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Negligence - From: 1985 To: 1989

This page lists 42 cases, and was prepared on 02 April 2018.

 
RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SLT 214
1985

Lord Fraser of Tullybelton
Scotland, Negligence, Nuisance
The suggestion that the decision in Rylands v Fletcher had any place in Scots law is "a heresy which ought to be extirpated."
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Rigby and another v Chief Constable of Northamptonshire [1985] 2 All ER 986; [1985] 1 WLR 1242
1985

Taylor J
Police, Negligence
The police were found liable to pay damages for negligence having fired a gas canister into the plaintiffs' premises in order to flush out a dangerous psychopath. There had been a real and substantial fire risk in firing the canister into the building and that risk was only acceptable if there was fire fighting equipment available to put the fire out at an early stage. No equipment had been present at the time and the fire had broken out and spread very quickly. Held: The defence of necessity might be available to police officers when looking at a claim for damage to property.
1 Citers


 
Meah v McCreamer (No 1) [1985] 1 All ER 367
1985
QBD
Woolf J
Negligence, Damages
The claimant had suffered serious brain damage as a result of the defendant's negligence, resulting in a personality change which caused him to commit offences for which he was imprisoned. He sought damages for that imprisonment. Held: Woolf J said: "this case is unusual because it is not suggested that he has suffered any financial loss as a result of going into prison. He is a person who might have worked from time to time, but the money he has saved as a result of being boarded in prison has apparently been regarded as outweighing his loss. So I approach this case on the basis that there is no continuing financial loss as result of his being in prison . ." and "If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute."
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Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 All ER 643; [1985] 2 WLR 480; [1985] AC 871; [1985] UKHL 1
21 Feb 1985
HL
Lord Templeman, Lord Diplock, Lord Scarman, Lord Keith
Health, Torts - Other, Negligence
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised. Held: The appeal failed. A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death.
However, where a patient does not ask as to the risks, Lord Diplock said: "we are concerned here with volunteering unsought information about risks of the proposed treatment failing to achieve the result sought or making the patient's physical or mental condition worse rather than better. The only effect that mention of risks can have on the patient's mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied." and "a doctor's duty of care, whether he be general practitioner or consulting surgeon or physician is owed to that patient and none other, idiosyncrasies and all." ."
Lord Scarman said: "Damage is the gist of the action of negligence"
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[ Bailii ]
 
Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) [1986] AC 785; [1985] UKHL 10; [1986] 2 Lloyd's Rep 1; [1986] 2 WLR 902
24 Apr 1985
HL
Lord Brandon of Oakbrook
Transport, Contract, Negligence
The plaintiff contracted to buy a cargo to be shipped on the defendant's vessel. Because of poor stowage, the cargo was damaged. At the time of the damage the claimant was neither the owner nor possessor of the cargo, but under the terms of the purchase contract he had assumed the risk of damage to the cargo. Held: For a person to claim in negligence for loss caused to him by reason of loss of or damage to property, he must have had either the legal ownership of or a possessory title to the property concerned at the time when the loss or damage occurred. It is not enough for him to have only had contractual rights in relation to such property which have been adversely affected by the loss of or damage to it. The House (obiter) rejected the argument that the duty of care owed by a party could be excluded by a contract between claimant and a third party.
Lord Brandon said: "In order to enable a person to claim in negligence for loss caused to him by reason of loss of or damage to property, he must have had either the legal ownership of or a possessory title to the property concerned at the time when the loss or damage occurred."
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[ Bailii ]
 
Condon v Basi [1985] 2 All ER 253; [1985] 1 WLR 866; [1985] EWCA Civ 12
30 Apr 1985
CA
Sir John Donaldson MR, Stephen Brown LJ, Glidewell J
Personal Injury, Negligence
The parties were playing football. The defendant executed a late dangerous and foul tackle on the plaintiff breaking his leg. The defendant was sent off, and the plaintiff sued. Held: Those taking part in competitive sport still owed a duty of care to others taking part with them. The standard of care was objective and matched the circumstances. If a player fell below the normal and expected standards he should expect to be held liable. There was an obvious breach of the defendant's duty of care because he showed a reckless disregard of the plaintiff's safety and his conduct fell far below the standards which might reasonably be expected of anyone playing the game. "The standard is objective, but objective in a different set of circumstances. Thus there will of course be a higher degree of care required of a player in a First Division football match than of a player in a Fourth Division football match."
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[ Bailii ]
 
Sutherland Shire Council v Heyman [1985] 50 ALR 1; (1985) 157 CLR 424
4 Jul 1985
HCA
Brennan J, Dean J, Mason J
Commonwealth, Negligence
(High Court of Australia) The court considered a possible extension of the law of negligence.
Brennan J said: "the law should develop novel categories of negligence incrementally and by analogy with established categories. "
Dean J said: "The requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission of the defendant and the loss or injury sustained by the plaintiff. It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an over riding relationship of employer and employee or of a professional man and his client and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss and injury sustained. It may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury, loss or damage to the person or property of another or reliance by one party upon such care being taken by the other in circumstances where the other party knew or ought to have known of that reliance. Both the identity and the relative importance of the factors which are determinative of an issue of proximity are likely to vary in different categories of case. That does not mean that there is scope for decision by reference to idiosyncratic notions of justice or morality or that it is a proper approach to treat the requirement of proximity as a question of fact to be resolved merely by reference to the relationship between the plaintiff and the defendant in the particular circumstances. The requirement of a relationship of proximity serves as a touchstone and control of the categories of case in which the common law will adjudge that a duty of care is owed. Given the general circumstances of a case in a new or developing area of the law of negligence, the question what (if any) combination or combinations of factors will satisfy the requirement of proximity is a question of law to be resolved by the processes of legal reasoning, induction and deduction. On the other hand the identification of the content of that requirement in such an area should not be either ostensibly or actually divorced from notions of what is 'fair and reasonable' . . or from the considerations of public policy which underlie and enlighten the existence and content of the requirement."
Mason J said: "although a public authority may be under a public duty, enforceable by mandamus, to give proper consideration to the question whether it should exercise a power, this duty cannot be equated with, or regarded as a foundation for imposing, a duty of care on the public authority in relation to the exercise of the power. Mandamus will compel proper consideration of the authority of its discretion, but that is all."
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[ Austlii ]
 
Riss v City of New York 240 NE2d 860; 293 NYS2d 897; (1986) 22 NY2d 579
1986


International, Negligence
New York Court of Appeals - a young woman who had repeatedly sought police protection against a rejected suitor after repeated threats was blinded by a thug hired by him. Held: (Keating J dissenting) No action for negligence lay. Individuals, juries and courts are ill-equipped to judge 'considered legislative-executive decision[s]' as to how particular community resources should be or should have been allocated to protect individual members of the public." The provision of a government service to protect the public from external hazards and to control the activities of criminal wrongdoers was more appropriate for a considered legislative - executive decision, taking into account the limited resources of the community.
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 Stockley v Knowsley Metropolitan Borough Council; CA 1986 - [1986] 279 EG 677
 
Bell v Secretary of State for Defence [1986] QB 322; [1985] 3 All ER 661
1986
CA

Negligence, Constitutional, Armed Forces
The deceased was injured serving in the forces in Germany. His injury was worstened after negligent communications between army doctors. The defendant relied upon State Immunity to defend a claim, saying he had issued a certificate that he had died on active duty. Held: The Secretary was entitled to issue the certificate of entitlement even though at the time no-one was entitled to receive an award, and the only effect was to achieve immunity from suit. However the action which caused the injury was the failure to communicate the deceased's condition, which happened at the civilian hospital and not on Crown Land, and therefore the section did not give immunity.
Crown Proceedings Act 1947 10(1)(a)(b)
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 King v Liverpool City Council; CA 1986 - [1986] CLY 2260; [1986] 3 All ER 544; [1986] 1 WLR 890; [1986] 1 EGLR 181; (1986) 84 LGR 871
 
Rose v Express Welding Ltd Unreported, 21 January 1986; Transcript No 31 of 1986
21 Jan 1986
CA

Negligence, Limitation

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Aldred v Nacanco [1987] IRLR 292
1987
CA

Employment, Vicarious Liability, Negligence
The claimant sought damages. At the end of the day, a co-employee tried to startle her by pushing an insecure washbasin against her, but caused her actual injury. Held: The plaintiff's appeal was dismissed. It was an independent act not sufficiently connected with the employment. An employer would be liable for acts actually authorised and for the way the employee carries out those acts. It was not foreseeable that the washbasin would cause injury, or that it would be used in this way.
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 Ogwo v Taylor; CA 1987 - [1987] 2 WLR 988; [1987] 1 All ER 668; (1987) 84 LSG 1882
 
Cuffy v City of New York (1987) 513 NYS2d 372; (1987) 505 NE2d 937; (1987) 69 NY2d 255
1987


Negligence, Local Government
New York Court of Appeals - The court set out the elements of a special relationship between a municipality and a plaintiff which would negate a municipality's claim to immunity: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking."
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Bryce v Swan Hunter Group plc [1988] 1 All ER 659; [1987] 2 Lloyds Rep 426
1987


Negligence, Personal Injury
The court considered the difficulties of establishing liability in negligence or breach of statutory duty against an employer for exposure to asbestos giving rise to mesothelioma.
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 Yuen Kun-Yeu v Attorney-General of Hong Kong; PC 1987 - [1988] AC 175; [1987] 2 All ER 705; [1987] 3 WLR 776; [1987] UKPC 16

 
 Curran v Northern Ireland Co-Ownership Housing Association; HL 1987 - [1987] 2 All ER 13; [1987] 2 WLR 1043; [1987] AC 718
 
M/S Aswan Engineering Establishment Co v Lupdine Ltd [1987] 1 All ER 135; [1987] 1 WLR 1
1987

Lloyd LJ
Negligence
A proprietary liquid waterproofing compound called Lupguard was stacked in plastic pails in Kuwait in full sunshine. The pails collapsed and the Lupguard was lost. Held: The manufacturers of the pails were not liable in tort: "The distinction between a defective product which renders the product itself less valuable, and a defective product which creates a danger to other property of the plaintiff, was the corner-stone of Lord Brandon of Oakbrook's dissenting speech in the Junior Books case . . . . It is a distinction which is well established both in English and American law. Where the defect renders the product less valuable, the plaintiff's remedy (if any) lies in contract. Where it creates a danger to other property of the plaintiff, the remedy (if any) lies in tort . . If Aswan had bought empty pails from a third party and then used the pails for exporting the Lupguard, clearly there would have been damage to other property of the plaintiffs. But in the present case the property in the pails and the property in the Lupguard passed to the plaintiffs simultaneously. Indeed, it is rather artificial to think of the property in the pails passing at all. Aswan were buying Lupguard in pails. They were not buying Lupguard and pails. One can think of other cases by way of illustration without difficulty. If I buy a defective tyre for my car and it bursts I can sue the manufacturer of the tyre for damage to the car as well as injury to my person. But what if the tyre was part of the original equipment? Presumably the car is other property of the plaintiff, even though the tyre was a component part of the car, and property in the tyre and property in the car passed simultaneously. Another example, perhaps even closer to the present case, would be if I buy a bottle of wine and find that the wine is undrinkable, owing to a defect in the cork. Is the wine other property, so as to enable me to bring an action against the manufacturer of the cork in tort? Suppose the electric motors in the Muirhead case [1986] QB 507 had overheated and damaged the pumps. Would the plaintiff have recovered for physical damage to the pumps as well as the lobsters?
I do not find these questions easy. There is curiously little authority on the point in England compared with America, where the law as to product liability is more highly developed. My provisional view is that in all these cases there is damage to other property of the plaintiff, so that the threshold of liability is crossed. Whether liability would be established in any particular case is, of course, another matter.
So while I recognise the existence of the first ground of distinction between the Muirhead case and the present case, and while I accept that the purchase of the pail was only incidental to the purchase of the Lupguard, I am not prepared to decide this case in favour of [the manufacturers of the pails] on that ground."
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 Smith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd; HL 1987 - [1987] AC 241; [1987] 2 WLR 480; [1987] UKHL 3; 1987 SC (HL) 37

 
 Maloco v Littlewoods; Smith v Litlewoods; HL 5-Feb-1987 - [1987] UKHL 18; 1987 SCLR 489; [1987] 2 WLR 480; 1987 SLT 425; 1987 SC (HL) 37; [1987] 1 All ER 710; (1987) 84 LSG 905; [1987] AC 241
 
Fitzgerald v Lane [1987] 2 All ER 455
6 Mar 1987
CA
Slade and Nourse LJJ and Sir Edward Eveleigh
Negligence
The plaintiff was struck by the defendant's car as he crossed at a pelican crossing and suffered severe injuries when the first defendant's car passed the stationary of the second defendant. The judge found all three parties negligent. Held: There had been no evidence that the second defendant who had stopped at the crossing was negligent, however Wilsher had shown that the case of McGhee had to be applied so as to find him liable.
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[ Gazette ]

 
 Comex Houlder Diving Ltd v Colne Fishing Co Ltd; HL 19-Mar-1987 - [1987] UKHL 19; 1987 SLT 443; SC (HL) 85

 
 Hill v Chief Constable of West Yorkshire; HL 28-Apr-1987 - [1988] 2 WLR 1049; [1989] AC 53; [1988] 2 All ER 238; [1987] UKHL 12
 
Ferguson v Welsh [1987] 1 WLR 1553; [1987] UKHL 14
29 Oct 1987
HL
Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Oliver of Aylmerton, Lord Goff of Chieveley
Negligence, Personal Injury
The plaintiff sought damages for personal injury. A council had engaged a competent contractor to carry out demolition works. Unknown to the council, the contractor sub-contracted the works to two brothers who worked in a highly dangerous manner. One of the brothers employed the plaintiff, Mr Ferguson, to help them, and Mr Ferguson was injured when part of the building collapsed. Held: The council was not liable. Assuming section 2 applied, the council was not liable under 2(4) having engaged a contractor it had reasonable grounds for regarding as competent, and there was no evidence to support any inference that the council or its responsible officers knew or ought to have known that its contractor was likely to contravene the prohibition on sub-contracting. There was no difficulty in finding the plaintiff to be licensee of one person and at the same time a trespasser as against the defendant,
Lord Keith: "It may therefore be inferred that an occupier might, in certain circumstances, be liable for something done or omitted to be done on his premises by an independent contractor if he did not take reasonable steps to satisfy himself that the contractor was competent and that the work was being properly done. It would not ordinarily be reasonable to expect an occupier of premises having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the contractor’s activities in order to ensure that he was discharging his duty to his employees to observe a safe system of work. In special circumstances, on the other hand, where the occupier knows or has reason to suspect that the contractor is using an unsafe system of work, it might well be reasonable for the occupier to take steps to see that the system was made safe." and "It is possible to envisage circumstances in which an occupier of premises engaging the services of an independent contractor to carry out work on his premises may, as a result of his state of knowledge and opportunities of supervision, render himself liable to an employee of the contractor who is injured as a result of the defective system of work adopted by the employer. But I incline to think that his liability in such case would be rather that of joint tortfeasor that of an occupier."
Occupiers Liability Act 1957 2(2)
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[ Bailii ]

 
 Ogwo v Taylor; HL 19-Nov-1987 - [1987] 3 All ER 961; [1987] UKHL 7; [1987] 3 WLR 1145; [1988] AC 431

 
 Rowling v Takaro Properties Ltd; PC 30-Nov-1987 - [1988] AC 473; [1988] 1 All ER 163; [1987] UKPC 2; [1987] UKPC 34
 
Business Computers International Ltd v Registrar of Companies [1988] Ch 229; [1987] 3 All ER 465; [1987] 3 WLR 1134
1988
ChD
Scott J
Litigation Practice, Negligence
A winding up petition was served at an address which was not that of the plaintiff's registered office, and nobody appeared at the hearing. A winding up order was made against the plaintiff company, which now sued the solicitors who had misserved the petition in negligence in respect of the losses said to have been sustained as a result of the order. Held: The claim failed.
There is an inherently antagonistic relationship between adverse litigants which makes it inappropriate for the law to recognise a duty of care by one adverse party, or his legal representative, to another party. The safeguards in such a case must be found in the rules and procedures that govern litigation.
Scott J said: "Is it just and reasonable that a plaintiff should owe a duty of care to a defendant in regard to service of the originating process? I do not think that it is. The plaintiff and the defendant, the petitioner and the respondent, are antagonists. The plaintiff, or the petitioner, is seeking a legal remedy in an adversarial system. The system stipulates the rules and requirements that must be observed by the two parties. The plaintiff must issue his process and must serve it on the defendant. If there is default in service the process must be struck out. If an order is obtained without the prescribed rules or regulations having been observed, the order may be discharged or set aside, sometimes by an application at first instance, sometimes on appeal. The prosecution of the action or of the petition is subject throughout its career from institution to final judgment to judicial control. Service of process is a step, in the prosecution. It must usually be proved before an order can be obtained against an absent defendant. The proposition that a duty of care is owed by one litigant to another and can be superimposed on the checks and safeguards that the legal system itself provides is, to my mind, conceptually odd. The safeguards against ineffective service of process ought to be, and I think must be, found in the rules and procedures that govern litigation. The rules and procedures require that, save on ex parte applications, proof of service be shown before an order is made against an absent party. If the proof of service is false, be it through negligence or design, an order may be made that should not have been made. The injured party's remedy is to have the order set aside. An action for damages cannot be based on the falsity of the proof of service. Nor, in my judgment, can the adequacy of the efforts made to effect service be subjected to a tortious duty of care." and "In my judgment, there is no duty of care owed by one litigant to another as to the manner in which the litigation is conducted, whether in regard to service of process or in regard to any other step in the proceedings. The safeguards against impropriety are to be found in the rules and procedure that control the litigation and not in tort. I am therefore of opinion that the plaintiff's statement of claim does not disclose a reasonable cause of action against the second defendant and ought to be struck out."
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 Chaudry v Prabhakar; CA 1988 - [1989] 1 WLR 29; [1988] 3 All ER 718
 
Hill v Chief Constable of West Yorkshire [1988] 1 QB 60
1988
CA
Glidewell LJ
Negligence, Police

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 CBS Songs Ltd v Amstrad Consumer Electronics Plc; HL 12-May-1988 - [1988] AC 1013; [1988] 2 WLR 1191; [1988] UKHL 15; [1988] 2 FTLR 168; [1988] RPC 567; [1988] 2 All ER 484

 
 Ng Chun Pui v Lee Chuen Tat; PC 24-May-1988 - [1988] SJ 1244; [1988] RTR 298; [1988] UKPC 7
 
Hayes and Another v Dodd [1988] EWCA Civ 8; [1990] 2 All ER 815
7 Jul 1988
CA
Purchas LJ, Staughton LJ, Waller LJ
Damages, Negligence
The court considered what damages might be paid for inconvenience and distress.
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[ Bailii ]
 
Fitzgerald v Lane [1989] AC 328; [1988] UKHL 5; [1988] 2 All ER 961
14 Jul 1988
HL
Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton
Negligence, Damages
The plaintiff crossed road at a pelican crossing. The lights were against him but one car had stopped. As he passed that car he was struck by another in the second lane and again by a car coming the other way. The judge had held the three equally responsible. The defendants appealed the calculation of damages. Held: Apportionment of liability in a case of contributory negligence between plaintiff and defendants must be kept separate from apportionment of contribution between the defendants inter se. The judge should first have set the plaintiff's level of contribution, and then as a different stage apportioned the liability thus found between the defendants.
Civil Liability (Contribution) Act 1978
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[ Bailii ]
 
D and F Estates v Church Commissioners for England [1988] UKHL 4; [1989] AC 177
14 Jul 1988
HL
Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle
Negligence, Construction
The House considered the liability of main contractors on a construction site for the negligence of it sub-contractors.
Lord Bridge said: "It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work. To this general rule there are certain well-established exceptions or apparent exceptions. Without enumerating them it is sufficient to say that it was accepted by Mr. Fernyhough on behalf of the present appellants that the instant case could not be accommodated within any of the recognised and established categories by which the exceptions are classified. But it has been rightly said that the so-called exceptions
'are not true exceptions (at least so far as the theoretical nature of the employer's liability is concerned) for they are dependent upon a finding that the employer is, himself, in breach of some duty which he personally owes to the plaintiff. The liability is thus not truly a vicarious liability and is to be distinguished from the vicarious liability of a master for his servant:" see Clerk & Lindsell on Torts, 15th ed.'"
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[ Bailii ]
 
Capps v Miller [1989] 2 All ER 333; [1988] EWCA Civ 5; [1989] 1 WLR 839
30 Nov 1988
CA
May, Croom-Johnson, Glidewell LJ
Negligence
The plaintiff was injured riding with the defendant on a motor-cycle. The defendant drove negligently, and crashed. The plaintiff's crash hemet came off and he sustained severe head injuries. He had not fastened it. The defendant appealed an apportionment of 100% responsibility to himself. Held: The judge was wrong. The plaintiff's own contributory negligence had clearly contributed to the seriousness of the injury. His damages were reduced by 10%. It was not possible to make a finding on the medical evidence as to the extent to which the plaintiff's injuries were worse because his undone helmet came off thus it was not possible readily to attribute the case to Lord Denning's categories in Froom v Butcher.
Glidewell LJ drew a distinction between the plaintiff who puts on a crash helmet and fails to fasten it and the plaintiff who fails to wear a helmet at all, since a close fitting but unfastened helmet will in some accidents remain on the head, thus reducing or eliminating the damage resulting.
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[ Bailii ]
 
Bell-Booth Group Ltd v Attorney General [1989] 3 NZLR 148
1989


Commonwealth, Negligence, Defamation
There were alternative cases put in defamation and negligence. Held: negligence could not operate in that sort of case.
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Madden v Quirk [1989] 1 WLR 702
1989
QBD
Simon Brown J
Negligence, Damages
The plaintiff had been riding as a passenger in the open part of a pick up truck which crashed. Held: The passenger contributed significantly (85%) to his own injuries by choosing an unsafe mode of travel.
Civil Liability (Contributions) Act 1978 2(1)
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Calveley v Chief Constable of the Merseyside Police [1989] AC 1228; [1989] 1 All ER 1025; [1989] 2 WLR 624
1989
HL
Lord Bridge of Harwich
Police, Negligence, Torts - Other
Police officers brought an action in negligence against a Chief Constable on the ground that disciplinary proceedings against them had been negligently conducted. They claimed that the investigating officers had negligently failed to conduct the investigations properly or expeditiously and they sued for loss of overtime payments which they would otherwise have received during their periods of suspension. Held: The claim failed. It would be contrary to public policy to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.
Lord Bridge dealing with the question of whether the police owe a duty of care to a suspect in carrying out a criminal investigation observed that: "One must therefore ask the question whether foreseeable injury to the suspect may be caused on the hypothesis either that he has never been charged or, if charged, that he has been acquitted at trial or on appeal, or that his conviction has been quashed on an application for judicial review. It is, I accept, foreseeable that in these situations the suspect may be put to expense, or may conceivably suffer some other economic loss, which might have been avoided had a more careful investigation established his innocence at some earlier stage. However, any suggestion that there should be liability in negligence in such circumstances runs up against the formidable obstacles in the way of liability in negligence for purely economic loss. Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation. Finally, all other considerations apart, it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect. If no duty of care is owed by a police officer investigating a suspected crime to a civilian suspect, it is difficult to see any conceivable reason why a police officer who is subject to investigation under the Regulations of 1977 should be in any better position." and "…it is not reasonably foreseeable that the negligent conduct of a criminal investigation would cause injury to the health of the suspect, whether in the form of depressive illness or otherwise."
The availability of the tort of misfeasance in public office is one reason justifying the non-actionability of a claim in negligence where there is an act of maladministration: "where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation."'

The availability of the tort of misfeasance in public office was one reason justifying the non-actionability of a claim in negligence for an act of maladministration: "I do not regard this as an occasion where it is necessary to explore, still less to define, the precise limits of the tort of misfeasance in public office. It suffices for present purposes to say that it must at least involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds and which is done in bad faith or (possibly) without reasonable cause. The decision to suspend the plaintiff Park under regulation 24 was taken by the deputy Chief Constable. If this had been done maliciously in the sense indicated, this would certainly be capable of constituting the tort of misfeasance in public office. But it was conceded that no malice is alleged against the deputy Chief Constable and that malice on the part of Grant cannot be imputed to him. The pleaded case must therefore stand or fall according as to whether it identifies any act done by Grant in the exercise or purported exercise of a power or authority vested in him as investigating officer which was infected by the malice pleaded against him. I can find no such act identified by the pleading.
No formal application to amend the pleading was made in the course of the argument, but at a late stage a document was placed before your Lordships indicating a pleading of additional particulars under paragraphs 22 and 24 which the plaintiff might seek leave to add by way of amendment if those two paragraphs in the statement of claim were allowed to stand. The particulars which it is suggested might be added under paragraph 24 would read:
“From an early stage (the date whereof the plaintiff cannot further particularise until after discovery and/or interrogatories herein) Grant knew or believed that there were no proper grounds for suspending the plaintiff yet procured the imposition of and/or the continuation of the suspension by continuing the investigation and giving misleading and/or incomplete reports concerning the same.”
It is evident that if a police officer investigating suspected criminal or disciplinary offences makes a false report to his superior officer which is defamatory of the suspect and that report is made maliciously so as to lose its status of qualified privilege, the suspect has a cause of action in tort against the author of the report. But the tort is defamation not misfeasance in public office, since the mere making of a report is not a relevant exercise of power or authority by the investigating officer. I express no opinion as to whether in those circumstances the Chief Constable would be vicariously liable under section 48(1) of the Act of 1964. However that may be, the suggested additional particulars under paragraph 24 of the statement of claim would do nothing to validate the pleading of misfeasance in public office and obviously fall far short of disclosing a reasonable cause of action in defamation.” "
1 Citers



 
 Jones v Department of Employment; CA 1989 - [1989] QB 1; [1988] 2 WLR 493
 
Stephen v Scottish Boatowners Mutual Insurance Association 1989 SC (HL) 24
1989
HL
Lord Keith of Kinkel
Insurance, Negligence, Transport
The House was asked whether the skipper of a fishing boat had used all reasonable endeavours to save his vessel, Lord Keith of Kinkel said that the test was an objective one directed to ascertaining "what an ordinarily competent fishing boat skipper might reasonably be expected to do in the same circumstances."
1 Citers



 
 Kirkham v Anderton, The Chief Constable of the Greater Manchester police; CA 20-Dec-1989 - [1989] 2 QB 283; [1990] 3 All ER 246; [1989] EWCA Civ 3
 
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