The Court was asked whether an Official Receiver in Bankruptcy is, on grounds of public policy, immune from an action for damages at the suit of the trustee who has suffered financial loss by relying upon a negligent statement made to him by the Official Receiver in the course of the bankruptcy proceedings.
Beldam, Aldous, Ward LJJ
[1998] 3 All ER 833, [1998] EWCA Civ 1226
England and Wales
Updated: 30 May 2022; Ref: scu.144705
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 negligence. The Law Society now appealed against a refusal of its request for the claim to be struck out as arguable. It said that the information had been provided in pursuance of its function as a regulator.
Held: The appeal failed. The case remained arguable.
Sir Terence Etherton MR, Gloster VP CA, Beatson LJJ
[2017] EWCA Civ 1295
Solicitors Act 1974 6, Solicitors (Keeping of the Roll) Regulations 1999, SRA Practising Regulations 2009
England and Wales
Cited – Yuen Kun-Yeu v Attorney-General of Hong Kong PC 1987
(Hong Kong) The claimant deposited money with a licensed deposit taker, regulated by the Commissioner. He lost his money when the deposit taker went into insolvent liquidation. He said the regulator was responsible when it should have known of the . .
Appeal From – Schubert Murphy (A Firm) v The Law Society QBD 17-Dec-2014
The claimant solicitors’ firm had acted in a purchase, but the vendors were represented by fraudsters presenting themselves as solicitors, registering with the defendant in names of retired solicitors, and who made off with the money intended for . .
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 – 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 – Smith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 May 2022; Ref: scu.593096
A window cleaner. employed by independent contractors, came to clean the windows of a club. One window was defective, falling onto and trapping his hand, causing him to fall.
Held: He had no cause of action against the club. The landowner was concerned to see that the windows are safe for his guests to open and close, but he need not be concerned to see that they are safe for a window cleaner to hold on to. The risk of a defective window is a special risk, but it is ordinarily incident to the calling of a window cleaner, and so he must take care for himself, and not expect the householder to do so.
[1952] 1 KBD 141
Cited – Roles v Nathan CA 15-May-1963
Two chimney sweeps were overcome by fumes, and died in the basement of the Manchester Assembly Rooms. Whilst occupied working in flues (against advice), a boiler had been lit.
Held: (Majority – Pearson LJ dissenting) The land-owner’s appeal . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 May 2022; Ref: scu.568157
There was no duty of care on a landowner to warn of obvious danger on Lyme Regis Cobb. The quay clearly dangerous for anyone to see.
Gazette 11-May-1995, Times 28-Apr-1995, [1995] PIQR 439, [1995] EWCA Civ 30
England and Wales
Cited – Tomlinson v Congleton Borough Council and others HL 31-Jul-2003
The claimant dived into a lake, severely injuring himself. The council appealed liability, arguing that it owed him no duty of care under the Act since he was a trespasser. It had placed warning signs to deter swimmers.
Held: The council’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 May 2022; Ref: scu.89496
Council’s independent soil surveyor had no duty of care to future buyers of land from the council.
Independent 24-Sep-1993, Times 21-Jul-1993
England and Wales
Updated: 19 May 2022; Ref: scu.85033
The claimant was a guardsman travelling in the rear of a service lorry. He fell from the tailgate suffering severe injury. He was drunk after a social trip.
Held: Though a person could normally expect to be responsible himself for incidents occurring whilst drunk, the rule is not absolute. The defendant had assumed some responsibility to the claimant, and that responsibility did not disappear only because of the claimant’s drunkenness. This was an organised night out from an army training camp. Ignoring any particular duties, the defendant would know that the troops were being carried in a lorry with a tailgate, and that the drunken soldiers might be expected to stand up in the back. It was foreseeable that injury (whether slight or serious) would occur as a result of the drunken and rowdy behaviour of the passengers, including the danger that someone would fall from the vehicle as a result, such wider risk being apt to include within its description the accident which actually happened. Though the defendant was liable, the claimant was still largely the author of his own misfortune and was 75% responsible for his own injuries.
Kennedy, Potter LJJ, Steel J
Times 28-Jun-2000, Gazette 13-Jul-2000, [2000] EWCA Civ 198, [2000] 1 WLR 2055
England and Wales
Cited – Haynes v Harwood CA 1935
The plaintiff, a policemen saw a horse running loose in the street among children. He ran out, chased it and caught it but was injured.
Held: The horseowner was liable. It was foreseeable that if a horse was let loose in a crowd, somebody, . .
Cited – 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 – Jolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
Cited – 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 – Barrett v Ministry of Defence CA 3-Jan-1995
The deceased was an off-duty naval airman. The claim was based upon the alleged negligent failure of the defendant to enforce disciplinary regulations against drunkenness so as to protect the deceased against his own known proclivity for alcohol . .
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 – Cook v Thorne and Another CA 23-Jan-2001
. .
Cited – Tomlinson v Congleton Borough Council and Cheshire County Council CA 18-Jun-2001
The appellant sought leave to appeal against an order dismissing his claim for damages. He had been injured swimming in water on the defendant’s land. The defendant asserted that they had no duty of care to those who came onto the land and imperiled . .
Cited – Calvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.82503
(New Zealand) Seventeen years earlier the plaintiff had asked a builder to construct a house for him, but it now appeared that the foundations had been inadequate. The building company no longer being in existence, he sought damages from the local authority which had supervised the construction.
Held: A Local Authority was liable for economic losses for a negligent inspection of a house during construction. Murphy had not been followed in New Zealand and the Privy Council accepted that this was justified. The Pirelli date of physical damage had also been discarded in favour of the date of discoverability. The decision in Pirelli was unfortunate: Once it is appreciated that the loss in respect of which the plaintiff in the present case is suing is loss to his pocket, and not for physical damage to the house or foundations, then most, if not all the difficulties surrounding the limitation question fall away. The plaintiff’s loss occurs when the market value of the house is depreciated by reason of the defective foundations, and not before. If he resells the house at full value before the defect is discovered he suffers no loss. Thus in the common case the occurrence of the loss and the discovery of the loss will coincide . . But the plaintiff cannot postpone the start of the limitation period by shutting his eyes to the obvious . . . In other words the cause of action accrues when the cracks become so bad and all the defects so obvious, that any reasonable home-owner would call in an expert. Since the defects would then be obvious to a potential buyer or his expert, that marks the moment when the market value of the building is depreciated and therefore the moment when economic loss occurs. Their Lordships do not think it is possible to define the moment more accurately. The measure of the loss will then be the cost of repairs if it is reasonable to repair, or the depreciation in the market value if it is not . . . This approach avoids almost all the practical and theoretical difficulties to which the academic commentators have drawn attention and which led to the rejection of Pirelli by the Supreme Court of Canada . . . The approach is consistent with the underlying principle that a cause of action accrues when, but not before, all the elements necessary to support the plaintiff’s claim are in existence. For in the case of a latent defect in a building the element of loss or damage which is necessary to support a claim for economic loss in tort does not exist so long as the market value of the house is unaffected. Whether or not it is right to describe an undiscoverable crack as damage, it clearly cannot affect the value of the building on the market. The existence of such a crack is thus irrelevant to the cause of action . . . Whether Pirelli should still be regarded as good law in England is not for their Lordships to say. What is clear is that it is not good law in New Zealand.
Lord Browne-Wilkinson, Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Mustill, Lord Lloyd of Berwick, Sir Michael Hardie Boys
Times 15-Feb-1996, 50 Con LR 105, [1996] AC 624, [1996] UKPC 56, 78 BLR 78, [1996] 1 NZLR 513, [1996] 1 All ER 756
Cited – Murphy v Brentwood District Council HL 26-Jul-1990
Anns v Merton Overruled
The claimant appellant was a house owner. He had bought the house from its builders. Those builders had employed civil engineers to design the foundations. That design was negligent. They had submitted the plans to the defendant Council for approval . .
Cited – Pirelli General Cable Works v Oscar Faber and Partners HL 2-Jan-1983
The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the . .
Cited – Abbott and Another v Will Gannon and Smith Ltd CA 2-Mar-2005
The claimant had employed the defendants to design refurbishment works for their hotel. The work was said to be negligent, and the claimant sought damages. The defendant argued as a preliminary point that the claim was time barred. The question was . .
Cited – W v W; J v Raewyn Bell PC 19-Jan-1999
PC (New Zealand) The claimants sught to recover exemplary damages from defendants convicted of criminal offences against them.
Held: There were differences in the system between New Zealand and the English . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.82411
Crossing road after breakdown for petrol within scope of arising from use of car.
Times 11-Mar-1996
England and Wales
Updated: 19 May 2022; Ref: scu.80180
An English claimant sued a Swiss bank for a negligent mis-statement made in a telephone call between England and Switzerland. The Swiss banker represented that the transmission of a copy payment order by the bank to the claimant was a guarantee that payment would be made for the amount referred. The claimant relied on the representations to release goods in Switzerland and Italy on receipt of the copy payment order from the bank rather than waiting until it had been paid. The bank refused to pay on three copy payments orders in respect of goods which had been released from store in Switzerland and Italy.
Held: The place of the damage was in Switzerland and Italy, where the goods were released without payment, rather than England, where the Swiss purchaser would have paid the price. The reasons for that finding were (a) that it was by reference to the loss of the goods that the damages were pleaded; and (b) that the essence of the complaint was that the goods were released prior to payment. Where negligent misstatement is alleged, the law governing the action is that of the country where the statement was made. The tortious act occurs when the statement is made not when and where the statement is relied upon.
Times 16-Jul-1998, [1999] QB 548, [1998] EWHC 2001 (QB)
Cited – Mazur Media Limited and Another v Mazur Media Gmbh in Others ChD 8-Jul-2004
Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.80090
Meat trader can rely on meat inspector’s certificate as to fitness to eat.
Times 15-Feb-1994
Updated: 19 May 2022; Ref: scu.78915
A school had a duty to protect its pupils from bullying, but that duty stopped at the school gate. Even though the school might know of the bullying, it would not be practical, nor just, nor fair, nor reasonable, to extend its duty in such a way. The school should take effective defensive measure, as regards what happened within the school. It could choose to take pro-active measures beyond that, but it should not be obliged to do so.
Gazette 15-Dec-2000, Times 05-Dec-2000
Updated: 18 May 2022; Ref: scu.78544
A Local Authority has no duty of care for the correctness of a valuation undertaken for a right to buy transaction. It was not just or reasonable to impose a duty of care on a local authority in connection with its statement of its opinion as to price in a Section 125 Notice.
Douglas Brown J
Times 01-Nov-1996, [1996] EGCS 145, [1997] 30 HLR 963
Cited – Payne and Woodland v Mayor and Burgesses of London Borough of Barnet CA 22-May-1997
The sale of a council house imposed an additional duty on a local authority to disclose known structural defects to buyers. . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.78443
A Local Authority was liable for the acts of children in care only if their failure to control the children was an operative cause of the loss.
Times 14-Aug-1995
Updated: 18 May 2022; Ref: scu.78313
The MOD was liable in negligence for an airman’s death due to its breach of duty if regulations were not kept to.
Independent 03-Jun-1993
Fatal Accidents Act 1976, Law Reform (Miscellaneous Provisions) Act 1934
Appeal from – Barrett v Ministry of Defence CA 3-Jan-1995
The deceased was an off-duty naval airman. The claim was based upon the alleged negligent failure of the defendant to enforce disciplinary regulations against drunkenness so as to protect the deceased against his own known proclivity for alcohol . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.78256
The plaintiff and her husband were employed by the defendant to manage and work in a beer and wine house. The Plaintiff was injured through the negligence of her husband in the course of his employment. In an action by her against the defendant in respect of the injury . .
Held: Where a servant while acting in the scope of his employment negligently harms another the fact that his relationship to the injured person is such that suit cannot be brought against him does not relieve the master from liability. An employer was liable to a person injured by the negligence of his servants, notwithstanding the legal immunity of the servants from action at the suit of the injured party, and, therefore the defendant was liable to the plaintiff, despite the inability of the plaintiff to sue her husband in respect of the injury.
Denning LJ said that the master’s liability for the negligence of his servant is not a vicarious liability but a liability of the master himself going to his failure to see that his work is properly and carefully done. The master’s liability is his own liability and remains on him notwithstanding the immunity of the servants, but even if the master’s liability is a vicarious liability, the husband’s immunity is a mere rule of procedure, and not a rule of substantive law. It is an immunity from suit and not and immunity from duty or liability and so, on that view of the law also, the master would be liable for the negligence of the servant.
Denning LJ
[1953] 1 QB 597
England and Wales
Cited – Cox v Ministry of Justice SC 2-Mar-2016
The claimant was working in a prison supervising working prisoners. One of them dropped a bag of rice on her causing injury. At the County Curt, the prisoner was found negligence in the prisoner, but not the appellant for vicarious liability. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.606510
A pupil at an approved school went on an Outward Bound course including riding on a cable and pulley slung between two trees. From the cable hung a knotted rope. When the pupil got onto the rope the cable snapped, and he fell with it. He suffered serious injuries from which some years later he died. The Outward Bound confidence course was run by parties independent of the school.
Held: The claim was dismissed against the school. Nield J said: ‘What duty did the school authorities owe to the deceased? They were not the occupiers of the site or of the apparatus. They had, in my view, a general duty to take reasonable steps for the safety of those under their charge and use such care as would be exercised by a reasonably careful parent. Counsel tell me that there is no authority covering the situation where a school makes use of someone else’s equipment at premises other than the school premises. In my judgment, where a school must take their pupils to other premises, they discharge their duty of care if they know the premises and if the premises are apparently safe, and if they know that the premises are staffed by competent and careful persons. They further discharge their duty if they permit their pupils there to use equipment which is apparently safe and is under the control of competent and careful persons who supervise the use of such equipment. They do not in such circumstances have an obligation themselves to make an inspection.’
Nield J
[1971] LGR 20
Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
Cited – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.445619
The plaintiff sought damages in common law negligence respect of noise at work which ‘amounted to about 115 to 120 decibels, whereas the. . tolerable noise is about 90’ and no ear muffs had been provided.
Held: The claim succeeded.
[1972] 1 Lloyd’s Rep 182
England and Wales
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.
Updated: 18 May 2022; Ref: scu.440380
[1967] 1 WLR 813
Dicta Approved – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Mentioned – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.269667
Police are under no duty to warn road users of a hazard on road. The police have no general liability in negligence for reasons of public policy.
Gazette 17-Mar-1993, [1993] 4 All ER 355
England and Wales
Cited – Mullaney v Chief Constable of West Midlands Police CA 15-May-2001
The claimant police officer was severely injured making an arrest. He claimed damages from the respondent for contributory negligence of other officers in failing to come to his assistance.
Held: If a police officer owes a duty of care to . .
Cited – Brooks v Commissioner of Police for the Metropolis and others HL 21-Apr-2005
The claimant was with Stephen Lawrence when they were both attacked and Mr Lawrence killed. He claimed damages for the negligent way the police had dealt with his case, and particularly said that they had failed to assess him as a victim of crime, . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 May 2022; Ref: scu.77784
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 sheep was liable for the whole damage because ‘each of the dogs did in law occasion the whole of the damage which was suffered by the sheep as a result of the action of the two dogs acting together’
Viscount Dunedin, Viscount Hailsham
[1931] AC 560
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 May 2022; Ref: scu.241496
[1957] 1 Ll L Rep 522
Cited – LMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 May 2022; Ref: scu.230981
(United States Court of Appeals, 1st Circuit) Relatives of a deceased smoker brought a negligence and strict liability suit against a tobacco company, alleging that it was responsible for his death. The action was brought in the District Court for the District of Puerto Rico. There was evidence that ‘the average consumer in Puerto Rico during the 1950’s, during the 1960’s’ was aware both of health risks, such as cancer and cardiovascular disease, associated with smoking and that ‘smoking was or could be difficult to quit’. In discussing the evidence regarding common knowledge, the Court of Appeals said: ‘This case calls for us to evaluate application of the common knowledge doctrine in the context of tobacco litigation. The doctrine stems from the principle that a manufacturer cannot be held liable under either strict liability or negligence for failure to warn of a danger commonly known to the public. See, e.g., Guevara v Dorsey Labs., Div. of Sandoz, Inc., 845 F 2d 364, 367 (1st Cir. 1988) (‘The duty to warn in general is limited to hazards not commonly known to the relevant public’); Aponte Rivera v Sears Roebuck, 44 P.R. Offic. Trans. 7, 144 D.P.R. 830 (1998) (‘[A] manufacturer need not warn of a hazard if the average consumer ordinarily has knowledge of the dangers of the product.’). […]
A products liability plaintiff alleging failure to warn must prove
‘(1) the manufacturer knew, or should have known of the risk inherent in the product; (2) there were no warnings or instructions, or those provided were inadequate; (3) the absence of warnings made the product inherently dangerous; (4) the absence of adequate warnings or instructions was the proximate cause of plaintiff’s injury.’
Aponte Rivera, 44 P.R. Offic. Trans. at 6. Under the common knowledge doctrine, however, a defendant neither breaches a duty nor causes the product to be inherently dangerous when the allegedly omitted warning concerns a danger of which the public is well aware. […]
The crux of appellants’ entreaty on appeal is that neither the strict liability nor the negligence claim requires any affirmative showing, and thus the burden rested entirely on Reynolds. Whether or not this is a correct view of the law, after searching the record we have found no evidence which supports appellants’ allegations that there was a lack of common knowledge and thus we are compelled to find that Reynolds met its burden in any event.’
(5) In Roysdon v R.J. Reynolds Tobacco Company 849 F.2d 230 (6th Cir. 1988), a smoker and his wife brought an action against a tobacco manufacturer to recover for disease allegedly caused by smoking. The United States Court of Appeals, Sixth Circuit, inter alia affirmed the dismissal by the United States District Court for the Eastern District of Tennessee of the plaintiffs’ failure to warn claim. At p.236, para.10, the Court of Appeals said:
‘[T]he district court took judicial notice that ‘tobacco has been used for over 400 years and that its characteristics have also been fully explored. Knowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge of the community.’
Roysdon, 623 F.Supp. at 1192. Remembering that this action was limited to the ten years preceding the filing of this complaint [on 5 July 1984], we think this approach was appropriate. The extensive information regarding the risks of smoking available to the public during that time precluded the existence of a jury question as to whether cigarettes are unreasonably dangerous. We find that whether there was knowledge regarding Mr Roysdon’s specific medical problem is irrelevant in light of the serious nature of the other diseases known at that time to be caused by cigarette smoking.’
[2003] 348 F3d 271 (1st Cir.2003)
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 May 2022; Ref: scu.226222
[1970] CLY 612
Scotland
Applied – Emeh v Kensington and Chelsea and Westminster Area Health Authority CA 1-Jul-1984
A sterilisation operation had been performed negligently and failed and the claimant was born.
Held: The birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon’s careless failure to clip a fallopian tube . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 May 2022; Ref: scu.221680
A party is not exempted by his contract from his own negligence ‘unless adequate words are used.’
Scrutton LJ said: ‘For the present purposes a rougher test will serve. In construing an exemption clause certain general rules may be applied: First the defendant is not exempted from liability for the negligence of his servants unless adequate words are used; secondly, the liability of the defendant apart from the exempting words must be ascertained; then the particular clause in question must be considered; and if the only liability of the party pleading the exemption is a liability for negligence, the clause will more readily operate to exempt him.”
Scrutton LJ
[1922] All ER Rep 367, [1922] 2 KB 87, [1922] 91 LJKB 657, [1922] 127 LT 419
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 . .
Applied – Alderslade v Hendon Laundry Ltd CA 1945
Exclusion allowed where only one possible cause of
Articles were sent by the plaintiff to the defendants’ laundry to be washed, and they were lost. In an action by the plaintiff against the defendants for damages, the defendants relied on the following condition to limit their liability: ‘The . .
Cited – Hollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 May 2022; Ref: scu.216366
Counsel for the appellant had submitted that the damages ought to be the difference between the value of the estate as stated by the valuers and the real value at that time. This submission was rejected.
Held: The argument was rightly rejected.
(1891) 64 LT 674
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.
Updated: 16 May 2022; Ref: scu.216367
The defendants had constructed a bridge over the Dee on their railway and had licensed the use of the bridge to the Shrewsbury and Chester Railway to carry passengers over it, and had so negligently constructed the bridge that the plaintiff, a passenger of the last named railway, had been injured by the falling of the bridge. At the trial before Vaughan Williams J. the judge had directed the jury that the plaintiff was entitled to recover if the bridge was not constructed with reasonable care and skill. On a motion for a new trial the Attorney-General (Sir John Jervis) contended that there was misdirection, for the defendants were only liable for negligence, and the jury might have understood that there was an absolute liability.
Held: After consulting the trial judge as to his direction, the court refused the rule.
(1848) 2 Ex 251
England and Wales
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.
Updated: 16 May 2022; Ref: scu.197987
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 between the fractured rib and the tuberculosis, since there was no corroboration of the evidence of the pursuer’s expert witness. They accordingly allowed the reclaiming motion. In Scots law a wrongdoer takes his victim as he finds him. Foreseeability had no relevance to the determination of the measure of damage, once liability had been established.
Lord President Clyde
1967 SLT 41
Scotland
Confirmed – 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 . .
Cited – 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 – Bourhill v Young’s Executor HL 5-Aug-1942
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been . .
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 . .
Obiter rmarks doubted – M’Kew v Holland and Hannen and Cubitts (Scotland) Ltd 1969
. .
Lists of cited by and citing cases may be incomplete.
Updated: 16 May 2022; Ref: scu.196527
(High Court of Australia) Barwick CJ said: ‘By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connection, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist.’
Kitto J said: ‘in a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff’s injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organised affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff’s injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the ‘rules of the game’. Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances.’
Barwick CJ, Kitto J
(1968) ALR 33, (1967) 116 CLR 383
Approved – Condon v Basi CA 30-Apr-1985
The parties were playing football. The defendant executed a late dangerous and foul tackle on the plaintiff breaking his leg. The defendant was sent off, and the plaintiff sued.
Held: Those taking part in competitive sport still owed a duty of . .
Cited – Blake v Galloway CA 25-Jun-2004
The claimant was injured whilst playing about with other members of his band throwing sticks at each other. The defendant appealed against a denial of his defence on non fit injuria.
Held: The horseplay in which the five youths were engaged . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 May 2022; Ref: scu.194827
The test to be applied in determining the time at which an employer’s failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not extraordinarily solicitous for his workers’ safety in the light of what he knew or ought to have known at the time. Lord Devlin’s statement of the law as to concurrent tortfeasors ‘does not . . demand the conclusion that where the court knows that the initial stage of the damage was caused by A (and not B) and that the latter stage was caused by B (and not A), it is obliged by law to proceed (contrary to the true facts) on the assumption that the faults of each had caused the whole damage.’ and ‘I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that the court should make the best estimate it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment.’
Mustill J adopted and developed the statement of Swanwick J: ‘I shall direct myself in accordance with this succinct and helpful statement of the law, and will make only one additional comment. In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive: as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed ‘without mishap.’ Yet even the plaintiffs have not suggested that it was ‘clearly bad,’ in the sense of creating a potential liability in negligence, at any time before the mid-1930s. Between the two extremes is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. It is unnecessary, and perhaps impossible, to give a comprehensive formula for identifying the line between the acceptable and the unacceptable. Nevertheless, the line does exist, and was clearly recognised in Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552. The speeches in that case show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow.’
Mustill J
[1984] 1 QB 405, [1984] 1 All ER 881
England and Wales
Cited – Stokes v Guest Keen and Nettlefold (Nuts and Bolts) Ltd QBD 1968
An employee had been exposed at work over a long period to mineral oil which, on a daily basis, had saturated his clothing and come into contact with his skin. As a result of this he developed cancer of the scrotum from which he eventually died. The . .
Applied – Holtby v Brigham and Cowan (Hull) Ltd CA 6-Apr-2000
A claimant who sought damages for injuries suffered by the ingestion of asbestos whilst working for one employer, but had also worked for other periods for other employers where similar activities had been involved, had the onus in the claim to . .
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 . .
Cited – Wilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
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 . .
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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 May 2022; Ref: scu.190109
The court was asked to set out the responsibilities of the local authority as highway authority for any failure to construct, maintain and provide signage on its roads: ‘As to the hypothetical case against the county council, there is, as we have said, authority for the proposition that a highway authority constructing a road for the public use under statutory powers owes a duty to the public to take reasonable care to construct the road properly, so that it will be reasonably safe for the purposes for which it is intended to be used’ and ‘It would not have sufficed for the purposes of a charge of negligence against the county council merely to show that the system of traffic signs or the lighting arrangements might have been improved upon.’
Jenkins LJ
[1959] 1 QB 441
England and Wales
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 – National Grid Gas Plc, Regina (on the Application of) v The Environment Agency Admn 17-May-2006
The claimant sought a judicial review of the decision to hold them responsible for necessary works of remediation. They were statutory successors to British Gas Corporation.
Held: The legislation clearly attempted to hold the contaminator . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 May 2022; Ref: scu.187293
The workman plaintiff suffered from a congenital defect, having 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. The workman applied for compensation on the ground of this incapacity, which applied ‘Where . . incapacity for work results from the accident’ .
Held: This later incapacity was not the result of the injury which was caused by the industrial accident.
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. Questions of causation are pure questions of fact which, if they are to be answered by a judge, must yet be answered by him as an ordinary man.
Medical negligence or inefficiency can be held to amount to a new cause of incapacity in some circumstances.
Lord MacDermott and Lord Reid, dissenting, were of the opinion that in interpreting the words ‘results from the injury’ in the Act, regard ought to had for the social policy of the legislation.
Lord Reid stated that the Court of Appeal was correct in holding that it was bound by authority but he was of the view that the House of Lords, not being bound, ought to change the law as it stood. He 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.
He considered that ‘grave lack of skill or care on the part of the doctor’ would amount to a novus actus interveniens.
Lord Simonds, Lord Normand, Lord Morton of Henryton, Lord MacDermott and Lord Reid
[1949] 1 All ER 588
England and Wales
Approved – Rothwell v Caverswall Stone Co Ltd CA 1944
duParcq LJ set out two propositions: ‘In my opinion, the following propositions may be formulated upon the authorities as they stand: first, an existing incapacity ‘results from’ the original injury if it follows, and is caused by, that injury, and . .
Cited – Wieland v Cyril Lord Carpets Ltd 1969
The plaintiff suffered injury from the admitted negligence of the defendant. After attending the hospital she felt shaken and the movement of her head was constricted by a collar which had been fitted to her neck. In consequence she was unable to . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 May 2022; Ref: scu.614914
duParcq LJ set out two propositions: ‘In my opinion, the following propositions may be formulated upon the authorities as they stand: first, an existing incapacity ‘results from’ the original injury if it follows, and is caused by, that injury, and may properly be held so to result even if some supervening cause aggravated the effects of the original injury and prolonged the period of incapacity.’ and: ‘If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though, but for the original injury, there would have been no incapacity.’
duParcq LJ
[1944] 2 All ER 350
England and Wales
Approved – Hogan v Bentinck West Hartley Collieries (Owners) Ltd HL 1949
The workman plaintiff suffered from a congenital defect, having 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 May 2022; Ref: scu.614915
H the lessee of a ferry, hired from defendant, for one day, the steam tug and crew, to assist in carrying his passengers across. He received the fares : and defendants were paid by him for the hire of the tug; they sent and paid the crew. Plaintiff who had contracted with and paid H for being carried across the ferry at all times during one year, went on board the tug, from H’s pier, as a passenger, for the purpose of crossing. By the negligence of the crew some tackle broke; and plaintiff while on board, was injured. Held that he was entitled to recover against defendants for such negligence.
[1858] EngR 857, (1858) El Bl and El 899, (1858) 120 ER 744
England and Wales
Updated: 15 May 2022; Ref: scu.289328
A coastguard owes no general duty of care to seafarers even in a case of emergency.
Times 03-Jan-1995
England and Wales
Updated: 15 May 2022; Ref: scu.89298
A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the damage was foreseeable. The council was not liable for breach of statutory under the 1980 Act since it had not planted the trees.
The test of foreseeability was whether the risk was one which a reasonable person in the Defendant’s position would have regarded as a real risk as distinct from a risk which he would have been justified in disregarding and taking no steps to eliminate
Mr Toulson QC
Times 19-Apr-1995, [1995] CLY 3661, [1996] Const LJ 64
England and Wales
Cited – Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others CA 24-Feb-1995
The plaintiffs were mortgagees. The defendants were valuers. The defendants negligently over-valued properties and the plaintiffs then accepted mortgages of the properties. Later the property market collapsed and the various borrowers defaulted and . .
Cited – Loftus-Brigham and Another v London Borough of Ealing CA 28-Oct-2003
The claimants sought to recover for damages caused to their house foundations by trees growing nearby which were the responsibility of the defendants. The defendants replied that the damages was caused in part by roots from virgina creeper and . .
Cited – Berent v Family Mosaic Housing and Others TCC 25-May-2011
The claimant sought damages for subsidence to her property allegedly caused by the roots of trees on the defendants’ properties. Two large plane trees stood in the pavement outside the house and about 12 metres from it. . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.84608
A greater duty of care is owed by organizers and sports coaches to disabled athletes because of their special needs,
Times 14-Dec-1993
Updated: 15 May 2022; Ref: scu.83838
A prison governor sent out a warder with two violent prisoners where it was policy not to bring such prisoners together. The warder suffered injury as a result. There could be no breach of statutory duty where the governor exercised a discretion given to him as to how a statutory function was to be fulfilled. Nevertheless he might be liable in negligence.
Times 22-Mar-2000
Updated: 15 May 2022; Ref: scu.79455
Public policy rejects liability of fire authorities for failure to supply water.
Times 09-May-1996
Updated: 15 May 2022; Ref: scu.79127
The law might impose a duty of care which was non-delegable.
[1958] 2 QB 245
England and Wales
Cited – A v Ministry of Defence and another QBD 16-Apr-2003
The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.197040
(Reversed, but dicta of Oliver J approved)
[1949] 2 All ER 851
England and Wales
Appeal from – Bolton v Stone KBD 1949
The plaintiff was hit by a cricket ball hit from a cricket ground, and sought damages.
Oliver J described the balancing exercise required in nuisance cases: ‘Whether such an act does constitute a nuisance must be determined not merely by an . .
Appeal from – Bolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.190137
Road signs and layouts creating a pedestrian crossing did not create an absolute precedence for a pedestrian. The driver must use reasonable endeavours in the circumstances to give a a pedestrian preference. Where an accident occurs, the fact if it be so that the driver was free of negligence, will afford a full defence.
[1952] 2 All ER 71, [1952] 2 QB 668, [1952] 1 TLR 1537
England and Wales
Updated: 12 May 2022; Ref: scu.189999
(1889) 17 R 484
Scotland
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.182843
(1888) 16 R 86
Scotland
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.182845
A Local Authority officer granting permissions apparently within own powers binds the authority, and the Local Authority was liable in negligence for an error of a building control officer giving planning advice.
Times 27-Mar-1997, Gazette 19-Mar-1997
England and Wales
Updated: 10 May 2022; Ref: scu.82905
The applicants claimed in negligence against the Home Office after its advisers had wrongly advised the first defendants that the claimants’ travel documents were not valid. The claim was struck out, and the claimants appealed. The strike out was wrong in principle, because such a claim required first for certain facts to be established or denied, and that required other steps to be taken before a strike out application could properly be determined. Such a representation arguably founded a negligence action because there was arguably a sufficient degree of proximity between the Home Office and the passenger to give rise to a duty of care. The strike out was premature.
Lord Woolf MR and Chadwick LJ
Times 26-Jan-2000
Immigration (Carriers Liability) Act 1987
England and Wales
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
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 . .
Cited – Quickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.80467
Insurers underwriting a company’s permanent health insurance scheme had no duty of care directly to a company employee to ensure that his claim was processed properly. Their duty was owed to the company only. The employee was not a party to the contract between the company and the insurer, and must rely upon his cause of action against the employer only.
Gazette 27-Oct-1999, Times 05-Nov-1999
England and Wales
See Also – Briscoe v Lubrizol Limited CA 23-Apr-2002
The claimant had been employed by the respondents. Having been injured he claimed under a long-term disability scheme underwritten by insurers. They discontinued payment, and the company dismissed him. He now claimed damages for breach of contract. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.78587
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.’
1929 SC 461
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.
Updated: 09 May 2022; Ref: scu.192602
[1969] 2 All ER 114
England and Wales
Updated: 06 May 2022; Ref: scu.189955
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.’
Staughton
[1992] 1 WLR 1138, [1992] 1 Lloyds Rep 7, [1992] 3 All ER 104
England and Wales
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.
Updated: 06 May 2022; Ref: scu.186036
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.’
Lord Wrenbury, Lord Sumner, Lord Atkinson
[1923] AC 74, 92 LJKB 50
England and Wales
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.
Updated: 06 May 2022; Ref: scu.583993
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.
La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ
[1995] 3 SCR 674
Canada
Updated: 02 May 2022; Ref: scu.402550
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.’
Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood
[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
England and Wales
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 – 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.
Updated: 02 May 2022; Ref: scu.347027
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.’
May LJ
[2001] Fam 313
England and Wales
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.
Updated: 01 May 2022; Ref: scu.246408
The court considered a relator action: ‘Although the name of the Attorney-General is used, it is quite clear that he has never been consulted, and that any advantage from these litigations to the public is the last thing which those who have set it on foot have thought of.’
(1853) 2 E and B 767, [1853] EngR 221, (1852-1853) 3 De G M and G 304, (1853) 43 ER 119, [1853] EngR 919, (1853) 2 El and Bl 767, (1853) 118 ER 955
England and Wales
Updated: 29 April 2022; Ref: scu.188837
A former employer has no duty of care regarding the accuracy of information provided to the trustees of a pension fund regarding the work record of that employee.
Ind Summary 29-Mar-1993, [1993] ICR 789
England and Wales
Cited – Waters v Commissioner of Police for the Metropolis HL 27-Jul-2000
A policewoman, having made a complaint of serious sexual assault against a fellow officer complained again that the Commissioner had failed to protect her against retaliatory assaults. Her claim was struck out, but restored on appeal.
Held: . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 April 2022; Ref: scu.84681
The Innkeepers’ Liability Act 1863, which limits the liability of an innkeeper for goods or property brought to his inn by a guest to pounds 30, excepts the two cases-‘(1) Where such goods or property shall have been stolen, lost, or injured through the wilful act, default, or neglect of such innkeeper or any servant in his employ; (2) where such goods or property shall have been deposited expressly for safe custody with such innkeeper.’
Held (1) that to bring an innkeeper within the first exception the guest must prove the neglect which in fact resulted in the loss of the property, carelessness not directly connected therewith being insufficient and not raising any presumption that the loss was due to it, and (2) that to bring him within the second exception the guest must on giving the property say or do something sufficient to bring home to the innkeeper the responsibility he is incurring. Diss. Lord Collins, on the facts of the case, on the ground that even without ‘express’ deposit, an innkeeper entrusted with property was a bailee for reward bound to exert a certain degree of carefulness, and that there was evidence in the case upon which a jury could find that the innkeeper had failed therein and so been neglectful in such a way as to have caused the loss.
Lord Chancellor ( Loreburn), Lord Ashbourne, Lord James of Hereford, Lord Robertson, and Lord Collins
[1908] UKHL 732, 45 SLR 732
Scotland
Updated: 26 April 2022; Ref: scu.621514
Liability after road traffic accident.
[2018] EWHC 2114 (QB)
England and Wales
Updated: 26 April 2022; Ref: scu.621438
Claim for damages for personal injury arising out of a collision between an Audi car driven by Ms Williams, the first defendant, and a Yamaha motor cycle driven by Mr Laws, the claimant.
[2018] EWHC 1871 (QB)
England and Wales
Updated: 25 April 2022; Ref: scu.620617
The defendant appealed from a finding that his force had owed the deceased a duty of care. She had taken her own life. Earlier her mother had made a 999 call from concern about her daughter, and said that the defendant had not responded despite promising to do so.
Held: The appeal was dismissed
King J
[2018] EWHC 1746 (QB)
Fatal Accidents Act 1976, Law Reform (Miscellaneous Provisions) Act 1934, Human Rights Act 1998
England and Wales
Updated: 25 April 2022; Ref: scu.620089
A workman was injured while at work owing to the negligence of two fellow-servants. The employers became liable to pay him compensation, and claimed to be indemnified by the fellow-servants, as liable to pay damages under ‘a legal liability in some person other than the employer’ to pay damage in respect of the injury. Held that the fellow-servants’ negligence constituted legal liability in terms of the Act, and that the doctrine of collaborateur did not affect the liabilities of servants inter se.
[1910] UKHL 724
Workmen’s Compensation Act 1906 6
England and Wales
Updated: 25 April 2022; Ref: scu.619802
[2018] EWHC 1657 (Ch)
England and Wales
Updated: 24 April 2022; Ref: scu.618986
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 prosecution for theft) the loss was caused by his deliberate act and no one would have said that it was caused by the door being left open. But for the purpose of attributing liability to the decorator, the loss was caused by his negligence because his duty was to take reasonable care to guard against thieves entering. As to Weld-Blundell: ‘I do not think that Lord Sumner would have intended that very general statement to apply to the facts of a case such as the present where, as the judge points out, the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that in fact happened.’
Tucker LJ
[1948] 2 KB 48
England and Wales
Cited – 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 . .
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 – 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 – Mitchell and Another v Glasgow City Council HL 18-Feb-2009
(Scotland) The pursuers were the widow and daughter of a tenant of the respondent who had been violently killed by his neighbour. They said that the respondent, knowing of the neighbour’s violent behaviours had a duty of care to the deceased and . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 April 2022; Ref: scu.190104
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 common sense stated by Lord Russell of Killowen in Bourhill v. Young [1943] A.C. 92. 101. As Denning LJ said in King v. Phillips [1953] 1 Q.B. 429, 441: ‘there can be no doubt that the test of liability for shock is foreseeability of injury by shock.’ Their Lordships substitute the word ‘fire’ for ‘shock’ and endorse this statement of the law.’ and ‘a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour.’ He should be responsible ‘not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them.’ and ‘After the event even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility.’ (Viscount Simonds) Lord Reid: ‘In the present case there was no justification whatever for discharging the oil into Sydney Harbour. Not only was it an offence to do so, but it involved considerable loss financially. If the ship’s engineer had thought about the matter, there could have been no question of balancing the advantages and disadvantages. From every point of view it was both his duty and his interest to stop the discharge immediately.’
Viscount Simonds: ‘Their Lordships conclude this part of the case with some general observations. They have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is ‘direct’. In doing so they have inevitably insisted that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen. This accords with the general view thus stated by Lord Atkin in Donoghue v Stevenson [1932] A.C. 562, 580: ‘The liability for negligence whether you style it such or treat it as in other systems as a species of ‘culpa,’ is no doubt based upon the general public sentiment of moral wrongdoing for which the offender must pay.’ . . Thus foreseeability becomes the effective test.’
Viscount Simonds, Lord Reid
[1961] AC 388, [1961] UKPC 2, [1961] UKPC 2, 100 ALR2d 928, [1961] 2 WLR 126, [1961] 1 Lloyd’s Rep, 1961 AMC 962, [1961] 1 All ER 404
Australia
Overturned – In re Polemis and Furness, Withy and Co CA 1921
There was an exception in a time Charterparty for ‘fire . . always mutually accepted.’
Held: These words were not sufficient to exclude damage caused by a fire due to the negligent act of stevedores (the charterers’ agents) in the course of . .
Cited – Bourhill v Young’s Executor HL 5-Aug-1942
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been . .
Cited – King v Phillips CA 1952
Denning LJ said: ‘there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock.’ A person ‘who suffers shock on being told of an accident to a loved one cannot recover damages from the . .
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 – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Cited – Platform Home Loans Ltd v Oyston Shipways Ltd and others HL 18-Feb-1999
The plaintiffs had lent about 1 million pounds on the security of property negligently valued at 1.5 million pounds. The property was sold for much less than that and the plaintiffs suffered a loss of 680,000 pounds. The judge found that the . .
Applied – Lamb v Camden London Borough Council 1981
The property had been left vacant for repairs and then taken over by squatters. A claim was made in respect of the liability of the land-owners for the damage caused by the squatters.
Held: The damage was too remote. The correct test was not . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
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 – 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 . .
Considered – 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 . .
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 . .
Cited – 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 . .
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 . .
See Also – Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
Cited – Jolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
Cited – 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 – 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 – Jebson v Ministry of Defence CA 28-Jun-2000
The claimant was a guardsman travelling in the rear of a service lorry. He fell from the tailgate suffering severe injury. He was drunk after a social trip.
Held: Though a person could normally expect to be responsible himself for incidents . .
Cited – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
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 . .
Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Cited – Miller v Jackson CA 6-Apr-1977
The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 April 2022; Ref: scu.184750
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 Court of Session held that there was no liability.
Held: A defendant will not be liable if the injury actually sustained is not foreseeable, if it is of a different kind from that which the defendant ought to have foreseen as the likely outcome of his want of care. Liability was sought to be established in respect of ‘meddlesome children’. The House considered the people to whom a duty was owed: (Lord Reid) ‘So we have (first) a duty owned by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender’s fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way.’ and ‘This accident was caused by a known source of danger, but caused in a way which could not have been foreseen and in my judgment, that affords no defence.’
‘It is true that the duty of care expected in cases of this sort is confined to reasonably foreseeable dangers, but it does not necessarily follow that liability is escaped because the danger actually materialising is not identical with the danger reasonably foreseen and guarded against.’ A defender is liable although the damage may be a good deal greater in extent than was foreseeable, as he can escape liability only if the damage can be regarded as differing in kind from what was foreseeable.
Lord Morris said: ‘My Lords, in my view, there was a duty owed by the defenders to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not absolved from liability because they did not envisage ‘the precise concatenation of circumstances which led up to the accident.’
Lord Pearce said: ‘The defenders are therefore liable for all the foreseeable consequences of their neglect. When an accident is of a different type and kind from anything that a defender could have foreseen, he is not liable for it-see The Wagon Mound, [1961] A.C.388. But to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable . . ‘
Lord Jenkins, Lord Reid, Lord Guest, Lord Pearce
[1963] AC 837, [1963] 1 All ER 705, 1963 SC (HL) 31, [1963] UKHL 1, [1963] UKHL 8
Scotland
Cited – 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 – Groom v Selby CA 18-Oct-2001
The defendant negligently failed to discover the claimant’s pregnancy. A severely disabled child was born. The question was as to the responsibility for payment of excess costs of raising a severely disabled child, a claim for economic loss. The . .
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 – The Attorney General v Hartwell PC 23-Feb-2004
PC (The British Virgin Islands) A police officer had taken the police revolver, and used it to shoot the claimant. It was alleged that the respondent police force were vicariously liable for his acts and also . .
Cited – McNamara v North Tyneside Metropolitan Borough Council CA 21-Feb-1997
The claimant sought damages for personal injuries. The case he presented at trial differed from that pleaded, and he now appealed dismissal of his claim.
Held: The variation was sufficiently serious to justify the refusal of relief. In fact . .
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 – 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.
Cited – 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 . .
Cited – Jolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
Cited – 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 – Jebson v Ministry of Defence CA 28-Jun-2000
The claimant was a guardsman travelling in the rear of a service lorry. He fell from the tailgate suffering severe injury. He was drunk after a social trip.
Held: Though a person could normally expect to be responsible himself for incidents . .
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 . .
Cited – Robb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – Gerrard v Staffordshire Potteries Ltd CA 2-Nov-1994
The plaintiff was injured when working for the defendants spraying glaze onto jars. A small foreign body was blown into her eye. She said that no eye protection had been suuplied as required by the regulations.
Held: The plaintiff’s appeal . .
Cited – Gerrard v Staffordshire Potteries Ltd CA 2-Nov-1994
The plaintiff was injured when working for the defendants spraying glaze onto jars. A small foreign body was blown into her eye. She said that no eye protection had been suuplied as required by the regulations.
Held: The plaintiff’s appeal . .
Cited – Hampshire Police v Taylor CA 9-May-2013
The officer had been cut by glass when clearing out a cannabis factory. The risk assessment had identified only a need for latex gloves. She said that given the environment heavier garden gloves should have been provided. The Chief Constable . .
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 . .
Cited – Devine v Colvilles Ltd HL 11-Mar-1969
The House considered the position of the doctrine of res ipsa loquitir. The plaintiff had been injured falling or jumping from a raised platform.
Held: The claim succeeded. ‘ I hold it proved that there was a general panic. Now the defenders . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 April 2022; Ref: scu.182841
The court was asked whether the defence of illegality is available to allow a bank to defeat a claim in negligence and breach of contract brought by its corporate customer.
Held: The Court of Appeal unanimously dismissed the appeal. Mr Al Sanea’s fraudulent state of mind could not be attributed to the company; but even if it could, the claim would still have succeeded – the bank’s negligence had caused the loss, it was not defeated by a defence of illegality, or by an equal and opposite claim by the bank for the company’s deceit; and the judge’s finding of 25% contributory negligence was a reasonable one.
Sir Geoffrey Vos Ch, Gloster, McCombe LJJ
[2018] EWCA Civ 84, [2018] WLR(D) 57, [2018] 1 Lloyd’s Rep 472, [2018] PNLR 19, [2018] 1 WLR 2777, [2018] 4 All ER 204, [2018] Bus LR 1115, [2018] 2 All ER (Comm) 975, [2018] 2 BCLC 1
England and Wales
Appeal from – Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd SC 30-Oct-2019
. .
Lists of cited by and citing cases may be incomplete.
Updated: 24 April 2022; Ref: scu.604161
In an action of count, reckoning, and payment by the beneficiaries under a trust for religious purposes, they averred that certain payments of income tax had not been recovered owing to the negligence of the trustees and their law agents. The tax had been paid on demand for a number of years, when it was brought to the knowledge of the trustees and their law agents that as a result of a decision of the House of Lords in an English case they had all along been entitled to recover it. The trustees thereupon recovered the tax for the previous three years, the limit of recourse allowed by the Income Tax Acts. The beneficiaries sued for the amount of the income tax for the years preceding these three.
Held in the circumstances that neither the trustees nor their law agents were personally liable for failure to recover the income tax.
[1916] SLR 260
Scotland
Updated: 23 April 2022; Ref: scu.618260
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death.
However, where a patient does not ask as to the risks, Lord Diplock said: ‘we are concerned here with volunteering unsought information about risks of the proposed treatment failing to achieve the result sought or making the patient’s physical or mental condition worse rather than better. The only effect that mention of risks can have on the patient’s mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient’s interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied.’ and ‘a doctor’s duty of care, whether he be general practitioner or consulting surgeon or physician is owed to that patient and none other, idiosyncrasies and all.’ .’
Lord Scarman said: ‘Damage is the gist of the action of negligence’
Lord Templeman, Lord Diplock, Lord Scarman, Lord Keith
[1985] 1 All ER 643, [1985] 2 WLR 480, [1985] AC 871, [1985] UKHL 1
England and Wales
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – Maynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
Cited – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Followed – In re T (Adult: Refusal of Treatment) CA 1992
A patient’s right to veto medical treatment is absolute: ‘This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or . .
Cited – Pearce and Pearce v United Bristol Healthcare NHS Trust CA 20-May-1998
A doctor advised a mother to delay childbirth, but the child was then stillborn. She complained that he should have advised her of the risk of the baby being stillborn.
Held: ‘In a case where it is being alleged that a plaintiff has been . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
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 . .
Cited – Powell and Another v Boldaz and others CA 1-Jul-1997
The plaintiff’s son aged 10 died of Addison’s Disease which had not been diagnosed. An action against the Health Authority was settled. The parents then brought an action against 5 doctors in their local GP Practice in relation to matters that had . .
Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Applied – Montgomery v Lanarkshire Health Board SCS 30-Jul-2010
Outer House – The pursuer sought damages for personal injuries to her son at his birth, alleging negligence by the medical staff at the defender hospital. She said that she had been advised a cesarian birth for her child, but the doctors had not . .
Cited – NM v Lanarkshire Health Board SCS 23-Jan-2013
Inner House – The pursuer and reclaimer sought reparation for son after grave injury sustained at his birth in a maternity hospital run by the defenders and respondents. She attributes that injury to negligence in a consultant obstetrician. . .
Criticised – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Freeman v Home Office (No 2) CA 1984
A prisoner brought an action in battery against a prison doctor for administering drugs to him by injection. He argued that he was incapable of consenting to the procedure because he was in the defendant’s custody. . He failed at trial.
Held: . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 April 2022; Ref: scu.180380
A checker was run over and killed while engaged in checking waggons on railway sidings. His widow raised an action of damages against the railway company for the loss of her husband, and obtained a verdict. This verdict was set aside on the ground that there was contributory negligence on the part of the deceased. At the new trial the evidence was practically the same as at the first trial, and the pursuer again obtained a verdict. The defenders were granted a rule.
Held: The Court set aside the second verdict on the same ground on which they had set aside the first verdict and granted a third trial.
[1904] SLR 42 – 165
Scotland
Updated: 14 April 2022; Ref: scu.610098
The servants of a carman run over a boy in the streets, and maimed him, by negligence; and an action was brought against the master and the plaintiff reoovered. The servants of A. with his cart run against the cart of B. in which there was a pipe of wine, viz. sack, and overturned it, whereby the sack was spoiled, and run into the street; an action was brought against the master, and held good by Holt Chief Justice at Guildhall. Ex relatione m’ri Place
[1792] EngR 70, (1792) 1 Ld Raym 739, (1792) 91 ER 1394 (C)
Updated: 12 April 2022; Ref: scu.358282
A banker giving a gratuitous reference is not required to do his best by, for instance, making inquiries from outside sources which are available to him, though this would make his reference more reliable. All that he is required to do is to conform to that standard of skill and competence and diligence which is generally shown by persons who carry on the business of providing references of that kind. Person LJ asked: ‘Is he then expected in business hours in the bank’s time, to expend time and trouble in searching records, studying documents, weighing and comparing the favourable and unfavourable features and producing a well-balanced and well-worded report? That seems wholly unreasonable.’
Pearson LJ
[1961] 3 All ER 891, [1962] 1 QB 396, [1961] 3 WLR 1225, (1961) 105 Sol Jo 910
England and Wales
Appeal from – Hedley Byrne and Co Ltd v Heller and Partners Ltd 20-Dec-1960
The defendants were two bankers, who gave banker’s references as to the credit of a customer. The references were relied upon by the plaintiff, who claimed damages in negligence after they had suffered losses.
Held: The defendants were liable. . .
Appeal from – 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.
Updated: 12 April 2022; Ref: scu.216356
The defendants were two bankers, who gave banker’s references as to the credit of a customer. The references were relied upon by the plaintiff, who claimed damages in negligence after they had suffered losses.
Held: The defendants were liable.
McNair J
Unreported, 20 December 1960
England and Wales
Appeal from – Hedley Byrne and Co Ltd v Heller and Partners Ltd CA 1961
A banker giving a gratuitous reference is not required to do his best by, for instance, making inquiries from outside sources which are available to him, though this would make his reference more reliable. All that he is required to do is to conform . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.216359
A brazing lamp which, by exploding owing to a latent defect, injured a person other than the purchaser of it, and the vendor was held not liable to the party injured. The House considered earlier cases on liability for defectively manufactured goods: ‘The breach of the defendant’s contract with A. to use care and skill in and about the manufacture or repair of an article does not of itself give any cause of action to B. when he is injured by reason of the article proving to be defective.’
Lord Sumner
(1912) 106 LT 533
England and Wales
Cited – Langridge v Levy ExP 1836
A man sold a gun which he knew to be dangerous for the use of the purchaser’s son. The gun exploded in the son’s hands.
Held: The son had a right of action in tort against the gunmaker, but, Parke B said: ‘We should pause before we made a . .
Cited – Winterbottom v Wright 1842
Owing to negligence in the construction of a carriage it broke down. A third party sought damages for injuries which he alleged were due to negligence in the work.
Held: The doctrine of privity of contract precluded actions in tort by third . .
Not followed – George v Skivington 1869
There was an injury to the wife, from a hair wash purchased under a contract of sale with the husband.
Held: The wife had a good cause of action. There was a duty in the vendor to use ordinary care in compounding the article sold, and that . .
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.
Updated: 12 April 2022; Ref: scu.192607
Lord Bonomy
Updated: 12 April 2022; Ref: scu.168921
The plaintiff was a research assistant employed by the defendant. She was an experienced molecular biologist, and was using an ultra violet transilluminator to photograph DNA gel in a laboratory when she was exposed to an excessive dose of ultra violet light and suffered serious burns to her face and neck. For some years she had used an ultra violet transilluminator known as a TL33 without mishap. Shortly before this event, and without her knowledge, this machine had been replaced by the University by a more powerful machine of similar appearance. The machine was manufactured by the third party, Ultra Violet Products Limited, who had supplied an instruction book with the machine.
Held: Otton LJ accepted a submission that the TM40 was manufactured for a niche market. It was not a product created for general consumer use. It was a product created for exclusively scientific uses. After a reference to Holmes v Ashford he said: ‘It is thus in my view a simple question of fact and degree in every case whether a manufacture[r] has given sufficient warning in all the circumstances when supplying a dangerous piece of equipment. […] If the question is asked: what ought the reasonable manufacture[r] to foresee and what steps should he reasonably take?, the answer to my mind is clear. These manufacturers could reasonably foresee that the university would adequately instruct anyone who might use the machine – and in particular the research assistants – and they could not reasonably have foreseen that the university would allow the machine to put into circulation and use without adequate warning.’
The Lord Chief Justice, Lord Bingham of Cornhill: The third party could not reasonably be expected to foresee the possibility that an expert professional buyer such as a scientific department of a university would make a machine such as the TM40 transilluminator available for use by its staff without, if necessary, familiarising itself with the potential hazards of such a machine and the safety precautions necessary to counter those hazards, and without taking steps to warn its staff of the dangers and to give instruction on the safe operation of the machine.
Otton LJ, Lord Bingham of Cornhill LCJ
[1999] EWCA Civ 1569
England and Wales
Cited – Holmes v Ashford CA 1950
A hairdresser treated the plaintiff’s hair with a dye, and as a result the plaintiff contracted dermatitis. The dye came to the hairdresser in labelled bottles together with instructions. Both the labels and the brochure warned that the dye might be . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.146484
An employer may be liable for damages for passive smoking if the claim is pleaded correctly.
Times 22-Apr-1997
Offices Shops and Railway Premises Act 1963 7
Updated: 09 April 2022; Ref: scu.85639
Repetitive Strain Injury is not a sufficiently well recognised medical condition to found an action.
Times 10-Nov-1993, Independent 02-Nov-1993
Updated: 09 April 2022; Ref: scu.85642
A school taking all proper steps was not liable when a child runs from his school out into the road.
Times 28-Jun-1996
Updated: 09 April 2022; Ref: scu.84395
A harbour authority is not vicariously liable for a pilot’s negligence. A pilot is an independent professional person, even though the port provides his services, and can insist on his employment.
Times 24-May-1993, Gazette 01-Sep-1993, Independent 28-May-1993
Updated: 09 April 2022; Ref: scu.84417
Fire services are not liable in negligence to property owners. When attending a fire, they exercised a power not a duty.
Times 07-Mar-1997
Updated: 09 April 2022; Ref: scu.84245
A Local Authority was liable as the Highway Authority for its breach of statutory duty having left mud on a road, left there by wagons with complaints that there was no sign.
Times 16-Dec-1994, Independent 07-Dec-1994
Updated: 09 April 2022; Ref: scu.83759
The Forestry Commission has no duty to fence an unofficial and dangerous path.
Times 18-Aug-1993
Updated: 09 April 2022; Ref: scu.83511
Liability for soccer injury; recklessness not required to be shown after clear foul outside laws of game, no volens to such acts.
Times 11-Feb-1997
Updated: 09 April 2022; Ref: scu.83513
A vendor’s estate agent was liable for a negligent misrepresentation to a party proceeding with a purchase relying upon what had been said, and without his own survey.
Gazette 30-Mar-1994, Times 25-Jan-1994
Appealed to – McCullagh v Lane Fox and Partners Ltd CA 19-Dec-1995
There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott . .
Appeal from – McCullagh v Lane Fox and Partners Ltd CA 19-Dec-1995
There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 April 2022; Ref: scu.83516
The duty of care does not vary with the nature of damage, as to whether it is physical or financial. The relationship of the parties is to be taken into account in assessing the extent of damage.
Saville LJ said: ‘the three so-called requirements for a duty of care are not to be treated as wholly separate and distinct requirements but rather as convenient and helpful approaches to the pragmatic question whether a duty should be imposed in any given case. In the end whether the law does impose a duty in any particular circumstances depends upon those circumstances …’
Saville LJ
Times 23-Feb-1994, Independent 02-Mar-1994, Ind Summary 14-Feb-1994
England and Wales
Appeal from – Marc Rich and Co Ag and Others v Bishop Rock Marine Co Ltd and Others HL 6-Jul-1995
A surveyor acting on behalf of the classification society had recommended that after repairs specified by him had been carried out a vessel, the Nicholas H, should be allowed to proceed. It was lost at sea.
Held: The marine classification . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 April 2022; Ref: scu.83394
The plaintiff had received serious injuries whilst riding his motor cycle at a road junction for which the defendants were responsible. He alleged that they were liable to him for failing to ensure that proper warning signs were placed at the approach to the junction. The defendants were empowered to place such signs, but not under a duty to do so. They applied to strike out the plaintiff’s claim as disclosing no cause of action.
Held: A Local Authority had a discretion not to erect a particular road sign, but the decision was to be made according to the standards of a competent road engineer. ‘In my judgment it is perfectly clear that the duty imposed is not capable of covering the erection of traffic signs, and nothing more need be said about that particular provision’.
Times 24-Nov-1994, (1992) 90 LGR 416, [1993] CLY 2949
Applied – Gorringe v Calderdale Metropolitan Borough Council CA 2-May-2002
The claimant sought damages, alleging that an accident occurred as a result of the defendant highway authority’s negligence in failing to mark the road properly. A ‘Slow’ sign had become faded and had not been maintained.
Held: The judge had . .
Cited – Walker v Northumberland County Council QBD 16-Nov-1994
The plaintiff was a manager within the social services department. He suffered a mental breakdown in 1986, and had four months off work. His employers had refused to provide the increased support he requested. He had returned to work, but again, did . .
Cited – Gorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 April 2022; Ref: scu.82958
The requirements of public policy denies that there can be a duty of care of the fire brigade to property owners in negligence.
Times 22-May-1996, [1997] 2 All ER 865
Updated: 08 April 2022; Ref: scu.82537
A person formerly in care can sue the Council for negligence in loco parentis.
Times 30-Sep-1993
Updated: 08 April 2022; Ref: scu.81455
Court not convinced on paternal preconception irradiation causality
Ind Summary 22-Nov-1993
Updated: 08 April 2022; Ref: scu.81465
Policy considerations meant that a person who injured themselves, could not be liable in negligence to third parties who suffered psychiatric injury having seen the incident. A fireman came to the rescue, by co-incidence, of his own son. As a rescuer, he was not owed a duty of care, and his relationship as father could not change that. To allow actions by relations in such circumstances would in general tend to encourage undesirable litigation, and encourage family strife.
Times 06-Jun-2000, Gazette 15-Jun-2000
Updated: 08 April 2022; Ref: scu.81001
Lloyds’ brokers are to keep contract slips as evidence of the policy whilst ever a possibility of a claim exists. A failure to do so can hamper the conduct of the litigation to the detriment of syndicate members, and the broker can be liable to them in contract and in negligence.
Clarke J
Ind Summary 12-Jun-1995, Times 16-May-1995, [1995] LRLR 472
England and Wales
Cited – Goshawk Dedicated Ltd and others v Tyser and Co Ltd and Another CA 7-Feb-2006
Lloyds underwiters sought inspection of the records of the Lloyd’s brokers.
Held: The documents must be made available at the cost of the underwriters. It was an implied obligation in a market where the brokers retained the records to make the . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 April 2022; Ref: scu.80957
An attacker hit by his victim’s escaping car was the author of his own misfortune, and had no claim.
Times 28-Sep-1995
Updated: 08 April 2022; Ref: scu.80838
Plaintiff didn’t establish that his exposure to lindane in wood preservative had caused his aplastic anaemia.
Ind Summary 18-Apr-1994
Updated: 08 April 2022; Ref: scu.80764
The police once having taken control of a dangerous traffic situation retained responsibility for it. Having failed to erect warnings or traffic cones after an accident at a collapsed bridge, and leaving the site unattended, the police were responsible,
Times 11-May-1999
Updated: 08 April 2022; Ref: scu.80813
MAFF were not liable in negligence for a failure to spot disease in imported livestock.
Times 19-Jul-1996
Updated: 08 April 2022; Ref: scu.80731
The owner of a garage who sold petrol to a child under sixteen was liable in negligence after the child sniffed the fumes, and came to be set alight. The sale was in breach of the law, precisely because such behaviour, and reduced understanding of risks was to be expected of children. There was no intervening volentia non fit injuria, but the claimant was contributorily negligent, because he was aware to some extent of the risks.
Times 23-Jan-2001
Updated: 08 April 2022; Ref: scu.80389
The Fire Brigade was negligent in turning off a sprinkler system in a burning building.
Times 26-Apr-1996, [1997] QB 1004)
England and Wales
Cited – Cowan and Another v The Chief Constable for Avon and Somerset Constabulary CA 14-Nov-2001
Where police had been called to an incident where a member of the public had been threatened with violence if he did not leave premises, did not have a duty to take action under the Act toward the applicant. It is only if a particular responsibility . .
Appeal from – Capital and Counties Plc and Another v Hampshire County Council; Etc CA 20-Mar-1997
Three cases were brought against fire services after what were said to be negligent responses to call outs. On one, the fire brigade was called to a fire at office premises in Hampshire. The fire triggered the operation of a heat-activated sprinkler . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 April 2022; Ref: scu.78880
Cook M
[2018] EWHC 726 (QB)
England and Wales
Updated: 07 April 2022; Ref: scu.608280
The claiimant sought damages against the ministry as a prisoner, he said that his medical treatment was so poor that he lost his leg unnecessarily.
Held: The claim failed.
Cockerill J
[2018] EWHC 215 (QB)
England and Wales
Updated: 05 April 2022; Ref: scu.604812
The Police appealed from a finding that the claim brought by a former constable was not out of time. He had worked under cover making drugs purchases, and had become addicted to heroin.
Held: The appeal failed.
Sir Terence Etherton MR
[2017] EWCA Civ 1992, [2018] 4 WLR 32, [2017] WLR(D) 818
England and Wales
Updated: 02 April 2022; Ref: scu.601138
Stephen Davies HHJ
[2017] EWHC 2829 (TCC)
England and Wales
Updated: 02 April 2022; Ref: scu.599748
