necessary to take account of it. The risk of being struck by lightning when one goes for a walk is not a reasonably foreseeable risk. I should be prepared to hold that the risk in this case was not a reasonably foreseeable risk. If, however, it could be said to be a reasonably foreseeable risk, I am satisfied that it was a risk, such that the cost and inconvenience of taking any effective steps to remove it or reduce it would be quite out of proportion to that risk. There is nothing in the evidence to show that No. 72 Shirley Avenue was any more at risk than any other house in the Avenue. Nor is there anything to show that any operation on the trees, short of felling, would have made the roots safe if there were exceptionally dry weather and if the roots of any particular tree were passing through clay".
1 Cites

1 Citers



 
 Hartley v British Railways Board; CA 2-Feb-1981 - Times, 02 February 1981
 
Knightley v Johns and others [1981] EWCA Civ 6; [1982] 1 All ER 851; [1982] 1 WLR 349
27 Mar 1981
CA
Stephenson, Dunn LJJ, Sir David Cairns
Police, Negligence, Road Traffic
There had been an accident in a tunnel, blocking it. The defendant inspector ordered a traffic constable to ride into the tunnel on his motorcycle against the flow of traffic. The constable crashed and sought damages for negligence against the inspector. Held: The inspector was liable in negligence. One police officer can have a duty of care to another.
1 Cites

1 Citers

[ Bailii ]

 
 Harrison v Vincent; 1982 - [1982] RTR 8
 
Commonwealth v Introvigne [1982] HCA 40
1982

Gibbs CJ, Mason, Murphy and Brennan JJ
Commonwealth, Negligence
(High Court of Australia) A pupil was injured when he swung, whilst skylarking unsupervised, from a halyard attached to a flagpole in the school quadrangle. The halyard was in turn connected to a pulley which was part of a truck attached to the top of the flagpole. The truck, weighing about 7 kilograms, was dislodged by the pupil swinging, fell, and caused severe head injuries. The injury was said to be caused by the negligent failure of school staff to supervise the pupils, as well as the state of the premises. The members of staff were employees of the state, yet the Commonwealth of Australia was sued. Held: A school may owe a non-delegable duty of care to its pupils.
Mason J. said: "There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. This was the view expressed by Kitto J. in Ramsay v. Larsen (1964) 111 CLR, at p 28[4]. The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants" and "It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case, in the two respects already mentioned. It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score."
Murphy J said: "1. The Commonwealth assumed the role of conducting a school; it is immaterial whether it was required to do so by Act of Parliament. It became liable for damage caused by any lack of reasonable care of the students or pupils placed in its care. In terms of the prevailing concepts of duty, the Commonwealth became fixed with certain non-delegable duties:
(1). To take all reasonable care to provide suitable and safe premises. The standard of care must take into account the well-known mischievous propensities of children, especially in relation to attractions and lures with obvious or latent hazards.
(2). To take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and to take all reasonable care to see that the system is carried out.
2. The Commonwealth also became vicariously liable to pupils and parents for the acts and omissions of the teaching and other staff (whether or not these were supplied by another entity or agency).
3. The notion that a school teacher is in loco parentis does not fully state the legal responsibility of a school, which in many respects goes beyond that of a parent. A school should not be equated to a home. Often hazards exist in a home which it would be unreasonable to allow in a school. A better analogy is with a factory or other undertaking such as a hospital. Parents and pupils have in practice no choice of the classmates or other students. Injury occasionally occurs through foolish or sometimes malicious acts of other students. The school has the right to control what occurs at school, just as an employer has the right to control what happens in its undertaking. Where a student is injured by the negligence of another student (and perhaps by act or omission which if it were that of a person of full capacity would be negligent) without breach of personal duty by those conducting the school, and without act or omission by those for whom otherwise it is vicariously liable, it may be that the loss is best spread by treating the body conducting the school as vicariously liable just as an employer would be for its employee's acts or omissions; but it is unnecessary to decide this.
4. In this case the damage to the plaintiff may be attributed to causes for which the Commonwealth is liable, unsafe premises and lack of supervision of the children. It is enough that Introvigne's injuries were due to the inadequate system of supervision and care. The system did not provide for sufficient staff to exercise proper supervision over the children in the playground. As well, there was a failure to ensure that the system was carried out. The departure from the system by the teachers was understandable because of the death of the school principal, but this does not excuse the breach by the Commonwealth of this non-delegable duty."
1 Cites

1 Citers



 
 Robertson v Turnbull; HL 1982 - 1982 SC (HL) 1; [1982] SLT 96
 
Junior Books v Veitchi Co Ltd [1983] AC 520; [1982] 3 WLR 477; [1982] 3 All ER 201; [1982] UKHL 4; [1982] UKHL 12; [1982] Com LR 221; 1982 SC (HL) 244; 1982 SLT 492; 21 BLR 66
15 Jul 1982
HL

Negligence, Construction, Scotland
The defendant was a specialist sub-contractor brought in to lay a floor. In laying the composition floor the defenders used too wet a mixture and applied too thin a top coat and failed to cure the material properly. As a result cracks began to appear in the floor and it started to break up. The floor required replacement and the pursuers contended that while this replacement work was carried out they would lose business and incur irrecoverable overheads. There was no direct contractual relationship between them. Held: Assuming the allegations to be true, there was a sufficiently close relationship between the parties to give rise to a relationship of care, and if proved, the plaintiff would be entitled to recover its financial losses.
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1 Citers

[ Bailii ] - [ Bailii ]
 
Udale v Bloomsbury Area Health Authority [1983] 1 WLR 1098; [1983] 3 All ER 522
1983
QBD
Jupp J
Negligence, Damages
The plaintiff underwent a sterilisation operation. The operation was painful and she later became pregnant. She sought damages for the pain and suffering and the additional costs of caring for the new child. Held: Public policy held fast against awarding damages for the birth of a healthy child, and that element of damages was not recoverable.
1 Citers


 
Marshall v Osmond [1983] 2 All ER 367; [1983] 1 QB 1034; [1983] 3 WLR 13
1983
CA
Sir John Donaldson MR, Dillon LJ, Sir Denis Buckley
Police, Negligence, Road Traffic
The plaintiff was passenger in a stolen car seeking to escape the police as they chased. The car was stopped, the plaintiff got out of the car, and was hit by a police car. He sought damages. Held: His appeal against dismissal of his claim was dismissed. A police officer in such circumstances owed the same duty of care to the plaintiff as he would to anybody else. He was to exercise such care and skill as was reasonable in the circumstances. Though the officer might have made errors of judgment, he had not in fact been negligent. Though the claimant had helped to create the circumstances which gave rise to the accident, the defence of volenti non fit injuria did not apply. "I think that the duty owed by a police driver to the suspect is, as Mr Spokes, on behalf of the plaintiff, has contended, the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in all the circumstances. The vital words in that proposition of law are 'in all the circumstances', and of course one of the circumstances was that the plaintiff bore all the appearance of having been somebody engaged in a criminal activity for which there was a power of arrest."
and "As I see it, what happened was that this police officer pursued a line in steering his car which would, in the ordinary course of events, have led to his ending up sufficiently far away from the Cortina to clear its open door. He was driving on a gravelly surface at night in what were no doubt stressful circumstances. There is no doubt that he made an error of judgment because, in the absence of an error of judgment, there would have been no contact between the cars. I am far from satisfied on the evidence that the police officer was negligent."
1 Cites

1 Citers


 
Harbinson v Department of the Environment for Northern Ireland [1983] 9 NIJB
1983

Lord Lowry CJNI
Negligence
A number of youths pushed a large heavy cylinder from the public highway from a roundabout into the infant plaintiff’s garden. The cylinder struck her causing her severe injuries. The DOE, the Highway Authority, unsuccessfully sought to have the claim dismissed. Held: Accepting the plaintiff's contention "Mr Montague also contended that the failure to erect crash barriers at a roundabout would be evidence of negligence by the DOE, since it was foreseeable that road users could leave the road at this point. Once that factual proposition is accepted (and if the presence of a suitable barrier would have prevented this accident), the difficulty of foreseeing the precise way in which the injury was caused does not bar the plaintiff: Hughes .v. Lord Advocate [1963] AC 837, Harvey .v. Singer [1990] SC 155. Although this alleged failure is a fault of omission, the highway authority would not, if otherwise found negligent, escape under the cloak of non-feasance, provided it was responsible for introducing the roundabout."
1 Citers



 
 Murray v Nicholls; 1983 - 1983 SLT 194

 
 Salmon v Seafarer Restaurants Ltd, (British Gas Corporation 3rd Party); QBD 1983 - [1983] 1 WLR 1264; (1983) 80 LSG 2523; [1983] 3 All ER 729
 
Clark v MacLennan [1983] 1 All ER 416
1983


Negligence
The court considered the judment in McGhee: "It seems to me that it follows from McGhee that where there is a situation in which a general duty of care arises and there is a failure to take a precaution, and that very damage occurs against which the precaution is designed to be a protection, then the burden lies on the defendant to show that he was not in breach of duty as well as to show that the damage did not result from his breach of duty."
1 Citers



 
 Dennis v Charnwood Borough Council; CA 1983 - [1983] CLY 2535; [1983] 81 LGR 275
 
P Perl (Exporters) v Camden London Borough Council [1984] QB 342; [1983] 3 All ER 161; [1983] 3 WLR 769; [1983] EWCA Civ 9
30 Jun 1983
CA
Waller, Oliver, Goff LJJ
Negligence
The plaintiffs had leased basement premises from the defendants and used them to store garments. The defendants owned the adjoining premises. Those premises had a broken lock on the front door. Unauthorised persons were often seen on those premises and burglaries had often taken place there. The defendants did nothing about complaints regarding the lack of security. During a weekend, intruders entered the defendants premises, knocked a hole through the common wall in the basement and stole garments from the plaintiffs basement. The plaintiff brought an action against the defendants claiming damages for negligence and succeeded at first instance. Held: The defendants' appeal succeeded. The actions of thieves, interposed between the defendants' conduct and the plaintiff's injury, meant that the defendants were not liable.
Waller LJ said: "But no case has been cited to us where a party has been held liable for the acts of a third party when there was no element of control over the third party. While I do not take the view that there can never be such a case I do take the view that the absence of control must make the court approach the suggestion that there is liability for a third party who was not under the control of the defendant with caution."
1 Citers

[ Bailii ]
 
Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd [1985] AC 210; [1984] 3 WLR 953; [1983] UKHL 5
18 Oct 1983
HL
Lord Keith
Negligence
Architects proposed a system of flexible drains for a site, but the contractors persuaded them to accept rigid drains which once laid proved inadequate at considerable cost. The local authority had permitted the departure from the plans. Held: The true question to found negligence was whether the particular defendant owed the particular plaintiff a duty of care having the scope pleaded, and that it was reasonable for that duty to be imposed. It was not reasonable to impose a duty on the local authority here to indemnify the builders from relying upon the advice of their own architects and contractors.
1 Cites

1 Citers

[ Bailii ]
 
Titchener v British Railways Board 1984 SC (HL) 34; [1983] UKHL 10; [1983] 3 All ER 770; [1983] 1 WLR 1427; 1984 SLT 192; SC (HL) 34
24 Nov 1983
HL
Lord Hailsham of St. Marylebone, Lord Chancellor, Lord Fraser of Tullybelton
Torts - Other, Negligence
A 15 year old was hit by a train as she crossed a railway line. She said the defender had not maintained a fence separating the street from the railway. The defenders knew that people went through the gaps walked across. She had crossed several times, knowing the danger and had looked out, but not on this occasion. It was not believed that she would have been stopped by an ordinary post and wire fence. The Lord Ordinary, Lord Ross, assoilzied saying "A person who takes a chance necessarily consents to take what comes." The pursuer reclaimed and an Extra Division adhered to the Lord Ordinary's interlocutor. The pursuer appealed. Held: (1) The occupier owed a duty to show such care as in all the circumstances was reasonable to see that the person entering on them would not suffer injury; a railway operator owed a duty to maintain a fence beside the line according to the circumstances, including the age and intelligence of the person entering on to the line and the nature of the locus. (2) The respondents owed no duty to the apellant to maintain the fence in a better condition than it was on the grounds that she was aware of the danger, that on-coming trains could be seen for a quarter of a mile and that she had not averred any complaint as to the way in which the train had been operated. (3) Even if the respondents had failed in their duty to maintain the fence the appellant had failed to prove as a matter of probability that the accident would have been prevented had the fence been maintained. (4) That the Lord Ordinary was also correct in holding that the respondents had established a defence under section 2(3) of the 1960 Act which merely stated the principle of volenti non fit iniuria in that the appellant was well aware of and accepted the risk of crossing the line while trains were being operated properly.
Lord Hailsham of St. Marylebone, Lord Chancellor: "To my mind the crucial fact in this appeal was that no averment was or could have been made against the respondent Board that the train which struck the appellant was being driven otherwise than in a perfectly proper manner. If such an averment had been made and proved the respondent Board would have been liable . . . the pursuer's claim, which was based solely on the condition of the fence, was doomed to failure, if only because, on her own admissions, she had voluntarily accepted the risk whatever it was which she incurred by crossing the line, provided only that it was a 'risk of danger from the running of the railway in the ordinary and accustomed way'.
On this analysis of the facts it is possible to formulate the result either by saying that, at the critical moment, that is when the appellant crossed the line, the respondent Board owed no duty to the appellant, or that the duty they owed to the appellant had been discharged by the time she crossed the boundary fence, or that the accident was not caused by any breach of duty on the part of the respondent Board, or alternatively that, having assumed the risk involved, the respondent Board was covered by the doctrine volenti non fit iniuria."
Lord Fraser of Tullybelton: "The duty under section 2(1) was considered by your Lordships' house in McGlone v British Railways Board 1966 S.C. (H.L.) 1 where Lord Guest said at p.15 'The duty is not to ensure the entrant's safety but only to show reasonable care. What is reasonable care must depend "on all circumstances of the case"'. One of the circumstances is the age and intelligence of the entrant. That appears from the provision in section 2(1) that the duty is to show 'such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury' (emphasis added). The question in each case relates to the particular person who has entered upon the premises. The submission of counsel for the respondents was that they did more than enough to discharge their obligations to this appellant because the fences along the north and south sides of the line, notwithstanding that they had gaps, gave her warning that if she went on she would be entering upon railway premises. She was well aware, as she admitted, of the danger of walking across or along the line, and she said that when doing so she normally kept a lookout for trains. By giving her that warning, the respondents were, said Mr Morison [senior counsel for the respondents], doing more than they were obliged to do, because this appellant already knew that the railway was there, and therefore needed no warning. Counsel accepted that the logical conclusion of this argument was that, as the appellant had no need of a warning, the respondents could have left their premises near the bridge completely unfenced without being in breach of any duty towards her. A fortiori they had no duty to do more than they did. "
and "I must emphasise that the question in this appeal is not whether the respondents, and other operators of railways if any there be, have as a general rule a duty to the public to maintain fences beside their lines in good condition or at all. The existence and extent of a duty to fence will depend on the circumstances of the case including the age and intelligence of the particular person entering upon the premises; the duty will tend to be higher in a question with a very young or a very old person than in the question with a normally active and intelligent adult or adolescent. The nature of the locus and the obviousness or otherwise of the railway may also be relevant. In the circumstances of this case, and in a question with this appellant, I have reached the opinion that the Lord Ordinary was well entitled to hold, as he did, that the respondents owed no duty to her to do more than they in fact did to maintain the fence along the line. I reached that view primarily because the appellant admitted that she was fully aware that the line existed, that there was danger in walking across it or along it, that she ought to have kept a lookout for trains, and that she had done so when crossing the line on previous occasions." and "There was therefore no special danger peculiar to the locus of the accident, and no criticism was made by the appellant of the way in which the particular train was being operated. [...] Taking all these circumstances together I consider that the respondents did not owe the appellant a duty to maintain the fence in better condition that it was. If it were necessary to do so I would hold that they owed her no duty to provide any fence at all."
The Lord Ordinary had correctly decided that, even if the respondents were at fault in failing to maintain the fence and to repair the gaps in it, the appellant had failed to prove, as a matter of probability, that if the respondents had performed their duty in those respects, the accident would have been prevented. He then said: "Secondly, the Lord Ordinary held that the respondents had established a defence under section 2(3) of the 1960 Act by proving that the appellant had willingly accepted the risks of walking across the line. As Lord Reid said in McGlone, supra, subsection (3) merely puts in words the principle volenti non fit iniuria. That principle is perhaps less often relied upon in industrial accident cases at the present time than formerly, but so far as cases under the 1960 Act are concerned, the principle is expressly stated in section 2(3) and there is no room for an argument that it is out of date or discredited. If the Lord Ordinary was entitled to sustain this defence, the result would be that, whether the respondents would otherwise have been in breach of their duty to the appellant or not, the appellant had exempted them from any obligation towards her. [....] On this matter I am of opinion, in agreement with Lord Hunter, that the Lord Ordinary was well-founded in sustaining this defence. The reasons for doing so are in the main the same as the reasons for holding that the respondents were not in breach of their duty. The appellant admitted that she was fully aware that this was a line along which trains ran, and that it would be dangerous to cross the line because of the presence of trains. She said in cross-examination 'it was just a chance I took', and the Lord Ordinary evidently accepted that she understood what she was saying. She was in a different position from the boy in McGlone, supra, who did not have a proper appreciation of the danger from live wires - see Lord Reid at p.13 and Lord Pearce at p.18. As I said already the appellant did not suggest that the train which injured her had been operated in an improper or unusual way. The importance of that is that the chance which she took was no doubt limited to the danger from a train operated properly, in the 'ordinary and accustomed way' - see Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264, per Denning L.J. at p.271. Had there been evidence to show that the train which injured the appellant was driven negligently, like the train in Slater's case, the risk which materialised would not have been within the risks that the appellant had accepted. But there is nothing of that kind here. In my opinion therefore the defence under section 2(3) is established."
Occupiers' Liability (Scotland) Act 1960
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[ Bailii ]
 
Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 QB 405; [1984] 1 All ER 881
1984
QBD
Mustill J
Damages, Negligence
The test to be applied in determining the time at which an employer's failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not extraordinarily solicitous for his workers' safety in the light of what he knew or ought to have known at the time. Lord Devlin's statement of the law as to concurrent tortfeasors "does not . . demand the conclusion that where the court knows that the initial stage of the damage was caused by A (and not B) and that the latter stage was caused by B (and not A), it is obliged by law to proceed (contrary to the true facts) on the assumption that the faults of each had caused the whole damage." and "I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that the court should make the best estimate it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment."
Mustill J adopted and developed the statement of Swanwick J: "I shall direct myself in accordance with this succinct and helpful statement of the law, and will make only one additional comment. In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive: as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed 'without mishap.' Yet even the plaintiffs have not suggested that it was 'clearly bad,' in the sense of creating a potential liability in negligence, at any time before the mid-1930s. Between the two extremes is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. It is unnecessary, and perhaps impossible, to give a comprehensive formula for identifying the line between the acceptable and the unacceptable. Nevertheless, the line does exist, and was clearly recognised in Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552. The speeches in that case show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow."
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Strable v Dartford Borough Council [1984] JPL 329
1984
CA
Stephenson LJ
Planning, Negligence
A local authority is not liable in damages for a negligent failure properly to complete its planning law duties. No action lay and the remedy available to an individual in such a case is to object on appeal to the Secretary of State and, if still dissatisfied with the planning results of that appeal, to seek judicial review of the Secretary of State's decision. The question is always whether, looking at the whole statute and at all the circumstances, including the history of the legislation, the relevant Act was passed primarily for the benefit of the individual or for the public in general.
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Winnik v Dick 1984 SLT 185
1984

Lord Justice-Clerk, Lord Wheatley
Scotland, Road Traffic, Negligence
The respondent, was a passenger in a motor car who was injured in an accident. He raised an action of damages against the driver, the appellant, who had been convicted of an offence under the Road Traffic Act 1972. The men had been drinking together in public houses for most of the day and when the respondent entered the appellant's car to return home, he knew that the appellant was drunk. The appellant contended that he was not liable in damages to the respondent inter alia because the respondent had voluntarily accepted the risk of an accident. Held: After reviewing the Scotish cases: including McCaig v Langan and Fowler v Tierney: "From these expressions of view as to what is involved in the maxim so far as the law of Scotland is concerned, I can find no support for, but rather refutation of, the contention that its effect here is to establish that on this journey there never was any duty on the defender as the driver of the car to take reasonable care quoad the pursuer [...]. In my opinion the effect of the maxim was not to relieve the defender from any duty to take care quoad his passengers. On the contrary the maxim proceeds on the basis that there is duty to take care and not be negligent, but the successful establishment of the maxim means that the pursuer has accepted the risk of the defender's negligence in the exercise of his legal duties and has absolved the defender from the consequences arising from that negligence."
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Bartrum v Hepworth Minerals and Chemicals Limited Unreported (Date unknown)
1984
QBD
Turner J
Negligence, Personal Injury
The claimant dived from a ledge on a cliff. In order to avoid shallow water he knew that he had to dive out into the pool but he failed to do so and fractured his neck. Held: The court dismissed his claim for damages saying "So far as the Act is concerned, by section 1(3) the defendants were under a duty to those whom they had reasonable grounds to believe would be in the vicinity of the danger, that is on the cliff for the purpose of diving, and the risk was one which, in all the circumstances, [they] may be reasonably expected to offer some protection. In my judgment the danger here was so obvious to any adult that it was not reasonably to be expected of the defendants that they would offer any protection."
Occupiers' Liability Act 1984 1
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Malone v Rowan [1984] 3 All ER 402
1984

Russell J
Negligence
The burden of proving contributory negligence rests on the defendant.
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Digital Equipment Corporation v Darkcrest Ltd [1984] Ch 512
1984


Negligence
One party in litigation owes no duty of care to the other.
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Jaensch v Coffey (1984) 55 CLR 549; [1984] 54 ALR 417; [1985] CLY 2326; [1984] HCA 52
20 Aug 1984

Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ
Commonwealth, Negligence, Personal Injury
(High Court of Australia) The claimant's husband was injured. She saw his injuries at hospital and was affected. She claimed damages for her own shock. Held: The driver owed her a duty of care, and was liable for negligence which caused nervous shock. A finding at first instance that she had normal fortitude, her predisposition to anxiety and depression gave no defence.
Brennan J said: "Liability for negligence occasioning nervous shock has not been readily accepted, perhaps because the courts found evidence of psychiatric illness and of its aetiology to be too vague to warrant a finding of a causal relationship between psychiatric illness and careless conduct . . A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by "shock". Psychiatric illness caused in other ways attracts no damages . . I understand "shock" in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognizable psychiatric illness."
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