Category: Negligence

Dunlop v Woolahara Municipal Council: PC 1981

A council had no liabiity in a private action for damages for a breach of statutory duty in its handling of a planning application. While doubting that it was so, Lord Diplock left open the question whether an individual injuriously affected by either the refusal of planning permission on the part of a planning authority or by the grant of planning permission to neighbouring property owners had a right of action for damages against the planning authority.

Judges:

Lord Diplock

Citations:

[1981] 1 All ER 1202

Jurisdiction:

Australia

Cited by:

Cited – Regina v Lam and Others (T/a ‘Namesakes of Torbay’) and Borough of Torbay CA 30-Jul-1997
The claimant sought damages after the planning authority allowed the first defendant to conduct a manufacturing business in the course of which spraying activities took place which caused them personal injuries and loss of business.
Held: The . .
Cited – Kane v New Forest District Council CA 13-Jun-2001
A pedestrian walked from a footpath into the road and was hit by a car. She sought damages from the highway authority, saying that they had allowed vegetation to grow to an extent to make it impossible to be seen. As a second tier appeal, the . .
Lists of cited by and citing cases may be incomplete.

Negligence, Local Government

Updated: 09 May 2022; Ref: scu.225319

Robertson v Turnbull: HL 1982

Citations:

1982 SC (HL) 1, [1982] SLT 96

Jurisdiction:

Scotland

Citing:

Not followed – Dick v Burgh of Falkirk HL 1976
Their lordships were prepared to contemplate the idea of a defender owing a common law duty of care to the victim’s relatives. . .

Cited by:

Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 09 May 2022; Ref: scu.224421

Kemp and Dougall v Darngavil Coal Co: 1909

A man cannot be charged with negligence if he has no obligation to exercise diligence.

Judges:

Lord Kinnear

Citations:

1909 S C 1314

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Negligence, Scotland

Updated: 09 May 2022; Ref: scu.197993

Mullen v Barr and Co Ld, and M’Gowan v Barr and Co Ld: 1929

A mouse was found in a bottle. The buyer claimed damages for the shock: ‘In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. It is obvious that, if such responsibility attached to the defenders, they might be called on to meet claims of damages which they could not possibly investigate or answer.’

Citations:

1929 SC 461

Cited by:

Overruled – 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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Negligence

Updated: 09 May 2022; Ref: scu.192602

Beard v London General Omnibus Company: CA 1900

One of the defendant’s conductors, in order to save time, drove the bus quickly around some side streets, negligently injuring the plaintiff, who now sought damages against the bus company.
Held: The plaintiff had failed to provide any evidence that the conductor had been authorised to drive the bus, and therefore failed to establish that they had any resonsibility in negligence for his acts. The action failed.

Citations:

[1900] 2 QB 53, [1900-3] All ER Rep 112, [1900] LJQB 895, [1900] 83 LT 362, [1900] 48 WR 658, [1900] 16 TLR 499

Jurisdiction:

England and Wales

Negligence, Vicarious Liability

Updated: 09 May 2022; Ref: scu.188793

Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris: CA 21 Oct 2003

The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor leads to the assumption by receivers who accept such appointment of responsibilities and duties which differ from those owed by the mortgagees.
Held: By accepting office as receivers of the Claimants’ properties the Receivers assumed a fiduciary duty of care to the Bank, the Claimants and all (if any) others interested in the equity of redemption. The scope or content of the duty depends on the special nature of the relationship between the Bank, the Claimants and the Receivers arising under the terms of the mortgages and the appointments of the Receivers, and in particular the role of the Receivers in securing repayment of the secured debt and the primacy of their obligations in this regard to the Bank. That was inconsistent with a duty to take the pre-marketing steps for which the Claimants contended in this action.

Judges:

Lord Justice Aldous Lord Justice Tuckey Mr Justice Lightman

Citations:

[2003] EWCA Civ 1409, Times 27-Oct-2003, Gazette 20-Nov-2003, [2004] 1 WLR 997, [2004] 4 All ER 484

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Re Charnley Davies Ltd (No 2) ChD 1990
An administrator owed a duty to the company over which he was appointed to take reasonable care to obtain the best price that the circumstances, as he reasonably perceived them to be, permitted, including a duty to take reasonable care in choosing . .
Cited – Downsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
Cited – Medforth v Blake and others CA 26-May-1999
A receiver appointed to manage a business had duties over and above those of mere good faith. A receiver who failed to obtain discounts normally obtainable for supplies to the business might be liable for that failure. when considering the position . .
Cited – Nash v Eads CA 1880
Sir George Jessel MR: ‘The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then . .
Cited – Palk v Mortgage Services Funding Plc CA 1993
The mortgagees had obtained an Order for possession with the intention, not of proceeding to sell the property but of waiting in the hope that the market might improve. The mortgagor was anxious that the property should be sold so that the proceeds . .
Cited – Tse Kwong Lam v Wong Chit Sen PC 1983
For a mortgagee in possession selling a property, it does not matter that the time may be unpropitious and that by waiting a higher price could be obtained: he is not bound to postpone in the hope of obtaining a better price. . .
Cited – China and South Sea Bank Limited v Tan Soon Gin PC 1990
A mortgagee’s decision on sale is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor. He can sit back and do nothing. He is not obliged to take steps to realise his . .
Cited – McHugh v Union Bank of Canada PC 1913
There was a mortgage of horses, which the mortgagee needed to drive to market if he was to sell them.
Held: If a mortgagee goes on with a sale of property which is unsaleable as it stands, a duty of care may be imposed on him, when taking the . .
Cited – Standard Chartered Bank Ltd v Walker CA 1982
The mortgagee having obtained insufficient on the sale at auction of the property charged to recover the sum secured, applied for summary judgment against the mortgagor for that sum. The mortgagor resisted the application alleging that the mortgagee . .
Cited – Knight v Lawrence 1991
If a mortgaged property is let, the receiver is duty bound to inspect the lease and, if the lease contains an upwards only rent review, to trigger that rent review in due time. . .
Cited – Kelly v Cooper and Another PC 25-Nov-1992
There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
Cited – Knight v Lawrence 1993
As part of his duty of care, a receiver may be required to take positive steps to maintain the value of the property. . .
Cited – Routestone Ltd v Minories Finance ChD 1996
A receiver’s management duties will ordinarily impose on him no general duty to exercise the power of sale, or to ‘work’ an estate by refurbishing it before sale. Speaking of the role of an expert witness ‘What really matters in most cases are the . .
Cited – Yorkshire Bank Plc v Hall and Others CA 18-Dec-1998
The Court of Appeal is not strictly bound by the terms of leave to appeal given, but where the points had been specifically considered a point could only be heard with the leave of the Court of Appeal which had full power to regulate its own . .
Cited – Ratford v Northavon District Council CA 1986
The reality of the agency of a receiver is reflected in the continuity, after the appointment of receivers, of the rateable occupation of the mortgagor through the agency of the receivers. The possession of an agent is to be attributed to that of . .
Cited – Re Offshore Ventilation 1989
The position of agency of receivers is a real one, even though it has some peculiar incidents. . .
Cited – Piacentini v Dayman QBD 5-Feb-2003
The reality of the agency of a receiver for a mortgagor is shown in the absence of personal liability of the receivers for tax in respect of receipts which come to the hands of the receivers as agents. . .
Cited – Gaskell v Gosling CA 28-Apr-1896
The agency of a receiver for the mortgagor is one where the principal, the mortgagor, has no say in the appointment or identity of the receiver and is not entitled to give any instructions to the receiver or to dismiss the receiver. ‘For valuable . .
Cited – Gaskell v Gosling CA 28-Apr-1896
The agency of a receiver for the mortgagor is one where the principal, the mortgagor, has no say in the appointment or identity of the receiver and is not entitled to give any instructions to the receiver or to dismiss the receiver. ‘For valuable . .
Cited – Gomba Holdings v Homan 1986
A receiver’s powers of management are really ancillary to the duty to manage the security, the property of the mortgagee, for the benefit of the mortgagee. In the context of the agency of a receiver which is no ordinary agency but primarily a device . .
Cited – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .

Cited by:

Cited – Den Norske Bank Asa v Acemex Management Company Ltd CA 7-Nov-2003
Money had been loaned for the purchase of three ships,and mortgages over the ships had been given given. The borrowers were in default, and the lender sought to arrest the vessels. The defendant argued that the way the arrest had been undertaken . .
Cited – MacDonald and Another v Carnbroe Estates Ltd SC 4-Dec-2019
‘This appeal concerns the Scots law of gratuitous alienations on insolvency. It raises three principal questions. First, there is a question as to the interpretation of the term ‘adequate consideration’ in section 242(4)(b) of the Insolvency Act . .
Lists of cited by and citing cases may be incomplete.

Negligence, Agency, Insolvency

Leading Case

Updated: 09 May 2022; Ref: scu.187019

Qinn v Scott: QBD 1965

A tree fell across the highway, injuring the plaintiff.
Held: The claim succeeded. he decay of the tree (which was owned by the National Trust), was there to be seen and the tree should have been felled. Glyn-Jones J said: ‘The duty of the Trust is to take such care as a reasonable landowner – and that means a prudent landowner – would take to prevent unnecessary danger to users of the highway adjoining the Trust’s land. There is not to be imputed in the ordinary landowner the knowledge possessed by the skilled expert in forestry . . But, in my opinion, there may be circumstances in which it is incumbent on a landowner to call in somebody skilled in forestry to advise him, and I have no doubt but that a landowner on whose land this belt of trees stood, adjoining a busy highway, was under a duty to provide himself with skilled advice about the safety of the trees’

Judges:

Glyn-Jones J

Citations:

[1965] 1 WLR 1004

Jurisdiction:

England and Wales

Cited by:

Cited – Stagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
Lists of cited by and citing cases may be incomplete.

Negligence, Land

Updated: 08 May 2022; Ref: scu.526448

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

Judges:

Gibbs CJ, Mason, Murphy and Brennan JJ

Citations:

[1982] HCA 40

Jurisdiction:

Australia

Citing:

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 by:

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.

Commonwealth, Negligence

Updated: 08 May 2022; Ref: scu.445624

Weller v Foot and Mouth Disease Research Institute: 1966

The plaintiff auctioneers sought damages in negligence from the defendants in having failed to prevent an outbreak of foot and mouth disease which led to damage to their business.
Held: Widgery J said: ‘Mr. Eveleigh says that, since the defendants should have foreseen the damage to his clients but nevertheless failed to take proper precaution against the escape of the virus, their liability is established. It may be observed that if this argument is sound, the defendants’ liability is likely to extend far beyond the loss suffered by the auctioneers, for in an agricultural community the escape of foot and mouth disease virus is a tragedy which can foreseeably affect almost all businesses in that area. The affected beasts must be slaughtered, as must others to whom the disease may conceivably have spread. Other farmers are prohibited from moving their cattle and may be unable to bring them to market at the most profitable time; transport contractors who make their living by the transport of animals are out of work; dairymen may go short of milk, and sellers of cattle feed suffer loss of business. The magnitude of these consequences must not be allowed to deprive the plaintiffs of their rights, but it emphasises the importance of this case.’

Judges:

Widgery J

Citations:

[1966] 1 QB 56

Jurisdiction:

England and Wales

Cited by:

Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 07 May 2022; Ref: scu.328040

Welsh v Chief Constable of Merseyside Police: 1993

On conviction for one offence, the plaintiff asked for two other offences to be taken into consideration. He was bailed pending sentence. He was then arrested for the other offences and wrongfully held in custody. The Crown Prosecution Service had negligently failed to notify the police of the events in court. W sought damages. The claim was struck out and on appeal, the CPS relied on section 2(5) of the 1947 Act.
Held: The immunity related only to the exercise of judicial functions. The process of notification of the request not a judicial act. Though the CPS had immunity when acting as advocate, this falure occurred in its general administrative duties. The claim was restored.

Judges:

Tudor Evans J

Citations:

[1993] 1 All ER 692

Statutes:

Crown Proceedings Act 1947

Jurisdiction:

England and Wales

Citing:

Cited – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Cited – Kirkham v Anderton, The Chief Constable of the Greater Manchester police CA 20-Dec-1989
The claimant’s husband hanged himself in Risley Remand Centre after the police had failed to warn the prison authorities that he was (as the police knew) a suicide risk. He was suffering from clinical depression and had previously attempted suicide . .

Cited by:

Cited – Welton, Welton v North Cornwall District Council CA 17-Jul-1996
The defendant authority appealed a finding that it was liable in negligence from the conduct of one of its environmental health officers. The plaintiff had set out to refurbish and open a restaurant. He said the officer gave him a list of things he . .
Cited – Connolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
Still good law – An Informer v A Chief Constable CA 29-Feb-2012
The claimant appealed against dismissal of his claim for damages against the police. He had provided them with information, but he said that they had acted negligently and in breach of contract causing him financial loss. The officer handling his . .
Lists of cited by and citing cases may be incomplete.

Negligence, Police

Updated: 07 May 2022; Ref: scu.272857

Smith v Chief Constable of Essex: CA 2008

The claimant sought damages from the police, saying that the way they had handled the witness protection programme had led to him suffering injury.
Held: The action which had been struck out by the court below should be restored, because even though ‘the story of the common law would not therefore appear to promise a favourable outcome to the present claim’ and ‘the claimant’s case in the present state of the law ( was) ‘fraught with difficulty’ the court did not regard it ‘as inevitably doomed to failure’.
Sedley LJ said: ‘no duty of care is owed by the police to the public at large so as to render them liable to an individual who suffers harm from their neglect’ but nonetheless ‘it has become clear . . that in some cases involving the police the very proximity of the parties can not only create a duty of care but can overcome the public policy considerations which would otherwise bar the claim.’

Judges:

Rimer LJ, Sedley LJ

Citations:

[2008] EWCA Civ 39

Jurisdiction:

England and Wales

Cited by:

Cited – K v Central and North West London Mental Health NHS Trust and Another QBD 30-May-2008
The claimant appealed against an order striking out his claim in negligence. He had leaped from a window in a suicide attempt. The accommodation was provided by the defendant whilst caring for him under the 1983 Act.
Held: The case should be . .
Lists of cited by and citing cases may be incomplete.

Negligence, Litigation Practice, Police

Updated: 07 May 2022; Ref: scu.270320

Fitzgerald v Lane: CA 6 Mar 1987

The plaintiff was struck by the defendant’s car as he crossed at a pelican crossing and suffered severe injuries when the first defendant’s car passed the stationary of the second defendant. The judge found all three parties negligent.
Held: There had been no evidence that the second defendant who had stopped at the crossing was negligent, however Wilsher had shown that the case of McGhee had to be applied so as to find him liable.

Judges:

Slade and Nourse LJJ and Sir Edward Eveleigh

Citations:

[1987] 2 All ER 455

Links:

Gazette

Cited by:

Appeal from – Fitzgerald v Lane HL 14-Jul-1988
The plaintiff crossed road at a pelican crossing. The lights were against him but one car had stopped. As he passed that car he was struck by another in the second lane and again by a car coming the other way. The judge had held the three equally . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 07 May 2022; Ref: scu.267707

Cowley v Newmarket Local Board: HL 1892

No action in tort lay against highway authorities for a failure to repair a highway. They were no more liable than were the local inhabitants.
Lord Halsbury said: ‘We are to consider the scope and purpose of the statute, and in particular for whose benefit it is intended. Now the object of the present statute is plain. It was intended to compel mine owners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention.’

Judges:

Lord Halsbury

Citations:

[1892] AC 345

Jurisdiction:

England and Wales

Cited by:

Cited – Goodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .
Cited – Ali v The City of Bradford Metropolitan District Council CA 17-Nov-2010
The claimant appealed against rejection of her claim for damages after slipping on a footpath maintainable by the defendant after an accumulation of mud and debris. The claim appeared to be the first under section 130, and the highway authority . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Negligence

Updated: 07 May 2022; Ref: scu.244697

National Coal Board v England: HL 1954

The plaintiff sought damages after being injured when a co-worker fired a shot. The employee however had himself coupled the detonator to the cable rather than leaving it to the shotfirer, and had his cimmitted a criminal offence. He had been found a quarter responsible, and the NCB sought to rely on the doctrine of ex turpi causa. The trial judge considered a 50% apportionment to be appropriate, on the basis that the plaintiff and the defendant’s employee were equally to blame.
Held: The House accepted that he had been contributorily negligent but rejected the defence of illegality.
The damages should be reduced by only 25%. Lord Reid observed at p 427 that it was not right to disturb the trial judge’s apportionment lightly, but that ‘the difference between holding the parties equally to blame and holding the one’s share of responsibility to be three times that of the other is so substantial that we should give effect to it’.
Lord Oaksey approved Nicol v NCB: ‘I agree with the judgment of Lord Guthrie in Nicol v National Coal Board . . that it cannot be said to be necessarily outside the course of the employment of a workman that he performs his work in a manner which is in breach of a statutory regulation. Here it was within the shot-firer’s employment to fire the shot electrically, but he did it without due care and in breach of the regulation. Unless there is something in the statute which creates the obligation indicating the intention that no action shall be brought a common law in respect of its breach, the ordinary rules of the common law of tort are applicable, including the doctrine respondeat superior.’
Lord Porter said: ‘My Lords, save in one case I cannot find that such a plea has ever been put forward in circumstances similar to these as excusing common law negligence. If it were sound it would be a defence to many actions in which it was not raised and might also be a defence to many claims for compensation. Conceivably it may be a defence in certain cases between the participes criminis, but the argument that it may be a defence between the two persons involved does not support a conclusion that a third party whose servant is one of two involved in disobeying a regulation and so participating in a criminal offence is thereby absolved from liability.’ Applying the Cakebread case, ‘I cannot believe that a breach of a statutory obligation drafted to ensure the adoption of a careful method of working is a ‘turpis causa’ within the meaning of the rule. Indeed, the adage itself is generally applied to a question of contract and I am by no means prepared to concede where concession is not required that it applies also to the case of a tort. This view is, in my opinion, in conformity with the Law Reform (Contributory Negligence) Act 1945 which, after enacting that a claim shall not be defeated by reason of the fault of one person where the damage is caused partly by the fault of another, then goes on to define ‘fault’ as meaning ‘negligence, breach of statutory duty or other act or omission . .’.’
Lord Reid said that the 1945 Act worked to disapply the ex turpi doctrine in all forms of tort in favour of apportionment: ‘Reading the appropriate part of this definition back into section 1 makes it provide that where a person suffers damage as the result partly of his own breach of statutory duty which would, apart from this Act, give rise to the defence of contributory negligence his claim shall not be defeated . . [W]hatever the former position may have been, it is now clear that the appellants cannot rely on this defence [viz turpitude].’
Lord Asquith of Bishopstone said: ‘The defendants relied on the maxim ‘ex turpi causa non oritur actio’ as absolving them of liability.
. . The vast majority of cases in which the maxim has been applied have been cases where, there being an illegal agreement between A and B, either seeks to sue the other for its enforcement or for damages for its breach. That, of course, is not this case. Cases where an action in tort has been defeated by the maxim are exceedingly rare. Possibly a party to an illegal prize fight who is damaged in the conflict cannot sue for assault (Boulter v Clark (1747) Bull N.P. 16, See: (1817) Bull N. P.).
. . If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A. But if A and B are proceeding to the premises which they intend burglariously to enter, and before they enter them, B picks A’s pocket and steals his watch, I cannot prevail on myself to believe that A could not sue in tort . . The theft is totally unconnected with the burglary.’

Judges:

Lord Reid, Lord Oaksey, Lord Porter

Citations:

[1954] AC 403, [1954] 1 All ER 546

Statutes:

Law Reform (Contributory Negligence) Act 1945 1(1)

Jurisdiction:

England and Wales

Citing:

Approved – Nicol v National Coal Board SCS 1952
The court considered a claim against his employer after the plaintiff suffered injury after a breach of safety regulations by a co-worker.
Held: Referring to Harrison v NCB: ‘It appears to me that that principle disposes of the argument . .
Cited – Cakebread v Hopping Bros Ltd CA 1947
Cohen LJ discussed the doctrine of ex turpi causa non oritur actio, saying: ‘The maxim ex turpi causa is based on public policy, and it seems to me plain on the facts of this case that public policy, far from requiring that this action shall be . .
Cited – Stapley v Gypsum Mines Ltd HL 25-Jun-1953
Plaintiff to take own responsibility for damage
The question was whether the fault of the deceased’s fellow workman, they both having disobeyed their foreman’s instructions, was to be regarded as having contributed to the accident.
Held: A plaintiff must ‘share in the responsibility for the . .

Cited by:

Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
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 – Vellino v Chief Constable of Greater Manchester Police CA 31-Jul-2001
The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Cited – Jackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Negligence

Updated: 07 May 2022; Ref: scu.241429

Everett v Griffiths: HL 1921

The plaintiff had been committed to a mental hospital. The question was whether the doctor (Anklesaria) who signed the certificate to support his committal was liable to him in negligence.
Held: The House affirmed the judgment of the Court of Appeal, but without confirming this point. Lord Haldane thought it ‘probable that if the matter were argued out Anklesaria would have been found to have been under a duty to the appellant to exercise care, the precise nature of this duty would require consideration before it could be exactly defined.’ Lord Moulton: ‘If a man is required in the discharge of a public duty to make a decision which affects by its legal consequences, the liberty or property of others, and he performs that duty and makes that decision honestly and in good faith, it is, in my opinion, a fundamental principle of our law that he is protected. It is not consonant with the principles of our law to require a man to make such a decision in the discharge of the duty to the public and then leave him in peril by reason of the consequences to others of that decision, provided that he has acted honestly in making that decision.’

Judges:

Lord Finlay, Lord Moulton, Viscount Haldane, Viscount Cave

Citations:

[1921] 1 AC 631, 90 LJKB 737, 125 LT 230, 85 JP 140

Jurisdiction:

England and Wales

Citing:

Appeal from – Everett v Griffiths CA 1920
The plaintiff, who had been detained as a lunatic as the result of the decision of Griffiths, a Justice of the Peace and Chairman of the Board of Guardians in reliance on a medical certificate signed by Anklesaria, a Doctor, sued them both in . .

Cited by:

Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
No longer sustainable – ID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Lists of cited by and citing cases may be incomplete.

Negligence, Professional Negligence, Health Professions

Updated: 06 May 2022; Ref: scu.216358

Morrison Steamship Co Ltd v Greystoke Castle (Cargo Owners): HL 1946

A ship was damaged in a collision. Though their goods were not damaged, the owners of cargo on the first ship became liable to the owners of the ship for a general average contribution. The owners sued the other ship owners for their negligence. The primary issue was whether the cargo-owners had only a derivative claim arising from an obligation to contribute towards the expenditure of the carrying vessel or whether they had a direct claim against the non-carrying vessel.
Held: (Majority) They could recover, even though the damages were a purely financial loss. The House identified an exemption to the general rule.
Lord Porter said: ‘But it may be said that this is an answer to the contention that the damage is too remote, but does not deal with the allegation that it does not flow from the tortious act but from the contractual relationship between the ship and its cargo. Sir William McNair put this contention in the words ‘ Liability or damage arising from a ‘contract with a third party gives no ground for a claim for’ damages in an action for negligence against a wrongdoer ‘unless the liability or damage arose from physical injury’ to the plaintiff’s person or to property owned by or in the ‘possession of the plaintiff.’ For this contention there may be much to be said where the person or thing injured was not engaged, as is cargo when being carried in a ship, on a joint adventure. I do not, however, think it applies to such carriage. It is true that general average is not affected by insurance law but the outlook upon the mutual obligation entered into by ship and cargo owners resulting in the undertaking of a common adventure may be illustrated by the fact that whereas in non-marine cases there is no loss unless the thing insured is injured, in marine insurance cases the loss of the adventure constitutes a loss for which underwriters are liable though the cargo itself be safe.’
Lord Uthwatt said: ‘My Lords, under the law of the sea there is recognized a community between ship and cargo that does not obtain between carrier and customer on land. This is shown by two well settled principles. First, if a collision causing damage to cargo occurs, and the carrying ship and the other vessel are both in fault, cargo could under the old law recover only a moiety of the damage and under statute can now only recover a due proportion determined by the degree of blame. That conception finds no place in land carriage, where there would be joint liability for the whole. Secondly, the liability to contribute to general average expenditure is part of the law of the sea. The principle involved in general average contribution is peculiar to the law of the sea and extends only to sea risks. (Cf. Falcke v. Scottish Imperial Insurance Co.) The law of the sea apart, neither at law nor in equity can contribution be obtained on the ground that loss incurred by one person has delivered another from a common danger (see Johnson v. Wild (2)), or that expenditure incurred by one person has incidentally benefited another (cf. Ruabon Steamship Co., Ld. v. London Assurance (3).) Agency is not implied from the circumstances, and there is no equity to claim relief. The sufferer both at law and equity must look to gratitude and not to the courts for his recompense. Under the law of the sea, however, ship and cargo are linked together in the fortunes of the voyage and, in a loose sense, there is in some respects a compulsory partnership between ship and cargo in respect to the venture of sea carriage : Bell’s Principles, 9th ed., s. 437 ; Bell’s Commentaries, 5th ed., vol. I., p. 534. Section 66 of the Marine Insurance Act, 1906, aptly refers to the matter as ‘the common adventure.’ A breach of the duty to take care involving only damage to the ship may therefore be and in my opinion is a breach of duty owed to cargo.’
Lord Roche put it more broadly: ‘On the other hand, if two lorries A and B are meeting one another on the road, I cannot bring myself to doubt that the driver of lorry A owes a duty to both the owner of lorry B and to the owner of goods then carried in lorry B. Those owners are engaged in a common adventure with or by means of lorry B, and if lorry A is negligently driven and damages lorry B so severely that whilst no damage is done to the goods in it the goods have to be unloaded for the repair of the lorry and then reloaded or carried forward in some other way and the consequent expense is by reason of his contract or otherwise the expense of the goods owner, then in my judgment the goods owner has a direct cause of action to recover such expense. No authority to the contrary was cited and I know of none relating to land transport.’

Judges:

Lord Porter, Lord Uthwatt, Lord Roche

Citations:

[1946] 2 All ER 696, [1947] AC 265, [1947] LJR 297, [1946] 176 LT 66

Jurisdiction:

England and Wales

Cited by:

Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 06 May 2022; Ref: scu.216362

Searle v Wallbank: HL 1947

There existed an ancient common law immunity in respect of animals straying onto a public highway. An owner or occupier of land adjacent to a highway has no legal obligation at common law to highway users so to keep and maintain his hedges, fences and gates as to prevent animals from straying on to it, and that he is not under any duty as between himself and users of it to take reasonable care to prevent any of his animals, not known to be dangerous, from straying on to it.
Lord du Parcq said that there is ‘an underlying principle of the law of the highway is that all those lawfully using the highway . . must show mutual respect and forbearance.’ He went on to explain the Fardon case: ‘Nevertheless, Lord Atkin’s proposition will be misunderstood if it is not read as subject to two necessary qualifications: first, that where no such special circumstances exist negligence cannot be established merely by proof that a defendant has failed to provide against the possibility that a tame animal of mild disposition will do some dangerous act contrary to its ordinary nature, and, secondly, that even if a defendant’s omission to control or secure an animal is negligent, nothing done by the animal which is contrary to its ordinary nature can be regarded, in the absence of special circumstances, as being directly caused by such negligence.’
Lord Porter was careful to distinguish the difference between animals that stray onto a highway, from which no liability flows, and animals that are brought onto a highway deliberately, when reasonable care must be exercised to control them

Judges:

Lord du Parcq, Lord Porter

Citations:

[1947] AC 341, [1947] 1 All ER 12, (1947) 176 LT 104, (1947) 63 TLR 24, [1947] LJR 258

Jurisdiction:

England and Wales

Citing:

Explained – Fardon v Harcourt-Rivington 1932
The court set out the reasonable man test for forseeability: ‘If the possibility of danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would . .

Cited by:

Cited – Wilson v Donaldson CA 9-Jul-2004
Cattle strayed from a field onto the road. A motorist was injured and claimed damages. The farmer appealed.
Held: the judge had been correct that the farmers should have recognised the risk, and taken simple and inexpensive steps to avoid the . .
Lists of cited by and citing cases may be incomplete.

Animals, Negligence

Updated: 06 May 2022; Ref: scu.214658

Turner v Arding and Hobbs Ltd: CA 1949

The court described the duty of a shopkeeper to take care for his customers: ‘The duty of a shopkeeper in this class of case is well-established. It may be said to be a duty to use reasonable care to see that the shop floor, on which people are invited, is kept reasonably safe, and if an unusual danger is present of which the injured person is unaware, and the danger is one which would not be expected and ought not to be present, the onus of proof is on the defendants to explain how it was that the accident happened.’

Judges:

Lord Goddard CJ

Citations:

[1949] 2 All ER 911

Jurisdiction:

England and Wales

Cited by:

Cited – Laverton v Kiapasha (T/A Takeaway Supreme) CA 19-Nov-2002
Slipping on wet floor of takeaway – claimant had too much to drink – wearing high heels.
Held: ‘There is a distinction between particular dangers such as greasy spillages, which it is reasonable to expect a shopkeeper to deal with . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Negligence

Updated: 06 May 2022; Ref: scu.200646

Elliott v Hall: QBD 1885

The defendants, colliery owners, consigned coal to the plaintiff’s employers, coal merchants, in a truck hired by the defendants from a wagon company. The plaintiff was injured in the course of unloading the coal by reason of the defective condition of the truck.
Held: The plaintiff was entitled to recover on the ground of the defendants’ breach of duty to see that the truck was not in a dangerous condition.

Judges:

Grove and AL Smith JJ

Citations:

(1885) 15 QBD 315

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 06 May 2022; Ref: scu.197985

Nicholson v Atlas Steel Foundry and Engineering Co Ltd: HL 1957

The deceased had worked in the defender’s steel foundry, inhaling there siliceous dust particles. He contracted pneumoconiosis and died. The complaints related to the defender’s failure to provide adequate ventilation to extract the dust. The deceased had inhaled large quantities of noxious particles about which he could have no cause of complaint. The question was whether, in addition, he had, at the fault of the defenders in failing to provide adequate ventilation, inhaled other particles which made a material contribution to his illness
Held: For the defender: ‘if the statute prescribes a proper system of ventilation by the circulation of fresh air so as to render harmless, so far as practicable, all fumes, dust and other impurities that may be injurious to health, generated in the course of work carried on in the factory, and if it is proved that there is no system or only an inadequate system of ventilation, it requires little further to establish a causal link between that default and the illness, due to noxious dust, of a person employed in the shop. Something is required as was held in Wardlaw’s case. I was a party to that decision and would not in any way resile from it. But it must not be pressed too far. In the present case there was, in my opinion, ample evidence to support the appellants’ case.’ Since the family could not complain of the production of dust, and the deceased had been forced to inhale some noxious particles without having any legal complaint, it was doubly incumbent on the employer to safeguard him against any additional risk. Viscount Simonds said: ‘dust containing dangerous particles of silica was emitted into the air by the operation of pneumatic hammers on the castings, that this dust hung about in concentrated form longer than it would have if there had been better ventilation, and that improved roof ventilators were practicable and would have effectively improved the conditions. It follows that owing to the default of the respondents the deceased was exposed to a greater degree of risk than he should have been, and, though it is impossible, even approximately, to quantify the particles which he must, in any event, have inhaled and those which he inhaled but need not have, I cannot regard the excess as something so negligible that the maxim ‘de minimis’ is applicable. Accordingly, following the decision in Wardlaw’s case, I must hold the respondents liable.’ Lord Cohen: ‘Pneumoconiosis is a progressive disease. The longer a workman is exposed to an intense cloud the graver must be the risk of infection. In the present case it is clearly established by the evidence that at any rate down to 1949 the tool with which the deceased was working on dirty castings created a thick cloud of dust which must have necessarily included siliceous particles to an extent which cannot classed as ‘de minimis’. The respondents are admittedly not to blame for the generation of this cloud, but any failure to provide proper ventilation must, I think, lengthen the period during which the cloud remains intense. It seems to me to follow that the respondents’ failure to provide adequate ventilation must increase the risk to which the workmen are exposed. Reading the evidence as a whole, I think it establishes that (to use the language of Lord Reid in Wardlaw’s case) ‘on a balance of probabilities the breach of duty caused or materially contributed to’ the injury.’

Judges:

Viscount Simonds, Lord Oaksey, Lord Morton of Henryton, Lord Cohen

Citations:

[1957] 1 WLR 613, [1957] 1 All ER 776

Statutes:

Factories Act 1937 4(1)

Jurisdiction:

England and Wales

Citing:

Applied – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .

Cited by:

Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
Lists of cited by and citing cases may be incomplete.

Damages, Scotland, Negligence

Updated: 06 May 2022; Ref: scu.190113

British Railways Board v Herrington: CA 1971

A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, such as the inability of children to recognise danger.

Citations:

[1971] 1 All ER 897

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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.

Negligence

Updated: 06 May 2022; Ref: scu.190140

London Passenger Transport Board v Upson: HL 1949

‘A prudent man will guard against the possible negligence of others when experience shows such negligence to be common’.
Lord Wright said: ‘a claim for damages for breach of a statutory duty intended to protect a person in the position of the particular plaintiff is a specific common law right which is not to be confused in essence with a claim for negligence. The statutory right has its origin in the statute, but the particular remedy of an action for damages is given by the common law in order to make effective, for the benefit of the injured plaintiff, his right to the performance by the defendant of the defendant’s statutory duty.’

Judges:

Lord du Parq, Lord Wright

Citations:

[1949] AC 155

Jurisdiction:

England and Wales

Cited by:

Cited – Levine v Morris 1970
Lord Widgery said: ‘All motorists are guilty of errors of one kind or another, and I think it would be quite unreal if roads were designed on the assumption that no driver would ever err.’ . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 06 May 2022; Ref: scu.187296

K v P: ChD 1993

The court considered when orders might be made under the Act for a contribution to be made to damages payable. Ferris J said: ‘In my judgment the ex turpi causa defence is not available as an answer to a claim for contribution under the Act of 1978. The specific purpose of that Act, as of the Act of 1935 before it, was to enable claims for contribution to be made as between parties who had no claim to contribution under the general law. To permit the ex turpi causa defence to be relied upon as an answer to such a claim would, in my view, narrow to a substantial extent the deliberately wide wording of section 6(1) of the Act of 1978 and would, in effect, make a claim for contribution subject to a condition precedent which is not to be found in the Act. Moreover, section 2(1) and (2) give the court ample power to fix the amount of the contribution at a level, including a zero level, which takes account of all the factors which, in relation to common law claims, are relevant to the ex turpi causa defence.’

Judges:

Ferris J

Citations:

[1993] Ch 140

Statutes:

Civil Liability (Contribution) Act 1978 1(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Great North Eastern Railway Limited v Hart and Secretary of State for Transport, Local Government and the Regions and Network Rail Infrastructure Limited QBD 30-Oct-2003
A driver had crashed through a barrier before a bridge, and descended into the path of a train. Ten people died. He now sought a contribution order against the Secretary of State for the condition of the barrier which was said to be faulty.
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 . .
Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 06 May 2022; Ref: scu.187297

Levine v Morris: 1970

Lord Widgery said: ‘All motorists are guilty of errors of one kind or another, and I think it would be quite unreal if roads were designed on the assumption that no driver would ever err.’

Judges:

Lord Widgery

Citations:

[1970] 1 WLR 71

Jurisdiction:

England and Wales

Citing:

Cited – London Passenger Transport Board v Upson HL 1949
‘A prudent man will guard against the possible negligence of others when experience shows such negligence to be common’.
Lord Wright said: ‘a claim for damages for breach of a statutory duty intended to protect a person in the position of the . .

Cited by:

Cited – Great North Eastern Railway Limited v Hart and Secretary of State for Transport, Local Government and the Regions and Network Rail Infrastructure Limited QBD 30-Oct-2003
A driver had crashed through a barrier before a bridge, and descended into the path of a train. Ten people died. He now sought a contribution order against the Secretary of State for the condition of the barrier which was said to be faulty.
Lists of cited by and citing cases may be incomplete.

Negligence, Road Traffic

Updated: 06 May 2022; Ref: scu.187295

Punjab National Bank v de Boinville: CA 1992

The plaintiff was a person whom the broker knew was to become the assignee of an insurance policy, and the plaintiff had actively participated in giving instructions to the broker for the purchase of the relevant policy.
Held: A duty of care was exceptionally owed by an insurance broker not only to his client but also to a specific person whom he knew was to become an assignee of the policy. However, in the absence of extraordinary circumstances, a broker owes no duty of care to prevent economic loss except in accordance with his or her contract of retainer.
the employees of underwriting firms who had been responsible for acts of nondisclosure and misrepresentation were themselves liable for those acts. The reasoning of the court in that case was that those individuals ‘were evidently entrusted with the whole or nearly the whole of the task which their employers undertook’.
Staughton LJ said: ‘if the parties to a concluded contract subsequently agree in express terms that some words in it are to be replaced by others, one can have regard to all aspects of the subsequent agreement in construing the contract, including the deletions, even in a case which is not, or is not wholly, concerned with a printed form.’

Judges:

Staughton

Citations:

[1992] 1 WLR 1138, [1992] 1 Lloyds Rep 7, [1992] 3 All ER 104

Jurisdiction:

England and Wales

Cited by:

Cited – European International Reinsurance Co Ltd v Curzon Insurance Ltd and Others CA 22-Jul-2003
Re-insurers sought to repudiate liability under policies taken out to provide cover against asbestos claims. The primary insurers obtained oredrs joinging in the brokers who had arranged the re-insurance, and the brokers appealed those orders.
Lists of cited by and citing cases may be incomplete.

Negligence, Contract

Updated: 06 May 2022; Ref: scu.186036

The Calgarth: CA 1927

A ship foundered while using a navigable channel other than in the ordinary way of navigation. Scrutton LJ said: ‘When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way in which it is used.’

Judges:

Scrutton LJ

Citations:

[1927] P 93

Jurisdiction:

England and Wales

Cited by:

Cited – Hillen and Pettigrew v ICI (Alkali) Ltd HL 1936
Stevedores who were lawfully on a barge for the purpose of discharging it, nevertheless became trespassers when they went onto an inadequately supported hatch cover in order to unload some of the cargo. They knew that they ought not to use the . .
Cited – Harvey v Plymouth City Council CA 29-Jul-2010
The Council appealed against a finding of liability under the 1957 Act after the claimant was injured after jumping over a fence to flee hving to pay a taxi, and falling down a steep slope onto a car park. The land had been licenced to the . .
Lists of cited by and citing cases may be incomplete.

Negligence, Land

Updated: 06 May 2022; Ref: scu.185817

Ashley Guarantee plc v Zacaria: CA 1993

In possession proceedings based on a mortgage debt, the mortgagee’s right to possession of the mortgaged property will not be defeated by a cross-claim of the mortgagor in the absence of some contractual or statutory provision to the contrary.

Judges:

Nourse LJ

Citations:

[1993] 1 WLR 62

Jurisdiction:

England and Wales

Citing:

Applied – National Westminster Bank plc v Skelton (Note) 1993
The court distinguished a claim by the mortgagee for possession from a claim on the mortgagor’s personal covenant to pay what was due. A claim for a set-off is merely a sub-species of counterclaim. The court will not readily imply a term into a . .

Cited by:

Cited – Platts v Trustees Savings Bank Plc CA 13-Feb-1998
A counterclaim for negligent sale was a valid claim allowing potential against repossessing bank but would not make bank’s claim unliquidated. The Judge could properly hold that there was a liquidated and unsecured debt the subject of the statutory . .
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Lexi Holdings v Pooni and Another ChD 21-Apr-2008
. .
Lists of cited by and citing cases may be incomplete.

Banking, Negligence

Updated: 06 May 2022; Ref: scu.184794

Lewis v Buckpool Golf Club: 1993

A high handicap golfer was negligent in failing to wait before driving off from the fifth tee with the result that when he mis-hit his shot at an acute angle it injured the plaintiff who was putting on the adjacent fourth green. ‘The question that arose for decision was whether the mis-hit was something a reasonable man would have had in contemplation as a risk that was reasonably likely to happen. That required more than a mere possibility but not a greater than even likelihood, and if it was reasonably likely to happen it was negligent to neglect it in a situation where it could be avoided without difficulty, disadvantage or expense.’

Citations:

[1993] SLT 43

Jurisdiction:

Scotland

Cited by:

Cited – Marvin John Pearson v Anthony Lightning CA 1-Apr-1998
The parties were golfers playing different holes at the same time. The shot of one hit the other in the eye. The shot was a recovery shot over where he should have known others would be playing. Where a golfer hit a shot which was difficult but . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 06 May 2022; Ref: scu.184789

Routestone Ltd v Minories Finance: ChD 1996

A receiver’s management duties will ordinarily impose on him no general duty to exercise the power of sale, or to ‘work’ an estate by refurbishing it before sale. Speaking of the role of an expert witness ‘What really matters in most cases are the reasons given for the opinion. As a practical matter a well constructed expert’s report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up, the opinion does, if not, not.’

Judges:

Jacob J

Citations:

[1997] BCC 180, [1997] 1 EGLR 123

Jurisdiction:

England and Wales

Cited by:

Appeal from – Routestone Limited v Minories Finance Limited (Formerly Johnson Matthey Bankers Ltd); Knight Frank and Rutley (a Firm) CA 14-Nov-1996
The judge should never lose sight of the central truths that the ultimate decision is for the court and that all questions of relevance and weight are for the court. . .
Cited – Pearce v Ove Arup Partnership Ltd and others ChD 2-Nov-2001
An architect was accused of deliberate copying of another’s plans in building the Kunsthal in Rotterdam. The case concerned Dutch copyright, and the experts could not agree on the degree of copying required to found a claim.
Held: The expert . .
Cited – Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
Cited – Roger Michael and others v Douglas Henry Miller and Another ChD 22-Mar-2004
Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In . .
Cited – Lloyds Bank Plc and others v Cassidy CA 1-Dec-2004
The defendant sought leave to appeal against orders for possession. The trial had been transcribed by the claimant. At the start of the application, a copy of the transcript was given to the judge but not the defendant despite his application.
Cited – Watt v Dignan and Others CA 5-Oct-2017
The parties disputed the continued existence of rights to use a toilet. The servient owner sought to establish an estoppel.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.

Negligence, Litigation Practice

Updated: 06 May 2022; Ref: scu.184787

Fairman v Perpetual Investment Building Society: HL 1923

The defendants owned a block of flats that were tenanted. The plaintiff lived as a lodger with her sister in one of the flats. She was injured when walking down the steps from her flat; the steps were part of the common property under the control of the landlord. The plaintiff argued that she was an invitee of the landlord and thus was owed a higher standard of care than would have been owed to a licensee.
Held: An invitee of a tenant was only a licensee of the landlord when using the stairway. In fact, the plaintiff would have lost on the facts, whether she was an invitee or a licensee, because the defect in the step on which she had slipped was perfectly obvious.
Lord Wrenbury stated: ‘There are some things which a reasonable person is entitled to assume, and as to which he is not blameworthy if he does not see them when if he had been on the alert and had looked he could have seen them.’ His Lordship then instanced the case of a staircase with a missing stair, or a ladder in which a rung has been removed, and went on to say that no reasonable person would expect that a step or a rung had been removed and added pungently: ‘he has nevertheless suffered from what has generally been called ‘a trap’ although if had stopped and looked he would have seen that the step or rung had been removed. He was not guilty of negligence, he was not bound to look out for such an unexpected danger as that, although if he had proceeded cautiously and looked out it would have been obvious to him.’

Judges:

Lord Wrenbury, Lord Sumner, Lord Atkinson

Citations:

[1923] AC 74, 92 LJKB 50

Jurisdiction:

England and Wales

Cited by:

Cited – Bath v Escott ChD 11-May-2017
Judgment need not follow hearing transcript
Application to have released the audio recording of a hearing to a county court, the applicant saying that the judgment was not a true record of the hearing.
Held: Rose J explained the status of the various elements: ‘the mere fact that the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Negligence, Landlord and Tenant

Updated: 06 May 2022; Ref: scu.583993

Job Edwards Ltd v Birmingham Navigations Proprietors: 1923

Rubbish was tipped on land belonging to a canal company and on adjoining land belonging to mine owners. The rubbish on the mine owners’ land was found to be on fire, and the canal company feared that the fire might spread to their own land. Having called on the mine owners to extinguish the fire, the canal company entered the mine owners’ land (by agreement) and put out the fire. The court was asked as to whether the mine owners were liable to contribute to the cost.
Held: The mine owners had no duty to prevent the spread of the fire: ‘where a fire occurs through no fault of the landowner, without his knowledge, and, as in this case, on matter brought on his land without his knowledge and against his will, he is not responsible for the spreading of such a fire to the adjoining land, but the neighbour is entitled to go upon his land and prevent the fire from spreading.’

Judges:

Bailhache J

Citations:

[1924] 1 KB 341

Statutes:

Fires Prevention (Metropolis) Act 1774 86

Jurisdiction:

England and Wales

Cited by:

Appeal from – Job Edwards Ltd v Birmingham Navigations Proprietors CA 1924
Land next to the canal was used for the deposit of refuse by trespassers. The mound spread until, for a fee, it was dumped also across the canal. It caught fire, and the fire spread toward the canal. By agreement the parties got together to put out . .
Cited – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Lists of cited by and citing cases may be incomplete.

Negligence, Nuisance

Updated: 06 May 2022; Ref: scu.512182

Richley (Henderson) v Faull: 1965

The court considered the burden of proof of negligence after damage was caused by a car skidding onto the wrong side of the road.
McKenna J said: ‘I, of course, agree that where the respondent”s lorry strikes the plaintiff on the pavement or, as in the present case, moves onto the wrong side of the road into the plaintiff’s path, there is a prima facie case of negligence, and that this case is not displaced merely by proof that the defendant”s car skidded. It must be proved that the skid happened without the defendant”s default. I respectfully disagree with the statement that the skid by itself is neutral. I think that the unexplained and violent skid is in itself evidence of negligence. It seems hardly consistent to hold that the skid which explained the presence of the respondent”s lorry on the pavement or, as here, on the wrong side of the road, is neutral, but that the defendant must fail unless he proves that the neutral event happened without his default. Whether I am right in this or wrong, the conclusion is the same: the defendant fails if he does not prove that the skid which took him to the wrong place happened without his default.’

Judges:

McKenna J

Citations:

[1965] 1 WLR 1454, [1965] 3 All ER 109

Cited by:

Cited – Smith v Fordyce and Another CA 10-Apr-2013
The claimant appealed against rejection of his claim for personal injuries from a road accident. The respondent driver had crashed into a wall. The claimant had been his front seat passenger. The judge had found the respndent not to be at fault, . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Negligence

Updated: 06 May 2022; Ref: scu.510138

Tinsley v Dudley: CA 1951

The plaintiff sought damages after the motorcycle he had parked in the defendant hotelier’s closed car park was stolen.
Held: An occupier is under no duty to protect goods from the risk of theft by third parties. The publican was not a bailee of the motorcycle in that there had been no transfer of possession to the publican.
Jenkins LJ remarked on the complete absence of any authority suggesting liability for the loss of a vistor’s property. He said that such a principle would produce: ‘a liability of a most comprehensive and sweeping character, and would have entered into a very great number of cases if it existed.’

Judges:

Jenkins LJ

Citations:

[1951] 2 KB 18

Agency, Negligence

Updated: 06 May 2022; Ref: scu.467242

The “Spontaneity”: 1962

Where the negligence of vessel X caused vessel Y to run aground, vessel X was not liable for such damages as were attributable to the subsequent, clearly separate and negligent re-floating of vessel Y. The original negligence of vessel X had ceased to be operative.

Citations:

[1962] 1 Lloyd’s Rep 460

Jurisdiction:

England and Wales

Cited by:

Cited – Borealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Transport, Negligence

Updated: 06 May 2022; Ref: scu.425892

Clarke v Winchurch: CA 1969

A car driver, was pulling out across the front of a stationary bus in order to turn right down the road in the direction opposite to that in which the bus was facing. He collided with a moped which had overtaken the bus on its offside. The car was only about a yard beyond the offside of the bus at the time of the collision.
Held: (majority) The driver was not negligent. Lord Justice Phillimore said: ‘the first defendant came out extremely slowly and extremely carefully. In effect he inched his way out beyond the line of the bus . . If you have a small vehicle like a bicycle or motorcycle, you are in the fortunate position of taking up so little roadspace that you can slide along in the offside . . but if you choose to do this it does seem to me to warrant a very, very high degree of care indeed because you are blinded to a great extent to what goes on on the lefthand side of the road. You must therefore continue to ride or drive in such a way that you can immediately deal with an emergency.’

Judges:

Lord Justice Phillimore

Citations:

[1969] 1 All ER 275, [1969] 1 WLR 69

Negligence, Road Traffic

Updated: 05 May 2022; Ref: scu.401638

Mitchil v Alestree: 1726

In an action upon the case brought against the defendant, for that he did ride an horse into a place called Lincoln’s Inn Fields, (a place much frequented by the King’s subjects, and unapt for such purposes) for the breaking and taming of him, and that the horse was so unruly, that he broke from the defendant, and ran over the plaintiff, and grievously hurt him, to his damages, andC.
Upon not guilty pleaded, and a verdict for the plaintiff, it was moved by Simpson in arrest of judgment, that here is no cause of action: for it appears by the declaration, that the mischief which happened was against the defendant’s will, and so damnum absque injuria; and then not shewn what right the King’s subjects had to walk there; and if a man digs a pit in a common into which one that has no right to come there, falls in, no action lies in such case.
Curia contra, It was the defendant’s fault, to bring a wild horse into such a place where mischief might probably be done, by reason of the concourse of people. Lately, in this Court an action was brought against a butcher, who had made an ox run from his stall and gored the plaintiff; and this was alledged in the declaration to be in default of penning of him.
Wylde said: ‘If a man hath an unruly horse in his stable, and leaves open the stable-door, whereby the horse goes forth and does mischief; an action lies against the master.’
Twisden: ‘If one hath kept a tame fox, which gets loose and grows wild, he that kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature.’

Judges:

Twisden, Wylde JJ

Citations:

[1726] EngR 590, (1726) 1 Vent 295, (1726) 86 ER 190 (B)

Links:

Commonlii

Cited by:

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 – 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, . .
Lists of cited by and citing cases may be incomplete.

Negligence, Vicarious Liability, Animals

Updated: 05 May 2022; Ref: scu.379170

Hilder v Associated Portland Cement Co: 1961

A motor cyclist was killed after being hit by a ball kicked by a boy playing in a field adjoining the highway.
Held: The failure of the motor cyclist to wear a crash helmet was not contributory negligence on his part, because (a) no advice on the matter appeared in the Highway Code current when the accident occurred in February, 1959, and (b) there was no regulation requiring the wearing of helmets. However Ashworth J said: ‘having regard to Mr. Hilder’s slow speed and relatively low height off the ground, I am by no means certain that, if he had been wearing a helmet, his skull would not have been fractured. Accordingly, if the claim succeeds, it succeeds in full.’

Judges:

Ashworth J

Citations:

[1961] 3 All ER 709, [1961] 1 WLR 1434

Jurisdiction:

England and Wales

Cited by:

Cited – O’Connell v Jackson CA 7-Jul-1971
Motorcyclist negligent without helmet
The plaintiff sought damages after an accident. The defendant car driver had negligently moved forward into the path of the plaintiff motor cyclist who was injured. The defendant argued that the plaintiff, a motorcyclist, was contributorily . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 05 May 2022; Ref: scu.269707

T v Surrey County Council and Others: QBD 21 Jan 1994

The mother of T, an injured baby who was under a year old, sued the council for failing to cancel the registration of a child minder who had previously cared for S, a four-month old child who suffered serious injury probably through shaking, and for negligent misstatement in stating that it knew of no reason why the baby could not safely be left with that child minder. The council had been unable to resolve whether the child minder had caused the injury to S and had not cancelled her registration, but advised her that she should consider minding children between the ages of two and five in future.
Held: The Authority were liable in negligence after giving a satisfactory reference for a child minder who was under suspicion of abuse. Whilst no duty of care was owed in relation to the discharge of statutory duties concerning the registration and de-registration of child minders, but that a duty did arise and was breached in respect of the statement that the council knew of no reason why T could not safely be left with the child minder. It was a voluntary statement relating to matters only known to the council through the performance of its statutory duty, and it was held to be a negligent misstatement.
Obiter, Scott Baker J said there would have been no liability if the council had simply told T’s mother that the child-minder was a registered child-minder.

Judges:

Scott Baker J

Citations:

Independent 21-Jan-1994, [1994] 4 All ER 577

Jurisdiction:

England and Wales

Cited by:

Cited – Welton, Welton v North Cornwall District Council CA 17-Jul-1996
The defendant authority appealed a finding that it was liable in negligence from the conduct of one of its environmental health officers. The plaintiff had set out to refurbish and open a restaurant. He said the officer gave him a list of things he . .
Cited – The Law Society of England and Wales v Schubert Murphy (A Firm) CA 25-Aug-2017
The solicitors had made use of the online facility provided by the appellant Law Society to verify the bona fides of a firm of solicitors acting for a third party to a transaction. Relying upon the information, they suffered losses, and claimed in . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 05 May 2022; Ref: scu.89680

Bryce v Swan Hunter Group plc: 1987

The court considered the difficulties of establishing liability in negligence or breach of statutory duty against an employer for exposure to asbestos giving rise to mesothelioma.

Citations:

[1988] 1 All ER 659, [1987] 2 Lloyds Rep 426

Cited by:

Cited – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .
Lists of cited by and citing cases may be incomplete.

Negligence, Personal Injury

Updated: 04 May 2022; Ref: scu.251631

Morris v Lokass and Motor Insurers’ Bureau: CC 17 Feb 2003

(Birmingham County Court ) The court considered a request to exercise its discretion to allow a claim to proceed despite the writ having been issued outside the limitation period.
Held: The court accepted the distinction proposed for the defendant that as between the claimant’s solicitors’ professional indemnity insurers and the MIB the loss should fall on the former, who had received a premium, and not on the MIB, who had not.

Judges:

Judge McKenna

Citations:

Unreported, 17 February 2003

Cited by:

Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Lists of cited by and citing cases may be incomplete.

Negligence, Limitation

Updated: 04 May 2022; Ref: scu.242526

Esso Petroleum Co Ltd v Southport Corporation: HL 1955

A tanker, the Inverpool, was grounded in difficult weather by its master when he feared its back was broken. Substantial volumes of oil leaked, and the local authority sought to recover the costs of the clean up. At first instance, the defence of necessity had succeeded, but this wa reversed at the Court of Apeal.
Held: The appeal was dismissed.

Judges:

Earl Jowitt

Citations:

[1955] 3 All ER 864, [1956] AC 218

Jurisdiction:

England and Wales

Citing:

At first instance – Southport Corporation v Esso Petroleum Co Ltd QBD 1953
An oil tanker ran aground in an estuary. The master jettisoned 400 tons of oil cargo to prevent the tanker breaking her back. The tide carried the oil slick on to a foreshore causing damage. The foreshore owners sued the shipowners in trespass, . .
Appeal from – Southport Corporation v Esso Petroleum Co Ltd CA 3-Jun-1954
The defendant’s tanker came aground, spilling fuel, for which the corporation claimed damages. The corporation appealed against rejection of that claim.
Held: In order to support an action for private nuisance the defendant must have used his . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Negligence

Updated: 04 May 2022; Ref: scu.581022

Kerry v Carter: CA 1969

The court considered the apportionment of responsibility under the 1945 Act.
Lord Denning MR said: ‘We have been referred to cases on this subject, particularly the recent case of Brown v Thompson [1968] 1 WLR 1003. Since that case it seems to have been assumed in some quarters that this court will rarely, if ever, alter an apportionment made by the judge. Such is a misreading of that case. I think that the attitude of this court was correctly stated in that case, at p 1012, by Edmund Davies LJ when he quoted from the judgment of Sellers LJ in Quintas v National Smelting Board [1961] 1 WLR 401, 409. This court adopts in regard to apportionment the same attitude as it does to damages. We will interfere if the judge has gone wrong in principle or is shown to have misapprehended the facts: but, even if neither of these is shown, we will interfere if we are of opinion that the judge was clearly wrong. After all, the function of this court is to be a Court of Appeal. We are here to put right that which has gone wrong. If we think that the judge below was wrong, then we ought to say so, and alter the apportionment accordingly.’ (p 1376)

Judges:

Lord Denning MR

Citations:

[1969] 1 WLR 1372

Statutes:

Law Reform (Contributory Negligence) Act 1945

Jurisdiction:

England and Wales

Cited by:

Approved – Pride Valley Foods Ltd v Hall and Partners TCC 4-May-2000
TCC Contract – Project Management – Role of Quantity Surveyor acting as Project Manager – Duty to warn clients of fire hazards – Causation – Contributory Negligence – Test whether defendants are Partnership or . .
Cited – Jackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 04 May 2022; Ref: scu.559413

Flannigan v British Dyewood Co Ltd: SCS 1969

It is an essential element of the plea of volenti that the pursuer, against whom the plea is taken, knows of the risk to which he exposes himself: ‘the pursuer against whom it is pleaded must be sciens as well as volenti’.
The courts will be able to decide whether or not a person should be treated as a rescuer.

Judges:

Lord Guthrie

Citations:

[1969] SLT 223

Cited by:

Approved – 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.

Negligence, Scotland

Updated: 04 May 2022; Ref: scu.546907

Salmon v Seafarer Restaurants Ltd, (British Gas Corporation 3rd Party): QBD 1983

The defendant fish fryer had gone home for the night leaving a burner alight under a pan of fat. The plaintiff fireman was injured attending the consequent fire. He had been ordered onto the roof via a ladder which collapsed when the heat of the fire melted seals on gas rings leading to an escape of gas. He was thrown from the roof and badly injured. The defendants denied any breach of a duty of care to him.
Held: Even though the plaintiff had been given special training on the dangers of fires, the occupier’s duty in causing fire on his premises toward a fireman attending that fire included the ordinary risks and dangers of a fireman’s occupation and was not limited to a requirement to protect the fireman only against special, exceptional, or additional risks; that the fireman’s special skills and training were relevant in determining liability but, where it was foreseeable that a fireman exercising those skills would be injured through the negligence of the occupier, the occupier was in breach of his duty of care; that as the fire had been caused by the defendants’ negligence and since it was foreseeable that the plaintiff would be required to attend the fire and would be at risk of the type of injuries he received from the explosion which was caused by the negligence, the defendants were liable for the those injuries and damages were recoverable by the plaintiff.
Woolf J said: ‘Where it can be foreseen that the fire which is negligently started is of the type which could, first of all, require firemen to attend to extinguish that fire, and where, because of the very nature of the fire, when they attend they will be at risk even though they exercise all the skill of their calling, there seems no reason why a fireman should be at any disadvantage when the question of compensation for his injuries arises.’

Judges:

Woolf J

Citations:

[1983] 1 WLR 1264, (1983) 80 LSG 2523, [1983] 3 All ER 729

Cited by:

Cited – 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.

Negligence

Updated: 04 May 2022; Ref: scu.546997

Martel Building Ltd v Canada: 30 Nov 2000

Canlii Supreme Court of Canada – Torts – Negligence – Economic loss – Whether Canadian law recognizes duty of care on parties in commercial negotiations – Whether tort of negligence extends to damages for pure economic loss arising out of conduct of pre-contractual negotiations.
Torts – Negligence – Economic loss – Whether tender-calling authority owed duty of care to bidders in drafting tender specifications – Whether sphere of recovery for pure economic loss should be extended to cover circumstances surrounding preparation of tender specifications.
Contracts – Tenders – Obligation to treat all bidders fairly – Whether tender-calling authority breached its implied contractual duty to treat all bidders fairly and equally – If so, whether bidder’s loss caused by contractual breach.
The prospect of causing deprivation by economic loss is implicit in the negotiating environment

Judges:

McLachlin CJ, Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ

Citations:

2000 SCC 60, [2000] 2 SCR 860

Links:

Canlii

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract, Negligence, Damages

Updated: 04 May 2022; Ref: scu.537023

Brown v Harrison: CA 1947

Somervell LJ reiterated the relevant test (formulated by the judge at first instance) in these terms: ‘If there is a danger which is apparent, not only to the expert but to the ordinary layman which the ordinary layman can see with his own eyes, if he chooses to use them, and he fails to do so, with the result that injury is inflicted, as in this case, upon somebody passing along the highroad, the owner is in those circumstances responsible, because in the management of his property he had not acted as a normal reasonable landowner would act.’

Judges:

Somervell LJ

Citations:

[1947] 177 LT 281

Cited by:

Cited – Stagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Negligence, Land

Updated: 04 May 2022; Ref: scu.526446

Lambourn v London Brick Co Ltd: 28 Jul 1950

Finnemore J stated that an unreasonable burden must not be placed on the reasonable owner: ‘the standard to be taken should be that of an ordinary landowner and not an expert. It was neither the duty nor the practice of the ordinary prudent landowner to make a meticulous examination of its individual trees.’

Citations:

[1950] EG 28 July 1950

Cited by:

Cited – Stagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
Lists of cited by and citing cases may be incomplete.

Land, Negligence, Nuisance

Updated: 04 May 2022; Ref: scu.526447

Corker v Wilson: 10 Nov 2006

Mayor’s and City of London Court – the defendant was an ordinary landowner who owned a tree by a road. A heavy branch fell onto a passing car. There was a crack at the junction of the stem of the branch, and the claimant’s case was that this should have been identified and the branch should have been lopped. The defendant said that the crack could not have been seen on a roadside inspection or even on a more detailed inspection and that the tree was in visibly good health.
Held: The judge rejected the claim. The defendant carried out informal observations of the tree on an ongoing basis and all the evidence was that the tree was in good health. There was nothing about the tree which should have alerted the defendant or led him to obtain a more detailed inspection by an arboriculturalist.

Judges:

HHJ Simpson QC

Citations:

Unreported, 10 November 2006

Cited by:

Cited – Stagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 04 May 2022; Ref: scu.526449

Selwyn-Smith v Gompels: 22 Dec 2009

Swindon County Court. A tree fell over from the defendant’s land onto the claimant’s garage.
Held: The claim failed. The law did not require the landowner to engage an expert ‘unless and until reasonable inspection by the standards of that knowledge discloses or should disclose that the tree might be unsafe’.

Judges:

Recorder Adrian Palmer QC

Citations:

Unreported, 22 December 2009

Cited by:

Cited – Stagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 04 May 2022; Ref: scu.526450

Bell-Booth Group Ltd v Attorney General: 1989

There were alternative cases put in defamation and negligence.
Held: negligence could not operate in that sort of case.

Citations:

[1989] 3 NZLR 148

Cited by:

Cited – Hannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Negligence, Defamation

Updated: 04 May 2022; Ref: scu.525972

Powell v Fall: CA 1880

The defendant had caused a fire when sparks flew from his steam traction engine as he drove along the highway. He now appealed against a judgemnt that he was liable. He conceded that an action lay at common law.
Held: The decision was upheld. There was no statutory exemption.

Judges:

Bramwell LJ

Citations:

(1880) 5 QBD 597

Statutes:

Fires Prevention (Metropolis) Act 1774 86

Jurisdiction:

England and Wales

Citing:

Appeal from – Powell v Fall 1879
The defendant drove a steam powered traction engine on the highway. Sparks from the engine set fire to the plaintiff’s haystack. The court was asked: ‘whether the owner of a locomotive engine propelled by steam along a public highway using a fire . .

Cited by:

Cited – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 04 May 2022; Ref: scu.512181

Solomons v R Gertzenstein Ltd: QBD 1954

A fire which started with an electrical short circuit, went on to set fire to some wood and in due course to a stack of paper.
Held: Section 86 of the 1774 Act applied to excuse the defendant. Lord Goddard said: ‘In my opinion it was a short circuit that set fire to the wood in the neighbourhood of the ventilator and that in turn set fire to the stack of paper. Pausing here, it does not appear that this paper ever burnt freely; no doubt it caused a lot of smoke, and I accept the evidence that there was some flame seen, but it was not that stack apparently that caused the sudden sheet of flame which caused the real damage here. The cause of that is obscure; the only explanation was that offered by the fire officers, that the heating of the paint and varnish caused an accumulation of gas which suddenly ignited and rushed upwards. However, I do not propose to deal further with this because I cannot hold that placing packing paper and cardboard cartons in this recess behind the balustrade was negligent. Business of the sort carried on by the first defendants necessitates having a stack of packing and wrapping material at hand. This material is not highly inflammable like loose tissue paper or shavings would be. It is common knowledge that it takes a good deal to get closely packed thick paper well alight, though it will smoulder. But in any case I cannot see how it can be negligent to store this paper in what was a convenient recess any more than it would be to store it in one of the rooms occupied by the first defendants. They had no reason to suppose that there was likely to be a short circuit which would fire the panelling in the immediate neighbourhood of the stack, which I may mention was never burnt through. On the evidence before me I am not prepared to find that the fire was caused by the negligence of any of the defendants, and I hold that it was accidental and need only refer on this matter to Collingwood v Home and Colonial Stores Ltd.’

Judges:

Lord Goddard

Citations:

[1954] 1 QB 565

Statutes:

Fires Prevention (Metropolis) Act 1774 86

Negligence, Torts – Other

Updated: 04 May 2022; Ref: scu.512185

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 protection of the water hydrant was not adequate even as regards persons with good sight.
Lord Justice-Clerk Scott Dickson said: ‘I demur to the view that blind people are not entitled to walk about the streets unless accompanied by some person in charge of them . . this pursuer was entitled to be on the street; and was entitled, in my judgment, to assume that the street was reasonably safe for her.’
Lord Dundas said: ‘It would not be easy to lay down in a sentence or a couple of sentences the whole law applicable to the subject; something must always depend upon the facts to which you are going to apply the law. I think in each case the jury would have to consider, with regard to a blind person, whether that blind person was, in the circumstances, fairly and reasonably treated by the Corporation or other defenders – whether he had or had not been duly warned and reasonably guarded.’
Lord Salvesen (who was the presiding judge at the trial) said: ‘The streets of any city are open to be used by persons of more or less defective eyesight, hearing, and capacity and I think, as a general proposition in law, that the Magistrates must take note of that fact and, if they are guilty of negligence, they cannot escape the consequences by saying that a more vigilant person than the one who was injured would in all probability have escaped injury.’

Judges:

Lord Justice-Clerk Scott Dickson, Lord Dundas, Lord Salvesen

Citations:

[1920] SC 590

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Negligence

Updated: 04 May 2022; Ref: scu.517229

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 – Driver fatally injured when one of rocks fell from cliff face and crashed through his windshield – Whether provincial ministry absolved from liability for contractor’s negligence.
Cory J said that a common law duty of care ‘does not usually demand compliance with a specific obligation. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care.’

Judges:

Sopinka, Cory, McLachlin, Iacobucci and Major JJ

Citations:

[1997] 3 SCR 1145, 43 BCLR (3d) 154, 1997 CanLII 304 (SCC), 153 DLR (4th) 594, [1998] 5 WWR 732

Links:

Canlii, Canlii

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Commonwealth, Negligence

Updated: 04 May 2022; Ref: scu.516942

Powell v Fall: 1879

The defendant drove a steam powered traction engine on the highway. Sparks from the engine set fire to the plaintiff’s haystack. The court was asked: ‘whether the owner of a locomotive engine propelled by steam along a public highway using a fire for the purpose of generating the steam required to propel such engine . . and was managed and conducted with all reasonable care and without negligence, was liable to the plaintiffs for injury occasioning damage to a rick of hay standing on land adjoining the highway by sparks proceeding from such engine and firing the hay.’
Held: The use on a public highway of a traction engine emitting sparks was held to give rise to strict liability.

Judges:

Mellor J

Citations:

(1879-80) LR 5 QBD 597, 49 LJQB 428, (1880) 5 QBD 597

Statutes:

Fires Prevention (Metropolis) Act 1774 86

Jurisdiction:

England and Wales

Cited by:

Appeal from – Powell v Fall CA 1880
The defendant had caused a fire when sparks flew from his steam traction engine as he drove along the highway. He now appealed against a judgemnt that he was liable. He conceded that an action lay at common law.
Held: The decision was upheld. . .
Cited – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 04 May 2022; Ref: scu.512180

The Pass of Ballater: 1942

The court considered whether a duty of care was non-delegable. Langton J said: ‘while in general a person who employs a contractor is not liable for the acts of the contractor, yet where instruments or materials which are in themselves dangerous are being used, the principal has not merely a duty to take care but also a duty to provide that care is taken; that in failing to test the after cofferdam to ensure that it was gas free, even if this failure was due to the negligence of the consulting engineer and not to the personal negligence of the defendants or their servants, the defendants were failing in a duty the responsibility for which they could not delegate to a contractor, and that they were liable to the plaintiffs for the damage.’

Judges:

Langton J

Citations:

[1942] P 112

Cited by:

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.

Negligence

Updated: 04 May 2022; Ref: scu.451845

Fitzgerald v Hill: 16 Sep 2008

(Supreme Court of Queensland – Court of Appeal) TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OTHER CASES – plaintiff child was a member of a tae kwon do academy in Townsville – class included children and adults under control of instructor – instructor took class to nearby beach to train – class ran along the side of the road in bare feet at dusk – plaintiff child hit by car while crossing road – sixth defendant was owner-operator of tae kwon do academy – whether the sixth defendant owed the plaintiff a non-delegable duty of care
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – plaintiff pleaded in statement of claim that the sixth defendant was the owner-operator of the tae kwon do academy – sixth defendant admitted that paragraph of the statement of claim in his defence – sixth defendant was refused leave to withdraw that admission – sixth defendant gave evidence at trial that other persons had elements of control over the academy – other evidence led at trial supported admission – whether trial judge could act upon admission
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – sixth defendant made admission in pleadings that he was the owner-operator of the tae kwon do academy that the plaintiff attended – sixth defendant’s application to withdraw admission refused – sixth defendant did not lodge appeal against decision until after final judgment was delivered following the trial – whether sixth defendant should be granted an extension of time to appeal against interlocutory decision – appropriate time to appeal interlocutory decision

Judges:

McMurdo P, Holmes JA and Mackenzie AJA

Citations:

(2008) 51 MVR 55, [2008] QCA 283

Links:

Austlii

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Negligence, Commonwealth

Updated: 04 May 2022; Ref: scu.445626

Camkin v Bishop: CA 1941

The Court heard an appeal by the school from a finding of liability where boys from the school were allowed to help a farmer by working in a field, unsupervised, and one of them was struck so badly in the eye by a clod of earth thrown amongst them during horseplay that his eye was lost. The claim against the headmaster that he was under a duty to arrange for the supervision of the boys whilst they were doing the work
Held: The appeal succeeded.
Scott LJ said: ‘The defendant, as headmaster, owed no duty to the boys to refuse to let them go to help the farmer in his need of labour without an under-master, or an under-nurse for that matter, in charge. The incident might have happened just as easily on a natural history expedition, or on any other country outing, on which the boys were regularly allowed to go without supervision. Indeed, it might have happened even if a master had gone for he might have been temporarily absent and the two boys who quarrelled might have done so during his absence.’
Goddard LJ said: ‘The question we have to determine is whether there was any breach of duty by the headmaster, his duty being that of an ordinary careful parent. I ask myself whether any ordinary parent would think for a moment that he was exposing his boy to risk in allowing him to go to a field with others to weed beet or lift potatoes, occupations far safer than bicycling about on the roads in these days.
I confess that I have some difficulty in appreciating the view taken by the judge. He found that the defendant failed in his duty by reason of a lack of supervision. If this means anything, it must mean that it is the duty of a headmaster to see that boys are always under supervision, not only while at work, but also at play, or when they are free, because at any time they may get into mischief. I should like to hear the views of the boys themselves on this proposition. Would any reasonable parent forbid his boy of 14 to go out with his school-fellows because they might possibly get up to mischief, as all boys will at times? Here at this school on free afternoons the boys are allowed out, their bounds being some 8 miles, and they are left to themselves, provided they are back by a certain hour. No complaint is made of this freedom. If there is nothing wrong in that, how can it be wrong to let a boy go with others to such a harmless occupation as doing some farm work of the most innocuous character? As Clauson LJ put it during the argument, if the headmaster is not guilty of any breach of duty in allowing the boys to go off for walks and so on by themselves, how can he become liable because during the walk they go and work in a field and meet with some accident while thus engaged? If he is liable in this case, so will he be if some boy does a mischievous act in the playing field which injures another while a master or prefect does not happen to be present, or while out for a walk climbs a tree and breaks his legs . .
Nor was there any duty on the master to ask the farmer to supervise the boys for their safety. How could it occur to anyone that there was any danger in the occupation? If every master is to take precautions to see that there is never ragging or horseplay among his pupils, his school would indeed be too awful a place to contemplate. Of course there was no supervision on this occasion. Nor was there any duty to provide it, having regard to the innocuous nature of the occupation. This case bears no anology to those in which boys have been allowed to handle dangerous chemicals or to be in proximity to dangerous machinery. There was no evidence, in my opinion, of any breach of duty whatever.
Boys of 14 and 16 at a public school are not to be treated as if they were infants at creches, and no headmaster is obliged to arrange for constant and perpetual watching out of school hours. For one boy to throw something at another is an ordinary event of school life, but the fact that there was in this particular case a disastrous and wholly unexpected result is no reason for throwing responsibility on the master.’

Judges:

Goddard, Scott LJJ

Citations:

[1941] 2 All ER 713

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Negligence, Personal Injury, Education

Updated: 04 May 2022; Ref: scu.445628

Zurich Insurance Plc UK Branch v International Energy Group Ltd: SC 20 May 2015

A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule at common law as to such evidence. In the UK, the 2006 Act had amended the Rule, bu that Act did not apply in Gurnsey, and the Court was now asked to consider where stood the position at common law. The claim had been settled, and liability apportioned between the insurers who had covered the various years over which the claimant had worked, at first instance, but the Court of Appeal had overturned that claim. The sepcial rule amounted to a) ‘ a person contracting mesothelioma, after being exposed to significant quantities of asbestos dust originating from different sources over the same or different periods, can sue any person who was (negligently or in breach of duty) responsible for any such source of exposure, although unable to show which exposure in probability actually led or contributed to the disease’ and b) ‘ This rule applies even if the only potential sources consist in the ambient environmental exposure which the population generally experiences and some other negligently created source which only increases this ambient exposure by a small percentage’.
Held: The appeal succeeded. The position at common law stood as it had been stated in the Barker case, notwithstanding the ‘Trigger’ line of cases, proporionate recovery still applied.
Lord Mance said: ‘so long as the insured has insured itself for the whole period for which it exposes the victim, the insurer can ask for no more, and must, as Trigger decides, bear the whole of any liability which the insured incurs. The palliative in this latter situation is of course that an employer/insured will have a right to contribution under the Civil Liability (Contribution) Act 1978 against any other person who was, negligently or in breach of duty, responsible for exposing the victim to asbestos, and its insurer will, after meeting the insurance claim, be subrogated to this right to contribution against the other responsible source of exposure.’

Judges:

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hodge

Citations:

[2015] UKSC 33, [2015] Lloyd’s Rep IR 598, [2015] WLR(D) 233, [2015] 2 WLR 1471, [2016] AC 509, UKSC 2013/0057

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Compensation Act 2006, Civil Liability (Contribution) Act 1978

Jurisdiction:

England and Wales

Citing:

Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .
At First Instance – International Energy Group Ltd v Zurich Insurance Plc UK ComC 24-Jan-2012
The defendant insurance company was found liable to contribute under insurance it had written, 22% of the compensation it had paid out in a mesothelioma claim brought in Guernsey by a Mr le Carre. The company was successor to a company which had . .
Cited – Employers’ Liability Insurance ‘Trigger’ Litigation: BAI (Run Off) Ltd v Durham and Others SC 28-Mar-2012
The court considered the liability of insurers of companies now wound up for mesothelioma injuries suffered by former employees of those companies, and in particular whether the 1930 Act could be used to impose liability. The insurers now appealed . .
Appeal From – International Energy Group Ltd v Zurich Insurance Plc UK Branch CA 6-Feb-2013
. .
Cited – Phillips (Widow and Executrix of the Estate of Arthur Phillips, Deceased) v Syndicate 992 Gunner and others QBD 14-May-2003
Mr Phillips had been employed by a single employer between 1955 and 1957 and then between 1959 and 1970, during which periods he was exposed to asbestos dust. Out of the 13 years of this exposure, the insurers were on risk for 9 years between 1959 . .
Cited – Godin Et Al v London Assurance Company 9-Feb-1758
The defendant insurers contended that because there had been double insurance they ought only to have to pay half the loss, although neither insurer had as yet paid any sum. They appealed against an order that it pay the whole loss.
Held: The . .
Cited – Arneil v Paterson 1931
Viscount Dunedin spoke of a hypothetical case in which two dogs had worried a sheep to death: ‘Would we then have to hold that each dog had half killed the sheep?’
Viscount Hailsham said: The owner of one of the two dogs which had worried the . .
Cited – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
Cited – Thompson v Smiths Shiprepairers (North Shields) Ltd QBD 1984
The test to be applied in determining the time at which an employer’s failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not . .
Approved – New Zealand Forest Products Limited v the New Zealand Insurance Company Limited PC 21-Jul-1997
(New Zealand) Proceedings had been instituted in five causes of action against a company and its director, whose costs were both covered by an insurance policy, and in the case of one of the causes of action against a third person not so covered. . .
Cited – Lord Napier and Ettrick and Another v Hunter and Others; Same v R F Kershaw Ltd HL 3-Mar-1993
Certain insureds sought recovery of a sum which was greater than the sum which had been paid to them by their insurers. The insureds had claimed first on the policies of insurance. Their claims had been met. The insureds then pursued an action in . .
Cited – Municipal Mutual Insurance Limited v Sea Insurance Company Limited and Others CA 26-Mar-1998
The unifying event in an aggregation clause in an insurance policy was expressed in very general terms: ‘all occurrences of a series consequent on or attributable to one source or original cause.’
Held: As long as one could find any act, event . .
Cited – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Cited – Eagle Star Insurance Co Ltd v Provincial Insurance Plc PC 24-May-1993
Two insurance companies were liable to contribute equally to an amount payable to a third party. The doctrine of contribution could be modified by contract and the matter should be considered by reference to the parties’ contractual liabilities. . .
Cited – Albion Insurance Co Ltd v Government Insurance Office (NSW) 31-Oct-1969
(High Court of Australia) Insurance – Contribution between insurers – Identity of risk insured – Loss covered by two policies – General nature and purpose of policies different – Extent of rights and liabilities created under policies different – . .
Cited – Legal and General Assurance Society Ltd v Drake Insurance Co Ltd CA 15-Jan-1991
An insurance company, having paid under the policy to a doubly insured party, sought contribution from the second insurer, who had not been notified of the claim by the insured. The claim for a contribution was one in equity, but since the company . .
Cited – The National Farmers Union Mutual Insurance Society Ltd v HSBC Insurance (UK) Ltd ComC 19-Apr-2010
Gavin Kealey QC DHCJ set out the concept of double insurance: ‘Double insurance arises where the same party is insured with two (or more) insurers in respect of the same interest on the same subject-matter against the same risks. If a loss by a . .
Cited – Petrofina (UK) Ltd v Magnaload Ltd 1983
A finding of double insurance requires the same insured to be covered in respect of the same property against the same risks.
Lloyd J held that: ‘a head contractor ought to be able to insure the entire contract works in his own name and the . .
Cited – Hinz v Berry CA 1970
Then plaintiff saw her husband killed and her children injured by a runaway motor car. At trial she was awarded damages for nervous shock. The question was whether, having regard to the fact that she had suffered sorrow and grief it would not be to . .
Cited – Wimpey Construction UK Ltd v D V Poole 3-May-1984
The defendant offered a professional skill, but held itself out as offering such skills to a higher degree than normal. The plaintiff sought to hold it to the high standard proclaimed.
Held: The standard of care remained that of the ordinary . .
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 – AMP Workers Compensation v QBE 19-Sep-2001
Austlii (Supreme Court of New South Wales – Court of Appeal) FACTS
The appeal involved a question of double insurance. The employer held a compulsory third party policy with QBE Insurance Limited in respect . .
Cited – Burke v LFOT Pty Ltd 18-Apr-2002
(High Court of Australia) Trade and commerce – Damages – Equitable contribution – Liability to pay damages under ss 75B, 82, 87 of Trade Practices Act 1974 (Cth) for breach of s 52 of the Act – Whether solicitor who gave negligent advice should . .
Cited – Robinson v St Helens Metropolitan Borough Council CA 25-Jul-2002
The claimant sought an extension of the limitation period to allow him to pursue an action. He sought damages for negligence against his former school which had failed to diagnose and treat his dyslexia.
Held: His appeal was denied. The claim . .
Cited – Tame v New South Wales; Annetts v Australian Stations Pty Limited 5-Sep-2002
Austlii (High Court of Australia) Tame v New South Wales
Negligence – Duty of care – Psychiatric injury – Motor accident – Clerical error by police constable in recording driver’s blood alcohol content – . .
Cited – Zurich Australian Insurance Ltd v GIO General Ltd 10-Mar-2011
Austlii (Supreme Court of New South Wales – Court of Appeal) INSURANCE – Double insurance principle – two different insureds entitled to indemnity from two different insurers with respect to separate liabilities . .
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .

Cited by:

Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .
Cited – Navigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .
Cited – Travelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Negligence

Updated: 04 May 2022; Ref: scu.546915

The Polyglory: 1977

Even negligent navigation following the charterer’s order to proceed to an unsafe port will not necessarily break the chain of causation as to damages.

Citations:

[1977] 2 Lloyd’s Rep 353

Cited by:

Cited – Borealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Transport, Negligence

Updated: 02 May 2022; Ref: scu.425891

Ter Neuzen v Korn: 19 Oct 1995

CANLII (Supreme Court of Canada) The plaintiff underwent AI treatment by the defendant, during the course of which she contracted HIV-AIDS. She claimed in negligence and contract.
Held: A court must consider whether a common law warranty of fitness and merchantability should be implied into the contract which includes services as well as the provision of materials. However, such a warranty will not be implied in all circumstances. The court must examine the specific nature of the contract and the relationship between the parties in order to assess whether it was the intention of the parties that such a warranty be implied. Courts must be very cautious in their approach to implying contractual terms. A rationale for implying warranties in contracts of goods and services is that a supplier of goods generally has recourse against the manufacturer under the Sale of Goods Act as a result of the statutory conditions imposed. While it is true that the primary purpose of the implied warranty is to hold the supplier of goods liable notwithstanding the absence of negligence, different considerations apply in the context of the medical profession than in the ordinary commercial context. The doctor cannot trace the liability back to the initial manufacturer. Moreover, it must be recognized that biological products such as blood and semen, unlike manufactured products, carry certain inherent risks. It would be inappropriate to imply a warranty of fitness and merchantability in the circumstances of this case. Moreover, any warranty would simply be to take reasonable care.

Judges:

La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ

Citations:

[1995] 3 SCR 674

Links:

Canlii

Jurisdiction:

Canada

Commonwealth, Contract, Negligence, Damages

Updated: 02 May 2022; Ref: scu.402550

Armsden v Kent Police: CA 26 Jun 2009

The claimants sought damages as personal representatives after the deceased died when her car was hit by a police car responding to an emergency call. The defendant appealed a finding of negligence.
Held: The appeal succeeded. The judge had found that the deceased had stopped at the junction. If so he should have found a continuing duty to check to her right as she emerged. She had not begun to emerge before the police car came into view and she had been 60% responsible for the accident.

Judges:

Lord Justice Stanley Burnton

Citations:

[2009] EWCA Civ 631, [2009] RTR 31

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Keyse v Commissioner of the Police for the Metropolis, Scutts CA 18-May-2001
The court considered liability where a police car on emergency duty hit Mr Scutts causing very serious injuries. The officer appealed against a finding of liability saying that the judge had declared irrelevant the fact he was on an emergency . .
Cited – Dolby v Milner CA 1996
Russell LJ said: ‘It is to be observed that at no stage in the judgment does the judge refer to and emphasise, as in my judgment he should have done, the fact that the plaintiff here was emerging from a minor road onto a major road, and was . .
Cited – Heaton v Herzog CA 13-Nov-2008
The court considered an accident caused when a motorcyclist, travelling at excessive speed along a main road, collided with a car that emerged from a side road. The driver of the car had not looked right as she moved out of the side road.
Lists of cited by and citing cases may be incomplete.

Negligence, Personal Injury

Updated: 02 May 2022; Ref: scu.347216

Piggot v The Eastern Counties Railway Company: 2 Jun 1846

Sparks from the engine of a passing mail train set fire to the plaintiff’s cart lodge. The claim against the railway company was that they ‘so carelessly, negligently, and unskilfully managed and conducted their said steam-carriage and steam-engine’ that the plaintiff’s cart house was set on fire.
Held: The point in the case was the admissibility of evidence.
Tindal CJ described the underlying legal principles of the claim as a whole: ‘The defendants are a company intrusted by the legislature with an agent of an extremely dangerous and unruly character, for their own private and particular advantage: and the law requires of them that they shall, in the exercise of the rights and powers so conferred upon them, adopt such precautions as may reasonably prevent damage to the property of third persons through or near which their railway passes. The evidence in this case was abundantly sufficient to shew that the injury of which the plaintiff complains was caused by the emission of sparks, or particles of ignited coke, coming from one of the defendants’ engines; and there was no proof of any precaution adopted by the company to avoid such a mischance. I therefore think the jury came to a right conclusion, in finding that the company were guilty of negligence, and that the injury complained of was the result of such negligence.’ Thus although the locomotive was regarded as ‘dangerous’, liability still turned on negligence.

Judges:

Tindal CJ

Citations:

[1846] EngR 734, (1846) 3 CB 229, (1846) 136 ER 92

Links:

Commonlii

Cited by:

Cited – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 02 May 2022; Ref: scu.302629

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 the cellar for S., the plaintiff, a passenger, whilst passing (as the jury found) in the usual way out of the station, without any fault of his own, fell into the cellar opening, which the coal-merchant’s servants had negligently left insufficiently guarded.
Held: S, the occupier of the refreshment-rooms and cellar, was responsible for this negligence. And semble, per Williams, J, that the railway company also would be liable, but not the coal-merchant.

Judges:

Williams J

Citations:

[1861] EngR 71, (1861) 10 CB NS 470, (1861) 142 ER 535

Links:

Commonlii

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Negligence

Updated: 02 May 2022; Ref: scu.283831

Vellino v Chief Constable of Greater Manchester Police: CA 31 Jul 2001

The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in the fall. The doctrine of ex turpi no oritur actio applied. In order to establish a claim he would have to rely upon the illegality of his own act. No duty would arise before his arrest, and the arrest acted to increase his duty not to seek to escape. Some duties would arise to an arrested person, but not this.
Sir Murray Stuart-Smith Set out the following principles: ‘1. The operation of the principle arises where the claimant’s claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the Defendant.
2. The principle is one of public policy; it is not for the benefit of the Defendant. Since if the principle applies, the cause of action does not arise, the Defendant’s conduct is irrelevant. There is no question of proportionality between the conduct of the Claimant and Defendant.
3. In the case of criminal conduct this has to be sufficiently serious to merit the application of the principle. Generally speaking a crime punishable with imprisonment could be expected to qualify. If the offence is criminal, but relatively trivial, it is in any event difficult to see how it could be integral to the claim.
4. The Law Reform (Contributory Negligence) Act 1945 is not applicable where the Claimant’s action amounts to a common law crime which does not give rise to liability in tort.’

Judges:

Schiemann LJ, Sedley LJ, Stewart-Smith Sir

Citations:

Times 09-Aug-2001, [2001] EWCA Civ 1249, [2002] 1 WLR 218, [2002] PIQR P10, [2002] 3 All ER 78

Links:

Bailii

Statutes:

Law Reform (Contributory Negligence) Act 1945

Jurisdiction:

England and Wales

Citing:

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 – Stovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
Cited – Kirkham v Anderton, The Chief Constable of the Greater Manchester police CA 20-Dec-1989
The claimant’s husband hanged himself in Risley Remand Centre after the police had failed to warn the prison authorities that he was (as the police knew) a suicide risk. He was suffering from clinical depression and had previously attempted suicide . .
Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Sacco v Chief Constable of South Wales Constabulary and others CA 15-May-1998
The claimant a seventeen-year-old youth who had been arrested during a drunken brawl, kicked his way out through the door of the police van in which he was being transported and jumped out while it was moving at about twenty-five mph striking his . .
Cited – Clunis (By his Next Friend Prince) v Camden and Islington Health Authority CA 5-Dec-1997
The plaintiff had killed someone and, as a result, been convicted of manslaughter and ordered to be detained in a secure hospital when subject to after-care under section 117 of the 1983 Act. He sought damages from the health authority on the basis . .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Revill v Newbery CA 2-Nov-1995
The defendant owned a shed on an allotment and slept there at night in order to protect his property from the attentions of vandals and thieves. Among other items in the shed the defendant, aged 76 at the time, kept a 12-bore shotgun and cartridges. . .
Cited – Pitts v The Personal Representatives of Mark James Hunt (Deceased) and Another CA 1990
The plaintiff and a friend had spent the evening drinking at a disco before setting off on the friend’s motorcycle. The plaintiff was aware that the motorcyclist was neither licensed to ride a motorcycle nor insured. During the journey, the . .
Cited – Colburn v Patmore 1834
A person who is declared by law to be guilty of a crime cannot be allowed to recover damages against another person who has participated in its commission.
Lord Lyndhurst said: ‘I can see no reason, for my part, why a defendant, who is not . .
Cited – Cakebread v Hopping Bros Ltd CA 1947
Cohen LJ discussed the doctrine of ex turpi causa non oritur actio, saying: ‘The maxim ex turpi causa is based on public policy, and it seems to me plain on the facts of this case that public policy, far from requiring that this action shall be . .
Cited – National Coal Board v England HL 1954
The plaintiff sought damages after being injured when a co-worker fired a shot. The employee however had himself coupled the detonator to the cable rather than leaving it to the shotfirer, and had his cimmitted a criminal offence. He had been found . .
Cited – Stapley v Gypsum Mines Ltd HL 25-Jun-1953
Plaintiff to take own responsibility for damage
The question was whether the fault of the deceased’s fellow workman, they both having disobeyed their foreman’s instructions, was to be regarded as having contributed to the accident.
Held: A plaintiff must ‘share in the responsibility for the . .
Cited – Saunders v Edwards CA 24-Mar-1986
The parties had agreed for the sale and purchase of land and chattels, but had deliberately misdescribed the apportionment so as to reduce tax liability. The purchasers then brought an action for misrepresentation. The vendor replied that the action . .
Cited – Hall v Hebert 29-Apr-1993
(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a muscle car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car . .
Cited – Thackwell v Barclays Bank plc 1986
The plaintiff was party to a fraudulent scheme under which a cheque had been made payable to him. The plaintiff’s signature endorsing the cheque to a third party was forged and in reliance on the forgery the bank credited the third party. The . .
Cited – Cross v Kirkby CA 18-Feb-2000
The claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted to the defendant ‘You’re fucking dead’ and jabbed him in the chest and throat with a broken baseball bat. In order to ward off further blows, the defendant . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Riches v News Group Newspapers Ltd CA 20-Feb-1985
The defendant published serious defamatory allegations against several plaintiff police officers. The defendant newspaper appealed against an award of andpound;250,000 exemplary damages for their defamation of the respondent police officers.

Cited by:

Cited – Gray v Thames Trains Ltd and Another CA 25-Jun-2008
The claimant was a victim of the Ladbroke Grove rail crash. He later committed and was convicted of a manslaughter and detained under the 1983 Act. He said that the accident had caused a major personality change. The defendant relied on the defence . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Lists of cited by and citing cases may be incomplete.

Police, Negligence

Leading Case

Updated: 02 May 2022; Ref: scu.136175

Gray v Thames Trains and Others: HL 17 Jun 2009

The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. He now sought damages for his loss of earnings through detention in prison and mental hospital.
Held: Such damages could not be claimed successfully once the claimant had been convicted. Though the defendants had admitted their negligence, success for the claimant would be against the public policy maxim that ex turpi causa non oritur actio. If the case was extreme, and the order for detention was made purely for the defendant’s mental condition, and not for the criminal behaviour, the maxim might not apply, but that was not the case here.
Lord Hoffmann said: ‘there is no dispute that there was a causal connection between the tort and the killing. The evidence which the judge accepted was but for the tort, Mr Gray would not have killed. But the rule of public policy invoked in this case is not based upon some primitive psychology which deems mental stress to be incapable of having a connection with subsequent criminal acts . . the case against compensating Mr Gray for his loss of liberty is based upon the inconsistency of requiring someone to be compensated for a sentence imposed because of his own personal responsibility for a criminal act.’ and ‘the maxim ex turpi causa expresses not so much a principle as a policy. Furthermore, that policy is not based upon a single justification but on a group of reasons, which vary in different situations.’
Lord Brown said: ‘The law cannot at one and the same time incarcerate someone for his criminality and compensate him civilly for the financial consequences.’

Judges:

Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood

Citations:

[2009] UKHL 33, Times 19-Jun-2009, [2009] PIQR P22, (2009) 108 BMLR 205, [2009] 4 All ER 81, [2009] 3 WLR 167, [2009] 1 AC 1339

Links:

Bailii

Statutes:

Mental Health Act 1983 37 41

Jurisdiction:

England and Wales

Citing:

Cited – Clunis (By his Next Friend Prince) v Camden and Islington Health Authority CA 5-Dec-1997
The plaintiff had killed someone and, as a result, been convicted of manslaughter and ordered to be detained in a secure hospital when subject to after-care under section 117 of the 1983 Act. He sought damages from the health authority on the basis . .
Cited – Regina v Drew HL 8-May-2003
The defendant was mentally ill. He had been convicted of a second serious offence, and now appealed the life sentence imposed. Psychiatrists had recommended a hospital order, but such an order could not now be made by virtue of the 2000 Act save in . .
Appeal from – Gray v Thames Trains Ltd and Another CA 25-Jun-2008
The claimant was a victim of the Ladbroke Grove rail crash. He later committed and was convicted of a manslaughter and detained under the 1983 Act. He said that the accident had caused a major personality change. The defendant relied on the defence . .
Cited – Regina v Birch CACD 1989
Even where there is culpability, a hospital order with a restriction order may well be the appropriate way to deal with a dangerous and disordered person.
Mustill LJ discussed the effect of a restriction order: ‘In marked contrast with the . .
Cited – Regina v Eaton CACD 1976
A hospital order with a restriction order unlimited as to time was made in respect of a woman with a psychopathic disorder where her offence was minor criminal damage. . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Askey v Golden Wine Co Ltd 1948
Denning J said: ‘It is, I think, a principle of our law that the punishment inflicted by a criminal court is personal to the offender, and that the civil courts will not entertain an action by the offender to recover an indemnity against the . .
Cited – National Coal Board v England HL 1954
The plaintiff sought damages after being injured when a co-worker fired a shot. The employee however had himself coupled the detonator to the cable rather than leaving it to the shotfirer, and had his cimmitted a criminal offence. He had been found . .
Cited – Chapman v Hearse, Baker v Willoughby HL 26-Nov-1969
The plaintiff, a pedestrian had been struck by the defendant’s car while crossing the road. The plaintiff had negligently failed to see the defendant’s car approaching. The defendant had a clear view of the plaintiff prior to the collision, but was . .
Cited – British Columbia v Zastowny 8-Feb-2008
Canlii (Supreme Court of Canada) Damages – Past and future wage loss – Periods of incarceration – Plaintiff seeking damages for injuries suffered as consequence of sexual assaults – Whether plaintiff entitled to . .
Cited – Hunter Area Health Service v Presland 21-Apr-2005
(Supreme Court of New South Wales – Court of Appeal) The plaintiff, who had been negligently discharged from a psychiatric hospital, was acquitted of murdering a woman six hours later on the ground of mental illness but ordered to be detained in . .
Cited – Jobling v Associated Dairies HL 1980
The claimant suffered an accident at work which left him with continuing disabling back pain. Before the trial of his claim he was diagnosed as suffering from a disease, in no way connected with the accident, which would in any event have wholly . .
Cited – Meah v McCreamer (No 1) QBD 1985
The claimant had suffered serious brain damage as a result of the defendant’s negligence, resulting in a personality change which caused him to commit offences for which he was imprisoned. He sought damages for that imprisonment.
Held: Woolf J . .
Cited – Meah v McCreamer (No 2) 1986
The court rejected an attempt to recover the damages which the plaintiff had been found liable to pay to two women whom he had subjected to criminal attacks. The damages were too remote. But the claim would also have been rejected on the public . .
Cited – Vellino v Chief Constable of Greater Manchester Police CA 31-Jul-2001
The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . .
Cited – State Rail Authority of New South Wales v Wiegold 1991
(New South Wales) The plaintiff was seriously injured in an industrial accident caused by the defendant’s negligence. At first he received payments of worker’s compensation but when these ceased he took to supplementing his income by growing and . .
Cited – Rahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
Cited – Cross v Kirkby CA 18-Feb-2000
The claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted to the defendant ‘You’re fucking dead’ and jabbed him in the chest and throat with a broken baseball bat. In order to ward off further blows, the defendant . .
Cited – Worrall v British Railways Board CA 29-Apr-1999
The plaintiff alleged that an injury which he has suffered as a result of his employer’s negligence had changed his personality. As a result, he had on two occasions committed sexual assaults on prostitutes, for which offences he had been sentenced . .
Cited – Revill v Newbery CA 2-Nov-1995
The defendant owned a shed on an allotment and slept there at night in order to protect his property from the attentions of vandals and thieves. Among other items in the shed the defendant, aged 76 at the time, kept a 12-bore shotgun and cartridges. . .
At first instance – Gray v Thames Trains Ltd and Another QBD 6-Jul-2007
The claimant had been injured in an accident for which the defendants were responsible. He developed a personality disorder which led to him committing manslaughter and being detained under section 37. The defendants denied being liable beyond the . .

Cited by:

Cited – Prison Officers Association v Iqbal CA 4-Dec-2009
The claimant, a prisoner, alleged false imprisonment. The prison officers had taken unlawful strike action leaving him to be confined within his cell and unable to be involved in his normal activities. In view of the strike, a governor’s order had . .
Cited – Gnango, Regina v SC 14-Dec-2011
The prosecutor appealed against a successful appeal by the defendant against his conviction for murder. He and an opponent had engaged in a street battle using guns. His opponent had shot an innocent passer by. The court was now asked as to whether . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Henderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Negligence, Torts – Other

Updated: 02 May 2022; Ref: scu.347027

S v Gloucestershire County Council: CA 2001

The court considered the structure of a claim in negligence: ‘A negligence claim is habitually analysed compartmentally by asking whether there was (a) a duty of care; (b) breach of that duty and (c) damage caused by the breach of duty. But damage is the essence of a cause of action in negligence and the critical question in a particular case is the composite one, that is whether the scope of the duty of care in the circumstances of the case is such as to embrace damage of the kind which the plaintiff claims to have suffered. As Lord Bridge of Harwich said in the Caparo case [1990] 2AC 605, 627: ‘It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.’ Lord Oliver of Aylmerton emphasised the same point in Murphy v Brentwood District Council [1991] 1 AC 398, 486 when he said:
‘The essential question which has to be asked in every case, given that damage which is the essential ingredient of the action has occurred, is whether the relationship between the plaintiff and the defendant is such . . that it imposes upon the latter a duty to take care to avoid or prevent that loss which has in fact been sustained.’
This question necessarily subsumes the question whether the acts or omissions of the defendant caused the damage relied on.’

Judges:

May LJ

Citations:

[2001] Fam 313

Jurisdiction:

England and Wales

Cited by:

Cited – EH Humphries (Norton) Ltd. Thistle Hotels Plc v Fire Alarm Fabrication Services Ltd CA 10-Nov-2006
The sub-contractor’s workman fell through a skylight and died. His employers having settled, obtained contribution orders from the main contractors and building owners who each now appealed.
Held: Whether main contractors were also liable to . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 01 May 2022; Ref: scu.246408

Slater v Worthington’s Cash Store Ltd: 1941

The defendant property owner was held to be liable for failing to remove snow from his roof, so that a minor avalanche injured a passer-by on the pavement.

Citations:

[1941] 1 KB 48

Jurisdiction:

England and Wales

Cited by:

Cited – Goodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .
Lists of cited by and citing cases may be incomplete.

Negligence, Nuisance

Updated: 01 May 2022; Ref: scu.244695

Swain v Puri: CA 1996

The expression ‘reasonable grounds to believe’ meant actual knowledge or ‘shut-eye’ knowledge of the actual risk of injury to a child trespasser, or of primary facts that the court considers provides reasonable grounds for believing that the risk exists.

Citations:

[1996] PIQR 442

Statutes:

Occupiers’ Liability Act 1984

Jurisdiction:

England and Wales

Cited by:

Cited – It’s A Wrap (UK) Ltd v Gula and Another CA 11-May-2006
The company was said to have paid dividends unlawfully, in that the directors who were the shareholders had paid themselves dividends knowing that the company had not earned enough to pay them.
Held: Where shareholders had knowledge of the . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 01 May 2022; Ref: scu.242628

Pigney v Pointers Transport Services Ltd: 1957

Mr Pigney had suffered severe head injuries in an accident in the course of his employment with the defendant. He committed suicide eighteen months later.
Held: The court considered whether the accident could be the cause of the suicide: ‘It is reasonably clear that when the deceased hanged himself he was not insane under the M’Naughten Rules. I should infer that the deceased must have known what he was doing when he took his own life and must have known that what he was doing was wrong. To put the matter in ordinary language, the deceased took his life in a fit of depression brought about by a condition of acute anxiety neurosis induced by the accident and injury which he had sustained eighteen months earlier.
On these facts I have to make up my mind whether the suicide of the deceased constituted a novus actus interveniens which serves to break the chain of causation between his injury and his death, or whether upon the ordinary principles which cover remoteness of damage in cases of tort, the death of the deceased man was caused by the injury he received due to the defendants’ lack of care for his safety. I have no doubt on the evidence that the deceased would not have committed suicide if he had not been in a condition of acute neurotic depression induced by the accident. In this sense the injury which he sustained in the accident was a causa sine qua non of the accident. It is equally clear that the immediate cause of his death was that he hanged himself in a fit of acute depression. That he might do this was clearly a matter which could not reasonably have been foreseen by the defendants.
. . . I have next to consider whether the fact that the deceased took his own life at a time when he was, as I find, sane under the M’Naughten Rules debars his widow and administratrix from successfully prosecuting her claim against the defendants under the Fatal Accidents Act on the ground of public policy. . . . I prefer to base my decision on the grounds already stated, namely, that the deceased’s irrational and no doubt felonious act in taking his own life did not break the chain of causation between his accident and his death.’

Judges:

Pilcher J

Citations:

[1957] 1 WLR 1121

Cited by:

No Longer good law – 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 . .
Lists of cited by and citing cases may be incomplete.

Negligence, Personal Injury

Updated: 01 May 2022; Ref: scu.240040

Murdoch v British Israel World Federation: 1942

The court considered the nature of a deceased’s insanity so as to prevent his suicide operating as a novus actus interveniens: ‘The plaintiff, in my opinion has succeeded in proving that her husband was so insane at the time he committed suicide as to be criminally irresponsible for his act, and therefore it has been proved, in my opinion, in fact (i) that the defendant’s negligence was the direct cause of the injury; (ii) that the injury was the direct cause of the insanity; (iii) that the insanity was the direct cause of the death; and therefore that the wrongful act of the defendant caused the death of the deceased.’

Judges:

Ostler J

Citations:

[1942] NZR 600

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Negligence

Updated: 01 May 2022; Ref: scu.240044

Balfour v Barty-King: 1957

A fire started as the result of the negligent use of a blow torch by an independent contractor, damaging the plaintiff’s property. The use of fire had, therefore, been deliberate. The plaintiff argued that ‘If negligence be shown, it matters not against whom, the fire is not accidental.’
Held: The claim succeeded. The existence of negligence in the defendant’s agent was enough to set aside the operation of the 1774 Act.
Lord Goddard said: ‘The precise meaning to be attached to ‘accidentally’ has not been determined, but it is clear from these last two cited cases that where the fire is caused by negligence it is not to be regarded as accidental. Although there is a difference of opinion among eminent text writers whether at common law the liability was absolute or depended on negligence, at the present day it can safely be said that a person in whose house a fire is caused by negligence is liable if it spreads to that of his neighbour, and this is true whether the negligence is his own or that of his servant or his guest, but he is not liable if the fire is caused by a stranger.
Who, then, is a stranger? Clearly a trespasser would be in that category, but if a man is liable for the negligent act of his guest, it is, indeed, difficult to see why he is not liable for the act of a contractor whom he has invited to his house to do work on it, and who does the work in a negligent manner.’

Judges:

Lord Goddard

Citations:

[1957] 1 ALL ER 156, [1957] 1 QB 496

Statutes:

Fires Prevention (Metropolis) Act 1774 86

Cited by:

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 . .
Cited – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 30 April 2022; Ref: scu.230982

E Hobbs (Farms) Limited v The Baxenden Chemical Co Limited: 1992

A fire had started in Hobbs’ barn when a spark from a grinding machine fell onto combustible material/debris below the machine. The fire spread into and destroyed Gerber’s adjacent hanger. Hobbs alleged that the fire spread was due to the action of the foam insulation in the barn (called Isofoam) and issued separate proceedings against Baxenden, the manufacturers of Isofoam.
Held: Hobbs was negligent. There was a real risk that the fire in the material/debris under the bench would get out of control and spread to the hanger, with or without the exacerbating effect of the Isofoam. However, not only was Hobbs liable to Gerber, but Baxenden was also liable to Hobbs, because Baxenden had made a number of misleading statements about the combustibility of the Isofoam. As to the Rylands v Fletcher claim he said : ‘Since I have decided that Hobbs was negligent, the Fire Prevention (Metropolis) Act 1774 provides no defence. I have rejected Hobbs’ arguments on causation and remoteness. Therefore Gerber has succeeded in establishing liability in respect of this cause of action [Rylands v Fletcher].’

Judges:

Sir Michael Ogden QC

Citations:

[1992] 1 Lloyds Rep 54

Statutes:

Fire Prevention (Metropolis) Act 1774

Cited by:

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 . .
Approved – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Lists of cited by and citing cases may be incomplete.

Negligence, Nuisance

Updated: 30 April 2022; Ref: scu.230983

Johnson v B J W Property: 2002

Judge Thornton QC said: ‘With respect to Mackenna J, however, the narrow meaning given to the Act which so concerned him is one that is particularly appropriate given the Act’s historical origins since the fire in question had not escaped ‘accidentally’ since it escaped following a dangerous or non-natural use of the land. Thus, the escape was one for which custom had long since imposed strict liability on the occupier of the land.’

Judges:

Judge Thornton QC

Citations:

[2002] 3 ALL ER 574

Citing:

Explained – Mason v Levy Auto Parts of England 1967
The defendants had a store of machinery in inflammable packings, together with a quantity of petroleum, acetylene and paints. A neighbour claimed from fire damage.
Held: They were liable for the damage when fire broke out and escaped to the . .

Cited by:

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 . .
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.

Negligence

Updated: 30 April 2022; Ref: scu.230979

Mason v Levy Auto Parts of England: 1967

The defendants had a store of machinery in inflammable packings, together with a quantity of petroleum, acetylene and paints. A neighbour claimed from fire damage.
Held: They were liable for the damage when fire broke out and escaped to the neighbouring property. He found that the circumstances of the storage amounted to a non-natural user and that consequently the Defendants were liable under the rule in Rylands v Fletcher, irrespective of negligence and the Act of 1774.

Judges:

Mackenna J

Citations:

[1967] 2 QB 530

Statutes:

Fires Prevention (Metropolis) Act 1774

Citing:

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 by:

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 . .
Explained – Johnson v B J W Property 2002
Judge Thornton QC said: ‘With respect to Mackenna J, however, the narrow meaning given to the Act which so concerned him is one that is particularly appropriate given the Act’s historical origins since the fire in question had not escaped . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Negligence

Updated: 30 April 2022; Ref: scu.230978

Jolley v Sutton London Borough Council: QBD 1998

The claimant, a boy was injured when playing around a boat abandoned on land owned by the defendant. He had propped it up to attempt a repair, and was crushed when it fell on him. He said that in not removing the boat they had been negligent.
Held: It has long been established that children are or may be attracted to meddle with objects on premises or property which constitute a danger when meddled with. An occupier is under a duty to protect a child from danger caused by meddling with such an object by taking reasonable steps in the circumstances including, where appropriate, removing the object altogether so as to avoid the prospect of injury: ‘I find that the type of accident and injury which occurred in this case was reasonably foreseeable (albeit that it involved significant meddling with the boat by two young teenage boys and that the injuries proved to be very severe) and that the actions of the plaintiff and/or Karl did not amount to a novus actus. Accordingly, I find the defendants in breach of their duty to the plaintiff as occupiers and (subject to the point on contributory negligence considered below) liable to the plaintiff for the injury, loss and damage which he has sustained.’ The council was liable, though the claimant was 25% contributorily negligent.

Judges:

Geoffrey Brice QC

Citations:

[1998] 1 Lloyd’s Rep 433

Statutes:

Occupiers’ Liability Act 1957 2(2)

Citing:

Cited – Hughes v Lord Advocate HL 21-Feb-1963
The defendants had left a manhole uncovered and protected only by a tent and paraffin lamp. A child climbed down the hole. When he came out he kicked over one of the lamps. It fell into the hole and caused an explosion. The child was burned. The . .

Cited by:

Appeal from – Regina v London Borough of Sutton, ex parte Jolley CA 19-Jun-1998
The plaintiff, a boy, was injured when playing on a derelict boat left on council land. The council appealed an award of damages against it.
Held: A local authority may be liable for injury caused by a derelict boat not removed from their land . .
First instance – 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, . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 30 April 2022; Ref: scu.227969

Wyong Shire Council v Shirt: 1 May 1980

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

Judges:

Stephen, Mason, Murphy, Aickin and Wilson JJ

Links:

Austlii

Cited by:

See Also – 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.

Commonwealth, Negligence

Updated: 30 April 2022; Ref: scu.226754

Gladwell v Steggall: 19 Jun 1839

The plaintiff was a girl of ten years of age claimed she had been negligently treated by the defendant surgeon and apothecary. She sued in an action ex delicto, alleging a breach of the contract under which they had been employed, though it was her father who had paid the bill.
A declaration in case stated that Plaintiff, an infant, had employed Defendant, a surgeon, to cure her, and then claimed damages for a misfeasance: Plea, that Plaintiff did not employ Defendant : Held, that it was immaterial by whom Defendant was employed ; or that, if material, Plaintiff’s submitting to Defendant’s treatment was sufficient proof of the allegation of employment by her.

Citations:

8 Scott 60, [1839] EngR 834, (1839) 5 Bing NC 733, (1839) 132 ER 1283

Links:

Commonlii

Cited by:

Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 30 April 2022; Ref: scu.216371

De La Bere v Pearson Ltd: 1908

The defendant newspaper offered that its editor would give financial advice to readers who cared to seek it. He answered one enquiry for the name of a good stockbroker, with a reference to a person who, had he made enquiries, he would have discovered to be an undischarged bankrupt, and the plaintiff sought damages having reied upon the advice.
Held: There was sufficient consideration in the plaintiff consenting to the publication of his letter in the newspaper (Vaughan Williams). The consideration lay in the plaintiff addressing the inquiry (Barnes P)

Judges:

Vaughan Williams LJ, Barnes P

Citations:

[1904-7] All ER Rep 755, [1908] 1 KB 280

Jurisdiction:

England and Wales

Cited by:

Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Lists of cited by and citing cases may be incomplete.

Negligence, Media

Updated: 30 April 2022; Ref: scu.216355

Franklin v The Gramophone Company Ltd: CA 1948

Compliance with statutory obligations, which may be of limited scope, does not necessarily absolve a defendant from liability in negligence. It is only if the section is ambiguous, unclear or open to two reasonable interpretations that its penal effect may indicate the narrower construction.

Citations:

[1948] 1 KB 542

Jurisdiction:

England and Wales

Cited by:

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 – Baker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 30 April 2022; Ref: scu.214660

Lonrho plc v Tebbit: CA 1992

The company became involved in a takeover bid. It was referred to the Monopolies Commision, and the buyer undertook not to increase his shareholding pending the report. In the meantime another buyer acquired a majority shareholding. The buyer had not been released from his undertaking even though it had been found that his proposed take-over would not be contrary to the public interst. The buyer had therefore been prevented from acquiring a majority interest and claimed damages in negligence from the defendant Secretary of State. The defendant appealed a refusal to strike out the claim.
Held: The buyer had a clear private interest in being released from his undertaking immediately it became unnecessary, and the defendant owed a duty in private law to him to exercise reasonable care. The claim in private law was properly commenced by writ.

Citations:

[1992] 4 All ER 280

Jurisdiction:

England and Wales

Citing:

Applied – Roy v Kensington and Chelsea and Westminster Family Practitioner Committee HL 6-Feb-1992
The respondent had withheld part of the plaintiff’s GP payments saying that he had failed to devote himself full time to his practice. The plaintiff sued, and the defendant sought to strike out his application, saying that his application had to be . .
Cited – Lonrho plc v Fayed HL 2-Jan-1991
In a conspiracy, the intent to injure need not be the primary intent, but there must be some intent which involves the conspiring parties directing their minds towards the victim or a category of persons which would include the victim as a target to . .
Lists of cited by and citing cases may be incomplete.

Administrative, Negligence

Updated: 30 April 2022; Ref: scu.214293

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 applicable standard so far as the claim was based on the rider missing his gear, but said the same did not apply to the brake failure because the fault had occurred before the race in the relative calm of the workshop.

Judges:

Sir John Arnold

Citations:

[1982] RTR 8

Jurisdiction:

England and Wales

Citing:

Approved – Wooldridge v Sumner CA 1963
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 . .

Cited by:

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.

Negligence, Road Traffic

Updated: 30 April 2022; Ref: scu.198438

Hawkins v Smith: QBD 1896

A dock labourer in the employ of the dock company was injured by a defective sack which had been hired by the consignees from the defendant, who knew the use to which it was to be put, and had been provided by the consignees for the use of the dock company, who had been employed by them to unload the ship on the dock company’s premises.
Held: The defendant was liable for negligence.

Judges:

Day and Lawrance JJ

Citations:

(1896) 12 Times LR 532

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 30 April 2022; Ref: scu.197984

Bates v Batey & Ld: 1913

The defendants, who manufactured ginger beer, were held not liable to a consumer (who had purchased from a retailer one of their bottles) for injury occasioned by the bottle bursting as the result of a defect of which the defendants did not know, but which by the exercise of reasonable care they could have discovered.

Judges:

Horridge J

Citations:

[1913] 3 KB 351

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 30 April 2022; Ref: scu.197980

Oliver v Saddler and Co: HL 1929

Stevedores had been employed to unload a cargo of maize in bags. They provided the rope slings by which the cargo was raised to the ship’s deck by their own men using the ship’s tackle, and then transported to the dockside by the shore porters, of whom the plaintiff was one. The porters relied on examination by the stevedores and had themselves no opportunity of examination.
Held: Reversing the decision of the First Division, there was a duty owed by the stevedore company to the porters to see that the slings were fit for use and restored the judgment of the Lord Ordinary, Lord Morison, in favour of the pursuer. The direct relations established, especially the circumstance that the injured porter had no opportunity of independent examination, gave rise to a duty to be careful.

Citations:

[1929] AC 584

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Negligence, Scotland

Updated: 30 April 2022; Ref: scu.197986

White v Steadman: 1913

Lush J said: ‘a person who has the means of knowledge and only does not know that the animal or chattel which he supplies is dangerous because he does not take ordinary care to avail himself of his opportunity of knowledge is in precisely the same position as the person who knows.’

Judges:

Lush J

Citations:

[1913] 3 KB 340

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 30 April 2022; Ref: scu.197996

MacPherson v Buick Motor Co: 1916

(New York Court of Appeal) A manufacturer of a defective motor-car was held liable for damages at the instance of a third party. A motor-car might reasonably be regarded as a dangerous article: ‘There is no claim that the defendant know of the defect and wilfully concealed it . . The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser . . The principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable . . There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction.. . . . The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it [the defendant company] was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion,’

Judges:

Cardozo J

Citations:

(1916) 217 NY 382

Citing:

Cited – Thomas v Winchester 1852
(New York) A chemist carelessly issued poison in answer to a request for a harmless drug, and he was held responsible to a third party injured by his neglect. . .

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Negligence, International

Updated: 30 April 2022; Ref: scu.197982

Clelland v Robb: 1911

If a man has no duty or obligation of diligence, he cannot be charged with negligence.

Judges:

Lord President Dunedin and Lord Kinnear

Citations:

1911 SC 253

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Negligence, Scotland

Updated: 30 April 2022; Ref: scu.197994

Caledonian Ry Co v Mulholland or Warwick: HL 1898

The appellant company were held not liable for injuries caused by a defective brake on a coal wagon conveyed by the railway company to a point in the transit where their contract ended, and where the wagons were taken over for haulage for the last part of the journey by a second railway company, on which part the accident happened. It was held that the first railway company were under no duty to the injured workmen to examine the wagon for defects at the end of their contractual haulage. There was ample opportunity for inspection by the second railway company. The relations were not proximate.
The court discussed responsibility for a thing dangerous in itself, as ‘an instrument noxious or dangerous in itself which might produce an accident from the mere handling of it.’

Judges:

Lord Shand

Citations:

[1898] AC 216

Jurisdiction:

England and Wales

Cited by:

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 – Dominion Natural Gas Co Ltd v Collins 1909
The defendants had installed a gas apparatus to provide natural gas on the premises of a railway company. They had installed a regulator to control the pressure and their men negligently made an escape-valve discharge into the building instead of . .
Cited – Hodge and Sons v Anglo-American Oil Co 1922
The plaintiffs, London barge repairers claimed after an explosion on the Anglo-American Oil Company’s oil tank barge Warwick, when she was being repaired by the plaintiffs, to whom she had been sent for that purpose by the defendants. As a result of . .
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.

Negligence, Transport

Updated: 30 April 2022; Ref: scu.197991

Smith v Leech Brain and Co Ltd: CA 1962

The reasoning in The Wagon Mound did not affect the rule that a tortfeasor takes his victim as he finds him.
Lord Parker CJ said: ‘The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that [the victim] would die. The question is whether these employers could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim.’

Judges:

Lord Parker LCJ

Citations:

[1962] 2 QB 405

Jurisdiction:

England and Wales

Citing:

Considered – Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961
Foreseeability Standard to Establish Negligence
Complaint was made that oil had been discharged into Sydney Harbour causing damage. The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying ‘We have come back to the plain . .

Cited by:

Confirmed – McKillen v Barclay Curle and Co Ltd 1967
The Lord Ordinary had awarded the pursuer damages for tuberculosis, on the basis that in the accident he had fractured a rib and this had reactivated his pre-existing tuberculosis.
Held: The pursuer had failed to prove the causal connexion . .
Cited – Simmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
Cited – 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 . .
Cited – Gates v Mckenna QBD 14-Aug-1998
The plaintiff suffered schizophrenia after taking part in an on-stage hypnosis performance by the defendant.
Held: The claim failed: ‘it is highly improbable that the onset of the plaintiff’s schizophrenia had anything to do with his . .
Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 29 April 2022; Ref: scu.196526

South Pacific Manufacturing Co Ltd v New Zealand Security Consultants and Investigations Ltd: 1992

(New Zealand) Proximity in the law of negligence may consist of various forms of closeness – physical, circumstantial, causal or assumed: ‘It involves considering the relationship from the perspective of both the defendant and the claimant. At root, it will reflect ‘a balancing of the plaintiff’s moral claim to compensation for avoidable harm, and the defendant’s moral claim to be protected from an undue burden of legal responsibility’. As such it will inevitably overlap with considerations of justice between the parties.’

Judges:

Richardson J

Citations:

[1992] 2 NZLR 282

Jurisdiction:

England and Wales

Cited by:

Cited – Binod Sutradhar v Natural Environment Research Council CA 20-Feb-2004
The defendant council had carried out research into a water supply in India in the 1980s. The claimant drank the water, and claimed damages for having consumed arsenic in it.
Held: There is a close link between the tests in law for proximity . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 29 April 2022; Ref: scu.194629

Margarine Union GmbH v Cambay Prince Steamship Co Ltd: 1969

The practice of issuing delivery orders for parcels out of a bulk cargo were ineffective and the intended buyers were left without remedy against the carrier.
Roskill J said: ‘In my judgment, there is nothing in Hedley Byrne to affect the common law principle that a duty of care which arises from a risk of direct injury to person or property is owed only to those whose person or property may foreseeably be injured by a failure to take care. If the plaintiff can show that the duty was owed to him, he can recover both direct and consequential loss which is reasonably foreseeable, and for myself I see no reason for saying that proof of direct loss is an essential part of his claim. He must, however, show that he was within the scope of the defendant’s duty to take care.’

Judges:

Roskill J

Citations:

[1969] 1 QB 219

Jurisdiction:

England and Wales

Cited by:

Cited – Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Negligence

Updated: 29 April 2022; Ref: scu.194563

Weld-Blundell v Stephens: HL 1920

The plaintiff had been successfully sued for a libel contained in a document which he had supplied to his accountant.
Held: He could not recover the damages he had had to pay to the defamed party from his accountant, who had negligently left the document about so that it came to the former’s attention.
Lord Sumner said: ‘In general, even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do. Though A may have given the occasion for B’s mischievous activity, B then becomes a new and independent cause.’

Judges:

Lord Sumner

Citations:

[1920] AC 956

Jurisdiction:

England and Wales

Citing:

Appeal from – Weld-Blundell v Stephens CA 1919
The exception to the obligation not to disclose confidential information is limited to the proposed or contemplated commission of a crime or a civil wrong. . .

Cited by:

Cited – Stansbiev Troman CA 1948
A decorator working alone in a house went out to buy wallpaper and left the front door unlocked. He was held liable for the loss caused by a thief who entered while he was away. For the purpose of attributing liability to the thief (e.g. in a . .
Cited – Empress Car Company (Abertillery) Ltd v National Rivers Authority HL 22-Jan-1998
A diesel tank was in a yard which drained into a river. It was surrounded by a bund to contain spillage, but that protection was over ridden by an extension pipe from the tank to a drum outside the bund. Someone opened a tap on that pipe so that . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 29 April 2022; Ref: scu.190105

Henderson v Henry E Jenkins and Sons: HL 1970

The House described the burden of proof in a claim for negligence and the doctrine of res ipsa loquitur. Lord Pearson said: ‘In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintiff’s action fails. The formal burden of proof does not shift.’ However: ‘if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintiff’s favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation there is said to be an evidential burden of proof resting on the defendants. I have some doubts whether it is strictly correct to use the expression ‘burden of proof’ with this meaning, as there is a risk of it being confused with the formal burden of proof, but it is a familiar and convenient usage.’

Judges:

Lord Pearson

Citations:

[1970] AC 282, [1970] RTR 70

Jurisdiction:

England and Wales

Negligence, Road Traffic

Updated: 29 April 2022; Ref: scu.189969

Meah v McCreamer (No 1): QBD 1985

The claimant had suffered serious brain damage as a result of the defendant’s negligence, resulting in a personality change which caused him to commit offences for which he was imprisoned. He sought damages for that imprisonment.
Held: Woolf J said: ‘this case is unusual because it is not suggested that he has suffered any financial loss as a result of going into prison. He is a person who might have worked from time to time, but the money he has saved as a result of being boarded in prison has apparently been regarded as outweighing his loss. So I approach this case on the basis that there is no continuing financial loss as result of his being in prison . .’ and ‘If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute.’

Judges:

Woolf J

Citations:

[1985] 1 All ER 367

Jurisdiction:

England and Wales

Cited by:

Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Cited – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Cited – Meah v McCreamer (No 2) 1986
The court rejected an attempt to recover the damages which the plaintiff had been found liable to pay to two women whom he had subjected to criminal attacks. The damages were too remote. But the claim would also have been rejected on the public . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 29 April 2022; Ref: scu.190028

Hogan v Bentinck Collieries: HL 1949

The workman plaintiff suffered from a congenital defect; he had an extra thumb in his right hand. He met with an industrial accident and fractured the false thumb. It was treated by splinting but he continued to be in pain. He was then sent to the hospital where it was discovered that the fracture had not united. He was advised that an operation was required to remove not just the false thumb, but also the top joint of the normal thumb. The result of this operation was unsatisfactory as it left him with a tender stump which rendered him fit for light work only. He applied for compensation on the ground of this incapacity.
Held: (Majority) The incapacity was not the result of the injury which was caused by the industrial accident.
Whether a chain of causation had been broken was a question of fact. It was ‘axiomatic’ that later negligence by a doctor (so in principle, presumably anyone’s later negligence) would amount to a ‘new cause’ and so break the chain of causation flowing from the original accident. Lord Reid (dissenting) said that a ‘grave lack of skill or care on the part of the doctor’ treating an injury could amount to a novus actus interveniens.
The question of the effect of a novus actus ‘can only be answered on a consideration of all the circumstances and, in particular, the quality of that later act or event’.
Lord Reid said that not only must the new cause come in but the old must go out; there must no longer be any cause or connection between the injury by accident and the present incapacity

Judges:

Lord Simonds, Lord Normand, Lord Reid

Citations:

[1949] 1 All ER 588

Jurisdiction:

England and Wales

Cited by:

Cited – Rahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
Lists of cited by and citing cases may be incomplete.

Damages, Negligence

Updated: 29 April 2022; Ref: scu.189972

Snelling v Whitehead: HL 1975

‘The case is one which is severely distressing to all who have been concerned with it and one which should attract automatic compensation regardless of any question of fault. But no such system has yet been introduced in this country and the courts, including this House, have no power to depart from the law as it stands. This requires that compensation may only be obtained in an action for damages and further requires, as a condition of the award of damages against the [driver], a finding of fault, or negligence, on his part . . it is . . not disputed that any degree of fault on the part of the [driver] if established, is sufficient for the [plaintiff] to recover. On the other hand, if no blame can be imputed to the [driver], the action, based on negligence, must inevitably fail.’

Judges:

Lord Wilberforce

Citations:

Unreported, 1975

Jurisdiction:

England and Wales

Cited by:

Cited – Mansfield and Another v Weetabix Limited and Another CA 26-Mar-1997
A lorry belonging to the defendants failed to take a bend crashing into the plaintiffs’ shop causing extensive damage. Mr Terence Tarleton, the driver later died, as did Mrs Mansfield. Mr Tarleton did not know he had malignant insulinoma, resulting . .
Lists of cited by and citing cases may be incomplete.

Negligence, Road Traffic

Updated: 29 April 2022; Ref: scu.190023

Gardiner v Motherwell Machinery and Scrap Co Ltd: HL 1961

The pursuer had worked for the defenders for three months, demolishing buildings, and had contracted dermatitis. He claimed that they had not provided him with adequate washing facilities and that failure caused the dermatitis. On appeal the defenders successfully contended that the pursuer had failed to prove any connection between his disease and the work which he had been doing. The pursuer appealed.
Held: Lord Reid said: ‘In my opinion, when a man who has not previously suffered from a disease contracts that disease after being subjected to conditions likely to cause it, and when he shows that it starts in a way typical of disease caused by such conditions, he establishes a prima facie presumption that his disease was caused by those conditions. I think that the facts proved in this case do establish such a presumption. That presumption could be displaced in many ways. The respondents sought to show, first, that it is negatived by the subsequent course of the disease and, secondly, by suggesting tinea pedis as an equally probable cause of its origin. I have found the case difficult, but on the evidence as it stands I have come to the opinion that they have failed on both points. If the appellant’s disease and consequent loss should be attributed to the work which he was doing in the respondents’ service, it was not argued that they are not liable.’ Lord Cohen and Lord Guest agreed, as did Lord Hodson although with some initial hesitation. Lord Guest described the question as a pure question of fact whether on the balance of probabilities the dermatitis had arisen from the pursuer’s employment. The House would seem to have regarded the pursuer as establishing a prime facie case which the defenders had failed to displace.

Judges:

Lord Reid, Lord Cohen, Lord Hodson, Lord Guest

Citations:

[1961] 1 WLR 1424, [1961] 3 All ER 831

Jurisdiction:

England and Wales

Cited by:

Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 29 April 2022; Ref: scu.190114

Gough v Thorne: CA 1966

The court was asked as to the standard of duty of care expected of a child. Salmon LJ said: ‘The question as to whether the Plaintiff can be said to have been guilty of contributory negligence depends on whether any ordinary child of 13 can be expected to have done any more than this child did. I say ‘any ordinary child’. I do not mean a paragon of prudence; nor do I mean a scatter-brained child; but the ordinary girl of 13.’
Lord Denning MR said: ‘A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame should be attached to him or her. A child has not the road sense nor the experience of his or her elders. He or she is not to he found guilty unless he or she is blameworthy.’

Judges:

Salmon LJ, Lord Denning MR

Citations:

[1966] 3 All ER 398

Jurisdiction:

England and Wales

Cited by:

Cited – Mullin v Richards and Birmingham City Council CA 6-Nov-1997
Two 15 year old schoolfriends were playing with rulers when one shattered and a fragment injured the eye of the other. She claimed negligence in the school. She appealed a finding that she was herself fifty per cent responsible.
Held: Although . .
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.

Negligence

Updated: 29 April 2022; Ref: scu.188846