Two defendants were delivering a yacht. It crashed into a buoy. One had some qualifications, the other less, but was steering at the time.
Held: The non steering defendant had some 15 per cent responsibility.
Morison J
[2006] EWHC 347 (Comm)
England and Wales
Updated: 16 September 2022; Ref: scu.241315
Damages claim for sex abuse whilst in care home.
Lord Justice Chadwick Lord Justice Latham Sir Swinton Thomas
[2004] EWCA Civ 1747
England and Wales
Updated: 16 September 2022; Ref: scu.220528
The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.
Held: The defendants were liable. Bailment includes as an element an assumption of responsibility by the bailee to keep the goods safe, that is to say to take reasonable care of the goods. In a bailment for reward the duty was non-delegable.
The employee had converted the fur in the course of his employment. Though the authorities were not straightforward, he had not commiteed the act while ‘on a frolic of his own’.
Diplock LJ said: ‘If the principle laid down in Lloyd v Grace, Smith and Co [1912] AC 716 is applied to the facts of the present case, the defendants cannot in my view escape liability for the conversion of the plaintiff’s fur by their servant Morrissey. They accepted the fur as bailees for reward in order to clean it. They put Morrissey as their agent in their place to clean the fur and to take charge of it while doing so. The manner in which he conducted himself in doing that work was to convert it. What he was doing, albeit dishonestly, he was doing in the scope or course of his employment in the technical sense of that infelicitous but time-honoured phrase. The defendants as his masters are responsible for his tortious act.’ and
‘ If the bailee in the present case had been a natural person and had converted the plaintiff’s fur by stealing it himself, no one would have argued that he was not liable to her for its loss. But the defendant bailees are a corporate person. They could not perform their duties to the plaintiffs to take reasonable care of the fur and not to convert it otherwise than vicariously by natural persons acting as their servants or agents. It was one of their servants to whom they had entrusted the care and custody of the fur for the purpose of doing work upon it who converted it by stealing it. Why should they not be vicariously liable for this breach of their duty by the vicar whom they had chosen to perform it? . . ‘ and
‘ . . Nor are we concerned with what would have been the liability of the defendants if the fur had been stolen by another servant of theirs who was not employed by them to clean the fur or to have the care and custody of it. The mere fact that his employment by the defendants gave him the opportunity to steal it would not suffice . . .. I base my decision in this case on the ground that the fur was stolen by the very servant whom the defendants as bailees for reward had employed to take care of it and clean it.’
Salmon LJ said: ‘the defendants are liable for what amounted to negligence and conversion by their servant in the course of his employment’. He emphasised the importance of the thief being the servant through whom the defendants had chosen to discharge their duty to take reasonable care of the fur.’ A bailee for reward is not answerable for a theft by any of his servants but only for a theft by such of them as are deputed by him to discharge some part of his duty of taking reasonable care . . So in this case, if someone employed by the defendants in another depot had broken in and stolen the fur, the defendants would not have been liable. Similarly . . if a clerk employed in the same depot had seized the opportunity of entering the room where the fur was kept and had stolen it, the defendants would not have been liable . .’
Lord Denning said: ‘Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe: and he cannot escape that duty by delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show – and the burden is on him to show – that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty.’
Diplock LJ, Salmon LJ, Lord Denning MR
[1966] 1 QB 716, [1965] 3 WLR 276, [1965] 2 Lloyds Rep 63, [1965] 2 All ER 725
England and Wales
Cited – Lloyd v Grace, Smith and Co HL 1912
Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ managing clerk, who defrauded her.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the . .
No longer good law – Cheshire v Bailey CA 1905
A silversmith hired a coach and coachman from the defendants in order to show his wares to customers around London. But the coachman entered into a conspiracy with others to steal the silver. Held The Court dismissed the claim for damages against . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Frans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Approved – Port Swettenham Authority v T W Wu and Co (M) Sdn Bhd PC 19-Jun-1978
A gratuitous bailee assumes a duty to take reasonable care of the chattel: ‘This standard, although high, may be a less exacting standard than that which the common law requires of a bailee for reward [but] the line between the two standards is a . .
Explained – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Approved – Gilchrist Watt and Sanderson Pty Ltd v York Products Pty Ltd PC 1970
(New South Wales – Australia) The defendants were stevedores who had lost two cases of clocks that they had received as sub-bailees of the shipowners, who in turn owed a duty to deliver them to the plaintiffs under the bills of lading.
Held: . .
Cited – Mattis v Pollock (T/A Flamingo’s Nightclub) QBD 24-Oct-2002
The claimant sought damages after being assaulted by a doorman employed by the defendant.
Held: The responsibility of the nightclub owner for the actions of his aggressive doorman was not extinguished by the separation in time and place from . .
Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
Cited – Armes v Nottinghamshire County Council SC 18-Oct-2017
The claimant had been abused as a child by foster parents with whom she had been placed by the respondent authority. The court was now asked, the Council not having been negligent, were they in any event liable having a non-delegable duty of care . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 September 2022; Ref: scu.214665
The House considered the unexplained fact that in the temporary absence of the teacher (who, on the evidence, was not negligent) it was possible for a child of four to wander from the school premises onto the highway, through a gate which was either open or very easy for him to open, was held to disclose negligence on the part of the school authority. The teacher with immediate supervisory duties over the child was acquitted of negligence – she was called to attend an emergency elsewhere.
Held: The duty broken was one owed to a driver in the street outside the school, who in trying to avoid hitting the child drove into a telegraph post and sustained fatal injuries. The House considered also the duty of parents to care for their children leaving school to get home.
Lord Reid, (majority), said that it ought to have been anticipated by the appellants or their responsible officers that if a child was left unsupervised (for good reason or not) it might well try to get out from the school grounds onto the street and that if it did a traffic accident was far from improbable. This would have been very easy to prevent by making it difficult or impossible for such a child to be able to open the gate from the yard on to the roadway. The failure to do so led to the accident. To fail to do so was to fail to take reasonable care (certainly, for the safety of the child, but also, it was held, for the driver who forseeably might be injured in striking or avoiding the child once in the road).
However, ‘There is no absolute duty; there is only a duty not to be negligent, and a mother is not negligent unless she fails to do something which a prudent or reasonable mother in her position would have been able to do and would have done.’
Lord Keith encapsulated the decision to the effect that the facts suggested negligence on the part of someone for whom the authority was responsible, in his opening remarks: ‘My Lords, if I find two toddlers, not quite four years of age, unaccompanied in a busy street, exposed to all the perils of a traffic accident, my natural reaction is to think that someone has been thoughtless, or careless, or negligent of their safety.’
Reid, Keith LL
[1955] 1 All ER 565 HL(E), [1955] 2 WLR 517, [1955] AC 549, [1955] UKHL 2
England and Wales
Appeal from – Lewis v Carmarthenshire County Council CA 1953
The primary duty of care of a school toward a pupil ends at the school gate, although the school will have a duty to take reasonable steps to ensure that young children who are not old enough to look after themselves do not leave the school premises . .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Commonwealth v Introvigne 1982
(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 . .
Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
Cited – Armes v Nottinghamshire County Council SC 18-Oct-2017
The claimant had been abused as a child by foster parents with whom she had been placed by the respondent authority. The court was now asked, the Council not having been negligent, were they in any event liable having a non-delegable duty of care . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 September 2022; Ref: scu.181261
A vehicle was provided by an education authority for the carriage of children to school from a certain distance. A child living nearer the school was carried in the vehicle with the consent of an official. The child was injured, and the jury found that the injuries were caused through the negligence of the education authority. The education authority was under no obligation to carry the child in any vehicle.
Held that the education authority was liable for negligence.
Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Ashbourne, Atkinson, and Shaw
[1911] UKHL 737, 48 SLR 737
England and Wales
Updated: 15 September 2022; Ref: scu.619186
The claimant said that as a child the defendant had failed in its duty to protect her from her abusive mother and later from foster parents.
Held: Males J, dealt with the issues of liability and limitation, leaving issues concerning causation and quantum of damages to be dealt with later if necessary. As to limitation, the judge decided that the limitation period should be disapplied pursuant to section 33 of the Limitation Act 1980. In relation to liability, there was no case that the local authority had failed to exercise reasonable care in the selection of the foster parents or in the supervision and monitoring of the placements. The claimant’s case was that the local authority was responsible in law for the tortious conduct of the foster parents, either on the basis of vicarious liability, or on the basis of a non-delegable duty of care. In a carefully reasoned judgment, the judge rejected both arguments.
The claim failed. The relationship between the Local Authority and its foster carers was not akin to an employment relationship.
Males J
[2014] EWHC 4005 (QB), [2015] PTSR 653, [2015] WLR(D) 35
England and Wales
Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – KLB v British Columbia 2-Oct-2003
Canlii (Supreme Court of Canada) Torts – Liability – Intentional torts – Abuse of children by foster parents – Whether government can be held liable for harm children suffered in foster care – Whether government . .
Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
Appeal from – NA v Nottinghamshire County Council CA 12-Nov-2015
Appeal against finding that a local authority was not responsible for the sexual abuse of the appellant whilst with foster carers as a child.
Held: As to whether the duty as non-delegable, such a duty must relate to a function which the local . .
See Also – Armes v Nottinghamshire County Council QBD 15-Nov-2016
Application to set aside anonymity order granted in earlier proceedings alleging sexual abuse. . .
Appeal from – Armes v Nottinghamshire County Council SC 18-Oct-2017
The claimant had been abused as a child by foster parents with whom she had been placed by the respondent authority. The court was now asked, the Council not having been negligent, were they in any event liable having a non-delegable duty of care . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 September 2022; Ref: scu.539466
[2001] EWCA Civ 710
England and Wales
Updated: 12 September 2022; Ref: scu.218148
[2004] EWCA Civ 1637
England and Wales
Updated: 12 September 2022; Ref: scu.220172
Appeal by the defendant in a personal injuries action against a finding that there was no contributory negligence. The issue in this appeal is whether two pedestrians, who were knocked down by a speeding car, were taking reasonable care for their own safety.
Lord Justice Jackson
[2015] EWCA Civ 572
England and Wales
Updated: 10 September 2022; Ref: scu.547671
[2013] EWHC 1703 (QB)
England and Wales
Updated: 10 September 2022; Ref: scu.511094
The claimant ran a Nursing Home. He sought damages from the respondent for economic losses suffered after an allegedly negligent interpretation by the authority of the Act led them to require of the claimant to employ more staff than the Act actually required. The authority required the home to staff it ‘to capacity’ rather than to the number of actual residents. The authority suggested that they had acted within their discretion, and that there was no proper claim against them.
Held: Such a claim was justiciable and should be allowed to proceed. This was an area of developing jurisprudence, and was a mixture of fact and law.
Lord Justice Potter and Sir Denis Henry
Times 02-May-2002, Gazette 30-May-2002, [2002] EWCA Civ 506
England and Wales
Updated: 07 September 2022; Ref: scu.170209
The claimant (aged 6) sought damages after being hurt when other children playing on a building site threw stones from the site, hitting him as he passed by.
Held: The case raised questions of law and it was incumbent on the judge to provide detailed findings on the facts. A question of law was arguable, but the court was unable to determine the issue without the necessary findings of fact. The case would be remitted for retrial before a different judge.
[2004] EWCA Civ 345, Times 12-Apr-2004
England and Wales
Cited – Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
Cited – Jolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
Cited – Smith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
Cited – Goldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .
Cited – Glasgow Corporation v Muir HL 16-Apr-1943
The House considered the proper test to define the standard of care that must be adopted by the reasonable man in a claim for negligence.
Held: Lord Clauson said that the test is whether the person owing the duty of care ‘had in contemplation . .
Cited – Bolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.194897
The court considered whether a purchaser of a house had a right of action against a contractor who had carried out work on the property before completion.
[2011] EWCA Civ 423
England and Wales
Updated: 06 September 2022; Ref: scu.432725
Laws, Tomlinson LJJ, Naron J
[2011] EWCA Civ 406
England and Wales
Updated: 06 September 2022; Ref: scu.432653
The plaintiff fireman was injured attending a fire. He sought damages from the owner whose negligence had caused it. The court at first instance (Nash J) found the land owner negligent but not liable to the plaintiff on the ground that the injuries he sustained were not a reasonably foreseeable consequence of the defendant’s negligence.
Held: The paintiff’s appeal succeeded.
Dillon, Stephen Brown, Neill LJJ
[1987] 2 WLR 988, [1987] 1 All ER 668, (1987) 84 LSG 1882
England and Wales
Appeal from – Ogwo v Taylor HL 19-Nov-1987
A firefighter sought damages for personal injuries from the party negligent in starting a fire, suffered while attending it.
Held: A property owner owes a duty of care to firemen, not, by his negligence, to start a fire, or to create special . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2022; Ref: scu.546908
Stewart J
[2015] EWHC 2160 (QB)
England and Wales
Updated: 03 September 2022; Ref: scu.550926
[2011] ScotCS CSOH – 49
Scotland
Updated: 03 September 2022; Ref: scu.430617
The parties had crashed riding their motorcycles over a single carriageway twisting moortop road. Each said that the other had crossed into the oncoming lane. The police expert witness had been unable to establish the exact location of the accident.
Held: One cycle had been seen to be travelling at moderate speed, and was on a straight stretch with no reason to have gone over the central line. The other had been seen to be riding more quickly and had just negotiated a left hand bend shortly after which the accident occurred. The defendant’s expert witness’ version of events was inconsistent with the facts and was discounted. The claimant succeeded.
[2010] EWHC 279 (QB)
England and Wales
Updated: 02 September 2022; Ref: scu.401650
Lord Justice Laws Mr Justice Hooper Lord Justice Rix
[2006] EWCA Civ 510
England and Wales
Updated: 02 September 2022; Ref: scu.241568
McCombe J
[2011] EWHC 89 (QB)
England and Wales
Updated: 01 September 2022; Ref: scu.428707
Lord President, Lord Reed, Lord Philip
[2009] ScotCS CSIH – 24, 2009 GWD 13-206
Scotland
Updated: 01 September 2022; Ref: scu.324663
The Honourable Sir Michael Turner
[2004] EWHC 1372 (QB)
England and Wales
Cited – Morris v West Hartlepool Steam Navigation HL 1956
The ship had followed a practice of leaving the between deck hatch covers off in the absence of a guard rail around the hatchway. The plaintiff seaman fell into the hold. There was evidence that on this ship it was quite usual for men to be sent . .
See Also – AB and others v Department of Trade and Industry S/A British Coal Corporation CA 21-Dec-2005
. .
See Also – AB and others v British Coal Corporation and others CA 19-Oct-2006
A collective compensation agreement, which required affected persons to submit their claims, along with medical evidence, through authorised solicitors to be compensated on the basis of agreed damages formula, was introduced. . .
See Also – AB and others v British Coal Corporation and Another ComC 18-May-2007
. .
See Also – AB and others v British Coal Corporation (Department of Trade and Industry) QBD 27-Jun-2007
The parties disputed the effect of the Claims Handling Agreement (CHA) which regulated claims for compensation for respiratory diseases incurred by people working for the defendant as regards the circumstances for claimants with chronic bronchitis. . .
See Also – AB and others v British Coal Corporation (Department of Trade and Industry) (Costs) QBD 27-Jun-2007
. .
See Also – AB and others v British Coal Corporation (Rulings Appended) QBD 13-Aug-2007
. .
See Also – AB and others v British Coal Corporation ComC 15-Jan-2008
. .
Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2022; Ref: scu.198302
The claimant said the defendant had been negligent in undervaluing a judicial collar for sale on his behalf.
Pelling QC J
[2012] EWHC 370 (Ch)
England and Wales
Updated: 31 August 2022; Ref: scu.452157
Ward, Jacob, Etherton LJJ
[2010] EWCA Civ 1441
England and Wales
Updated: 29 August 2022; Ref: scu.427211
Akenhead J
[2010] EWHC 3201 (TCC)
England and Wales
Updated: 29 August 2022; Ref: scu.427227
Ward LJ, Carnwath LJ
[2006] EWCA Civ 1180
England and Wales
Updated: 29 August 2022; Ref: scu.244468
The wife of a British Army soldier serving in Germany delivered a premature baby, ‘A’, with a German obstetrician in a German hospital. A suffered brain damage in the birth as a result of the obstetrician’s negligence. The mother claimed against the MoD and the English NHS Trust which had contracted with the MoD to arrange for designated German hospital providers to provide health care for servicemen and their dependents. She alleged a non-delegable duty of care in the MoD and in the Trust to ensure that she and ‘A’ were provided with medical treatment that was administered with due skill and care.
Held: Lord Phillips MR disapproved the decision in M v Calderdale and Kirklees Health Authority [1998] Lloyd’s Rep Med 157 on a number of grounds including the fact that it was based on the observations of Lord Greene MR in Gold v Essex County Council and Denning LJ in Cassidy v Ministry of Health, ‘although in neither instance did these represent the reasons for the decision of the majority of the court.’
However, he observed ‘in each of these cases the court was concerned with the duty of the hospital that was actually carrying out the treatment of the patient’. He rejected the submission that on policy grounds the non-delegable duty of care should be extended beyond cases where the hospital was actually carrying out the treatment.
A further argument advanced on behalf of ‘A’ was based on the position of the MoD before it ceased running its own hospitals.
Lord Phillips said: ‘The starting point of Mr Tattersall’s argument was that, when the MoD was running its own hospitals in Germany, it owed service personnel and their dependents a non-delegable duty of care in relation to the secondary medical treatment that they received. The second stage in the argument was that, because the duty was non-delegable, it remained binding upon the MoD after the transfer in 1996 of the provision of secondary health care from the military hospitals to the DGPs.
As to the first limb of the argument, I was attracted by the Australian jurisprudence on which Mr Tattersall has relied. It seems to me that there are strong arguments of policy for holding that a hospital, which offers treatment to a patient, accepts responsibility for the care with which that treatment is administered, regardless of the status of the person employed or engaged to deliver the treatment. Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 proceeded on the premise that this is established English law.
I am, however, unable to accept the second limb of Mr Tattersall’s argument. We put to him in argument the possibility that, in England, the MoD might abolish all military hospitals and leave service personnel to seek hospital treatment under the NHS. Even in that situation he contended that the non-delegable duty undertaken by the MoD before 1996 would persist.
The answer to Mr Tattersall’s argument, as Mr Lloyd Jones submitted, is that the basis of the duty asserted by Mr Tattersall, assuming such duty to be made out, was the fact that the MoD itself undertook the hospital care of its personnel and their dependants. Only while it continued to do so would the duty persist.’
Lord Phillips of Worth Matravers MR, Tuckey, Wall LJ
Times 17-May-2004, Gazette 03-Jun-2004, [2004] EWCA Civ 641, [2005] QB 183
England and Wales
Appeal from – A v Ministry of Defence and another QBD 16-Apr-2003
The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant . .
Disapproved – M v Calderdale and Kirklees Health Authority 1998
(Huddersfield County Court) . .
Appealed to – A v Ministry of Defence and another QBD 16-Apr-2003
The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant . .
Cited – Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA 13-Nov-2009
The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
Cited – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2022; Ref: scu.197039
Lloyd, Richards, Sullivan LJJ
[2010] EWCA Civ 1011
England and Wales
Updated: 24 August 2022; Ref: scu.424784
Sedley, Jacob, Aikens LJJ
[2010] EWCA Civ 999
England and Wales
Updated: 22 August 2022; Ref: scu.421559
[2010] EWHC 1508 (QB)
Updated: 22 August 2022; Ref: scu.421270
[1837] EngR 338, (1837) 2 M and W 650, (1837) 150 ER 917
England and Wales
Updated: 22 August 2022; Ref: scu.313455
The claimant prisoner said theat the prison had been negligent in that knowing of his own psychiatric vulnerability, he had been placed in a cell with another priosner who committed suicide, the shock of which caused the claimant further damage.
Lord Justice May Lord Justice Longmore Lord Justice Latham
[2006] EWCA Civ 239, [2006] 1 WLR 1155
England and Wales
Cited – Barber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2022; Ref: scu.239139
(1928) 139 LT 628
England and Wales
Cited – Lynn v Bamber 1930
A cause of action in contract arises when the contract is breached. Talbot J said: ‘There is no question that the three learned judges who decided that case stated in emphatic and unambiguous language that contributory negligence is a good defence . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2022; Ref: scu.431890
A doctor’s duty of care to an unborn child is an established duty in common law despite some cases apparently to the contrary. Phillips J: ‘The duty in the law of negligence is not a duty to exercise reasonable care to avoid risk of causing injury. It is the duty not to cause injury by want of reasonable care.’
Phillips J
Gazette 06-May-1992, [1993] QB 204
England and Wales
Cited – Hamilton v Fife Health Board 1993
A child was born but with injuries incurred while in utero alleged to have been caused by the negligence of the doctors attending the mother. The parents sued the health board for loss of the child’s society. The Board argued the action to be . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2022; Ref: scu.78060
[1920] 3 KB 459
England and Wales
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2022; Ref: scu.181269
Walker J
[2019] EWHC 2501 (QB)
England and Wales
Updated: 19 August 2022; Ref: scu.642140
The first defendant had admitted negligence in the drafting of a rent review clause, but the second defendant, a firm of surveyors, now argued that it was not liable to contribute to the damages for negligence asserted against it.
Lord Woolman
[2014] ScotCS CSOH – 82
Law Reform (Contributory Negligence) (Scotland) Act 1940
Scotland
Updated: 19 August 2022; Ref: scu.525468
Sir Anthony May, Longmore, Stanley Burnton LJJ
[2010] EWCA Civ 648
England and Wales
Updated: 19 August 2022; Ref: scu.416732
A council owned a two-storey building divided into four flats, one of which was occupied by the plaintiff. It failed to prevent frozen water pipes in the roof of the building (which was outside the demise to the plaintiff) from bursting and flooding her flat. On being warned by the plaintiff of her fear that such might happen, the council had advised the plaintiff to turn off the stopcock in the back yard of the building (again outside her demise) which supplied water to the pipes, without telling her where and how it should be done.
Held: The council failed itself to take the necessary action with the result that the plaintiff’s flat was flooded, and was liable: ‘the council, knowing it was an emergency and having told her that they would get somebody out as soon as possible, should have impressed on her the importance of turning the stopcock off and should have given her some further advice as to how she ought to cope with that.’
Neil LJ
[1986] 279 EG 677
England and Wales
Cited – Goldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .
Cited – Stevens (Through her Mother and Litigation Friend) v County Borough of Blaenau Gwent CA 17-Jun-2004
The mother of the claimant had complained to the local authority landlord about the absence of locks on her windows. The council replied that such locks could themselves be a hazard, and did not install a lock. The claimant climbed through and fell . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 August 2022; Ref: scu.198389
Reserved judgment on the trial of the preliminary issues of liability and (if relevant) contributory negligence.
Davison M
[2019] EWHC 2076 (QB)
England and Wales
Updated: 18 August 2022; Ref: scu.642129
Railway – Fire Caused by Spark from Engine – Contributory Negligence.
Lord Kyllachy, Ordinary
[1892] SLR 29 – 577
Scotland
Updated: 18 August 2022; Ref: scu.613493
Outer House – The pursuer said that it had been misled into taking a lease of a grouse moor by the responders making a repesentation to Mr Erskine who had conducted negotiations, and then created the pursuer as a vehicle for the lease. He sought the reduction of the contract and damages.
Held: Mr Erskine was the directing mind of the appellant, and that he had decided to enter into the contract in reliance upon a negligent misrepresentation contained in an email sent to him some weeks before the appellant was formed. Howeer the allegation of fraud had not been established. The request was refused. The appellant could not recover damages because it had not been in existence at the time when the email was sent. Although the respondents had owed a duty of care to Mr Erskine, no such duty could in his view have been owed at that time to the appellant, since a non-existent entity could not hold any right or be owed any duty.
Lord Hodge
[2010] ScotCS CSOH – 62
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Appeal from – Cramaso Llp v Rt Hon Ian Derek Francis OgilIe-Grant, Earl of Seafield and Others SCS 7-Dec-2011
Inner House The defenders owned a grouse moor. There had been difficulties with the grouse population, and efforts over several years to restore them. The defenders sought to find a tenant. Negotiations were conducted with Mr Erskine, and an email . .
At Outer House – Cramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC 12-Feb-2014
The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .
At Outer House – Serious Fraud Office v Papachristos and Another CACD 19-Sep-2014
The applicants challenged their convictions and sentences for conspiracy to corrupt. They owned a company manufacturing fuel additives. Technology developments meant that they came under increasing pressure on sales. They were said to have entered . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 August 2022; Ref: scu.414917
Penry-Davey
[2010] EWHC 624 (QB)
Updated: 16 August 2022; Ref: scu.406648
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.
Simon Brown J
[1989] 1 WLR 702
Civil Liability (Contributions) Act 1978 2(1)
England and Wales
Cited – Exel Logistics Ltd v Curran and others CA 30-Sep-2004
The claimants sought damages for personal injuries after a crash in a Land Rover maintained by the defendants. The defendants appealed findings of negligence in failing properly to inflate the rear tyres, in continuing despite the danger, and poor . .
Cited – Brian Warwicker Partnership v HOK International Ltd CA 27-Jul-2005
The claimant partnership had sought a contribution from the defendants to the damages awarded against it.
Held: The section made allowance for non-causative factors when calculating a contribution, but the extent to which they should be . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.214662
Simon J
[2006] EWHC 108 (QB)
England and Wales
Updated: 16 August 2022; Ref: scu.238437
Mummery, Richards, Rimer LJJ
[2010] EWCA Civ 184
England and Wales
Updated: 15 August 2022; Ref: scu.402940
The Claimant sought damages for personal injury in the form of a psychiatric condition which she alleged was caused by the negligence of the Council in failing properly to deal with reports made by C in relation to sexual abuse of A and B by another child.
Hickinbottom J
[2010] EWHC 62 (QB), [2010] 1 FLR 1640, [2010] PIQR P9, [2010] Fam Law 345, [2010] 1 FCR 441
England and Wales
Updated: 15 August 2022; Ref: scu.393387
The claimant sought damages in nuisance and negligence saying that in constructing a new housing estate, they had altered the land in such a way as to lead to the repeated flooding of their home.
Held: Both the developer and the council were liable. It had been intended to provide a drainage gully. The first defendants had given representations that in making the alterations they would provide appropriate drainage, but had in fact constructed a fence in such a way as to restrict it. Though the use of land for housing was not a non-natural use, and the rule in Rylands v Fletcher did not apply, the original developer remained liable in nuisance and even if he had sold the land on. ‘Barratt was negligent in constructing the eastern boundary of its development in such a way as to restrict the natural flow of water from the south eastern corner of the retained land past the Springfield Road properties. It was reasonably foreseeable that the resulting restricted gap for the reasons I have given would not cope with the volume of water that could flow from the retained land, particularly after heavy rain; that the water would encroach into the claimants’ and other Springfield Road properties to the south of them; that damage would result. In my judgment, such encroachment resulted from an unreasonable use of the land which Barratt had purchased from Rochdale and constituted a nuisance the effects of which continue to the present and will continue until abated.’
Grenfell J
[2009] EWHC 744 (QB), [2009] 32 EG 70, [2009] Env LR D14
England and Wales
Cited – Holbeck Hall Hotel Ltd and Another v Scarborough Borough Council CA 22-Feb-2000
Land owned by the defendant was below a cliff, at the top of which was the claimant’s hotel. The land slipped, and the hotel collapsed. Some landslip was foreseen from natural causes, but not to the extent of this occasion.
Held: The owner of . .
Cited – Sedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
Cited – Arscott and others v Coal Authority and Another CA 13-Jul-2004
The defendant had deposited coal wastes. When the river Taff flooded, the spoil heaps diverted the floods to damage the claimants’ homes. They appealed refusal of their claims in nuisance. The judge applied the common enemy rule: ‘an owner or . .
Cited – Goldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .
Cited – Sedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
Cited – Palmer and Another v Bowman and Another CA 27-Oct-1999
There is no easement of right for an owner of higher land for water naturally to drain off over neighbouring lower land, and nor was an easement required. The doctrine of lost modern grant need not be applied. Although the higher land owner had no . .
Cited – Green v The Right Honourable Lord Somerleyton and others CA 28-Feb-2003
The parties owned areas of marshland divided by a road. The claimant sought a declaration that the defendants had no right to allow floodwater to escape over his land from what he said was an artificial reservoir on the defendant’s land. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2022; Ref: scu.375576
[1837] EngR 353, (1837) 2 M and W 419, (1837) 150 ER 821
England and Wales
Updated: 15 August 2022; Ref: scu.313470
The plaintiff was the tenant of a flat in a block of flats owned by the defendant. When the flat immediately above the plaintiff’s flat became vacant, she requested the defendant to board it up so as to secure it against intruders. The defendant took no effective steps to secure the upper flat and on three occasions vandals broke in and damaged water pipes in that flat allowing water to escape down into the plaintiff’s flat where it caused damage. The plaintiff claimed damages against the defendant, alleging that it owed her a duty of care so to secure the vacant flat as to prevent vandals gaining access to it. The trial judge found that it would not have been possible to take effective steps in the situation disclosed in the evidence which could defeat the activities of vandals and dismissed the plaintiff’s claim. The plaintiff apealed.
Held: The appeal failed.
Purchas LJ said: ‘The judge’s finding is, in my judgment, determinative of this appeal. Summarizing his judgment, he said: ‘Regrettably . . I find that it is not possible for effective steps to be taken in a situation like this which could defeat the activities of vandals.’ Whether this finding, together with the established circumstances of the council, should operate to restrict the ambit of the duty to take any positive steps to secure the property, or duty arising in relation to an omission to take such steps; or whether it operates to break the chain of causation, may, as Robert Goff L.J. suggested in [the] passage which I have just cited from Paterson Zochonis Ltd. v. Merfarken Packaging Ltd. [1983] F.S.R. 273, 299, not be essentially material. Personally I prefer the former approach and would limit the area of the duty itself in the circumstances prevailing in this case. In either event, in my judgment the judge was right to hold that the council owed no duty to the plaintiff in respect of the acts of the vandals in this case and accordingly I would dismiss this appeal.’
Nicholls LJ said: ‘I am unable to accept that any material ground of distinction exists between the two cases. In P. Perl (Exporters) Ltd. v. Camden London B.C., as in the instant case, the plaintiff sought to make the defendant occupier liable in negligence for the wrongdoing of a third party. In his judgment Robert Goff L.J. set out, at p. 359 . . some examples of circumstances where there may be liability for a third party’s wrongdoing, and concluded that those instances were very different from that case where, as in the present case, the allegation was that the defendant failed to exercise reasonable care to prevent a third party from causing damage to the plaintiff. In his preface to that passage Robert Goff L.J. assumed that there might well be cases where the occupier could reasonably foresee that thieves might use the unprotected property as a means of access to neighbouring property. But he, in common with the other members of the court, rejected the existence of the broad duty of care contended for by the plaintiff’s counsel, and his conclusion was to the effect that in the absence of a special relationship, there was no duty to prevent thieves from so using one’s property. I cannot see any distinction in principle between a case where the damage arises from the third party using the defendant’s property as a means of obtaining unauthorised access to the plaintiff’s property and there committing theft, and one where the damage arises from the third party so conducting himself on the defendant’s property as to damage the plaintiff’s property by causing water to escape from the former property to the latter. Nor can I see that it is material that the defendant had a responsibility to take reasonable steps to prevent the escape from its property of water in an ordinary domestic water system. I do not consider that there is a greater responsibility on the defendant because the third party caused damage by creating an escape of water than if the damage had been caused by the third party lighting a fire on the defendant’s property or, if the defendant’s property had been on the top floor of the building, by the third party stripping lead from the roof and thereby permitting rain to enter and eventually to reach and damage the plaintiff’s property.’
Purchas and Nicholls LJJ, Caulfield J
[1986] CLY 2260, [1986] 3 All ER 544, [1986] 1 WLR 890, [1986] 1 EGLR 181, (1986) 84 LGR 871
England and Wales
Cited – Smith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2022; Ref: scu.193431
The claimant suffered a respiratory arrest after an emergency ambulance called by the first defendant, did not arrive for 40 minutes.
Held: the ambulance service was negligenct and liable. The acceptance of the doctor’s request for an ambulance to come immediately gave rise to a duty of care.
Turner J
Unreported, 16 July 1999, Case No: 1999/0926
England and Wales
See Also – Kent v Dr Griffiths, Dr Roberts, London Ambulance Service CA 11-Dec-1998
Though there is no duty at large to help someone in need of urgent assistance, an ambulance service, by accepting a 999 call, may have accepted a duty to the caller. It remained open to argue as to whether it was fair just and reasonable to impose . .
Cited – Capital and Counties Plc and Another v Hampshire County Council; Etc CA 20-Mar-1997
Three cases were brought against fire services after what were said to be negligent responses to call outs. On one, the fire brigade was called to a fire at office premises in Hampshire. The fire triggered the operation of a heat-activated sprinkler . .
See Also – Kent v Dr Griffiths, Dr Roberts, London Ambulance Service CA 11-Dec-1998
Though there is no duty at large to help someone in need of urgent assistance, an ambulance service, by accepting a 999 call, may have accepted a duty to the caller. It remained open to argue as to whether it was fair just and reasonable to impose . .
Appeal from – Kent v Griffiths and Others (No 2) CA 10-Feb-2000
An ambulance service could be liable in negligence in respect of its response to an emergency call-out where for no good reason there was an unreasonable delay in responding, and the servivice had accepted the call. The ambulance service was . .
Appeal from – Kent v Griffiths and others CA 3-Feb-2000
A doctor attended the home of a patient suffering from an asthma attack and called for an ambulance to take her immediately to hospital. The control replied ‘Okay doctor.’ After 13 minutes the ambulance had not arrived and the patient’s husband made . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2022; Ref: scu.136018
The claimant sought damages alleging negligence by the defendant leading to the explosion at the Bunce oil terminal, saying that a fuel storage tank had been overfilled. It now appealed against dismissal of its claim for economic losses, and the defendant appealed against a finding on indemnity provisions.
Held: The claimant’s appeal succeeded, and that of the defendant failed. There existed no clear authority on whether, provided the legal owner of the land was joined, the beneficial owner of land could claim either for economic losses or for damage to the property. However a duty of care toward the beneficial owner did exist where damage to that person’s interests was foreseeable. This extended to economic losses.
Lord Justice Waller, Lord Justice Longmore and Lord Justice Richards
[2010] EWCA Civ 180, [2010] 10 EG 117, 129 Con LR 104
England and Wales
Updated: 14 August 2022; Ref: scu.402497
Ward, Hallett, Hughes LJJ
[2010] EWCA Civ 132
England and Wales
Updated: 14 August 2022; Ref: scu.401972
Road traffic accident – the parties disputed liability.
Swift DBE J
[2009] EWHC 3344 (QB)
Updated: 13 August 2022; Ref: scu.393037
A valve had failed causing a flood and damage. The defendant contractor appealed against a finding that it was responsible under the contract for the installation of the valve.
Mummery, Richards, Toulson LJJ
[2010] EWCA Civ 7, (2010) 129 Con LR 5, [2010] BLR 145, [2010] 1 CLC 241, [2010] NPC 5, [2010] 1 Lloyd’s Rep 349
England and Wales
Updated: 13 August 2022; Ref: scu.393018
The claimants sought damages for psychiatric injury. They were police officers who had been subject to unsuccessful proceedings following a shooting of a member of the public by their force.
Held: The claim failed: ‘these claimants have no real prospect of establishing that it was reasonably foreseeable that the corporate failings would cause them psychiatric injury by the chain of causation that allegedly brought about that result.’ The court surveyed the case law on claims for psychiatric damage.
Lord Phillips LCJ, Tuckey LJ, Laws LJ
[2006] EWCA Civ 312, Times 05-Apr-2006
England and Wales
Cited – Barber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .
Cited – Sutherland v Hatton; Barber v Somerset County Council and similar CA 5-Feb-2002
Defendant employers appealed findings of liability for personal injuries consisting of an employee’s psychiatric illness caused by stress at work.
Held: Employers have a duty to take reasonable care for the safety of their employees. There are . .
Cited – Waters v Commissioner of Police for the Metropolis HL 27-Jul-2000
A policewoman, having made a complaint of serious sexual assault against a fellow officer complained again that the Commissioner had failed to protect her against retaliatory assaults. Her claim was struck out, but restored on appeal.
Held: . .
Cited – Hill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
Cited – White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
Cited – Calveley v Chief Constable of the Merseyside Police HL 1989
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 . .
Cited – Dulieu v White and Sons KBD 1901
A pregnant barmaid suffered nervous shock causing her to give premature birth as a result of the tortfeasor’s horse van bursting into her bar at the Bonner Arms in Bethnal Green from the roadway. The defendant pleaded that the damages claimed were . .
Cited – Rothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
Cited – Page v Smith HL 12-May-1995
The plaintiff was driving his car when the defendant turned into his path. Both cars suffered considerable damage but the drivers escaped physical injury. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 August 2022; Ref: scu.239739
(Canada)
[1914] UKPC 72
Canada
Updated: 11 August 2022; Ref: scu.467586
(Inner House)
Lady Paton, Lady Dorrian and Lord McEwan)
[2009] ScotCS CSIH – 92
Scotland
At Outer House – Morrison Sports Ltd and others v Scottish Power Plc and others OHCS 18-Jul-2007
. .
At Inner House – Morrison Sports Ltd and Others v Scottish Power SC 28-Jul-2010
A fire caused substantial damage to buildings. It arose from a ‘shim’ placed in a fuse box which then overheated. The parties disputed whose employee had inserted the shim. The Act under which the Regulations had been made was repealed and replaced . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2022; Ref: scu.383808
Stephens J
[2015] NIQB 89
Northern Ireland
Updated: 09 August 2022; Ref: scu.641772
Deeny J
[2015] NIQB 91
Northern Ireland
Updated: 09 August 2022; Ref: scu.641771
[2015] EWCA Civ 176
England and Wales
Appral from – Aspen Insurance UK Ltd v Adana Construction Ltd ComC 20-Jun-2013
Claim by insurers for a declaration of non liability to which the insured responds seeking declarations that it is covered by the policy and entitled to have its associated defence costs paid. . .
See Also – Aspen Insurance UK Ltd v Adana Construction Ltd (Costs) CA 5-Mar-2015
Post judgment orders for costs and otherwise . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 August 2022; Ref: scu.543886
Christopher Clarke J
[2009] EWHC 2997 (QB)
Law Reform (Contributory Negligence) Act 1945 1(1)
England and Wales
Principal judgment – Toropdar v D QBD 20-Mar-2009
The claimant car driver sought a declaration that he was not responsible for an accident. He had been driving along when the 10 year old boy ran out into his path suffering catastrophic brain injury.
Held: ‘on the assumption that Mr Toropdar . .
Cited – Lunt v Khelifa CA 22-May-2002
The claimant pedestrian had been injured when hit by a car driven by the defendant as she stepped into the roadway. Both parties appealed against the assessment of contributory negligence. The claimant had a blood alcohol level three times that . .
Cited – Stoddart v Perucca CA 1-Mar-2011
The claimant was injured crossing a road when approached by the defendant’s campervan. The judge had taken avccount of another driver who said that he had slowed down anticipating the emergence of a second horse and rider (the claimant), but the . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.381699
[2002] EWHC 2130 (Comm)
England and Wales
See Also – Papera Traders Co Ltd and others v Hyundai Merchant Marine Co Ltd and Another ComC 7-Feb-2002
. .
See Also – Papera Traders Co Limited and others v Hyundai Merchant Marine Co Limited, The Keihin Co Limited QBD 7-Feb-2002
A fire destroyed the ‘Eurasian Dream’ while in port. It was carrying cars, a fire in which got out of control. It was claimed that the ship managers had been negligent. The bill of lading contracts in the present case incorporated either the Hague . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.381605
[2002] EWHC 417 (QB)
England and Wales
Updated: 07 August 2022; Ref: scu.347824
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed her a positive obligation to protect life under Article 2.
Held: The claimants’ appeal succeeded. The decision to allow Melanie two days home leave was one that no reasonable psychiatric practitioner would have made, and recourse to the margin of appreciation was misplaced. The Trust had failed to do all that could reasonably have been expected to prevent the real and immediate risk of suicide. It had an operational duty under Article 2 to protect persons from a real and immediate risk of suicide where they were under the control of the state. She had been admitted because she was a real suicide risk. The Trust accepted responsibility for her in taking her under control. Although not detained, had she insisted on leaving the hospital the respondent would have exercised it powers under the 1983 Act to stop her. The difference in these circumstances between detained and voluntary patient was one of form, and not of substance.
The acceptance of a settlement under the 1934 Act was in no way a settlement of any Human Rights claim.
Lord Dyson considered the assessment of damages for infringement of human rights, saying that in the absence of a guideline case in which the range of compensation is specified and the relevant considerations are articulated, it is necessary for our courts to do their best in the light of such guidance as can be gleaned from the Strasbourg decisions on the facts of individual cases.
Lord Brown of Eaton-under-Heywood said that our domestic courts may choose to go further in the interpretation and application of the ECHR than Strasbourg has done where they reach a conclusion which flows naturally from Strasbourg’s existing case law.
Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Dyson
[2012] 2 WLR 381, [2012] Med LR 221, [2012] 2 All ER 381, [2012] MHLR 66, [2012] HRLR 10, [2012] PTSR 497, [2012] 2 AC 72, (2012) 124 BMLR 148, (2012) 15 CCL Rep 13, [2012] UKSC 2, [2012] WLR (D) 23
Bailii, Bailii Summary, SC, SC Summary, WLRD
Mental Health Act 1983, European Convention on Human Rights 2, Law Reform (Miscellaneous Provisions) Act 1934
England and Wales
At First Instance – Rabone and Another v Pennine Care NHS Trust QBD 23-Jul-2009
The claimant’s daughter had been a voluntary patient at a mental hospital. She committed suicide when on home leave from a secure ward. The claimant now said that the hospital had acted incompatibly with their daughter’s human rights, in releasing . .
Appeal from – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Keenan v The United Kingdom ECHR 3-Apr-2001
A young prisoner was known to be at risk of suicide, but nevertheless was not provided with adequate specialist medical supervision. He was punished for an offence, by way of segregation which further put him at risk.
Held: Inhuman and . .
Cited – Edwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
Cited – Slimani v France ECHR 27-Jul-2004
A Tunisian was committed to a psychiatric hospital on several occasions. He died while detained in a detention centre awaiting deportation. The applicant complained that there had been a violation of article 2 on two grounds: the detention centre . .
Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
Cited – Oneryildiz v Turkey ECHR 30-Nov-2004
(Grand Chamber) The applicant had lived with his family in a slum bordering on a municipal household refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant’s house killing his close relatives.
Held: The . .
Cited – Z And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
Cited – Stoyanovi v Bulgaria ECHR 9-Nov-2010
The court rejected an application made by the family of a soldier who died during a parachute exercise, drawing a distinction between risks which a soldier must expect as an incident of his ordinary military duties and ”dangerous’ situations of . .
Cited – Watts v The United Kingdom ECHR 4-May-2010
(Admissibility) The claimant said that her transfer from her existing care home to another care home would reduce her life expectancy.
Held: A badly managed transfer of elderly residents of a care home might have a negative impact on their . .
Cited – Calvelli and Ciglio v Italy ECHR 17-Jan-2002
The applicants’ baby had died shortly after birth in 1987. They complained about the medical care. The complaint was not investigated speedily by the authority, resulting in a criminal complaint becoming time barred after a conviction in 1994 was . .
Cited – Vo v France ECHR 8-Jul-2004
Hudoc Preliminary objection rejected (ratione materiae, non-exhaustion of domestic remedies) ; No violation of Art. 2
A doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks . .
Cited – Mikayil Mammadov v Azerbaijan ECHR 17-Dec-2009
The applicant’s wife had set fire to herself during an attempt by police officers to evict the applicant and his family from accommodation that they were occupying.
Held: It was necessary to determine whether ‘this specific situation’ . .
Cited – Mitchell and Another v Glasgow City Council HL 18-Feb-2009
(Scotland) The pursuers were the widow and daughter of a tenant of the respondent who had been violently killed by his neighbour. They said that the respondent, knowing of the neighbour’s violent behaviours had a duty of care to the deceased and . .
Cited – Kilinc And Others v Turkey ECHR 7-Jun-2005
kilinc_turkeyECHR05
A state authority may have a positive obligation to prevent foreseeable suicides amongst conscripts to its armed forces. . .
Cited – In re Officer L HL 31-Jul-2007
Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
Held: ‘The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
Cited – Kats and Others v Ukraine ECHR 18-Dec-2008
The applicants were the parents and son of a prisoner who died in custody of an HIV related illness. They complained of her treatment in custody.
Held: If someone dies in custody an explanation of the cause of death must be provided, including . .
Cited – Opuz v Turkey ECHR 9-Jun-2009
The applicant alleged, in particular, that the State authorities had failed to protect her and her mother from domestic violence, which had resulted in the death of her mother and her own ill-treatment. . .
Cited – Renolde v France ECHR 16-Oct-2008
A prisoner with mental health problems committed suicide during pre-trial detention. It was said that the state had infringed his article 2 right.
Held: The court noted the vulnerability of persons in custody, especially those who were . .
Cited – Kats and Others v Ukraine ECHR 14-Mar-2006
. .
Cited – Kent County Council, Regina (on The Application of) v HM Coroner for The County of Kent (North-West District) and Others Admn 15-Oct-2012
The council sought review of the coroner’s decision that the inquest would be an article 2 inquest and with a jury. The deceased was 14 years old and had taken methadone. In the months before his death, he had had involvement with the council’s . .
Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Cited – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
Cited – Gardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others Admn 27-Apr-2022
Patient transfer policy was unlawful
The claimants had relatives who died in care homes early in the COVID-19 pandemic. They said that the policy of moving patients from hospitals to care homes without testing had contributed to the deaths, and many others, and had been unlawful. The . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
Defendants were to face trial in the US, accused of monstrous crimes. The appellant challenged the release of information to the USA by the respondent to support such prosecutions when the death penalty was a possible outcome of a conviction: ‘The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.450972
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming lessons. She said that the duty of care was non-delegable.
Held: Her appeal succeeded. For a duty to be non-delegable, and in the absence of vicarious liability, the duty had to be one where the defendant had some characteristic making them vulnerable and which required the defendant to retained control over the claimant in order to perform the function for which it had taken resonsibility. The case was remitted to the High Court to decide whether such a duty was owed here and if so whether the defendants were in breach of it.
Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Sumption, Lord Toulson
[2013] UKSC 66, [2013] 3 WLR 1227, [2013] WLR(D) 403, UKSC 2012/0093, [2014] 1 AC 537, [2014] ELR 67, [2014] 1 All ER 482
Bailii, WLRD, Bailii Summary, SC Summary, SC
England and Wales
At QBD – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
At CA – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Cited – Pickard v Smith 1861
Refreshment rooms and a coal-cellar at a railway station were let by the company to one S, the opening for putting coals into the cellar being on the arrival platform. A train coming in whilst the servants of a cod-merchant mere shooting coals into . .
Cited – Penny v Wimbledon Urban District Council 1898
The court considered the residual duties of a local authority when hiring an independent company to repair a highway. . .
Cited – Holliday v National Telephone Company CA 1899
A passer-by on the highway was injured through the negligence of an independent contractor.
Held: The employer was liable.
A L Smith LJ said: ‘The defence is that the defendants are not liable in respect of the injury sustained by the . .
Cited – Honeywill v Larkin CA 1933
The plaintiffs wanted photographs inside a cinema on which they had worked, and asked the defendants to take them. The photographer used a chemical flashlight using magnesium which gave off intense heat. The negligent photographer caused a fire. The . .
Cited – Salsbury v Woodland CA 1970
The defendant had instructed independent contractors to remove a large tree in his garden. When they did so, the plaintiff was injured when the car he was in was fouled in a wire brought down by the tree. The defendant householder appealed against a . .
Cited – Lewis v British Columbia 11-Dec-1997
(Supreme Court of Canada) Torts – Negligence – Highways – Crown liability – Provincial ministry engaging independent contractor to remove rocks from cliff face – Contractor performing work negligently, leaving rocks protruding from cliff face – . .
Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Cited – Rylands v Fletcher CEC 1865
Mr Fletcher’s Lancashire coal mine was flooded by the water from Mr Rylands’ mill reservoir in 1860-61.
Held: Mr Rylands was responsible. Blackburn J said: ‘We think that the true rule of law is, that the person who for his own purposes brings . .
Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .
Cited – Dalton v Henry Angus and Co HL 14-Jun-1881
The court explained the doctrine of lost modern grant. Where there has been more than 20 years’ uninterrupted enjoyment of an easement, and that enjoyment has the necessary qualities to fulfil the requirements of prescription, then unless, for some . .
Cited – Hughes v Percival 1883
The parties were neighbouring householders with a party wall. A builder working in the defendant’s house negligently cut into the party wall, causing the partial collapse of both the defendant’s house and the Plaintiff’s house next-door.
Held: . .
Cited – Wilsons and Clyde Coal Co Ltd v English HL 19-Jul-1937
The employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all . .
Cited – Lochgelly Iron and Coal Co v McMullan HL 10-Jul-1933
Lord Wright coined the term ‘statutory negligence’. He affirmed the need for ‘damage’ as an essential element of actionable negligence, saying: ‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission . .
Cited – Morris v CW Martin Ltd CA 1966
Diplock LJ said: ‘The legal relationship of bailor and bailee of a chattel can exist independently of any contract.’ Where goods are lost or damaged, the burden is on the bailee (or sub-bailee) to ‘show – that the loss or damage caused without any . .
Cited – Dorset Yacht Co Ltd v Home Office HL 6-May-1970
A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – McDermid v Nash Dredging and Reclamation Co Ltd HL 2-Jul-1986
The Court explained the duty of an employer towards his employees as regards their safety: ‘an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, a provision . .
Cited – Bamford v Turnley 5-Nov-1860
An action lies for a nuisance to the house or land of a person, whenever, taking all the circumstances into consideration, including the nature and extent of the plaintiff’s enjoyment before the act complained of, the annoyance is sufficiently great . .
Cited – Bamford v Turnley 2-Jul-1862
The defendant burned bricks on his land, causing a nuisance to his neighbours.
Held: It was no answer to an action for damages that he selected a proper place within his land for an activity which would interfere with a neighbour’s enjoyment . .
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – Glasgow Corporation v Taylor HL 18-Nov-1921
A father brought an action for damages for the death of his son who had eaten poisonous berries growing in one of the defenders’ public parks. The plants were easily accessible from a children’s play area and it was said that the defender had a duty . .
Cited – M’Kibbin v Glasgow Corporation 1920
The pursuer, a woman with limited vision was injured falling into a hole for which the defender had responsibility. The defender replied that the hole was protected by a water hydrant.
Held: The claim failed. There was evidence that the . .
Cited – Almeroth v WE Chivers and Son Ltd CA 1948
The plaintiff peddler had his barrow by one kerb. He crossed the road to serve a customer, but on return when crossing the kerb from a roadway tripped over a small pile of slates and was injured. The slates did not overlap the kerb. They had been . .
Cited – Pritchard v Post Office CA 1950
Servants of the Post Office had protected a hole where they were working by surrounding it with their usual light fence but the plaintiff, a blind woman, stumbled through the fence and was injured.
Held: The plaintiff’s appeal failed. In this . .
Cited – Myton v Woods CA 1980
A claim was made against a local education authority for the negligence of a taxi firm employed by the authority to drive children to and from school.
Held: The claim failed. The authority had no statutory duty to transport children, but only . .
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Cited – Cox v Ministry of Justice SC 2-Mar-2016
The claimant was working in a prison supervising working prisoners. One of them dropped a bag of rice on her causing injury. At the County Curt, the prisoner was found negligence in the prisoner, but not the appellant for vicarious liability. The . .
Cited – NA v Nottinghamshire County Council QBD 2-Dec-2014
The claimant said that as a child the defendant had failed in its duty to protect her from her abusive mother and later from foster parents.
Held: Males J, dealt with the issues of liability and limitation, leaving issues concerning causation . .
Cited – Armes v Nottinghamshire County Council SC 18-Oct-2017
The claimant had been abused as a child by foster parents with whom she had been placed by the respondent authority. The court was now asked, the Council not having been negligent, were they in any event liable having a non-delegable duty of care . .
Cited – NA v Nottinghamshire County Council CA 12-Nov-2015
Appeal against finding that a local authority was not responsible for the sexual abuse of the appellant whilst with foster carers as a child.
Held: As to whether the duty as non-delegable, such a duty must relate to a function which the local . .
Cited – Barclays Bank Plc v Various Claimants SC 1-Apr-2020
The Bank had employed a doctor to provide medical assessments as necessary. The doctor had used the opportunities presented to assault sexually many patients. The court was now asked whether the Bank was vicariously liable for the acts of this . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.516927
The defendant had instructed independent contractors to remove a large tree in his garden. When they did so, the plaintiff was injured when the car he was in was fouled in a wire brought down by the tree. The defendant householder appealed against a finding of liability saying that he should not be held responsible for the acts of a competent independent contractor.
Held: The activity of removing the tree was not an extra-hazardous activity so as to make the defendant liable. Extra-hazardous activities for which a land owner might responsible even though the activities were carried out by an independent contractor, were those ‘activities which are dangerous even if carried out with caution by those skilled in the activity’. And ‘There are indeed certain categories of cases in which an occupier is under such a primary duty to others that he in effect warrants the safety of his property against those who are injured by what happens upon it, or alternatively is personally responsible for having any work on it done in a competent manner even if he selected a competent independent contractor.’
Widgery LJ, Harman LJ, Sachs LJ
[1970] 1 KB 191, [1969] EWCA Civ 1, [1969] 3 All ER 863, [1969] 3 WLR 29
England and Wales
Cited – Bottomley v Todmorden Cricket Club CA 7-Nov-2003
The claimant was very badly injured at a bonfire organised by the defendants. He had been asked to help with a part of the display, organised by sub-contractors, which exploded as he was filling it.
Held: The nature of the activity to be . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
Cited – Barclays Bank Plc v Various Claimants SC 1-Apr-2020
The Bank had employed a doctor to provide medical assessments as necessary. The doctor had used the opportunities presented to assault sexually many patients. The court was now asked whether the Bank was vicariously liable for the acts of this . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.187567
The claimant had been abused as a child by foster parents with whom she had been placed by the respondent authority. The court was now asked, the Council not having been negligent, were they in any event liable having a non-delegable duty of care with accompanying vicarious liability?
Held: The appeal succeeded (Lord Hughes dissenting). The local authority was vicariously liable for the torts committed by the foster parents in this case. However, the proposition that a local authority is under a duty to ensure that reasonable care is taken for the safety of children in care, while they are in the care and control of foster parents, is too broad, and that the responsibility with which it fixes local authorities is too demanding.
Lady Hale, Lord Kerr, Lord Clarke, Lord Reed, Lord Hughes
[2017] UKSC 60, [2018] PIQR P4, [2017] PTSR 1382, [2018] AC 355, [2017] 3 WLR 1000, [2018] 1 FLR 329, (2017) 20 CCL Rep 417, [2018] 1 All ER 1, UKSC 2016/0004
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC Video 20170208 am, SC Video 20170208 pm, SC Video 20170209 pm, SC Video 20170209 am
Children and Young Persons Act 1969, Child Care Act 1980, Boarding-Out of Children Regulations 1955
England and Wales
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – KLB v British Columbia 2-Oct-2003
Canlii (Supreme Court of Canada) Torts – Liability – Intentional torts – Abuse of children by foster parents – Whether government can be held liable for harm children suffered in foster care – Whether government . .
Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
Appeal from – NA v Nottinghamshire County Council QBD 2-Dec-2014
The claimant said that as a child the defendant had failed in its duty to protect her from her abusive mother and later from foster parents.
Held: Males J, dealt with the issues of liability and limitation, leaving issues concerning causation . .
At CA – NA v Nottinghamshire County Council CA 12-Nov-2015
Appeal against finding that a local authority was not responsible for the sexual abuse of the appellant whilst with foster carers as a child.
Held: As to whether the duty as non-delegable, such a duty must relate to a function which the local . .
Removal of Anonymity – Armes v Nottinghamshire County Council QBD 15-Nov-2016
Application to set aside anonymity order granted in earlier proceedings alleging sexual abuse. . .
Cited – New South Wales v Lepore 6-Feb-2003
Austlii (High Court of Australia) 1. Appeal allowed in part
2. Paragraph 2 of the order of the Court of Appeal of New South Wales made on 23 April 2001 set aside, and in its place, order that the judgment . .
Cited – Cox v Ministry of Justice SC 2-Mar-2016
The claimant was working in a prison supervising working prisoners. One of them dropped a bag of rice on her causing injury. At the County Curt, the prisoner was found negligence in the prisoner, but not the appellant for vicarious liability. The . .
Cited – S v Walsall Metropolitan Borough Council CA 1985
The court was asked whether local authorities are vicariously liable for torts committed by foster parents against children placed with them while in care.
Held: The claim was rejected. The critical question was whether the foster parents were . .
Cited – Carmarthenshire County Council v Lewis HL 17-Feb-1955
The House considered the unexplained fact that in the temporary absence of the teacher (who, on the evidence, was not negligent) it was possible for a child of four to wander from the school premises onto the highway, through a gate which was either . .
Cited – Perry and Another v Harris (A Minor) CA 31-Jul-2008
The defendant had organised a children’s party. The claimant (11) was injured when a bigger boy was allowed to use the bouncy castle at the same time. The defendants appealed the award of damages.
Held: The appeal succeeded. The relevant . .
Cited – Morris v C W Martin and Sons Ltd CA 1965
The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.
Held: The . .
Cited – Port Swettenham Authority v T W Wu and Co (M) Sdn Bhd PC 19-Jun-1978
A gratuitous bailee assumes a duty to take reasonable care of the chattel: ‘This standard, although high, may be a less exacting standard than that which the common law requires of a bailee for reward [but] the line between the two standards is a . .
Cited – Myton v Woods CA 1980
A claim was made against a local education authority for the negligence of a taxi firm employed by the authority to drive children to and from school.
Held: The claim failed. The authority had no statutory duty to transport children, but only . .
Cited – Surtees v Royal Borough of Kingston upon Thames CA 27-Mar-1991
Because children can injure themselves in so many ways, someone caring for them is not universally liable for injury to a child in their care.
A duty owed in respect of a parent’s own child may be lower. . .
Cited – JGE v The English Province of Our Lady of Charity and Another QBD 8-Nov-2011
The court was asked as a preliminary issue who should be the defendant where a claim was made of rape and other assaults by a priest who was a member of the diocese of the second defendant, but employed by the first defendant school. . .
Cited – Barrett v London Borough of Enfield HL 17-Jun-1999
The claimant had spent his childhood in foster care, and now claimed damages against a local authority for decisions made and not made during that period. The judge’s decision to strike out the claim had been upheld by the Court of Appeal.
Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – Barclays Bank Plc v Various Claimants SC 1-Apr-2020
The Bank had employed a doctor to provide medical assessments as necessary. The doctor had used the opportunities presented to assault sexually many patients. The court was now asked whether the Bank was vicariously liable for the acts of this . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.597257
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 and Lindsell on Torts, 15th ed.”
Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle
[1988] UKHL 4, [1989] AC 177
England and Wales
Appeal from – D and F Estates v Church Commissioners for England CA 1988
The main contractor on the site subcontracted the interior plastering. Fifteen years later, the plasterwork collapsed causing injury. The plasterer had not used the plaster specified.
Held: Appeal allowed. A contractor may have contractual or . .
Cited – Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA 13-Nov-2009
The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
Cited – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Cited – Barclays Bank Plc v Various Claimants SC 1-Apr-2020
The Bank had employed a doctor to provide medical assessments as necessary. The doctor had used the opportunities presented to assault sexually many patients. The court was now asked whether the Bank was vicariously liable for the acts of this . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.248717
Latham LJ
[2002] EWCA Civ 901
England and Wales
Updated: 06 August 2022; Ref: scu.217162
(1820) 3 B and Ald 304
England and Wales
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.182883
The plaintiff was a manager within the social services department. He suffered a mental breakdown in 1986, and had four months off work. His employers had refused to provide the increased support he requested. He had returned to work, but again, did not receive the staff or guidance to allow him to do the work asked of him, and he took a second sick leave. He was then dismissed. He sought damages for the employer’s breach of their duty of care.
Held: The employer was liable in negligence for a second work stress induced nervous breakdown. There was no reason in logic why damages should not be recoverable for psychiatric damages, or why the employer should not have a duty to prevent such damage. If a duty of care is established a claimant must then also show that the steps required to deal with it were reasonable in the context, allowing for the resources available, and the risks must be substantial. By the time he returned to work it was reasonably forseeable that further injury would occur, and the authority could not operate policies which would cause injury to its staff, and the court was free to examine such policies. Given the risk, the authority should have taken steps to avoid further injury to the plaintiff.
The standard of care to be expected of a reasonable local authority required that ‘additional assistance should be provided, if not on a permanent basis, at least until restructuring of the social services had been effected and the workload on Mr Walker thereby permanently reduced.’ The assistance should have been provided ‘notwithstanding that it could be expected to have some disruptive effect on the council’s provision of services to the public.’
Colman J
Times 24-Nov-1994, Independent 18-Nov-1994, [1995] 1 All ER 737, [1995] IRLR 35, [1995] ICR 702, [1994] EWHC QB 2, [1995] PIQR P521
England and Wales
Considered – Bolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
Cited – Glasgow Corporation v Muir HL 16-Apr-1943
The House considered the proper test to define the standard of care that must be adopted by the reasonable man in a claim for negligence.
Held: Lord Clauson said that the test is whether the person owing the duty of care ‘had in contemplation . .
Cited – Paris v Stepney Borough Council HL 13-Dec-1950
(Reversed) The House considered a breach of a duty of care in respect of a man blinded in one eye, when there would be no breach of duty if his sight had not been impaired.
Held: The claim succeeded because he was known by his employers to . .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
Cited – Lavis v Kent County Council QBD 18-Feb-1992
The plaintiff had received serious injuries whilst riding his motor cycle at a road junction for which the defendants were responsible. He alleged that they were liable to him for failing to ensure that proper warning signs were placed at the . .
Cited – Barber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .
Cited – Sutherland v Hatton; Barber v Somerset County Council and similar CA 5-Feb-2002
Defendant employers appealed findings of liability for personal injuries consisting of an employee’s psychiatric illness caused by stress at work.
Held: Employers have a duty to take reasonable care for the safety of their employees. There are . .
Cited – Keen v Tayside Contracts OHCS 26-Feb-2003
The claimant sought damages for post traumatic stress disorder. He was a road worker instructed to attend by the defendant immediately after a terrible accident.
Held: It was a classic case of nervous shock. He was not a rescuer, and nor had . .
Cited – Ringland v South Eastern Education and Library Board QBNI 16-Jun-2004
. .
Mentioned – White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
Cited – Leach v Chief Constable of Gloucestershire Constabulary CA 31-Jul-1998
It was arguable that the police owed a duty of care in negligence to a volunteer they called in to act as appropriate adult in harrowing and traumatic police interviews, and who later suffered nervous shock and stress as a result. The claimant had . .
Cited – McLoughlin v Jones; McLoughlin v Grovers (a Firm) CA 2002
In deciding whether a duty of care is established the court must go to the ‘battery of tests which the House of Lords has taught us to use’, namely: ‘. . the ‘purpose’ test (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd); the ‘assumption . .
Cited – Garrett v Camden London Borough Council CA 16-Mar-2001
The court considered a claim for work related stress. The claimant asserted that he had been harassed, intimidated and systematically undermined: ‘Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless . .
Cited – Mather v British Telecommunications Plc SCS 30-May-2000
The pursuer sought damages for injury to her mental health, alleging it was sustained as a consequence of the fault of the defenders et separatim the fault of an employee of the defenders. . .
Cited – Rorrison v West Lothian College and Lothian Regional Council OHCS 21-Jul-1999
The pursuer, a nurse, claimed that she suffered psychological injuries as a result of her treatment at work by two superiors.
Held: The court could find nothing in the pleadings: ‘which, if proved, could establish that Andrews and Henning . .
Cited – Green v Argyll and Bute Council SCS 28-Feb-2002
. .
Cited – Laudanska v The University of Abertay ScSf 4-Nov-2003
. .
Cited – Alexander and Others v Midland Bank Plc MCLC 26-Aug-1998
(Mayor’s and City of London Court) In claim for repetitive strain injury for typists in absence of obvious physical damage was on balance not psychosomatic. Plaintiffs could show more than passing pain and discomfort and the scheme of work imposing . .
Cited – Alexander and others v Midland Bank Plc CA 22-Jul-1999
. .
Cited – Gogay v Hertfordshire County Council CA 26-Jul-2000
The employee sought damages for breach of the implied term of trust and confidence, even though she remained throughout the employment of the Council against whom she was bringing proceedings.
Held: Her remaining in employment was a factor . .
Cited – Young v Post Office CA 30-Apr-2002
The claimant had been absent from work with a psychiatric illness. When he returned, the employers intended that he should work at his own pace and continue to do so for as long as he wished. In practice this arrangement was ignored and he worked . .
Cited – Sussex Ambulance NHS Trust v King CA 5-Jul-2002
The claimant was an ambulance worker. He had been assisting carrying a patient down stairs in a chair. He was injured when his colleague lost his grip, and he suddenly bore the full weight of the patient and chair. He alleged that under the . .
Cited – AB X and Y, Regina (on the Application of) v East Sussex County Council and Another Admn 18-Feb-2003
The physical and psychological integrity which the state may in principle be under an obligation to take positive steps to protect under Article 8 included two particularly important concepts. The first was human dignity, the second was the right of . .
Cited – Mensah v West Middlesex University Hospitals and others EAT 1-May-1998
. .
Cited – McDonald or Cross and Another v Highlands and Islands Enterprise and Another SCS 5-Dec-2000
A promising 39-year old executive, was employed in a job in which (because of geographical factors) close day-to-day supervision of his work was impossible. He became ill with depressive illness and killed himself. After the employee had been off . .
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – MG v North Devon NHS Primary Care Trust QBD 28-Apr-2006
Claim for damages – work induced stress and depression – health visitor. . .
Cited – Angus v Barnet EAT 11-Jul-2000
. .
Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Cited – Marshall Specialist Vehicles Limited v Osborne EAT 29-Apr-2003
EAT Unfair Dismissal – Constructive dismissal . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Mackay v Scottish and Southern Energy Plc ScSf 13-Mar-2000
. .
Cited – Ward v Scotrail Railways Limited SCS 27-Nov-1998
The claimant sought damages from the defender, saying that a co-worker had sexually harrassed her. The behaviour continued after she made a complaint to her employer.
Held: It was conceded that the employee’s conduct was not such as to attract . .
Cited – Campbell v North Lanarkshire Council and Scottish Power Plc SCS 30-Jun-1999
. .
Cited – Young or Logan v Falkirk and District Royal Infirmary NHS Trust SCS 3-Aug-1999
. .
Cited – Fraser v The State Hospitals Board for Scotland OHCS 11-Jul-2000
An employer has a duty to take reasonable care to avoid for his employees unnecessary risk of injury including psychiatric and not merely physical injury, but that duty does not extend to a duty to avoid an employee experiencing unpleasant emotions . .
Cited – Stevenson v East Dunbartonshire Council OHCS 29-Nov-2002
. .
Cited – Salter v UB Frozen Chilled Foods OHCS 25-Jul-2003
The pursuer was involved in an accident at work, where his co-worker died. He suffered only psychiatric injury.
Held: Being directly involved, the pursuer was a primary victim, and accordingly not subject to the limits on claiming for . .
Cited – McRitchie v The Scottish Ministers ScSf 21-Jul-2004
. .
Cited – Flood v The University Court of the University of Glasgow OHCS 8-Jul-2008
The pursuer, a college lecturer claimed damages for stress related injury suffered as a result of overwork. She had communicated with her managers many times about the overload. Other staff had resigned for similar reasons.
Held: The pursuer . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2022; Ref: scu.90252
The plaintiff was a spectator at a motorcycle scramble race, and was injured.
Held: Edmund Davies LJ said: ‘although in the very nature of things the competitor is all out to win and that is exactly what the spectators expect of him, it is in my judgment still incumbent upon him to exercise such degree of care as may reasonably be expected in all the circumstances. For my part, therefore, I would hold him liable only for damages caused by errors of judgment or lapse of skill going beyond such as, in the stress of circumstances, may reasonably be regarded as excusable.’
Lord Denning MR, Edmund Davies LJ
[1971] 1 WLR 668
England and Wales
Cited – Caldwell v Maguire and Fitzgerald CA 27-Jun-2001
The claimant, a professional jockey, had been injured when he was unseated as a result of manoeuvres by two fellow jockeys. At trial the judge identified five principles: ‘[1] Each contestant in a lawful sporting contest (and in particular a race) . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.198437
A spectator was injured at a horse show.
Held: The court considered the defence of volenti non fit injuria: ‘The maxim in English law presupposes a tortious act by the defendant. The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk . . and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran.’ A spectator has a special relationship with a competitor which varied with the nature and rules of the sport. A spectator accepted the risk of injury following mistakes of judgement and from lack of skill by and in competitors, up to the point where a participant showed a reckless disregard for his safety, or acted in a way calculated to risk injury.
Diplock LJ
[1963] 2 QB 43
England and Wales
Cited – Blake v Galloway CA 25-Jun-2004
The claimant was injured whilst playing about with other members of his band throwing sticks at each other. The defendant appealed against a denial of his defence on non fit injuria.
Held: The horseplay in which the five youths were engaged . .
Approved – Harrison v Vincent 1982
A sidecar passenger sued the motorcycle driver for injuries sustained during a race when he was unable to stop because he missed his gear and his brakes failed at the same time.
Held: The court approved the Wooldridge approach as the . .
Cited – Caldwell v Maguire and Fitzgerald CA 27-Jun-2001
The claimant, a professional jockey, had been injured when he was unseated as a result of manoeuvres by two fellow jockeys. At trial the judge identified five principles: ‘[1] Each contestant in a lawful sporting contest (and in particular a race) . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.198414
The hospital was held accountable for an injury caused by negligence of an employee radiographer. The main issue was whether the authority could be vicariously liable even for employees in cases where their employment called for the exercise of special skill of a kind which the authority could not reasonable be expected to supervise or control.
Held: Lord Greene MR said that the liability of a hospital arises out of an obligation to use reasonable care in treatment, the performance of which cannot be delegated to someone else, not even to a doctor or surgeon under contract for service: ‘the extent of the obligation which one person assumes towards another is to be inferred from the circumstances of the case. This is true whether the relationship be contractual (as in the case of a nursing home conducted for profit) or non-contractual (as in the case of a hospital which gives free treatment). In the former case there is, of course, a remedy in contract, while in the latter the only remedy is in tort, but in each case the first task is to discover the extent of the obligation assumed by the person whom it is sought to make liable. Once this is discovered, it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf, and this is equally true whether or not the obligation involves the use of skill. It is also true that, if the obligation is undertaken by a corporation, or a body of trustees or governors, they cannot escape liability for its breach, any more than can an individual, and it is no answer to say that the obligation is one which on the face of it they could never perform themselves.’
Goddard LJ said that the liability for doctors on the permanent staff depends, on ‘whether there is a contract of service and that must depend on the facts of any particular case’. He said: ‘Apart from any express term governing the relationship of the parties, the extent of the obligation which one person assumes towards another is to be inferred from the circumstances of the case. This is true whether the relationship be contractual (as in the case of a nursing home conducted for profit) or non-contractual (as in the case of a hospital which gives free treatment). In the former case there is, of course, a remedy in contract, while in the latter the only remedy is in tort, but in each case the first task is to discover the extent of the obligation assumed by the person whom it is sought to make liable. Once this is discovered, it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf, and this is equally true whether or not the obligation involves the use of skill.’
He distinguished between nurses, for whose negligence the hospital would be liable, and consulting physicians and surgeons where: ‘clearly the nature of their work and the relationship in which they stand to the defendants precludes the drawing of an inference that the defendants undertake responsibility for their negligent acts.’
The hospital provided treatment by radiography, and it owed a duty to provide such treatment with care and was liable for the negligence of the ‘whole-time employee engaged to give the treatment’: ‘It is clear, therefore, that the powers of the defendants include the power of treating patients, and that they are entitled, and, indeed, bound in a proper case, to recover the just expense of doing so. If they exercise that power, the obligation which they undertake is an obligation to treat, and they are liable if the persons employed by them to perform the obligation on their behalf act without due care. I am unable to see how a body invested with such a power and to all appearance exercising it, can be said to be assuming no greater obligation than to provide a skilled person and proper alliances.’
MacKinnon LJ described a general rule that: ‘One who employs a servant is liable to another person if the servant does an act within the scope of his employment so negligently as to injure that other. This is the rule of respondeat superior.’
Lord Greene MR, Goddard LJ, MacKinnon LJ
[1942] 2 KB 293
England and Wales
Cited – A v Ministry of Defence and another QBD 16-Apr-2003
The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant . .
Cited – Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA 13-Nov-2009
The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
Applied – Cassidy v Ministry of Health CA 1951
The court considered the liability in negligence of the respondent for the negligence of doctors employed by it.
Held: The Ministry was liable for the negligence of doctors who were employed by it on contracts of service.
Denning LJ . .
Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
Cited – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2022; Ref: scu.197041
Toulmin J
[2009] EWHC 2689 (TCC)
England and Wales
Updated: 04 August 2022; Ref: scu.377334
Coulson J
[2009] EWHC 2444 (TCC)
England and Wales
See Also – Barr and Others v Biffa Waste Services Ltd TCC 15-May-2009
The Claimants were the residents of a housing estate who applied for a Group Litigation Order to pursue their claim of nuisance and negligence against a waste contractor. The Defendant requested the disclosure of their ‘after the event’ insurance . .
See Also – Barr and Others v Biffa Waste Services Ltd (No 3) TCC 19-Apr-2011
The claimants sought damages in nuisance saying that the defendant’s waster recycling plant was causing odorous pollution of their nearby homes. . .
See Also – Barr and Others v Biffa Waste Services Ltd [No 4] TCC 19-Apr-2011
. .
Appeal from – Barr and Others v Biffa Waste Services Ltd CA 19-Mar-2012
The claimants appealed against rejection of their claims for nuisance in the form of smells emanating from the respondent neighbour’s waste processing plant. The defendant relied upon the grant of planning permission.
Held: The cause of action . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.376191
The claimant’s daughter had been a voluntary patient at a mental hospital. She committed suicide when on home leave from a secure ward. The claimant now said that the hospital had acted incompatibly with their daughter’s human rights, in releasing her when she needed care.
Held: The claim failed. Since Melanie was a voluntary mental patient, not detained under the Mental Health Act, the NHS Trust did not have an operational obligation to her under ECHR article 2. Even if the NHS Trust did have such an operational obligation under ECHR article 2, it was not in breach of that obligation. The allegation of systemic breach of ECHR article 2, namely failure to adopt systems of work to protect the lives of patients, was rejected. The NHS Trust was not in breach of the investigatory obligation under ECHR article 2. The claimants were not victims for the purposes of section 7(7) of the Human Rights Act.
It was not equitable to extend the one-year time limit for bringing the human rights claims under section 7(5) of the Human Rights Act. If the claimants had succeeded in their claims, the proper award would have been andpound;1,500 for each claimant.
Simon J
[2009] EWHC 1827 (QB), [2009] LS Law Medical 503, (2009) 110 BMLR 56, [2010] PIQR P2
Human Rights Act 1998 7, European Convention on Human Rights 2, Law Reform (Miscellaneous Provisions) Act 1934
England and Wales
Appeal from – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
At First Instance – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.375080
Rix LJ
[2008] EWCA Civ 286, [2008] 2 All ER (Comm) 584, [2008] Lloyd’s Rep IR 617, 118 Con LR 25, [2008] BLR 285, [2008] 1 CLC 625, [2008] 14 EG 100
England and Wales
Appeal from – Tyco Fire and Integrated Solutions (UK) Ltd v Rolls-Royce Motor Cars Ltd TCC 29-Jun-2007
Allegation of faults in sprinkler system. . .
Cited – Gard Marine and Energy Ltd v China National Chartering Co Ltd and Others ComC 30-Jul-2013
The vessel ‘Ocean Victory’ grounded in 2006 entering a port in a storm.
Held: In the first action, that the intermediate charterers were liable to the demise charterers for breach of the safe port warranty in the time charter, and likewise, in . .
Mentioned – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2022; Ref: scu.266395
Whilst a substantial new building was being constructed, it was damaged by fire caused by the negligence of several contractors. The case concerned apportionment of liability.
Held: The appeal failed. The parties could by agreement vary the normal rules which would apportion damages. Here one party had been required to assume responsibility for fire damage, and to insure accordingly. That party was not however liable to contribute unless they were ‘liable in respect of’ the fire damage, but section 6(1) could not be read so as to make liable to restore damaged work a person from whom the employer is ‘entitled to recover compensation’ in respect of the fire damage to the works. For 1(1), they were not a person liable in respect of the fire damage to the works and the appellants cannot recover contribution from them.
Where it is agreed that the insurance shall inure to the benefit of both parties to the contract, they cannot claim against each other in respect of an insured loss. This an implied term of the contract of insurance and/or of the underlying contract between the co-insureds pursuant to which their interests were insured.
Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Steyn, Lord Hope of Craighead, Lord Rodger of Earlsferry
[2002] UKHL 17
Civil Liability (Contribution) Act 1978 1(1) 6(1)
England and Wales
Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
Appeal from – Co-operative Retail Services Ltd v Taylor Young Partnership, Hoare Lea and Partners (a Firm) and Others CA 4-Jul-2000
A building owner entered into a standard form of building contract for the construction of office premises. Under its terms the contractor was required to take out and maintain a policy in the names of the owner, the contractor and specialist . .
Cited – Mark Rowlands v Berni Inns Ltd CA 1985
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building . .
Cited – Scottish and Newcastle plc v GD Construction (St Albans) Ltd CA 22-Jan-2003
The employer and main contractor had contracted under the JCT conditions. The employer had been obliged to insure the property for fire in their joint names, but had not done so. After a fire caused by the negligence of a sub-contractor, he sued. . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 August 2022; Ref: scu.171309
When looking at a statement to see if a warranty was given: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment.’
A statement purporting to be a contractual promise in a collateral contract must be promissory in nature or effect rather than representational: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment.’
A L Smith MR
[1900-3] All ER 495, [1901] 2 KB 215
England and Wales
Cited – Heilbut Symons and Co v Buckleton HL 11-Nov-1912
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. In this conversation the plaintiff said-‘I understand that you are bringing . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 August 2022; Ref: scu.216361
The Act gave a defence to liability for a fire which started accidentally, this did not cover a fire which started by negligence.
Parker LJ
[1956] 1 WLR 85, [1956] 1 ALL ER 154, [1955] EWCA Civ 5
Fires Prevention (Metropolis) Act 1774
England and Wales
Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .
Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – LMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.188017
Pill LJ, Hooper LJ, Wilson LJ
[2009] EWCA Civ 850
England and Wales
Cited – Morris v West Hartlepool Steam Navigation HL 1956
The ship had followed a practice of leaving the between deck hatch covers off in the absence of a guard rail around the hatchway. The plaintiff seaman fell into the hold. There was evidence that on this ship it was quite usual for men to be sent . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2022; Ref: scu.368604
(Trinidad and Tobago)
Lord Brown of Eaton-under-Heywood, Lord Mance, Sir Jonathan Parker
[2009] UKPC 31
Commonwealth
Updated: 30 July 2022; Ref: scu.349080
The claimant suffered damages when the contractor he engaged to construct his swimming pool went into liquidation. Before employing him, he had consulted the defendant’s web-site which suggested that its members were checked for solvency on becoming members, and that their work was covered by a guarantee. The contractor was not a full member, but this was not clear.
Held: The claimant’s appeal against dismissal of his claim failed. The web-site was aimed at a class of people who might wish to instruct a member. However, there was no representation as to the continuing solvency of a member, and the claimants had not taken the steps recommended by the site before entering into a contract. The general law of negligence applied equally to the internet. Lady Smith dissented but would have put the claimant’s contributory negligence at 75%.
Lord Clarke of Stone-cum-Ebony MR, Scott-Baker, Smith LJJ
[2009] EWCA Civ 717
England and Wales
Cited – Williams and Another v Natural Life Health Foods Ltd and Another HL 30-Apr-1998
A company director was not personally reliable in negligence for bad advice given by him as director unless it could clearly be shown that he had willingly accepted such personal responsibility. A special relationship involving an assumption of . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – BCCI (Overseas) Ltd v Price Waterhouse (No 2); Orse Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse (No 2) CA 1998
Sir Brian Neill discussed three paths by which a duty of care might be imposed on a party: ‘1. The threefold test of foreseeability, proximity and fair, just and reasonable. 2. The assumption of responsibiy 3. The incremental approach He then . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2022; Ref: scu.347739
The court considered whether a solicitor acting for a potential plaintiff was considered to be an expert for the purposes of the section.
Held: Purchas LJ said: ‘Of course as advice from a solicitor as to the legal consequences of the act or omission is not relevant his contribution can only consist of factual information. Moreover where constructive knowledge is under consideration through the channel of a solicitor this can only be relevant where it is established that the plaintiff ought reasonably to have consulted a solicitor at all. Thus it is for the defendant to establish not only that a solicitor whom the plaintiff might consult would have the necessary knowledge but also that it was reasonable to expect the plaintiff to consult him. This question was considered at some length in the judgment of Hidden J. and we can see no reason to depart from his general approach. .’ and ‘The standard of reasonableness in connection with the observations and/or the effort to ascertain are therefore finally objective but must be qualified to take into consideration the position, and circumstances and character of the plaintiff . . In considering whether or not the inquiry is, or is not reasonable, the situation, character and intelligence of the plaintiff must be relevant’.
Purchas LJ: ‘It was not . . the intention of Parliament to require for the purposes of section 11 and section 14 of the [1980] Act proof of knowledge of the terms in which it will be alleged that the act or omission of the defendants constituted negligence or breach of duty. What is required is knowledge of the essence of the act or omission to which the injury is attributable.’
Purchas LJ
[1993] 1 WLR 782, [1993] 4 All ER 383
England and Wales
Appeal from – Nash v Eli Lilly and Co QBD 1991
The court discussed the relevance of knowledge obtainable by the plaintiff’s solicitor for limitation purposes.
Held: Hidden J said ‘My conclusion is therefore that there is no binding authority on whether facts ascertainable by a plaintiff . .
Cited – Powell v National Coal Board CA 28-May-1986
Limitation operates as a defence, and therefore it is for he who sets it up to establish it, and prove that the claim was time barred. Once the initial limitation period had elapsed, it was for the plaintiff to assert that the date of knowledge . .
Cited – Henderson v Temple Pier Company Limited CA 23-Apr-1998
The plaintiff suffered injury walking a gangway onto a moored ship. Her solicitors failed to identify the owner of the ship, misspelling the name and failing to search in the General Register of Shipping and Seamen. The eventual claim was made . .
Cited – O’Driscoll v Dudley Health Authority CA 30-Apr-1998
The plaintiff sought damages for the negligence of the respondent in her care at birth. Years later the family concluded that her condition was a result of negligence. They waited until she was 21, when they mistakenly believed that she became an . .
Doubted – Forbes v Wandsworth Health Authority CA 21-Mar-1996
The plaintiff had a history of circulatory problems in his legs. He underwent surgery losing his leg. The question was when he should have sought advice as to why an attempted by-pass operation had resulted in one leg having to be amputated. He . .
Cited – Adams v Bracknell Forest Borough Council HL 17-Jun-2004
A attended the defendant’s schools between 1977 and 1988. He had always experienced difficulties with reading and writing and as an adult found those difficulties to be an impediment in his employment. He believed them to be the cause of the . .
Cited – Ali v Courtaulds Textiles Ltd CA 26-May-1999
A claimant was not fixed with knowledge of the source of his injury by being referred for medical opinion. He could not be expected to understand the source of this injury without expert assistance, and time did not run until such assistance was . .
Cited – Coban v Aynur Allen F Barnes and Son (a Firm) CA 8-Oct-1996
The defendant resisted the plaintiff’s claim for personal injuries as out of time. His explanation for not pursuing inquiries with his solicitor was that he was an over-stayer who feared deportation.
Held: Having good reason to make such . .
Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Cited – Buckler v J F Finnegan Ltd CA 21-Jun-2004
The claimant sought damages for personal injuries after ingesting asbestos while employed as a joiner by the defendant. The defendant appealed an order allowing the claim to go ahead despite being out of time. . .
Cited – Ministry of Defence v AB and Others SC 14-Mar-2012
The respondent Ministry had, in 1958, conducted experimental atmospheric explosions of atomic weapons. The claimants had been obliged as servicemen to observe the explosions, and appealed against dismissal of their claims for radiation sickness . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.186432
The claimant’s husband had been employed by the defendant and had suffered severe head injuries because of malfunctioning machinery. He suffered post-traumatic stress disorder and that led to depression. He ultimately committed suicide. His widow claimed against the employers for loss attributable to her husband’s death by suicide.
Held: The claim was dismissed. It was no part of an employer’s duty of care to his workers to prevent a later suicide.
Nigel Baker QC
[2005] EWHC 895 (QB), [2006] PIQR P11
Appeal from – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
At first Instance – Corr v IBC Vehicles Ltd HL 27-Feb-2008
The claimant’s husband had committed suicide. She sought damages for financial loss from his former employers under the 1976 Act. He had suffered a severe and debilitating injury working for them leading to his depression and suicide. The employers . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.347405
The plaintiff was a passenger in a car on a major road which who was injured in a collision with a car which emerged from a minor road. The driver of the second car, who was agreed (as between the two cars) to be 90% responsible, joined the County Council (as highway authority) as a third party, alleging it had negligently removed and failed to repaint the warning lines which customarily indicated to drivers that they were entering upon a major road.
Held: By removing the lines, the council had created a hazard. By painting the lines the council had created an expectation on the part of users of the main road that there would be lines to warn people on side roads that they were entering a major road.
[1979] RTR 369
England and Wales
Cited – Weatherhill v Pearce ChD 7-Nov-1994
The testatrix had signed her name by the attestation clause before it was witnessed.
Held: A pre-signed will, on which the testator’s earlier signature was then acknowledged before a witness, and if there was appropriate evidence of her . .
Cited – Jane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.195691
The claimant sought damages in negligence against his school when he was hit in the eye by a stone thrown by another pupil at a seagull. The pupil now appealed. The judge had been criticised for providing inadequate supervision.
Held: The appeal succeeded: ‘First, to have one dinner lady supervisor who would be stretched to supervise over 150 pupils in years 7 and 8, only glancing occasionally at years 9 and 10, was in my view clearly negligent. Second, since the purpose of appropriate supervision is to deter children taking part in dangerous activities, as well as to stop dangerous activities if they do occur, a court should not be too ready to accept that the dangerous activity would have happened anyway. Third, where as here the recorder found witnesses called by the appellant were telling the truth, there was no reason not to accept their evidence that if a supervisor had been near they would not have thrown stones because they knew that stone throwing was prohibited.’
[2009] EWCA Civ 456
England and Wales
Updated: 26 July 2022; Ref: scu.346226
Lord Hodge, Deputy President, Lady Black, Lord Briggs, Lord Kitchin, Lord Hamblen
[2021] UKSC 3
Bailii, Bailii Press Summary, Bailii Issues and Facts
England and Wales
At FTT – HRH Emere Godwin Bebe Okpabi and Others v Royal Dutch Shell Plc and Another TCC 26-Jan-2017
Claims for damages arising from failures in oil pipeline management in Nigeria. . .
Appeal from (CA) – Ogale Community and Others v Royal Dutch Shell Plc and Another CA 14-Feb-2018
The claimants sought damages after widescale historic damage to areas of Nigeria by subsidiaries of the defendant. The defendant said that the court did not have jurisdiction to hear such a claim.
Held: The claimants had not established the . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.658112
Sachs LJ stated that ‘it is in my judgment clear that the corporation’s statutory duty under section 44 of the Act of 1959 is reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them — taking account, of course, of the traffic reasonably to be expected on the particular highway. Motorists who thus use the highway, and to whom a duty is owed, are not to be expected by the authority all to be model drivers. Drivers in general are liable to make mistakes, including some rated as negligent by the courts, without being merely for that reason stigmatised as unreasonable or abnormal drivers; some drivers may be inexperienced, and some drivers may find themselves in difficulties from which the more adept could escape. The highway authority must provide not merely for model drivers, but for the normal run of drivers to be found on their highways, and that includes those who make the mistakes which experience and common sense teaches are likely to occur.’ and ‘mere unevenness, undulations and minor potholes do not normally constitute a danger’ within the section.
[1973] QB 505
England and Wales
Cited – West Sussex County Council v Russell CA 12-Feb-2010
The council appealed against a finding that it had failed in its duty to keep the highway safe leading to an accident in which the claimant was severely injured. The road was narrow, and a significant drop had developed by the edge of the road. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.401639
The claimant cyclist was severely injured in an accident when hit by a motorcyclist, the defendant. He was not wearing a cycle helmet, and the injuries were to his head. He was slowing down to turn right, and was hit a heavy glancing blow by the defendant approaching from the other direction.
Held: The defendant had been driving in excess of the speed limit.
The claimant had ‘made a good physical recovery from his injuries but the major impact of the head injuries has been upon cognition, behaviour and speech function; there are significant problems with memory, concentration and expressive dysphasia; he needs help with every day tasks but most importantly, he has developed post traumatic epilepsy.’
Given the guidance to cyclists in the Highway Code that they should wear cycle helmets, the logic of Froom v Butcher as to motorists not wearing seatbelts should be applied also to cyclists not wearing helmets: ‘It matters not that there is no legal compulsion for cyclists to wear helmets and so a cyclist is free to choose whether or not to wear one because there can be no doubt that the failure to wear a helmet may expose the cyclist to the risk of greater injury; such a failure would not be ‘a sensible thing to do’ and so, subject to issues of causation, any injury sustained may be the cyclist’s own fault and ‘he has only himself to thank for the consequences’.
I am satisfied on the balance of probabilities, that the cyclist who does not wear a helmet runs the risk of contributing to his/her injuries.’ and ‘As it is accepted that the wearing of helmets may afford protection in some circumstances it must follow that a cyclist of ordinary prudence would wear one, no matter whether on a long or a short trip or whether on quiet suburban roads or a busy main road.’
However it remained for the defendant to show that the particular injuries suffered would not have occurred if the claimant had been wearing a helmet. In this case he had not achieved that standard: ‘the injuries responsible for the Claimant’s residual disabilities were caused by a contre-coup injury – an injury from which a helmet would not have protected the Claimant.’
Griffith Williams J
[2009] EWCH 53 (QB)
Cited – Froom v Butcher CA 21-Jul-1975
The court asked what reduction if any should be made to a plaintiff’s damages where injuries were caused not only by the defendant’s negligent driving but also by the failure of the plaintiff to wear a seat belt. It had been submitted that, since . .
Cited – Lewis v Denye CA 1939
Parcq LJ said: ‘In order to establish the defence of contributory negligence, the defendant must prove, first, that the plaintiff failed to take ‘ordinary care for himself,’ or, in other words, such care as a reasonable man would take for his own . .
Cited – Phethean-Hubble v Coles QBD 24-Feb-2011
The claimant had been very severely injured when knocked from his cycle by the defendant’s car. He had come out onto the roadway at night but without cycle lights, and into the path of the car. The claimant was not wearing a helmet.
Held: . .
Cited – Reynolds v Strutt and Parker LLP ChD 15-Jul-2011
The defendant had organised a team bonding day, including a cycling event. The claimant employee was severely injured falling from his cycle. He said that the defendant had been engligent in not providing cycling helmets. The circuit hosting company . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.341870
[2009] ScotCS CSIH – 35
Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 3(2)
Appeal from – Farstad Supply As v Enviroco Ltd and Another SCS 23-Apr-2008
(Outer House) The pursuers alleged that the defendant service company was responsible in negligence for damage by fire to its oil rig supply vessel. It was said that oil they had failed to clear was released by piping when opened flowing onto a hot . .
See also – Enviroco Ltd v Farstad Supply A/S ChD 22-May-2009
. .
See Also – Enviroco Ltd v Farstad Supply A/S CA 18-Dec-2009
A company which would otherwise undoubtedly be the subsidiary of another company ceased to be so when the shares in the former company were charged by the latter company to a Scottish bank. . .
Appeal from – Farstad Supply As v Enviroco Ltd SC 5-May-2010
The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.341811
The pursuer seeks damages in respect of alleged negligent mis-statements contained in a reference sent by the defenders, his former employers, to various prospective employers. The defenders contend inter alia that the pursuer has discharged the claim that he makes in this action.
[2004] ScotCS 86
Scotland
Updated: 24 July 2022; Ref: scu.195168
Roth J
[2011] EWHC 2030 (Ch)
England and Wales
See Also – Winnetka Trading Corp v Julius Baer International Ltd and Others ChD 26-Nov-2008
The parties disputed whether a clause providing the government of their banking arrangements to be decided according to the laws of Guernsey were applicable. . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.442451
The claimant car driver sought a declaration that he was not responsible for an accident. He had been driving along when the 10 year old boy ran out into his path suffering catastrophic brain injury.
Held: ‘on the assumption that Mr Toropdar was not at fault in travelling at the speed at which he was travelling when he passed the bus, there was nothing that he could and should at that stage have done which would have averted the accident. Even if he had been covering the brake and expecting a person to emerge, the impact would have happened within his reaction time. ‘ However the speed of 27.5 mph was too fast. Had he braked as he came up to the bus, the reduced speed would have allowed him to stop. It would be inappropriate to grant a declaration that he was not responsible, irrespective of the separate question whether such an order might ever be correct.
Christopher Clarke J
[2009] EWHC 567 (QB), [2010] Lloyds Rep IR 358
England and Wales
Cited – Ehrari v Curry and Another CA 21-Feb-2007
The claimant had stepped out from behind a vehicle and was struck by the defendant’s truck. The defendant appealed a finding of 30% negligence, saying he had only one second to avoid the impact. He did not see her, but his passenger did.
Held: . .
Principal judgment – Toropdar v D QBD 2-Oct-2009
. .
Cited – Probert v Moore QBD 9-Aug-2012
The claimant, a 13 year old girl, was severely injured walking along the carriageway on a 60mph unlit road at 5:00pm on a December day. A hedgerow obliged her to walk in the road. The defendant driver said that she was contibutorily negligent in . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2022; Ref: scu.326989
The claimants alleged that the defendants, their solicitors had been negligent in handling a commercial lease. That being accepted, the court considered the measure of damages.
Wilkie J
[2007] EWHC 2166 (QB), [2008] BLR 206, 119 Con LR 193
Updated: 23 July 2022; Ref: scu.296296
The House considered the means of imposing liability under the 1940 Act. The House was asked whether or not a draft agreement was binding notwithstanding that it had not been formally executed as apparently envisaged by the parties.
Held: No right of contribution exists under Scottish law unless the right arises out of liability on a judgment rendered by the Scottish courts. The parties’ agents ‘were proceeding upon the understanding that the binding legal obligation would be consented to in the form of execution of the formal release, in the terms satisfactory to both parties.’
Lord Mackay of Clashfern said that: ‘final mutual assent as spoken of by Lord Blackburn in Rossiter v Miller . . means mutual assent to be bound in law’.
Lord Mackay of Clashfern
[1987] UKHL 19, 1987 SLT 443, SC (HL) 85
Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 3(2)
Scotland
Cited – Farstad Supply As v Enviroco Ltd SC 5-May-2010
The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.279756
The pursuer sought damages after his cafe was burned in a fire which started in a neighbouring insecure abandoned building owned by the defenders.
Held: The defendant was held not liable to adjoining occupiers for a fire started by vandals in its disused premises. The question was whether or not the occurrence of such behaviour was reasonably foreseeable, and that on the facts of the case it was not.
Lord Goff of Chievely said: ‘if this proposition is understood as relating to a general duty take reasonable care not to cause damage to premises in the neighbourhood . . then it is unexceptionable. But it must not be overlooked that a problem arises when the pursuer is seeking to hold the defender responsible for having failed to prevent a third party from causing damage to the pursuer or his property by the third party’s own deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care; for it is well recognized that there is no general duty of care to prevent third parties from causing such damage.’
Lord Mackay of Clashfern said that the more unpredictable the behaviour in question, the higher the degree of probability of such behaviour occurring would be necessary to find that such loss was reasonably foreseeable.
Lord Goff of Chievely, Lord Mackay of Clashfern, Lord Rodger,
[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
Scotland
Updated: 22 July 2022; Ref: scu.279755