Petroleum Company of Trinidad and Tobago Ltd v Ryan and Another: PC 19 Oct 2017

(From the Court of Appeal of Trinidad and Tobago) The company appealed from a finding that it was liable for personal injuries suffered by neighbours to a disused oil well suffered it was said from fumes from the well.
Held: The appal succeeded. There had infact been no evidence to support the finding that the well was causative of the injuries suffered.

Judges:

Lady Hale, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes

Citations:

[2017] UKPC 30

Links:

Bailii

Jurisdiction:

Commonwealth

Nuisance, Personal Injury, Negligence

Updated: 01 April 2022; Ref: scu.598627

The Department for Communities and Local Government v Blackmore: CA 27 Jul 2017

Judges:

Lloyd Jones , David Richards , Moylan LJJ

Citations:

[2017] EWCA Civ 1136, [2017] WLR(D) 521

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Negligence, Personal Injury

Updated: 28 March 2022; Ref: scu.591675

Shaw v Medtronic Corevalve Llc and Others: QBD 19 May 2017

Judges:

Lavender J

Citations:

[2017] EWHC 1397 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Negligence

Updated: 27 March 2022; Ref: scu.588184

Darby v Richmond On Thames London Borough Council: CA 11 Apr 2017

Judges:

Black, Sharp, Thirlwall LJJ

Citations:

[2017] EWCA Civ 252

Links:

Bailii

Jurisdiction:

England and Wales

Negligence, Housing

Updated: 24 March 2022; Ref: scu.582089

Elson v Stilgoe: CA 30 Mar 2017

Appeal from dismissal of claim for personal injuries in road traffic accident.
Held: The appeal failed: ‘the effect of the judge’s findings is that the claimant was not on the defendant’s side of the road for any length time sufficient for him to be observed by the defendant in a way which required him to take some evasive action. The judge’s findings present a picture of a defendant driving properly, confronted at the last moment by a claimant who had made a decision to veer into his path without good reason for doing so. The clear implication of findings made by the judge was that in the circumstances there was no reasonable ground for asserting that the driver should have taken account of the possibility of a sudden veering into his path without good reason by the claimant. The judge’s conclusions appear to me to show that the sole cause of the accident was the claimant’s actions rather than any action or inaction of the defendant.’

Citations:

[2017] EWCA Civ 193

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Negligence, Road Traffic

Updated: 24 March 2022; Ref: scu.581337

Maylin v Dacorum Sports Trust (T/A XC Sportspace): QBD 9 Mar 2017

Claim for damages after injury climbing at a facility operated by the defendants.
Held: The claim failed: ‘The Participation Statement at the top of the Disclaimer, which, on any view, that the Claimant accepted that she had read, makes it plain that climbing is an activity with a danger of personal injury or death. Moreover as Miss Dabbs made clear in her evidence, which was not seriously challenged, and which I accept, there were at least two notices warning users of the bouldering wall that matting did not make it any safer and at least one notice that spelt out that broken or sprained limbs are common. These were located on both sides of the entrance to the bouldering area and were there to be seen, whether or not the Claimant in fact read them. The mere fact that the Defendant could have done more by perhaps having a receptionist spell out the risks verbally or by handing out a photocopy of the notice warning of the risks and that the mat did not make it any safer is nothing to the point if the steps which were taken were themselves sufficient, as I find they were.’

Judges:

McKenna QC HHJ

Citations:

[2017] EWHC 378 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Negligence

Updated: 24 March 2022; Ref: scu.581315

Dodd Properties (Kent) Ltd v Canterbury City Council: CA 21 Dec 1979

The defendants had, in the course of building operations, caused nuisance and damage to the plaintiff’s building. The dispute was very lengthy, the costs of repair increased accordingly, and the parties now disputed the date at which damages fell to be assessed.
Held: It was not apparent why a tortfeasor must take his victim as he finds him in terms of exceptionally high or low earning capacity, but not in terms of pecuniosity or impecuniosity which may be their manifestation. It was commercially prudent for the plaintiff to wait to see if they could recover the costs of repairs. Referring to the Liesbosch: ‘As I understand Lord Wright’s speech, he took the view that, in so far as the plaintiffs had in fact suffered more than the loss assessed on a market basis, the excess flowed directly from their lack of means and not from the tortious act, or alternatively it was too remote in law. In modern terms, I think that he would have said that it was not foreseeable.’
Megaw LJ said: ‘In any case of doubt, it is desirable that the judge, having decided provisionally as to the amount of damages, should, before finally deciding, consider whether the amount conforms with the requirement of Lord Blackburn’s fundamental principle. If it appears not to conform, the judge should examine the question again to see whether the particular case falls within one of the exceptions of which Lord Blackburn gave examples, or whether he is obliged by some binding authority to arrive at a result which is inconsistent with the fundamental principle.’
And: ‘In this context the Defendants submitted that all owners of property suffered a loss of value when the market fell. They asked the hypothetical question – what would the Plaintiffs have done with their money if they had not bought the shop? If they are compensated for the fall in value of the shop, are they not being compensated for a loss which they would have suffered even if the Defendants had not been at fault, and therefore being over-compensated?’

Judges:

Donaldson LJ, Megaw LJ

Citations:

[1980] 1 WLR 433, [1980] 1 All ER 928, [1979] EWCA Civ 4

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Liesbosch Dredger (Owners of) v Owners of SS Edison, The Liesbosch HL 28-Feb-1933
The ship Edison fouled the moorings of the Liesbosch resulting in the total loss of the dredger when it sank. It had been engaged on work in the harbour under contract with the harbour board. All the owners’ liquid resources were engaged in the . .
Approved – Radford v De Froberville 2-Jan-1977
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a . .
Cited – Philips v Ward CA 1956
The Plaintiff had relied on a negligent survey to purchase a substantial Elizabethan property and land. The report did not mention that the timbers of the house were badly affected by death watch beetle and worm so that the only course left to him . .

Cited by:

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 – 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 – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Alcoa Minerals of Jamaica Inc v Herbert Broderick PC 20-Mar-2000
(Jamaica) Damage had been caused to the claimant’s property, but, because of his lack of funds, he was dependent upon the receipt of the damages to carry out the works of repair necessary. By the time the matter came to trial, inflation meant that . .
Cited – County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) CA 1987
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated.
Held: The starting . .
Cited – Joyce v Bowman Law Ltd ChD 18-Feb-2010
The claimant asserted negligence by the defendant licensed conveyancers in not warning him of the effect of an option in the contract. He had been advised that it would allow him to choose to buy additional land, but it was in fact a put option. The . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .
Lists of cited by and citing cases may be incomplete.

Damages, Negligence

Updated: 23 March 2022; Ref: scu.188649

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 loading, since there was no express stipulation to that effect.
A wrongdoer was liable for all the direct consequences of his negligent act, even though those consequences could not reasonably have been anticipated. ‘Once the act is negligent, the fact that its exact operation was not foreseen is immaterial.’

Judges:

Scrutton L.J

Citations:

[1921] 3 KB 560, [1921] All ER 40, 126 LT 154

Jurisdiction:

England and Wales

Cited by:

Mentioned – 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 . .
Overturned – 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 . .
Applied – Cowan v National Coal Board 1958
An employee of the defenders suffered an injury to his eye in the course of his employment. He became nervous and depressed and committed suicide about four months after the accident. His widow and children sought damages from the National Coal . .
Cited – Jones v Livox Quarries CA 25-Apr-1952
The plaintiff had ridden on the back of a kind of tractor in a quarry and in defiance of his employer’s instructions, risking being thrown off and injured. Another vehicle ran into the back of the first vehicle, injuring the plaintiff. He contended . .
Cited – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
Lists of cited by and citing cases may be incomplete.

Damages, Negligence

Updated: 23 March 2022; Ref: scu.188647

Robinson v Chief Constable of West Yorkshire Police: SC 8 Feb 2018

Limits to Police Exemption from Liability

The claimant, an elderly lady was bowled over and injured when police were chasing a suspect through the streets. As they arrested him they fell over on top of her. She appealed against refusal of her claim in negligence.
Held: Her appeal succeeded.
It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Since the police generally owe a duty of care not to inflict physical injury by their actions when such a duty arises under the ordinary principles of the law of negligence, unless statute or other common law principle provides otherwise, there was no requirement here to examine whether the recognition of the claimed duty would be fair, just and reasonable.
‘Properly understood, Caparo thus achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.’
and: ‘On examination . . there is nothing in the ratio of any of the authorities relied on by the respondent which is inconsistent with the police being under a liability for negligence resulting in personal injuries where such liability would arise under ordinary principles of the law of tort. That is so notwithstanding the existence of some dicta which might be read as suggesting the contrary.’
[2018] WLR(D) 83

Judges:

Lady Hale, Lord Mance, Lord Reed, Lord Hughes, Lord Hodge

Citations:

[2018] UKSC 4, [2018] 2 WLR 595, [2018] AC 736, [2018] PIQR P9, [2018] 2 All ER 1041, [2018] WLR(D) 83, UKSC 2016/0082

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video Summary, SC 12 Jul 2017 am Video, SC 2017 Jul 12 pm Video

Jurisdiction:

England and Wales

Citing:

Cited – Hill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
Appeal from – Robinson v West Yorkshire Police CA 5-Feb-2014
The claimant was a bystander, injured during an arrest on the street by officers employed by the respondent. She now appealed against rejection of her claim in negligence. Held; No duty of care was owed, and that, even if the officers had owed Mrs . .
Cited – Desmond v The Chief Constable of Nottinghamshire Police CA 12-Jan-2011
The claimant appealed from the rejection of his claim in negligence against the police. He had been arrested on suspicion of a sexual assault, but the investigating officer concluded that he was not responsible for the crime. Despite this, several . .
Cited – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
Cited – 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 . .
Cited – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .
Cited – Smith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Cited – Barrett v London Borough of Enfield HL 17-Jun-1999
The claimant had spent his childhood in foster care, and now claimed damages against a local authority for decisions made and not made during that period. The judge’s decision to strike out the claim had been upheld by the Court of Appeal.
Cited – Perrett v Collins, Underwood PFA (Ulair) Limited (T/a Popular Flying Association) CA 22-May-1998
The plaintiff was a passenger in an aircraft which crashed, and there was a preliminary issue as to the liability to him of those who certified that the aircraft was fit to fly. The propeller was mismatched to the gearbox.
Held: A certifying . .
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .
Cited – Mitchell and Another (Aps) v Glasgow City Council SCS 29-Feb-2008
(Extra Division, Inner House) The pursuers sought to hold the Council responsible in negligence after a neighbour (D) killed the husband and father. The defenders had been aware of D’s threatening and aggressive behaviour towards the deceased, . .
Cited – The Mersey Docks And Harbour Board Trustees v Gibbs And Others; The Mersey Docks And Harbour Board’ Trustees v Pierce, W Penhallow, And Others HL 30-Jun-1866
Persons who have a duty to perform, and who may be made responsible for injuries if they know of causes of mystery which in the discharge of that Duty they ought to remedy, are equally responsible if they negligence they remain ignorant of those . .
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 – Geddis v Proprietors of Bann Reservoir HL 18-Feb-1878
The owner of land injured by operations authorised by statute ‘suffers a private loss for the public benefit’, and in the absence of clear statutory authority is unable to claim: ‘It is now thoroughly well established that no action will lie for . .
Cited – East Suffolk Rivers Catchment Board v Kent HL 1941
An exceptionally high spring tide caused many breaches of the banks of the River Deben, and extensive flooding, including the respondent’s farm. By section 6 of the 1930 Act, the appellants had a statutory power to maintain the flood defences, but . .
Cited – Dorset Yacht Co Ltd v Home Office HL 6-May-1970
A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use . .
Cited – 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 – Stovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
Cited – An Informer v A Chief Constable CA 29-Feb-2012
The claimant appealed against dismissal of his claim for damages against the police. He had provided them with information, but he said that they had acted negligently and in breach of contract causing him financial loss. The officer handling his . .
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 – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Cited – Glasbrook Brothers Limited v Glamorgan County Council HL 1925
A colliery manager asked for police protection for his colliery during a strike. He wanted police officers to be billeted on the premises. The senior police officer for the area was willing to provide protection by a mobile force, but he refused to . .
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 – Blackburn v Commissioner of the Police for the Metropolis CA 1968
By common law police officers owe to the general public a duty to enforce the criminal law. However, police are servants of no one but the law itself, and a chief officer of police has a wide discretion as to the manner in which the duty is . .
Cited – Regina v Dytham CACD 1979
A constable was 30 yards away from the entrance to a club, from which he saw a man ejected. There was a fight involving cries and screams and the man was beaten and kicked to death in the gutter outside the club. The constable made no move to . .
Cited – Knightley v Johns and others CA 27-Mar-1981
There had been an accident in a tunnel, blocking it. The defendant inspector ordered a traffic constable to ride into the tunnel on his motorcycle against the flow of traffic. The constable crashed and sought damages for negligence against the . .
Cited – Rigby and another v Chief Constable of Northamptonshire 1985
The police were found liable to pay damages for negligence having fired a gas canister into the plaintiffs’ gunsmith’s hop premises in order to flush out a dangerous psychopath. There had been a real and substantial fire risk in firing the canister . .
Cited – Marshall v Osmond CA 1983
The plaintiff was passenger in a stolen car seeking to escape the police as they chased. The car was stopped, the plaintiff got out of the car, and was hit by a police car. He sought damages.
Held: His appeal against dismissal of his claim was . .
Cited – Calveley v Chief Constable of the Merseyside Police HL 1989
Police officers brought an action in negligence against a Chief Constable on the ground that disciplinary proceedings against them had been negligently conducted. They claimed that the investigating officers had negligently failed to conduct the . .
Cited – Elguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Cited – SXH v The Crown Prosecution Service (CPS) SC 11-Apr-2017
The Court was asked: ‘Does a decision by a public prosecutor to bring criminal proceedings against a person fall potentially within the scope of article 8 of the European Convention on Human Rights in circumstances where a) the prosecutor has . .
Cited – Minio-Paluello v The Commissioner of Police of The Metropolis QBD 16-Dec-2011
The Claimant sought damages for assault (or battery) and/or in negligence arising out of serious injuries which she suffered in the course of a pro-Palestinian demonstration. She was pulled up from the ground by a police officer with excessive . .
Cited – McDonnell v The Commissioner of Police for The Metropolis and Another CA 14-May-2015
The claim for damages by a suspected drug dealer for assault arising from the use of excessive force during his arrest failed only on its facts. . .
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 by:

Cited – Steel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .
Cited – Darnley v Croydon Health Services NHS Trust SC 10-Oct-2018
The claimant had been assaulted. He presented at the defendant hospital with head injuries. Despite his complaints he said he was not treated properly, being told to wait five hours at reception, and went home. Later an ambulance was delayed and he . .
Cited – Poole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Negligence, Police

Leading Case

Updated: 11 February 2022; Ref: scu.604215

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 friend, so she was unable to rely upon any contract.
Held: The English and the Scots law on the subject are identical. The pursuer was entitled to recover damages for negligence. The manufacturer intended that the contents be consumed without the opportunity first to examine them, and unless reasonable care was taken in the preparation a consumer may suffer injury. The cases of George v. Skivington and `the dicta in Heaven v. Pender ‘should be buried so securely that their perturbed spirits shall no longer vex the law.’ (Majority) The nature of an article ‘may very well call for different degrees of care’. ‘the person dealing with [an inherently dangerous article] may well contemplate persons as being within the sphere of his duty to take care who would not be sufficiently proximate with less dangerous goods; so that not only the degree of care but the range of persons to whom the duty is owed may be extended.’
Lord Atkin said: ‘. . the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’

Judges:

Atkin, Thankerton, MacMillan, Buckmaster Tomlin LL

Citations:

[1932] AC 562, [1932] SC (HL) 31, [1932] ScLT 317, [1932] All ER Rep 1, (1932) 101 LJPC 119, (1932) 147 LT 281, [1932] SLT 317, (1932) 48 TLR 494, (1932) 37 Com Cas 350, [1932] UKHL 100, [1932] Sol Jo 396, [1932] WN 139, [1932] SC 31, (1933) 4 DLR 337, 533 CA 47

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Le Lievre v Gould CA 6-Feb-1893
Mortgagees of the interest of a builder under a building agreement, advanced money to him from time to time, relying upon certificates given by a surveyor as to stages reached. The surveyor was not appointed by the mortgagees, and there was no . .
Approved – 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 . .
Dicta Considered – Heaven v Pender, Trading As West India Graving Dock Company CA 30-Jul-1883
Duty Arising to Use Ordinary Care and Skill
The plaintiff was a painter. His employer engaged to repaint a ship, and the defendant erected staging to support the work. The staging collapsed because one of the ropes was singed and weakened, injuring the plaintiff.
Held: The defendant had . .
Overruled – Mullen v Barr and Co Ld, and M’Gowan v Barr and Co Ld 1929
A mouse was found in a bottle. The buyer claimed damages for the shock: ‘In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to . .
Cited – Longmeid v Holliday 1851
A defective lamp was sold to a man whose wife was injured by its explosion. The seller of the lamp, against whom the action was brought, was not the manufacturer.
Held: No general duty of care was owed by a manufacturer of a lamp to a user.
Distinguished – 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 . .
Cited – Earl v Lubbock CA 1905
The plaintiff was injured when a wheel came off a van which he was driving for his employer, and which it was the duty of the defendant, under contract with the employer, to keep in repair. The county court judge and the Divisional Court both hold . .
Cited – Blacker v Lake and Elliot Ld HL 1912
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 . .
Cited – Blackmore v Bristol and Exeter Ry Co 1858
. .
Cited – Collis v Selden 1868
The defendant installed a chandelier in a public house. It fell and injured the plaintiff.
Held: There was nothing to say that the defendant had any knowledge that the plaintiff, as opposed to members of the public in general, would enter the . .
Cited – Bates v Batey & Ld 1913
The defendants, who manufactured ginger beer, were held not liable to a consumer (who had purchased from a retailer one of their bottles) for injury occasioned by the bottle bursting as the result of a defect of which the defendants did not know, . .
Cited – Thomas v Winchester 1852
(New York) A chemist carelessly issued poison in answer to a request for a harmless drug, and he was held responsible to a third party injured by his neglect. . .
Cited – MacPherson v Buick Motor Co 1916
(New York Court of Appeal) A manufacturer of a defective motor-car was held liable for damages at the instance of a third party. A motor-car might reasonably be regarded as a dangerous article: ‘There is no claim that the defendant know of the . .
Cited – Cunnington v Great Northern Ry Co 1883
. .
Cited – Hawkins v Smith QBD 1896
A dock labourer in the employ of the dock company was injured by a defective sack which had been hired by the consignees from the defendant, who knew the use to which it was to be put, and had been provided by the consignees for the use of the dock . .
Cited – Elliott v Hall QBD 1885
The defendants, colliery owners, consigned coal to the plaintiff’s employers, coal merchants, in a truck hired by the defendants from a wagon company. The plaintiff was injured in the course of unloading the coal by reason of the defective condition . .
Cited – Oliver v Saddler and Co HL 1929
Stevedores had been employed to unload a cargo of maize in bags. They provided the rope slings by which the cargo was raised to the ship’s deck by their own men using the ship’s tackle, and then transported to the dockside by the shore porters, of . .
Cited – Grote v Chester and Holyhead Ry CEC 1848
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 . .
Cited – Dixon v Bell 18-Jun-1816
The defendant had left a loaded gun at his lodgings and sent his servant, a mulatto girl aged about thirteen or fourteen, for the gun, asking the landlord to remove the priming and give it her. The landlord did remove the priming and gave it to the . .
Cited – Hodge and Sons v Anglo-American Oil Co 1922
The plaintiffs, London barge repairers claimed after an explosion on the Anglo-American Oil Company’s oil tank barge Warwick, when she was being repaired by the plaintiffs, to whom she had been sent for that purpose by the defendants. As a result of . .
Cited – Brass v Maitland 1856
There is an implied warranty from a consignor to the carrier as to the non-dangerous nature of what is to be carried. . .
Cited – Dominion Natural Gas Co Ltd v Collins 1909
The defendants had installed a gas apparatus to provide natural gas on the premises of a railway company. They had installed a regulator to control the pressure and their men negligently made an escape-valve discharge into the building instead of . .
Cited – Farrant v Barnes 1862
A duty of care from a consignor to a carrier’s servant that the goods to be transported can be safely carried, is owed independently of any contract. . .
Cited – Caledonian Ry Co v Mulholland or Warwick HL 1898
The appellant company were held not liable for injuries caused by a defective brake on a coal wagon conveyed by the railway company to a point in the transit where their contract ended, and where the wagons were taken over for haulage for the last . .
Cited – Cavalier v Pope HL 22-Jun-1906
The wife of the tenant of a house let unfurnished sought to recover from the landlord damages for personal injuries arising from the non-repair of the house, on the ground that the landlord had contracted with her husband to repair the house.
Cited – Emmens v Pottle CA 1885
A subordinate distributor, here a vendor of newspapers, can plead the common law defence to defamation, of innocent dissemination.
Held: The vendor was prima facie liable, and therefore had to demonstrate the defence to avoid liability. He . .
Cited – Gordon v M’Hardy 1903
The pursuer sought to recover damages from a retail grocer on account of the death of his son by ptomaine poisoning, caused by eating tinned salmon purchased from the defender. The pursuer averred that the tin, when sold, was dented, but he did not . .
Cited – Bottomley v Bannister CA 1932
The deceased man, the father of the plaintiff, had taken an unfurnished house from the defendants, who had installed a gas boiler with a special gas-burner which if properly regulated required no flue. The deceased and his wife were killed by fumes . .
Cited – White v Steadman 1913
Lush J said: ‘a person who has the means of knowledge and only does not know that the animal or chattel which he supplies is dangerous because he does not take ordinary care to avail himself of his opportunity of knowledge is in precisely the same . .
Cited – Clelland v Robb 1911
If a man has no duty or obligation of diligence, he cannot be charged with negligence. . .
Cited – Kemp and Dougall v Darngavil Coal Co 1909
A man cannot be charged with negligence if he has no obligation to exercise diligence. . .

Cited by:

Cited – Alcock and Others v Chief Constable of South Yorkshire Police CA 31-May-1991
The defendant policed a football match at which many people died. The plaintiffs, being relatives and friends of the deceased, inter alia suffered nervous shock having seen the events either from within the ground, or from outside or at home on . .
Cited – K v the Secretary of State for the Home Department CA 31-May-2002
The applicant sought damages from the defendant who had released from custody pending deportation a man convicted of violent sexual crimes and who had then raped her. She appealed against a strike out of her claim. She had been refused information . .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Dorset Yacht Co Ltd v Home Office HL 6-May-1970
A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use . .
Distinguished – Candler v Crane Christmas and Co CA 15-Dec-1950
Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
Cited – Stovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
Cited – Bellefield Computer Services Limited, Unigate Properties Limited; Unigate Dairies Limited; Unigate (Uk) Limited; Unigate Dairies (Western) Limited v E Turner and Sons Limited Admn 28-Jan-2000
The Defendant builders constructed a steel building to be used as, inter alia. a dairy. The original owners sold it to the appellants. A fire spread from the storage area to the rest of the dairy and caused much damage. The Builders, had they . .
Cited – Dutton v Bognor Regis Urban District Council CA 1972
The court considered the liability in negligence of a Council whose inspector had approved a building which later proved defective.
Held: The Council had control of the work and with such control came a responsibility to take care in . .
Applied – Tate and Lyle Industries Ltd v Greater London Council HL 24-Mar-1983
The plaintiff had constructed and used two jetties, and dredged a channel down to the Thames for their use. The Council constructed two terminals nearby, the result of which was to cause a build up of silt blocking the channel.
Held: The . .
Cited – Dennis v Charnwood Borough Council CA 1983
The respondent approved plans for a new house. The raft foundation was inadequate and serious cracks developed. The authority appealed a finding of negligence in having approved defective plans.
Held: The appeal failed. The authority had a . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – 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 . .
Applied – Burfitt v A and E Kille 1939
A shopkeeper in Minehead sold a ‘blank cartridge pistol’ to a twelve year old boy. Later, when the boy fired the pistol in the air, the plaintiff was injured by a tiny piece of copper going into his eye.
Held: The duty of care was owed not . .
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 – 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 – 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 . .
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 – Old Gate Estates Ltd v Toplis and Harding and Russell 1939
The case of Donoghue -v- Stevenson was restricted in its application to cases of negligence causing damage to life, limb or health. . .
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 – Watson v Fram Reinforced Concrete Co (Scotland) Ltd HL 1960
A workman had been injured through the breaking of a defective part in the machine with which he was working. He brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had . .
Summarised – London Graving Dock Co Ltd v Horton HL 1951
An experienced welder had for a month been carrying out work on a ship as an employee of sub-contractors engaged by ship-repairers in occupation of the ship. He was injured, without negligence on his part, owing to the inadequacy of certain staging, . .
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 – 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 – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Cited – LMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
Cited – French and others v Chief Constable of Sussex Police CA 28-Mar-2006
The claimants sought damages for psychiatric injury. They were police officers who had been subject to unsuccessful proceedings following a shooting of a member of the public by their force.
Held: The claim failed: ‘these claimants have no . .
Cited – Jain and Another v Trent Strategic Health Authority CA 22-Nov-2007
The claimant argued that the defendant owed him a duty of care as proprietor of a registered nursing home in cancelling the registration of the home under the 1984 Act. The authority appealed a finding that it owed such a duty.
Held: The . .
Cited – Leakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Explained – Bolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
Cited – Whippey v Jones CA 8-Apr-2009
The claimant was running along a river embankment. A large dog owned by the appellant, taking it for a walk, was off the leash. It ran out at the claimant who broke his ankle falling into the river. The defendant appealed against a finding that he . .
Cited – Smith v Scott ChD 1973
It is not open to the court to reshape the law relating to the rights and liabilities of landowners by applying the principle of Donoghue v Stevenson [1932] AC 562 and thus saying that a landowner owed a duty of care to his neighbour when selecting . .
Cited – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Cited – Glaister and Others v Appelby-In-Westmorland Town Council CA 9-Dec-2009
The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Cited – Taylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
Cited – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
Cited – Chaudry v Prabhakar CA 1988
The plaintiff sued a friend of hers for wrongly advising her that a car she was thinking of buying was in good condition.
Held: An agent, even a volunteer, owed a duty of care appropriate for those circumstances. The measurement was objective, . .
Cited – Regina v The Secretary of State for the Environment, ex Parte Ostler CA 16-Mar-1976
Statutory Challenge must be timely
The applicant had not taken objection to a proposed road scheme believing wrongly that it would not affect his business. Other objectors had withdrawn because of secret re-assurances given to them by the respondent.
Held: The court was asked, . .
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Cited – Howmet Ltd v Economy Devices Ltd and Others CA 31-Aug-2016
Appeal by the owners of a factory which suffered fire damage against a judgment dismissing their action. The owners claimed damages against the manufacturers of a device which, they said, should have prevented the fire from occurring. This takes us . .
Cited – Wooldridge v Sumner and Another CA 4-Jun-1962
The plaintiff photographer was injured when attending a show jumping competition at the White City Stadium. A horse caught him as it passed.
Held: The defendant’s appeal against the finding of negligence succeeded: ‘a competitor or player . .
Cited – Paul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .
Cited – Poole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Negligence, Consumer

Leading Case

Updated: 11 February 2022; Ref: scu.180110

CN and Another v Poole Borough Council: CA 21 Dec 2017

The court considered the existence of a tortious duty of care to children, on the part of a local authority, to protect them from harassment and abuse by third parties. The Council appealed against an order re-instating the claims after they had been struck out.
Held: The appeal was allowed. Two considerations in particular militated against liability. The first was the concern that ‘liability in negligence will complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making’. The second was the principle that in general there is no liability for the wrongdoing of a third party, even where that wrongdoing is foreseeable. In his view, none of the exceptions to that general principle applied, since this was not a case in which the council, performing its social services functions, brought about the risk of harm or had control over the individuals representing the risk, nor had it assumed responsibility towards the claimants. In those circumstances, there was no basis for holding the council liable for the wrongdoing of third parties.

Judges:

Davis, King DBE, Irwin LJJ

Citations:

[2017] EWCA Civ 2185, (2018) 21 CCL Rep 5, [2018] HLR 17, [2018] 2 FLR 565, [2018] 2 WLR 1693

Links:

Bailii

Statutes:

Children Act 1989 17

Jurisdiction:

England and Wales

Citing:

Appeal from – CN and Another v Poole Borough Council QBD 16-Mar-2016
Appeal against striking out of claim for damages in negligence.
Held: Allowed. The claim should proceed.
The principal issue was whether the decision of the Court of Appeal in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151; . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – JD, MAK and RK, RK and Another v East Berkshire Community Health, Dewsbury Health Care NHS Trust and Kirklees Metropolitan Council, Oldham NHS Trust and Dr Blumenthal CA 31-Jul-2003
Damages were sought by parents for psychological harm against health authorities for the wrongful diagnosis of differing forms of child abuse. They appealed dismissal of their awards on the grounds that it was not ‘fair just and reasonable’ to . .

Cited by:

Appeal from (CA) – Poole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Negligence, Children

Updated: 11 February 2022; Ref: scu.602604

Banca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others: SC 26 Jul 2018

The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued cheques. Playboy sought damages under the reference.
Held: Playboy’s appeal failed: ‘It is impossible to feel much sympathy for BNL given the circumstances in which they came to give a favourable credit reference for some one with whom they appear to have had no relevant dealings. But they had no reason to suppose that Burlington was acting for some one else, and they knew nothing of the Playboy Club. In those circumstances, it is plain that they did not voluntarily assume any responsibility to the Club. It may well be, since they knew nothing of Burlington either, that they were indifferent to whom they were dealing with. But the fact that a representor may have been equally willing to assume a duty to some one else does not mean that he can be treated as if he had done so.’

Judges:

Lady Hale, President, Lord Mance, Lord Sumption, Lord Reed, Lord Briggs

Citations:

[2018] UKSC 43, [2018] LLR 657, [2019] 2 All ER 478, [2018] 1 WLR 4041, 179 Con LR 17, [2019] 1 All ER (Comm) 693, [2018] PNLR 35, [2018] WLR(D) 530

Links:

Bailii, WLRD, Bailii Summary

Jurisdiction:

England and Wales

Citing:

Cited – Nocton v Lord Ashburton HL 19-Jun-1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .
Cited – Candler v Crane Christmas and Co CA 15-Dec-1950
Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
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 – Forsikringsaktieselskapt Vesta v Butcher HL 1988
A contract of insurance and a facultative reinsurance, under which part of the original risk was reinsured, contained warranties in identical terms.
Held: The warranty in the reinsurance policy, which was governed by English law, should be . .
Cited – Steel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .
Cited – Smith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .
Appeal from – Playboy Club London Limited and Others v Banca Nazionale Del Lavoro Spa CA 18-May-2016
The club brought an action against the bank as to a reference given on behalf of a customer. They had certified him ‘good’ for 1.6m pounds, despite his having no funds in his account. . .
At QBD – Playboy Club London Ltd and Others v Banca Nazionale Del Lavoro Spa QBD 10-Jul-2014
The claimant casino alleged negligence by the defendant bank in a reference it had given for a mutual customer, leading to substantial losses. The requests was made on behalf of the claimant by a third party acting as its undisclosed agent. The . .
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 – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
Cited – Siu Yin Kwan and Another v Eastern Insurance Co Ltd PC 16-Dec-1993
Insurers are liable to undisclosed principals on an indemnity policy, provided it was made with the range of their authority. The claim arose out of the death of two seamen on their employers’ vessel but the employers were not named in the relevant . .
Cited – Spring v Guardian Assurance Plc and Others HL 7-Jul-1994
The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. Having spoken of his behaviour towards members of the team, it went on: ‘his former superior has further stated he is a man of . .

Cited by:

See Also – Playboy Club London Ltd v Banca Nazionale Del Lavoro Spa CA 12-Sep-2018
Appeal from striking out of claim for deceit . .
See Also – Playboy Club London Ltd v Banca Nazionale Del Lavora Spa ComC 21-Feb-2019
. .
Lists of cited by and citing cases may be incomplete.

Banking, Negligence

Updated: 11 February 2022; Ref: scu.620134

Robinson v National Bank of Scotland: HL 10 Apr 1916

The pursuer claimed for false and fraudulent misrepresentation againt his bankers.
Held: A duty of care is not only owed in cases of fiduciary relationship in the narrow sense of relationships which had been recognised by the court of Chancery as being of a fiduciary character. There are other special relationships.

Judges:

Lord Haldane, Earl Loreburn

Citations:

[1916] SC (HL) 154, [1916] UKHL 4, 1916 1 SLT 336

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Explained – Nocton v Lord Ashburton HL 19-Jun-1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .
Cited – Derry v Peek HL 1-Jul-1889
The House heard an action for damages for deceit or fraudulent misrepresentation.
Held: The court set out the requirements for fraud, saying that fraud is proved when it is shown that a false representation has been made knowingly or without . .

Cited by:

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

Scotland, Negligence, Torts – Other, Banking

Updated: 11 February 2022; Ref: scu.216365

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 the suffering of psychiatric injury by the parent was a foreseeable result of making it and such injury has in fact been suffered by the parent.
Held: The appeals were dismissed. The doctors had a duty to question whether abuse had occurred, and having honestly formed a suspicion, to act in accordance with the guidance given. The complaint was in substance as to the length of time taken to clear the parent of the false accusation.
health care and childcare professionals investigating allegations of child abuse did not owe a duty of care to the parents of the children concerned.
Lord Bingham of Cornhill (dissenting) said: ‘It could not now be plausibly argued that a common law duty of care may not be owed by a publicly-employed healthcare professional to a child with whom the professional is dealing. The fundamental complaint in each case was the absolute terms of the diagnosis made and ‘a negligent failure to investigate, test, explore, check and verify.”
Lord Nicholls of Birkenhead said: ‘identifying the parameters of an expanding law of negligence is proving difficult, especially in fields involving the discharge of statutory functions by public authorities.’ and ‘Abandonment of the concept of a duty of care in English law, unless replaced by a control mechanism which recognises this limitation, is unlikely to clarify the law. That control mechanism has yet to be identified. And introducing this protracted period of uncertainty is unnecessary, because claims may now be brought directly against public authorities in respect of breaches of Convention rights.’
Lord Nicholls explained that conflict of interest was a persuasive factor here. When considering whether a child has been abused, a doctor should be able to act single-mindedly in the interests of the child and he ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse were to prove unfounded he might be exposed to claims by a distressed parent: ‘At that time [when a doctor is carrying out his investigation] the doctor does not know whether there has been abuse by the parent. But he knows that when he is considering this possibility the interests of parent and child are diametrically opposed. The interests of the child are that the doctor should report any suspicions he may have and that he should carry out further investigation in consultation with other child care professionals. The interests of the parent do not favour either of these steps. This difference of interest in the outcome is an unsatisfactory basis for imposing a duty of care on a doctor in favour of a parent.’
Orse D v East Berkshire Community Health NHS Trust

Judges:

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood

Citations:

[2005] UKHL 23, [2005] 2 AC 373, Times 22-Apr-2005, [2005] 2 WLR 993

Links:

Bailii, House of Lords

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Appeal from – JD, MAK and RK, RK and Another v East Berkshire Community Health, Dewsbury Health Care NHS Trust and Kirklees Metropolitan Council, Oldham NHS Trust and Dr Blumenthal CA 31-Jul-2003
Damages were sought by parents for psychological harm against health authorities for the wrongful diagnosis of differing forms of child abuse. They appealed dismissal of their awards on the grounds that it was not ‘fair just and reasonable’ to . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Z And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
Cited – Hill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
Cited – TP And KM v The United Kingdom ECHR 10-May-2001
The Grand Chamber found a violation of Articles 8 and 13 and awarded each applicant GBP 10,000 in respect of a separation which lasted a year. Article 8 imposes positive obligations of disclosure on a local authority involved in care proceedings: . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – DS RL v Gloucestershire County Council and London Borough of Tower Hamlets and London Borough of Havering CA 14-Mar-2000
The court considered and restated the criteria for liability set out in X (Minors). . .
Cited – Barrett v London Borough of Enfield HL 17-Jun-1999
The claimant had spent his childhood in foster care, and now claimed damages against a local authority for decisions made and not made during that period. The judge’s decision to strike out the claim had been upheld by the Court of Appeal.
Cited – 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 – A and Another v Essex County Council CA 17-Dec-2003
The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.
Held: Any such duty extended only during the period where the child was with the prospective . .
Cited – A, B v Essex County Council QBD 18-Dec-2002
The applicants sought damages after they had had placed with them for adoption a child who proved to be destructively hyperactive.
Held: The authority might be liable where they failed to disclose to adoptive parents known characteristics of a . .
Cited – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Cited – Spring v Guardian Assurance Plc and Others HL 7-Jul-1994
The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. Having spoken of his behaviour towards members of the team, it went on: ‘his former superior has further stated he is a man of . .
Cited – E and Others v The United Kingdom ECHR 26-Nov-2002
The four applicants had been abused by their stepfather, and sought investigation of the local authority for failing to protect them. They had been compensated by the Criminal Injuries Compensation Authority in part, but now sought a remedy from the . .
Cited – L (Minor), P (Father) v Reading Borough Council Chief Constable of Thames Valley Police CA 12-Mar-2001
A social worker and police officer interviewed a child and father on allegations of sexual abuse made by the mother. No criminal proceedings followed, but the father alleged that the misrepresentation of the interviews by the officer and social . .
Cited – Sutherland Shire Council v Heyman 4-Jul-1985
(High Court of Australia) The court considered a possible extension of the law of negligence.
Brennan J said: ‘the law should develop novel categories of negligence incrementally and by analogy with established categories. ‘
Dean J said: . .
Cited – CLT v Connon and Others 8-May-2000
Austlii (Supreme Court of South Australia) The father, the appellant, was accused of sexually abusing his three children. He sued for damages alleging negligence on the part of the medical practitioners who . .
Cited – B v United Kingdom ECHR 1987
A local authority considering taking action in respect of a child must consider also the views and opinions of the parents. . .
Cited – Venema v The Netherlands ECHR 17-Dec-2002
A young child aged 11 months was separated from her mother because of fears that the mother was suffering from Munchausen syndrome by proxy and would injure her. The child was returned five months later, following medical reports which found that . .
Cited – P, C And S v The United Kingdom ECHR 16-Jul-2002
The applicants challenged the way in which their newborn children had been removed by the state after birth. S had not had the opportunity of legal representation, after her lawyers had withdrawn. The removal of S’s child was challenged as . .
Cited – Re L (Care: Assessment: Fair Trial) FD 2002
The court emphasised the need, in the interests not merely of the parent but also of the child, of a transparently fair and open procedure at all stages of the care process, including the making of documents openly available to parents.
Munby . .
Cited – W v United Kingdom ECHR 1987
A local authority must, in reaching decisions on children in care, take account of the views and interests of the natural parents, which called for a degree of protection. In the context of care proceedings, public authorities may not be required to . .
Cited – Elsholz v Germany ECHR 13-Jul-2000
A violation of article 8 was found when access to his child was denied to an innocent father. . .
Cited – McMichael v United Kingdom ECHR 2-Mar-1995
In the course of care proceedings, medical and social services’ reports were disclosed to the courts, but not to the parents involved.
Held: The courts’ failure to show reports to the parents in care proceedings was a breach of the Convention. . .
Cited – Everett v Griffiths HL 1921
The plaintiff had been committed to a mental hospital. The question was whether the doctor (Anklesaria) who signed the certificate to support his committal was liable to him in negligence.
Held: The House affirmed the judgment of the Court of . .
Cited – Everett v Griffiths CA 1920
The plaintiff, who had been detained as a lunatic as the result of the decision of Griffiths, a Justice of the Peace and Chairman of the Board of Guardians in reliance on a medical certificate signed by Anklesaria, a Doctor, sued them both in . .
Cited – Kapfunde v Abbey National Plc and Dr Daniel and Another CA 25-Mar-1998
A Doctor employed by a potential employer to report on the health of applicants for employment, owed no duty of care to those applicants. . .
Cited – Smith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .
Cited – Ross v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
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 . .
Cited – Gartside v Sheffield Young and Ellis 1983
(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: ‘To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor’s professional role in the . .
Cited – Re N CA 20-May-1999
The claimant was a victim of a rape. She alleged that the police had mishandled the prosecution, resulting in the dismissal of the charges against the defendant, which in turn, she said exacerbated her own post traumatic stress disorder.
Held: . .
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 – B and others v Attorney General and others PC 16-Jul-2003
(New Zealand) Children were removed from their home. The father was interviewed for suspected child abuse, but no charges were laid. He sought damages in negligence for the way the matter had been handled. Children whose allegations against adopted . .
Cited – Sullivan v Moody 11-Oct-2001
(High Court of Australia) A medical practitioner who examines and reports on the condition of an individual may owe a duty to more than one person: ‘The duty for which the [appellant fathers] contend cannot be reconciled satisfactorily, either with . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – Attorney-General v Prince and Gardner 1998
(New Zealand Court of Appeal) Claims in negligence were made by the natural mother of a child who had been adopted, and also by the child, now an adult, complaining of the process followed in the adoption and also of failure to investigate a . .
Cited – James Mcgregor Fairlie v Perth and Kinross Healthcare NHS Trust IHCS 8-Jul-2004
A claim for damages might perhaps have been pleaded under article 8 of the European Convention, but since the pursuer’s claim was in effect for loss of reputation, the claim in negligence was bound to fail even if the judge had not held, as he did . .
Cited – Best v Samuel Fox and Co Ltd 1952
The court considered liability for injury to secondary victims. Lord Morton of Henryton: ‘it has never been the law of England that an invitor, who has negligently but unintentionally injured an invitee, is liable to compensate other persons who . .
Cited – 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 . .
Cited – Dick v Burgh of Falkirk HL 1976
Their lordships were prepared to contemplate the idea of a defender owing a common law duty of care to the victim’s relatives. . .
Cited – Robertson v Turnbull HL 1982
. .
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – North Glamorgan NHS Trust v Walters CA 6-Dec-2002
A new mother woke in hospital to see her baby (E) fitting. E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E’s . .
Cited – Tredget and Tredget v Bexley Health Authority 1994
(Central London County Court) As a result of the defendant hospital’s negligent management of Mrs Tredget’s labour, her baby was born in a severely asphyxiated state and died two days later. The actual birth of the child with its ‘chaos’ or . .
Cited – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .

Cited by:

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 – AD and OH (A Child) v Bury Metropolitan Borough Council CA 17-Jan-2006
The claimants, mother and son, sought damages from the respondent after they had commenced care proceedings resulting in the son being taken into temporary care. The authority had wrongly suspected abuse. The boy was later found to suffer brittle . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Cited – Lawrence v Pembrokeshire County Council CA 15-May-2007
The claimant complained of the negligence of the defendant council’s social worker’s in putting her four children into care. The Ombudsman had found the council guilty of maladministration and had awarded her andpound;5,000 for distress.
Held: . .
Cited – Rowley and others v Secretary of State for Department of Work and Pensions CA 19-Jun-2007
The claimants sought damages for alleged negligence of the defendant in the administration of the Child Support system.
Held: The defendant in administering the statutory system owed no direct duty of care to those affected: ‘a common law duty . .
Cited – Pierce v Doncaster Metropolitan Borough Council QBD 13-Dec-2007
The claimant sought damages, saying that the local authority had failed to protect him when he was a child against abuse by his parents.
Held: The claimant had been known to the authority since he was a young child, and they owed him a duty of . .
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 . .
Appeal from – MAK and RK v The United Kingdom ECHR 23-Mar-2010
mak_ukECHR10
When RK, a nine year old girl was taken to hospital, with bruises, the paediatrician wrongly suspecting sexual abuse, took blood samples and intimate photographs in the absence of the parents and without their consent.
Held: The doctor had . .
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .
Cited – Poole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health Professions, Negligence

Leading Case

Updated: 11 February 2022; Ref: scu.224322

AAA and Others v Unilever Plc and Another: QBD 27 Feb 2017

Claim by Kenyan nationals working for a subsidiary of the defendants in Kenya after they were injured in ethnic violence, saying that given the defendant’s knowledge they had had a duty of care for the cliamants.
Held: On an application (inter alia) to strike out the claims, the court decided that they should proceed.

Judges:

Laing DBE J

Citations:

[2017] EWHC 371 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Negligence

Updated: 03 February 2022; Ref: scu.577503

Universal Music International Holding BV v Schilling and others: ECJ 16 Jun 2016

ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 44/2001 – Special jurisdiction – Article 5(3) – Tort, delict or quasi-delict – Harmful event – Lawyer’s negligence in drafting the contract – Place where the harmful event occurred

Citations:

C-12/15, [2016] EUECJ C-12/15, ECLI:EU:C:2016:449

Links:

Bailii

Statutes:

Regulation (EC) No 44/2001 5(3)

Jurisdiction:

European

Cited by:

Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 03 February 2022; Ref: scu.565636

Brown v KMR Services Ltd; Sword-Daniels v Pitel and Others: QBD 19 Apr 1994

A Lloyds agent who was asked to find a low risk syndicate has a duty to do so.

Citations:

Independent 19-Apr-1994

Jurisdiction:

England and Wales

Cited by:

Appeal from – Brown v KMR Services Ltd CA 26-Jul-1995
Allied Maples had made a corporate takeover of assets and businesses within the Gillow group of companies, during which it was negligently advised by the defendant solicitors in relation to seeking protection against contingent liabilities of . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 01 February 2022; Ref: scu.78706

Mcgeer v Mcintosh: CA 23 Feb 2017

Judges:

reacy, Christopher Clarke, David Richards LJJ

Citations:

[2017] EWCA Civ 79

Links:

Bailii

Jurisdiction:

England and Wales

Negligence

Updated: 31 January 2022; Ref: scu.575335

Highways England Company Limited v BG Rodwell Ltd and Others: QBD 27 Jan 2017

The defendant’s lorry had crashed into a bridge causing damage. The defendants argued that others had been negligent in having redirected the defendant driver along a route with such an obstruction.

Judges:

Master Kay QC

Citations:

[2017] EWHC 118 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Negligence

Updated: 29 January 2022; Ref: scu.573856

Palmer v Nightingale (T/A Andover Pest Control): TCC 9 Nov 2016

Judges:

Coulson J

Citations:

[2016] EWHC 2800 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Negligence

Updated: 28 January 2022; Ref: scu.573409

Dean and Chapter of Rochester Cathedral v Debell: CA 9 Nov 2016

Hallett, Elias LJJ
[2016] EWCA Civ 1094
Bailii
England and Wales

Negligence, Personal Injury

Updated: 25 January 2022; Ref: scu.571222

Malik v Trump: QBD 28 Jul 2016

The claimant alleged negligence in the defendant US presidential candidate in that his election statements were said to have caused loss to the Muslim community in London. He now sought permission to serve out of the jurisdiction.

Master McLoud
[2016] EWHC 2011 (QB)
Bailii
European Convention on Human Rights 9 14
England and Wales

Human Rights, Negligence

Updated: 24 January 2022; Ref: scu.570509

RXDX v Northampton Borough Council and Another: CA 9 Jun 2016

Thw Council sought leave to appeal against a finding that lifeguards at its pool had been negligent after the claimant, a child of 6 years old and unable to swim, had suffered serious injury at their swimming pool.
Held: It was arguable that the judge had set the standard of care too high as against the council. Leave to appeal granted.

[2016] EWCA Civ 672
Bailii
England and Wales

Negligence, Personal Injury

Updated: 22 January 2022; Ref: scu.568621

H v Secretary of State for the Home Department: CA 10 Jun 1992

A failure by the prison authorities to transfer a prisoner to rule 43 confinement gave rise to no claim for damages.

Gazette 10-Jun-1992
England and Wales

Negligence

Updated: 22 January 2022; Ref: scu.81106

Tarrant v Ramage and Others: QBD 31 Jul 1997

An owner of a ship on active service in a war zone owed duty to give reasonable care and instruction to civilian staff it sent into that war zone, but were not negligent for sending them at all.

Times 31-Jul-1997, Gazette 24-Sep-1997
England and Wales

Negligence

Updated: 21 January 2022; Ref: scu.89721

Vibert v Zenith Insurance and Another: SCS 7 Jul 2016

The pursuer had suffered serious injuries in a road traffic accident. She was a passenger in a car driven by her partner, who died in the accident. It was said that they had been undertaken by another car. The insurers said that the twocars had been racing each other.

Lord Turnbull
[2016] ScotCS CSOH – 96
Bailii

Scotland, Personal Injury, Negligence

Updated: 19 January 2022; Ref: scu.567045

London Graving Dock Co Ltd v Horton: HL 1951

An experienced welder had for a month been carrying out work on a ship as an employee of sub-contractors engaged by ship-repairers in occupation of the ship. He was injured, without negligence on his part, owing to the inadequacy of certain staging, constituting an unusual danger, of which he had full knowledge and which, despite complaints, the ship-repairers had not remedied.
Held: (Majority) The welder being an invitee, his knowledge of the unusual risk exonerated the ship-repairers from liability for the damage sustained by him and that it was not essential to their defence to establish that he was volens in that he was not under any feeling of constraint in accepting the risk. Lord Porter summarised the facts in Donoghue v Stevenson, and said: ‘Your Lordships’ House held that, assuming the facts alleged to be true, the manufacturer would have escaped if it was natural to expect that the intermediate vendor would take care to see that the contents were in order. The pursuer, however, could recover from the manufacturer because such an examination was not to be expected. The law required the latter to be careful not to run the risk of injuring a person whom he contemplates or ought to contemplate as likely to be injured by his negligence, but an examination by the retail vendor, if rightly expected, could be relied upon by the manufacturer and would have been a complete answer to the claim. Still more so would knowledge by the purchaser of the true position, whether such knowledge was actual or such as the circumstances would warrant the manufacturer to assume. The defence did not have to show that the pursuer drank the contents with a full knowledge of the risk: it would have been enough if examination and consequent knowledge was to be expected. To that extent an argument based on Donoghue v Stevenson seems less forcible than the more obvious contention founded upon the relationship of invitor and invitee. Neither ground, in my opinion, supports the conclusion that the appellants were in breach of their duty of care.’

Lord Porter
[1951] AC 737
England and Wales
Citing:
Summarised – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .

Cited by:
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 – 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.

Negligence

Updated: 16 January 2022; Ref: scu.226706

Jain and Another v Trent Strategic Health Authority: QBD 4 Dec 2006

Sir Douglas Brown
[2006] EWHC 3019 (QB)
Bailii
Registered Homes Act 1974 30
England and Wales
Cited by:
Appeal from – Jain and Another v Trent Strategic Health Authority CA 22-Nov-2007
The claimant argued that the defendant owed him a duty of care as proprietor of a registered nursing home in cancelling the registration of the home under the 1984 Act. The authority appealed a finding that it owed such a duty.
Held: The . .
See Also – Trent Strategic Health Authority v Jain and Another HL 21-Jan-2009
The claimants’ nursing home business had been effectively destroyed by the actions of the Authority which had applied to revoke their licence without them being given notice and opportunity to reply. They succeeded on appeal, but the business was by . .
See Also – Jain and another v The United Kingdom ECHR 16-Sep-2009
. .
See Also – Jain and another v The United Kingdom ECHR 9-Mar-2010
The applicants ran a Registered Nursing Home. The health authority, having concerns about its elderly residents, brought an ex parte application under section 30 of the Registered Homes Act 1984 for an order cancelling the Certificate of . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Negligence, Torts – Other

Updated: 12 January 2022; Ref: scu.347109

Burgess and Another v Lejonvarn: TCC 15 Jan 2016

Nissen QC DHCJ
[2016] EWHC 40 (TCC)
Bailii

Negligence

Updated: 09 January 2022; Ref: scu.559250

Dunnage v Randall and Another: CA 2 Jul 2015

The claimant appealed against rejection of his claim for personal injuries. The deceased whilst suffering mental illness poured petrol on himself and ignited it. The claimant was injured seeking to prevent this. The events occurred in the deceased’s home and he had insurance. The claimant appealed against athe deciion which had found that the deceased’s duty of care was negatived by his mental condition.
Held: If the person had a legal duty of care to a claimant, that duty need not be negatived by his mental condition. The standard required was that of a reasonable person, not that of a treasonable person with that mental condition. The legal analysis of responsibility does not rest of a false distinction between physical and mental conditions.

Arden, Rafferty, Vos LJJ
[2015] EWCA Civ 673, [2015] WLR(D) 287, [2016] PIQR P1, [2016] MHLR 117, [2016] 2 WLR 839, [2016] QB 639
Bailii, WLRD
England and Wales

Personal Injury, Negligence

Updated: 01 January 2022; Ref: scu.549750

Leonard v Loch Lomond and Trossachs National Park Authority: SCS 3 Jun 2015

Lord Eassie
[2015] ScotCS CSIH – 44
Bailii
Scotland

Personal Injury, Negligence

Updated: 30 December 2021; Ref: scu.547656

Victorian Railway Commissioners v Coultas: PC 21 Jan 1888

(Victoria) The appellant’s gatekeeper had negligently invited the plaintiffs to cross a railway line as a train approached. There was no collision, but the plaintiff sought damages for physical and mental injuries from shock.
Held: The defendant’s appeal on liability succeeded. It was difficult, if not impossible, to recover damages for ‘illness which was the effect of shock caused by fright’. Such injury was regarded as being too remote a head of damages in an action for negligence. There would be evidential difficulty in deciding upon the causes of psychiatric symptoms. Mere sudden terror unaccompanied by actual physical injury could not in such circumstances be considered a consequence which in the ordinary course would flow from the negligence of the gate keeper.
‘Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances, their Lordships think, be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper. If it were held that they can, it appears to their Lordships that it would be extending the liability for negligence much beyond what that liability has hitherto been held to be.’

Fitzgeral, Hobnouse LL, Sir Barnes Peacock, Sir Richard Couch
(1888) 13 App Cas 222, [1888] UKPC 3, (1888) LR 13 App Cas 222
Bailii
Australia
Cited by:
Distinguished – Wilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .
Not Followed – Dulieu v White and Sons KBD 1901
A pregnant barmaid suffered nervous shock causing her to give premature birth as a result of the tortfeasor’s horse van bursting into her bar at the Bonner Arms in Bethnal Green from the roadway. The defendant pleaded that the damages claimed were . .
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Cited – OPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .

Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 30 December 2021; Ref: scu.186859

Sebry v Companies House and Another: QBD 26 Jan 2015

The claimant sought damages in negligence and breach of statutory duty, saying that a failure by the defendants to maintain the correctness of its registers led to losses causing the insolvency of his company. The defendant had filed a note of a winding up order against the wrong (but similarly named) company.
Held: ‘the Registrar owes a duty of care when entering a winding up order on the Register to take reasonable care to ensure that the Order is not registered against the wrong company. That duty is owed to any Company which is not in liquidation but which is wrongly recorded on the Register as having been wound up by order of the court. The duty extends to taking reasonable care to enter the Order on the record of the Company named in the Order, and not any other company. It does not extend to checking information supplied by third parties. It extends only to entering that information accurately on the Register.’

Edis J
[2015] EWHC 115 (QB), [2016] 1 WLR 2499, [2015] 4 All ER 681, [2015] BCC 236, [2015] 1 BCLC 670
Bailii
Companies Act 2006 108
England and Wales

Administrative, Negligence

Updated: 27 December 2021; Ref: scu.541767

Howmet Ltd v Economy Devices Ltd and Others: TCC 28 Nov 2014

Edwards-Stuart J
[2014] EWHC 3933 (TCC)
Bailii

Negligence

Updated: 24 December 2021; Ref: scu.539380

Renewable Power and Light Ltd v McCarthy Tetrault and Others: ChD 18 Nov 2014

Mr Justice Morgan
[2014] EWHC 3848 (Ch)
Bailii
England and Wales

Negligence

Updated: 23 December 2021; Ref: scu.538904

Smoldon v Whitworth and Another: QBD 23 Apr 1996

A claim was brought against a player and a referee in a rugby match when a scrum collapsed. A rugby referee at a colts game has a duty of care to players as regards scrimmaging.

Times 23-Apr-1996, (1997) ELR 249
England and Wales
Cited by:
Appeal from – Smoldon v Whitworth and Nolan CA 17-Dec-1996
The claimant sued another player and the referee at a colts rugby match in which he was badly injured when the scrum collapsed. The claim against the player was dismissed, but the referee was found liable and he now appealed.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Negligence, Personal Injury

Updated: 23 December 2021; Ref: scu.89352

Best v Samuel Fox and Co Ltd: 1952

The court considered liability for injury to secondary victims. Lord Morton of Henryton: ‘it has never been the law of England that an invitor, who has negligently but unintentionally injured an invitee, is liable to compensate other persons who have suffered, in one way or another, as a result of the injury to the invitee. If the injured man was engaged in a business, and the injury is a serious one, the business may have to close down and the employees be dismissed; a daughter of the injured man may have to give up work which she enjoys and stay at home to nurse a father who has been transformed into an irritable invalid as a result of the injury. Such examples could easily be multiplied. Yet the invitor is under no liability to compensate such persons, for he owes them no duty and may not even know of their existence.’

Lord Morton of Henryton
[1952] AC 716, (1951) 2 KB 639, [1952] 2 All ER 394
England and Wales
Cited by:
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 – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Negligence

Updated: 21 December 2021; Ref: scu.184754

Winstanley v Sleeman and Another: QBD 13 Dec 2013

The claimant’s PhD thesis had initially failed, but on an internal appeal that decision was reversed, the appellate body accepting the contention that the supervision or other arrangements during his period of study had been unsatisfactory. The defendants no wapplied to strike out a clai for negligence.
Held: The application failed: ‘If a university fails to take proper care of a student’s career by falling short in the delivery of the processes involved in obtaining the qualification for which the student is studying, why is it not arguable that it is foreseeable that the claimant will suffer some loss or injury as a result? The nature of the injury need not, as a matter of law be foreseeable but the possibility of injury of some description is surely foreseeable, or at least arguably so.’

Saffman HHJ
[2013] EWHC B43 (QB), [2013] EWHC 4792 (QB)
Bailii
Senior Courts Act 1981 9
England and Wales
Cited by:
Cited – Siddiqui v University of Oxford QBD 5-Dec-2016
The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was . .

Lists of cited by and citing cases may be incomplete.

Education, Negligence

Updated: 20 December 2021; Ref: scu.535721

Northumbrian Water Ltd v Mcalpine Ltd: CA 20 May 2014

Appeal against an order dismissing the appellant’s claim against the respondent for loss and damage caused by an escape of concrete from a building site into one of its public sewers.

Moore-Bick, McFarlane, Christopher Clarke LJJ
[2014] EWCA Civ 685
Bailii
England and Wales

Negligence, Nuisance

Updated: 03 December 2021; Ref: scu.525638

Rainford v Lawrenson: QBD 15 Apr 2014

Patterson J
[2014] EWHC 1188 (QB)
Bailii
England and Wales

Negligence, Personal Injury

Updated: 03 December 2021; Ref: scu.525165

199 Knightsbridge Development Ltd v WSP UK Ltd: TCC 28 Feb 2014

Edwards-Stuart J
[2014] EWHC 43 (TCC)
Bailii

Negligence

Updated: 02 December 2021; Ref: scu.523310

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, that the possibility of injury to children playing on such an object was foreseeable. The judge had also found a particular danger of an older boy seeking to prop it up and repair it. The council had argued that this latter event was unforseeable.
Held: The Court of Appeal had not been justified in disturbing the Judge’s finding of fact. Given the ingenuity of children for mischief, mischief which went beyond that foreseen, but which was of the same type, was capable of leaving the authority liable under the Act.
There was no social value or cost saving to the Council in creating a risk by leaving a derelict boat lying about. It was something which they ought to have removed whether it created a risk of injury or not. They were liable for an injury which, though foreseeable, was not particularly likely. Foreseeability does not denote a fixed point on the scale of probability.

Lord Browne-Wilkinson Lord Mackay of Clashfern Lord Steyn Lord Hoffmann Lord Hobhouse of Woodborough
Times 24-May-2000, Gazette 08-Jun-2000, [2000] 1 WLR 1082, [2000] UKHL 31, [2000] 3 All ER 409
House of Lords, Bailii
Occupiers’ Liability Act 1957 2(2)
England and Wales
Citing:
Appeal from – Regina v London Borough of Sutton, ex parte Jolley CA 19-Jun-1998
The plaintiff, a boy, was injured when playing on a derelict boat left on council land. The council appealed an award of damages against it.
Held: A local authority may be liable for injury caused by a derelict boat not removed from their land . .
First instance – Jolley v Sutton London Borough Council 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 – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – Bolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
Cited – 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 – 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 – 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 by:
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 – 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 . .
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 – Gabriel v Kirklees Metropolitan Council CA 24-Mar-2004
The claimant (aged 6) sought damages after being hurt when other children playing on a building site threw stones from the site, hitting him as he passed by.
Held: The case raised questions of law and it was incumbent on the judge to provide . .
Cited – Islington London Borough Council v University College London Hospital NHS Trust CA 16-Jun-2005
The local authority sought repayment from a negligent hospital of the cost of services it had had to provide to an injured patient. They said that the hospital had failed to advise the patient to resume taking warfarin when her operation was . .
Cited – London General Holdings Ltd and others v USP Plc and Another CA 22-Jul-2005
Copyright was claimed in a draft legal agreement. Infringement was established, but the court was asked to look at the assessment of damages.
Held: ‘what is the basis upon which damages for breach of copyright are awarded? The question cannot . .
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 – Hone v Six Continents Retail Ltd CA 29-Jun-2005
The employer appealed a finding that it was liable in damages for negligence to the claimant, and employee who suffered psychiatric injury cause by stress at work. He said he had been left to work very excessive hours, between 89 and 92 hours a . .
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 – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Negligence, Torts – Other

Leading Case

Updated: 27 November 2021; Ref: scu.82576

Verderame v Commercial Union Assurance Co Plc: CA 2 Apr 1992

The insurance brokers, acting to arrange insurance for a small private limited company did not owe a duty in tort to the directors of that company personally. Where an action was brought in a tort and in breach of contract, damages could not be awarded on the tort where they were not available in contract.

Balcombe LJ
[1992] BCLC 793, Times 02-Apr-1992
England and Wales
Citing:
Followed – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .

Cited by:
Cited – Johnson v Gore Wood and Co (a Firm) CA 12-Nov-1998
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
Cited – Hamilton Jones v David and Snape (a Firm) ChD 19-Dec-2003
The claimant was represented by the respondent firm of solicitors in an action for custody of her children. Through their negligence the children had been removed from the country. She sought damages for the distress of losing her children.
Agency, Insurance, Company, Contract, Negligence, Damages

Updated: 16 November 2021; Ref: scu.181818

Swinney and Another v Chief Constable of Northumbria: CA 22 Mar 1996

The plaintiff, a woman and her husband, had passed on information in confidence to the police about the identity of a person implicated in the killing of a police officer, expressing her concern that she did not want the source of the information to be traced back to her. The information was recorded, naming the plaintiff, in a document which was left in an unattended police vehicle, which was broken into and the document was stolen, came into the possession of the person implicated. The plaintiff was threatened with violence and arson and suffered psychiatric damage. The plaintiff’s claim in negligence against the police was struck out, but re-instated.
Held: Police may exceptionally be liable in negligence in criminal investigations. There is a special relationship between the plaintiffs and the defendant, which is sufficiently proximate. Proximity is shown by the police assuming responsibility, and the plaintiffs relying upon that assumption of responsibility, for preserving the confidentiality of the information which, if it fell into the wrong hands, was likely to expose the first plaintiff and members of her family to a special risk of damage from the criminal acts of others, greater than the general risk which ordinary members of the public must endure with phlegmatic fortitude.
Peter Gibson LJ said: ‘the Court must evaluate all the public policy considerations that may apply.’ and the position of a police informer required special consideration from the viewpoint of public policy.
Hirst LJ said:’As Laws J. pointed out in his judgment, there are here other considerations of public policy which also have weight, namely, the need to preserve the springs of information, to protect informers, and to encourage them to come forward without an undue fear of the risk that their identity will subsequently become known to the suspect or to his associates. In my judgment, public policy in this field must be assessed in the round, which in this case means assessing the applicable considerations advanced in the Hill case [1989] A.C 53, which are, of course, of great importance, together with the considerations just mentioned in relation to informers, in order to reach a fair and just decision on public policy.’
Ward LJ said: ‘it is incontrovertible that the fight against crime is daily dependent upon information fed to the police by members of the public, often at real risk of villainous retribution from the criminals and their associates. The public interest will not accept that good citizens should be expected to entrust information to the police, without also expecting that they are entrusting their safety to the police. The public interest would be affronted were it to be the law that members of the public should be expected, in the execution of public service, to undertake the risk of harm to themselves without the police, in return, being expected to take no more than reasonable care to ensure that the confidential information imparted to them is protected. The welfare of the community at large demands the encouragement of the free flow of information without inhibition. Accordingly, it is arguable that there is a duty of care, and that no consideration of public policy precludes the prosecution of the plaintiffs’ claim, which will be judged on its merits later.’

Lord Justice Hirst, Lord Justice Ward
Times 28-Mar-1996, [1997] QBD 464, [1996] EWCA Civ 1322, [1996] 3 WLR 968, [1996] 3 All ER 449, [1996] PNLR 473
Bailii
England and Wales
Citing:
Cited – Hill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .

Cited by:
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – 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 . .
See Also – Swinney and another v Chief Constable of Northumbria Police (No 2) QBD 25-May-1999
A police informant was owed a duty of confidentiality by the police. His information brought him into a special relationship with the police, and they could be liable in damages for failing to take reasonable steps to protect that confidence. . .
Cited – Van Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
Cited – B and B v A County Council CA 21-Nov-2006
The claimants sought damages from the defendant local authority after their identities had been wrongfully revealed to the natural parents of the adoptees leading to a claimed campaign of harassment. The adopters has specifically requested that . .
Cited – Welton, Welton v North Cornwall District Council CA 17-Jul-1996
The defendant authority appealed a finding that it was liable in negligence from the conduct of one of its environmental health officers. The plaintiff had set out to refurbish and open a restaurant. He said the officer gave him a list of things he . .
Cited – An Informer v A Chief Constable CA 29-Feb-2012
The claimant appealed against dismissal of his claim for damages against the police. He had provided them with information, but he said that they had acted negligently and in breach of contract causing him financial loss. The officer handling his . .
Cited – AXN v The Queen CACD 27-May-2016
The defendant argued that greater note should have been taken on his sentencing to allow for the assistance he had given to the police after his arrest.
Held: The current accepted practice is that the text of the letter from the police to the . .

Lists of cited by and citing cases may be incomplete.

Police, Negligence, Litigation Practice

Leading Case

Updated: 14 November 2021; Ref: scu.89660

Ashton v Turner: QBD 1981

The plaintiff sought damages after being injured as a passenger in a car. He and the driver had both just been involved in a burglary, and the driver, who had taken alcohol was attempting to escape. The driver was driving very dangerously in order to avoid their arrest after two taxi drivers had tried to block the car.
Held: The claim failed. As a matter of public policy the law would not recognise a duty of care owed by one participant in a crime to another: ‘a duty of care did not exist between the first defendant and the plaintiff during the course of the burglary and during the course of the subsequent flight in the get-away car.’
He held in the alternative that, even if a duty of care was owed, the Claimant had willingly accepted as his the risk of negligence and injury resulting from it.

Ewbank J
[1981] QB 137, [1980] 3 All ER 870
Road Traffic Act 1972 148(3)
England and Wales
Cited by:
Cited – Marshall v Osmond CA 1983
The plaintiff was passenger in a stolen car seeking to escape the police as they chased. The car was stopped, the plaintiff got out of the car, and was hit by a police car. He sought damages.
Held: His appeal against dismissal of his claim was . .
Distinguished – Kirkham v Anderton, The Chief Constable of the Greater Manchester police CA 20-Dec-1989
The claimant’s husband hanged himself in Risley Remand Centre after the police had failed to warn the prison authorities that he was (as the police knew) a suicide risk. He was suffering from clinical depression and had previously attempted suicide . .
Dictum Disapproved – Pitts v The Personal Representatives of Mark James Hunt (Deceased) and Another CA 1990
The plaintiff and a friend had spent the evening drinking at a disco before setting off on the friend’s motorcycle. The plaintiff was aware that the motorcyclist was neither licensed to ride a motorcycle nor insured. During the journey, the . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Negligence

Updated: 12 November 2021; Ref: scu.188781

Haydon v Kent County Council: CA 1978

Impacted snow and ice had built up on a steep, narrow, made-up footpath from Monday to Thursday during a short wintry spell. The plaintiff slipped and broke her ankle. The highway authority operated a system of priorities. Their resources were fully taken up with sanding and gritting roads, but on the Wednesday evening one of their workmen reported the dangerous state of the particular path to them, and they took prompt action next morning, but not in time to prevent the plaintiff’s accident.
Held: The authority was liable. The duty to maintain the highway in section 44(1) included removing snow and ice and taking such protective measures as would render highways and paths safe for vehicles and pedestrians in bad weather conditions.
Lord Denning (dissenting): ”Repair’ means making good defects in the surface of the highway itself so as to make it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition. That is the combined effect of the statements of Blackburn J. in Reg. v. Inhabitants of High Halden (1859) 1 F. and F. 678; of Diplock L.J. in Burnside v. Emerson [1968] 1 W.L.R. 1490, 1497 and Cairns L.J. in Worcestershire County Council v. Newman [1975] 1 W.L.R. 901, 911. Thus deep ruts in cart roads, potholes in carriage roads, broken bridges on footpaths or bushes rooted in the surface make all the highways ‘out of repair’.’ The statutory definition does not imply that ‘maintain’ has a wider meaning than ‘repair’, and that given the legislation history the cause of action which an injured person has under the 1961 Act was limited to ‘non-repair’ of a highway, and did not include other cases. On the extent of that duty: ‘In my opinion, therefore, the duty in section 44 of the Act of 1959 ‘to maintain the highway’ is the equivalent of the duty at common law and in the Act of 1835 ‘to repair and keep in repair.’ It means that whenever there is a defect in the surface of the highway, the highway authority is under a duty to repair it. But it does not mean that the highway authority is under a duty to remove snow or ice whenever it makes the highway slippery or dangerous. I adhere, therefore, to the view I expressed in Burnside v. Emerson [1968] 1 W.L.R. 1490, 1494: ‘. . . an icy patch in winter or an occasional flooding at any time is not in itself evidence of a failure to maintain’.
Goff L.J said that the highway authority would be in breach of duty only if: ‘having regard to the nature and importance of the way, sufficient time [has] elapsed to make it prima facie unreasonable for the authority to have failed to take remedial measures. Then the authority is liable unless it is able to make out the statutory defence.’

Lord Denning MR, Goff and Shaw LJJ
[1978] QB 343, [1978] 2 All ER 97
Highways Act 1959 44(1), Highways Act 1961
England and Wales
Citing:
Cited – Regina v Inhabitants of High Halden 1859
highhalden1859
The court considered the liability of the parish for injury arising from a failure to repair the road. The road was ‘an old soft road formed of Weald of Kent clay, and had never been repaired with hard substances’. The evidence was that in wet . .
Cited – Burnside and Another v Emerson and Others CA 1968
The plaintiffs were injured in a road accident caused by flooding. They sued the executors of the deceased driver whose car spun out of control into the path of their own car, and also the highway authority, who had installed a proper system of . .
Cited – Hereford and Worcester County Council v Newman CA 1975
The council had been found responsible by the magistrates for allowing footpaths to be ‘out of repair’. The paths were unusable for various reasons including having a hawthorn hedge growing down the middle, and having barbed wire fencing strung . .

Cited by:
Considered – Stovin v Wise (Norfolk City Council, 3rd party) CA 16-Feb-1994
A road user was injured on a corner which was known to the highway authority to be dangerous. The authority had sought to make arrangements with the owner of land adjoining the highway to remove a bank which obstructed the view.
Held: The . .
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 – Jane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
Cited – Thoburn v Northumberland County Council CA 19-Jan-1999
The claimant alleged that the defendant by allowing a flood across a road not to be cleared was in breach of their statutory duty under the 1980 Act.
Held: Though the blockage was not entirely on the Highway, the nature and extent of it was . .
Cited – Department for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .
Cited – Goodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .
Cited – Ali v The City of Bradford Metropolitan District Council CA 17-Nov-2010
The claimant appealed against rejection of her claim for damages after slipping on a footpath maintainable by the defendant after an accumulation of mud and debris. The claim appeared to be the first under section 130, and the highway authority . .
Cited – Pritchard v Clwyd County Council CA 16-Jun-1992
The plaintiff was injured wading through a flooded street. She claimed damages alleging a failure to maintain the storm water sewers. The defendants appealed a finding that they were responsible, and she appealed a contributory negligence . .

Lists of cited by and citing cases may be incomplete.

Transport, Personal Injury, Negligence

Leading Case

Updated: 11 November 2021; Ref: scu.180995

McGhee v National Coal Board: HL 1973

The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his work, and he cycled home caked with sweat and dust. He suffered extensive irritation of the skin three days later, and he was diagnosed to be suffering from dermatitis. He said the failure of his employers to provide washing facilities caused his dermatitis. His own expert could not say that it had caused the disease, only that it had increased the risk. Even so, immediate washing, it was accepted, would have reduced the risk.
Held: It was unrealistic and contrary to ordinary common sense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing it. This was a question of law not just of fact. The question of law was whether, on the facts of the case as found, a pursuer who could not show that the defender’s breach had probably caused the damage of which he complained could nonetheless succeed.
Lord Simon of Glaisdale stated his view: ‘a failure to take steps which would bring about a material reduction of the risk involves, in this type of case, a substantial contribution to the injury.’
Lord Salmon said that ‘In the circumstances of the present case it seems to me unrealistic and contrary to ordinary common sense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing the injury.’ and ‘In the circumstances of the present case, the possibility of a distinction existing between (a) having materially increased the risk of contracting the disease, and (b) having materially contributed to causing the disease may no doubt be a fruitful source of interesting academic discussions between students of philosophy. Such a distinction is, however, far too unreal to be recognised by the common law.’
Lord Wilberforce: ‘But I find in the cases quoted an analogy which suggests the conclusion that, in the absence of proof that the culpable addition had, in the result, no effect, the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.’
Lord Reid: ‘From a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury.’ and ‘The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk that this disease might develop. It does not and could not explain just why that is so. But experience shows that it is so.’

Lord Reid, Lord Simon of Glaisdale, Lord Salmon, Lord Wilberforce
[1973] 1 WLR 1, [1973] SC (HL) 37, [1972] 3 All ER 1008, [1972] UKHL 7, [1972] UKHL 11
Bailii, Bailii
England and Wales
Citing:
Explained – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
Cited – Nicholson v Atlas Steel Foundry and Engineering Co Ltd HL 1957
The deceased had worked in the defender’s steel foundry, inhaling there siliceous dust particles. He contracted pneumoconiosis and died. The complaints related to the defender’s failure to provide adequate ventilation to extract the dust. The . .
Cited – Gardiner v Motherwell Machinery and Scrap Co Ltd HL 1961
The pursuer had worked for the defenders for three months, demolishing buildings, and had contracted dermatitis. He claimed that they had not provided him with adequate washing facilities and that failure caused the dermatitis. On appeal the . .

Cited by:
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Reviewed – Wilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
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 – Donachie v The Chief Constable of the Greater Manchester Police CA 7-Apr-2004
The claimant had been asked to work under cover. The surveillance equipment he was asked to use was faulty, requiring him to put himself at risk repeatedly to maintain it resulting in a stress disorder and a stroke.
Held: There was a direct . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Cited – 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 – Wilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
Cited – Environment Agency v Ellis CA 17-Oct-2008
The claimant was injured working for the appellants. The appellants now appealed the finding that they were responsible saying that other factors contributed to the injury, and in particular that he had fallen at home. The claimant said that that . .
Cited – Sanderson v Hull CA 5-Nov-2008
Insufficient proof of cause of infection
The claimant worked as a turkey plucker. She caught an infection (campylobacter enteritis) at work, and the employer now appealed against a finding of liability. The employer said that the only necessary protection was regular washing of hands. The . .
Cited – Hotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
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 – 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.

Scotland, Negligence, Damages

Leading Case

Updated: 11 November 2021; Ref: scu.180929

Haley v London Electricity Board: HL 28 Jul 1964

Electricity undertakers owed a duty of care to blind persons as a class when they excavated a trench along a pavement in a London suburb because blind people foreseeably walk along pavements.

Reid, Morton of Henryton, Evershed, Hodson, Guest LL
[1964] 3 All ER 185, [1964] 3 WLR 479, [1965] AC 778, [1964] UKHL 3
Bailii
England and Wales
Cited by:
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.

Utilities, Negligence, Personal Injury

Leading Case

Updated: 10 November 2021; Ref: scu.181272

Williams and Another v Natural Life Health Foods Ltd and Another: HL 30 Apr 1998

A company director was not personally reliable in negligence for bad advice given by him as director unless it could clearly be shown that he had willingly accepted such personal responsibility. A special relationship involving an assumption of personal liability must be established before a company director can become liable for negligent misstatement under the Hedley Byrne principles.
Lord Steyn said: ‘The touchstone of liability is not the state of mind of the defendant. An objective test means that the primary focus must be on things said and done by the defendant or on his behalf. Obviously the impact of what a defendant says or does must be judged in the light of the relevant contextual scene. Subject to this qualification the primary focus must be on exchanges (in which term I include statements and conduct) which cross the line between the defendant and the plaintiff.’ As to whether he was liable as a joint tortfeasor: ‘In any event, the argument is unsustainable. A moment’s reflection will show that, if the argument were to be accepted in the present case, it would expose directors, officers and employees of companies carrying on business as providers of services to a plethora of new tort claims. The fallacy in the argument is clear. In the present case liability of the company is dependent on a special relationship with the plaintiffs giving rise to an assumption of responsibility. M was a stranger to that particular relationship. He cannot therefore be liable as a joint tortfeasor with the company. If he is to be held liable to the plaintiffs, it could only be on the basis of a special relationship between himself and the plaintiffs. There was none. I would therefore reject this alternative argument.’

Lord Goff of Chieveley, Lord Steyn, Lord Hoffmann, Lord Clyde, Lord Hutton
Times 01-May-1998, Gazette 28-May-1998, [1998] UKHL 17, [1998] 1 WLR 830, [1998] BCC 428, (1998) 17 Tr LR 152, [1998] 1 BCLC 689, [1998] 2 All ER 577
House of Lords, Bailii
England and Wales
Citing:
Appeal from – Williams; Reid v Natural Life Health Foods Limited and Mistlin CA 5-Dec-1996
(Majority) A director of a one man company himself could himself be liable for negligent advice outside his duties as a director where his personal character known to be relied upon. In order to fix a director with personal liability, it must be . .
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 . .
At first instance – Williams and Another v Natural Life Health Foods Ltd and Another QBD 18-Jan-1996
A company director can be liable for the negligent mis-statement of the company if he warrants his own personal skill. . .
Cited – Salomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .

Cited by:
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 – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Cited – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
Cited – Customs and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
Cited – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
Cited – MCA Records Inc and Another v Charly Records Ltd and others (No 5) CA 5-Oct-2001
The court discussed the personal liability of a director for torts committed by his company: ‘i) a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Patchett and Another v Swimming Pool and Allied Trades Association Ltd CA 15-Jul-2009
The claimant suffered damages when the contractor he engaged to construct his swimming pool went into liquidation. Before employing him, he had consulted the defendant’s web-site which suggested that its members were checked for solvency on becoming . .
Cited – Jeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another ChD 11-Feb-2013
The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .

Lists of cited by and citing cases may be incomplete.

Company, Negligence

Leading Case

Updated: 10 November 2021; Ref: scu.158948

O’Connell v Jackson: CA 7 Jul 1971

Motorcyclist negligent without helmet

The plaintiff sought damages after an accident. The defendant car driver had negligently moved forward into the path of the plaintiff motor cyclist who was injured. The defendant argued that the plaintiff, a motorcyclist, was contributorily negligent in not wearing a crash helmet.
Held: Once the court had established that the plaintiff was contibutorily negligent, it then had to allow both for the extent of his responsibility for the injury and the blameworthiness of his conduct in comparison to that of the defendant in order to assess the proper reduction in damages. The Highway Code was to be relied upon, and that said that a helmet should be worn.

Russell, Edmund Davies, Cairns LJJ
[1972] 1 QB 270, [1971] CLY 3115, [1971] EWCA Civ 5, [1971] 3 All ER 129, [1971] 2 Lloyd’s Rep 354, [1971] 3 WLR 463, [1972] RTR 51, [1971] 2 LLR 354
Bailii
Law Reform (Contributory Negligence) Act 1947 81, Road Traffic Act I960 74
England and Wales
Citing:
Approved – Jones v Livox Quarries CA 25-Apr-1952
The plaintiff had ridden on the back of a kind of tractor in a quarry and in defiance of his employer’s instructions, risking being thrown off and injured. Another vehicle ran into the back of the first vehicle, injuring the plaintiff. He contended . .
Adopted – Jones v Livox Quarries CA 25-Apr-1952
The plaintiff had ridden on the back of a kind of tractor in a quarry and in defiance of his employer’s instructions, risking being thrown off and injured. Another vehicle ran into the back of the first vehicle, injuring the plaintiff. He contended . .
Cited – Davies v Swan Motor Co (Swansea) Ltd CA 1949
A plaintiff brought an action for damages for personal injury against the drivers of two cars.
Held: There are two aspects to apportioning responsibility between a plaintiff and defendant in an action for negligence, the respective causative . .
Cited – Hilder v Associated Portland Cement Co 1961
A motor cyclist was killed after being hit by a ball kicked by a boy playing in a field adjoining the highway.
Held: The failure of the motor cyclist to wear a crash helmet was not contributory negligence on his part, because (a) no advice on . .

Cited by:
Distinguished – Capps v Miller CA 30-Nov-1988
The plaintiff was injured riding with the defendant on a motor-cycle. The defendant drove negligently, and crashed. The plaintiff’s crash hemet came off and he sustained severe head injuries. He had not fastened it. The defendant appealed an . .
Cited – Badger v The Ministry of Defence QBD 16-Dec-2005
The widow of the deceased sought damages after his exposure to asbestos whilst working for the defendant. He had contracted lung cancer. The defendant argued that the deceased had continued to smoke knowing of the risks, and that he had made a . .

Lists of cited by and citing cases may be incomplete.

Negligence, Personal Injury, Damages, Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.216372

Czarnikow (C ) Ltd v Koufos; The Heron II: HL 17 Oct 1967

The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the market price of the sugar during the period of delay. The owners did not know what the charterers intended to do with the sugar. But they did know that there was a market in sugar at Basrah and, if they had thought about it, must have realised that, at the least, it was ‘not unlikely’ that the sugar would be sold in the market at its market price on arrival.
Held: The House explained the rule in Hadley v Baxendale: ‘I do not think that it was intended that there were to be two rules or that two different standards or tests were to be applied.’ and ‘The crucial question is whether, on the information available to the defendant when the contract was made, he should, or the reasonable man in his position would, have realised that such loss was sufficiently likely to result from the breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation.’
Lord Upjohn: ‘If parties enter into the contract with knowledge of some special circumstances, and it is reasonable to infer a particular loss as a result of those circumstances that is something which both must contemplate as a result of a breach. It is quite unnecessary that it should be a term of the contract’.

Lord Reid, Lord Upjohn, Lord Morris of Both-y-Gest, Lord Hodson, Lord Pearce
[1967] 3 All ER 686, [1969] 1 AC 350, [1967] 3 WLR 1491, [1967] UKHL 4
Bailii
England and Wales
Citing:
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .

Cited by:
Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
Cited – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Cited – Hone v Six Continents Retail Ltd CA 29-Jun-2005
The employer appealed a finding that it was liable in damages for negligence to the claimant, and employee who suffered psychiatric injury cause by stress at work. He said he had been left to work very excessive hours, between 89 and 92 hours a . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Cited – The ‘Pegase’ 1981
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single . .
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Cited – Borealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Contract, Damages, Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.180940

Caminer v Northern and London Investment Trust Ltd: HL 1951

An elm tree, standing on land adjoining a busy London highway, fell, injuring the plaintiffs, who were using the thoroughfare. The House considered the duty of a land owner to inspect trees on his land adjoining the highway.
Held: Lord Normand observed that although the defendants had not complied with their duty, ‘it is no less plain that, if they had, it would have made no difference. The tree was just such a tree as [the expert witness] says the owner might consider safe.’
Where a person takes it upon himself to perform a task in circumstances where a reasonable man would think it necessary to call in an expert the standard of care and degree of foreseeability the law will require of him may well be that of an expert.
Lord Reid outlined the extent of the duty: ‘So in my judgment the appellants can only succeed in this appeal if they can show that there was something about this particular tree which should have suggested that lopping or other action was necessary. What inspection will suggest will depend on the knowledge and experience of the inspector, and there has been some controversy about the degree of knowledge and experience necessary for adequate inspection. Plainly it would be no use to send a person who knew nothing about trees. The alternatives put forward were that he should be an expert or that he should have at least such knowledge and experience of trees as a landowner with trees o his land would generally have. As the question depends on what a reasonable man would do I think that it may be put in this way. Would a reasonable and careful owner, without expert knowledge but accustomed to dealing with his trees and having a countryman’s general knowledge about them, think it necessary to call in an expert to advise him or would he think it sufficient to act at lest in the first instance on his own knowledge and judgment? The evidence in this case does not suggest to me that he would, and does not convince me that he should call in an expert. There must be many owners of elm trees beside busy roads and if it were proper for them to seek expert advice I would expect, making every allowance for the facts that not all owners are reasonable and careful and that even reasonable people frequently omit to do what they know they ought to do, that it would appear that expert advice was not infrequently sought. But the evidence in this case does not bear this out.’
Lord Radcliffe raised some questions as to the liability of a tree-owner which he did not finally answer. In the course of his discussion he said: ‘It would be conceded, I believe, that there is somehow a difference between the legal responsibilities of the owner of a mature forest tree, in a built-up area, immediately adjacent to a busy street, and the responsibilities of the owner of a stand of timber bordering a country lane. But is the difference only this, that the latter is entitled to take more chances at the expense of his neighbours than the former? I am not certain of the logic, for a tree or its branch only falls once; and it must be poor consolation to an injured passer-by in the country lane to be assured that the chances were all against his being at the place of the accident at the moment when it occurred.’
Lord Normand said: ‘The Court of Appeal applied what is, I think, the proper test – the conduct to be expected from a reasonable and prudent land-owner – and held on the evidence that the appellants had satisfied this test because there was nothing dangerous in the appearance of the tree, no sign of disease, advanced age, disproportion of crown to stem, or rising roots . . The test of the conduct to be expected from a reasonable and prudent landlord sounds more simple than it really is. For it postulates some degree of knowledge on the part of landlords which must necessarily fall short of the knowledge possessed by scientific arboriculturists but which must surely be greater than the knowledge possessed by the ordinary urban observer of trees or even of the countryman not practically concerned with their care.’

Lord Normand, Lord Porter, Lord Reid, Lord Oaksey, Lord Radcliffe
[1951] AC 88
England and Wales
Cited by:
Cited – Stagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.526445

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 that he would not have killed anyone but for negligence on the part of the authority.
Held: The claim was struck out. A convicted criminal may not sue the Health Authority for failing to take care of him and allowing the commission of an offence. It would be against public policy to allow such a claim. The breach by a local health authority of the duty imposed by section 117 does not of itself give rise to a cause of action for damages for breach of statutory duty on the part of the patient concerned.
Beldam LJ explained the plaintiff’s counsel’s argument: ‘[The plaintiff’s] relationship with the defendant was that of doctor and patient, which clearly gives rise to a duty of care. Even if that was not the relationship between the plaintiff and the defendant, the obligations imposed under the Mental Health Act 1983 created duties owed by the defendant to a limited class, i.e. mental health patients, whom Parliament must have intended should have a right to sue for breach of that duty. Failing that, the obligations imposed by Parliament on the defendant gave rise to a duty of care owed to him at common law.’ and answered: that ‘[t]he court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff’s own criminal act’
As to whether a private law claim for damages might arise: ‘Under section 117(2) the authorities named are required to co-operate with voluntary organisations in setting up a system which provides after-care services for patients who have been discharged from hospital after treatment for mental disorder. The services have to be made available to such persons until ‘the person concerned is no longer in need of such services.’ Undoubtedly the section is designed to promote the social welfare of a particular class of persons and to ensure that the services required are made available to individual members of the class. However section 124 provides the Secretary of State with default powers if he is of the opinion ‘on complaint or otherwise’ that the functions conferred or imposed under the Act have not been carried out. Thus the primary method of enforcement of the obligations under section 117 is by complaint to the Secretary of State. No doubt, too, a decision by the district health authority or the local social services authority under the section is liable to judicial review at the instance of a patient: see Reg. v. Ealing District Health Authority, Ex parte Fox [1993] 1 W.L.R. 373. The character of the duties created seem to us closely analogous to those described by Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council [1995] 2 AC 633, 747 as requiring: ‘exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.’
In our view the wording of the section is not apposite to create a private law cause of action for failure to carry out the duties under the statute.’

Beldam LJ
Gazette 14-Jan-1998, Times 10-Dec-1997, [1997] EWCA Civ 2918, [1998] 3 All ER 180, [1998] QB 978, (1998) 40 BMLR 181, [1998] PNLR 262, (1997-98) 1 CCL Rep 215, [1998] 2 WLR 902
Bailii
Mental Health Act 1983 117
England and Wales
Citing:
Appeal from – Clunis v Camden and Islington Health Authority QBD 12-Dec-1996
The plaintiff brought proceedings against the defendant health authority for negligence and breach of duty of care on the ground that, if he had been properly treated, he would not have killed his victim and would not have been convicted of the . .

Cited by:
Cited – Hewison v Meridian Shipping Pte, Coflexip Stena Offshore Ltd, Flex Installer Offshore Ltd CA 11-Dec-2002
The claimant was awarded damages for injuries suffered in his work as a seaman. The respondents claimed that he should not receive damages, since he had made false declarations as to his health in order to obtain employment, hiding his epilepsy . .
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 – 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 . .
Explained – K v Central and North West London Mental Health NHS Trust and Another QBD 30-May-2008
k_centralQBD2008
The claimant appealed against an order striking out his claim in negligence. He had leaped from a window in a suicide attempt. The accommodation was provided by the defendant whilst caring for him under the 1983 Act.
Held: The case should be . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered severe psychiatric injured in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had gone on to kill another person, and he had been detained under section . .
Cited – Richards v Worcestershire County Council and Another ChD 28-Jul-2016
Application for claim to be struck out. . .
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 . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.143317

Michael Alexander Watson v British Boxing Board of Control Ltd, World Boxing Organisation Incorporated: CA 19 Dec 2000

The claimant was seriously injured in a professional boxing match governed by rules established by the defendant’s rules. Ringside medical facilities were available, but did not provide immediate resuscitation. By the time he received resuscitation in hospital he had sustained permanent brain damage which such treatment would have prevented.
Held: A body which had responsibility for licensing and setting conditions for the boxing matches was liable in negligence when, having assumed responsibility for the boxer’s medical care, the standards it set were inadequate. The setting of rules could be akin to the giving of advice and thus had an indirect influence on the occurrence of the injury. Had the Board said nothing, it might not be liable, but once it gave advice by setting rules, it came to be responsible. If it had in place the appropriate protocols for provision of medical care, the claimant’s injuries would not have been so severe. ‘It seems to me that the authorities support a principle that, where A places himself in a relationship to B in which B’s physical safety becomes dependant upon the acts and omissions of A, A’s conduct can suffice to impose on A a duty to exercise reasonable care for B’s safety.’ and ‘Had the board simply given advice to all involved in professional boxing as to appropriate medical precautions, it would be strongly arguable that there was insufficient proximity between the board and individual boxers to give rise to a duty of care. The board, however, went far beyond this. It made provision in its rules for the medical precautions to be employed and made compliance with these rules mandatory.’

Lord Phillips MR
Gazette 22-Mar-2001, Times 02-Feb-2001, [2000] EWCA Civ 2116, [2001] QB 1134, [2001] PIQR 16
Bailii, Bailii
England and Wales
Citing:
Considered – Perrett v Collins, Underwood PFA (Ulair) Limited (T/a Popular Flying Association) CA 22-May-1998
The plaintiff was a passenger in an aircraft which crashed, and there was a preliminary issue as to the liability to him of those who certified that the aircraft was fit to fly. The propeller was mismatched to the gearbox.
Held: A certifying . .
Appeal from – Watson v British Board of Boxing Control QBD 12-Oct-1999
A governing body of a sport, had a duty to insist on arrangements for sporting events, held under its aegis, to ensure proper access to medical aid. There was no contract between the parties, but boxers had to fight under the Board’s rules. A . .
Applied – 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 by:
Cited – Binod Sutradhar v Natural Environment Research Council CA 20-Feb-2004
The defendant council had carried out research into a water supply in India in the 1980s. The claimant drank the water, and claimed damages for having consumed arsenic in it.
Held: There is a close link between the tests in law for proximity . .
Cited – Jane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
Cited – Sutradhar v Natural Environment Research Council HL 5-Jul-2006
Preliminary Report of Risk – No Duty of Care
The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . .
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, . .
Cited – Portsmouth Youth Activities Committee (A Charity) v Poppleton CA 12-Jun-2008
The claimant was injured climbing without ropes (‘bouldering’) at defendant’s activity centre. The defendant appealed against a finding of 25% responsibility in having failed to warn climbers that the existence of thick foam would not remove all . .
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .

Lists of cited by and citing cases may be incomplete.

Administrative, Personal Injury, Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.135634

Dryden and Others v Johnson Matthey Plc: SC 21 Mar 2018

Sensitisation to salt can be personal injury

The claimants, had developed platinum salt sensitisation due to the defendant employer’s breach of health and safety regulations and common law duty, claimed a cause of action for personal injury. Platinum salt sensitisation is, in itself, an asymptomatic condition but further exposure to chlorinated platinum salts is likely to cause someone with platinum salt sensitisation to develop an allergic reaction involving physical symptoms such as running eyes or nose, skin irritation, and bronchial problems.
Held: The claimants’ appeal was allowed. The claimants had suffered what counted as bodily damage sufficient to found and action for personal injury.
Held: A hidden and symptomless but non-negligible physical change was actionable: ‘ The physiological changes to the claimants’ bodies may not be as obviously harmful as, say, the loss of a limb, or asthma or dermatitis, but harmful they undoubtedly are. Cartledge establishes that the absence of symptoms does not prevent a condition amounting to actionable personal injury, and an acceptance of that is also implicit in the sun sensitivity example, in which the symptoms would only be felt upon exposure to sunshine, just as the symptoms here would only be felt upon exposure to platinum salts. What has happened to the claimants is that their bodily capacity for work has been impaired and they are therefore significantly worse off. They have, in my view, suffered actionable bodily damage, or personal injury, which, given its impact on their lives, is certainly more than negligible.’
Lady Black, with whom the other Justices of the Supreme Court agreed, said that, as well as the usual reference to pain, suffering and loss of amenity, personal injury has been considered to consist of a physical change which makes the claimant appreciably worse off in respect of his or her health or capability and as including an injury sustained to a person’s physical capacity of enjoying life. She concluded that what had happened to the claimants was that their bodily capacity for work had been impaired and, therefore, they were significantly worse off: they had suffered actual bodily damage, or personal injury, which, given its impact on their lives, was more than negligible.

Lady Hale, President, Lord Wilson, Lord Reed, Lady Black, Lord Lloyd-Jones
[2018] UKSC 18, [2018] ICR 715, (2018) 161 BMLR 1, [2018] WLR(D) 182, [2018] PIQR P12, [2018] 2 WLR 1109, UKSC 2016/0140
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video Summary, SC 27 Nov 17 am, SC 27 Nov 17 pm, SC 28 Nov 17 am
England and Wales
Citing:
At QBD – Greenway and Others v Johnson Matthey Plc QBD 26-Nov-2014
The five claimants had been employed by the defendant. Whilst at work, and in breach of Health an Safety regulations, they had been exposed to complex halogenated platinum salts, and now claimed a sensitisation to such salts. The defendant argued . .
At CA – Greenway and Others v Johnson Matthey Plc CA 28-Apr-2016
The claimants had been exposed to platinum salts while employed by the defendant company in breach of the employer’s duties in negligence and Health and Safety. Though they had suffered no symptoms, they claimed in damages. The employer said that no . .
Cited – Cartledge v E Jopling and Sons Ltd HL 1963
The plaintiffs were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of . .
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 – Fair v London and North Western Rly Co QBD 1869
In actions for personal injuries, the court is constantly required to form an estimate of chances and risks which cannot be determined with anything like precision; for example, the possibility that the injury will improve, or deteriorate, or the . .

Cited by:
Cited – Network Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
Cited – Paul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .

Lists of cited by and citing cases may be incomplete.

Negligence, Personal Injury

Updated: 02 November 2021; Ref: scu.608730

CBS Songs Ltd v Amstrad Consumer Electronics Plc: HL 12 May 1988

The plaintiffs as representatives sought to restrain Amstrad selling equipment with two cassette decks without taking precautions which would reasonably ensure that their copyrights would not be infringed by its users.
Held: Amstrad could only be liable as a joint tortfeasor. If they were not a joint tortfeasor they would be under no tortious liability. A defendant who procures a breach of copyright is liable jointly and severally with the infringer for the damages suffered by the plaintiff as a result of the infringement. The defendant is a joint infringer if he intends and procures and shares a common design that infringement shall take place. A defendant may procure an infringement by inducement, incitement or persuasion. But in the present case Amstrad do not procure infringement by offering for sale a machine which may be used for lawful or unlawful copying and they do not procure infringement by advertising the attractions of their machine to any purchaser who may decide to copy unlawfully. Amstrad are not concerned to procure and cannot procure unlawful copying. The purchaser will not make unlawful copies because he has been induced or incited or persuaded to do so by Amstrad. The purchaser will make unlawful copies for his own use because he chooses to do so. Amstrad’s advertisement may persuade the purchaser to buy an Amstrad machine but will not influence the purchaser’s later decision to infringe copyright. . . . Generally speaking, inducement, incitement or persuasion to infringe must be by a defendant to an individual infringer and must identifiably procure a particular infringement in order to make the defendant liable as a joint infringer.
‘My Lords, joint infringers are two or more persons who act in concert with one another pursuant to a common design in the infringement. In the present case there was no common design. Amstrad sold a machine and the purchaser or the operator of the machine decided the purpose for which the machine should from time to time be used. The machine was capable of being used for lawful or unlawful purposes.’ and ‘My Lords, I accept that a defendant who procures a breach of copyright is liable jointly and severally with the infringer for the damages suffered by the plaintiff as a result of the infringement. The defendant is a joint infringer; he intends and procures and shares a common design that infringement shall take place. A defendant may procure an infringement by inducement, incitement or persuasion. But in the present case Amstrad do not procure infringement by offering for sale a machine which may be used for lawful or unlawful copying . . The purchaser will not make unlawful copies because he has been induced or incited or persuaded to do so by Amstrad. The purchaser will make unlawful copies because he chooses to do so.’
Lord Templeman: ‘My Lords, I accept that a defendant who procures a breach of copyright is liable jointly and severally with the infringer for the damages suffered by the plaintiff as a result of the infringement. The defendant is a joint infringer; he intends and procures and shares a common design that infringement shall take place. A defendant may procure an infringement by inducement, incitement or persuasion. But in the present case Amstrad do not procure infringement by offering for sale a machine which may be used for lawful or unlawful copying. . . . The purchaser will not make unlawful copies because he has been induced or incited or persuaded to do so by Amstrad. The purchaser will make unlawful copies because he chooses to do so.’

Lord Keith of Kinkel, Lord Templeman, Lord Griffiths, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle
[1988] AC 1013, [1988] 2 WLR 1191, [1988] UKHL 15, [1988] 2 FTLR 168, [1988] RPC 567, [1988] 2 All ER 484
Bailii
Copyright Act 1956, Copyright Act 1956, Performers’ Protection Act 1972
England and Wales
Citing:
Cited – Lumley v Gye 1853
Inducing breach of contract is a Tort
An opera singer (Miss Wagner) and the defendant theatre owner were joint wrongdoers. They had a common design that the opera singer should break her contract with the plaintiff theatre owner, refuse to sing in the plaintiff’s theatre and instead . .
Appeal from – CBS Songs Ltd v Amstrad Consumer Electronics Plc CA 1987
Persons other than the Attorney General do not have standing to enforce, through a civil court, the observance of the criminal law as such. However, Sir Denys Buckley considered that such a claim might be maintained as a representative action . .
Cited – Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd 1979
The defendants sold diamond grit allegedly for the sole purpose of making grinding tools in which it was to be embedded in a resin bond as part of a grinding material patented by the plaintiffs.
Held: The defendants could not be infringers . .
At First Instance – Amstrad Consumer Electronics Plc v British Phonographic Industry Limited ChD 17-Jun-1985
BPI as representative of copyright holders sought damages from the applicant saying that their two-deck cassette tape recording machines were tools for copyright infringement by deing designed to allow copying. The defendants now sought a . .
Cited – Monckton v Pathe Freres Pathephone Ltd CA 1914
A performance of the musical work by the use of a record was found to be an infringing use and the record was sold for that purpose. Buckley LJ said: ‘The seller of a record authorises, I conceive, the use of the record, and such use will be a . .
Cited – Evans v E Hulton and Co Ltd ChD 1924
Passing on memories for use in a ghosted autobiography is not sufficient for a claim of joint authorship. Tomlin J considered whether a publication had been authorised by the copyright owner and said: ‘where a man sold the rights in relation to a . .
Cited – Dunlop Pneumatic Tyre Co Ltd v David Moseley and Sons Ltd CA 1904
Swinfen Eady J’s decision was upheld. . .
Too wide – Falcon v Famous Players Film Co CA 1926
The defendants hired a film to a cinema. The film was based on the plaintiff’s play.
Held: The defendants infringed the plaintiff’s exclusive right conferred by the 1911 Act to authorise a performance of the play. The hirer sold the use which . .
Cited – Townsend v Haworth CA 1875
The defendant sold chemicals to be used by the purchaser in infringement of patent and agreed to indemnify the purchaser if the patent should prove to be valid.
Held: Only the person who actually manufactures or sells infringing goods is the . .
Cited – Innes v Short and Beal 1898
The defendant Short sold powdered zinc and gave instructions to a purchaser to enable the purchaser to infringe a process patent. The plaintiff patent holder sought damages saying that he was a joint tortfeasor. Held; Bingham J said: ‘There is no . .
Cited – Dunlop Pneumatic Tyre Co Ltd v David Moseley and Sons Ltd ChD 1903
The defendant sold tyre covers which were an essential feature of a combination patent for tyres and rims. The tyre covers were adapted for use in the manner described in the patent, but not necessarily solely for use in that manner. The plaintiffs . .
Cited – The Koursk CA 1924
The navigators of two ships had committed two separate torts or one tort in which they were both tortfeasors.
Held: Three situations were identified where A might be jointly liable with B for B’s tortious act. Where A was master and B servant; . .
Cited – Rotocrop International Ltd v Gembourne Ltd 1982
When sued for patent infringement, the defendants challenged the validity of the patent for obviousness.
Held: There was novelty in the patent for a compost bin with removable panels and a rival manufacturer who made and sold infringing bins . .
Cited – Invicta Plastics Limited v Clare QBD 1976
Those advertising and selling devices which were designed to detect the presence of police radar speed devices commit the offence of incitement under section 1(1) of the 1949 Act which required a licence for the use of such apparatus. . .
Cited – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
Cited – Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd HL 18-Oct-1983
Architects proposed a system of flexible drains for a site, but the contractors persuaded them to accept rigid drains which once laid proved inadequate at considerable cost. The local authority had permitted the departure from the plans.
Held: . .
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 . .
Cited – Rowling v Takaro Properties Ltd PC 30-Nov-1987
(New Zealand) The minister had been called upon to consent to the issue of shares to a foreign investor. The plaintiff said that the minister’s negligent refusal of consent had led to the collapse of the project and financial losses.
Held: On . .
Cited – Hill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .

Cited by:
Cited – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credits Guarantee Department HL 19-Feb-1999
The wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole . .
Cited – Unilever Plc v Gillette (UK) Limited CA 1989
Unilever claimed infringement of its patent. The court was asked whether there was a good arguable case against the United States parent company of the existing defendant sufficient to justify the parent company to be joined as a defendant and to . .
Cited – MCA Records Inc and Another v Charly Records Ltd and others (No 5) CA 5-Oct-2001
The court discussed the personal liability of a director for torts committed by his company: ‘i) a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
Cited – PLG Research Ltd and Another v Ardon International Ltd and Others ChD 25-Nov-1994
A patent infingement claim was met by the assertion that the material covered had been disclosed before the patent had been obtained. The court was asked as to the test of whether the information in a claim had been disclosed. Aldous J said: ‘Mr. . .
Cited – Bunt v Tilley and others QBD 10-Mar-2006
bunt_tilleyQBD2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
Cited – Twentieth Century Fox Film Corporation and Another v Newzbin Ltd ChD 29-Mar-2010
The defendant operated a web-site providing a search facility of the Usenet news system which allowed its users to locate copies of films online for downloading. The claimant said this was an infringement of its copyrights.
Held: The defendant . .
Cited – Fish and Fish Ltd v Sea Shepherd UK and Another AdCt 25-Jun-2012
The claimant company was engaged in tuna fish culture off shore to Malta. The defendant ship was owned by a charity which campaigned against breaches of animal preservation conventions. Fish were being transporting live blue fin tuna in towed . .
Cited – Fish and Fish Ltd v Sea Shepherd Uk and Others CA 16-May-2013
The claimant company sought damages after their transport of live tuna was attacked by a protest group. They now appealed against a decision that the company owning the attacking ship was not liable as a joint tortfeasor.
Held: The appeal was . .
Cited – Sea Shepherd UK v Fish and Fish Ltd SC 4-Mar-2015
Accessory Liability in Tort
The court considered the concept of accessory liability in tort. Activists had caused damage to vessels of the respondent which was transporting live tuna in cages, and had caused considerable damage. The appellant company owned the ship from which . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Intellectual Property, Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.183580

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 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.’ and ‘foreseeability of harm of the relevant type by the defendants was a prerequisite for the recovery of damages in nuisance and under the rule in Rylands v Fletcher’.
Held: The defendants were liable for damage which was only a very remote possibility. ‘It is not sufficient that the injury suffered by the respondents’ vessels was the direct result of the nuisance if that injury was in the relevant sense unforeseeable.’ The risk must be real’ in the sense that a reasonable person ‘would not brush [it] aside as far-fetched’: ‘But it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g. that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it . . . A person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man.’ (Lord Reid)

Lord Reid, Lord Goff
[1967] 2 AC 617, [1966] UKPC 1, [1966] 1 Lloyd’s Rep 657, [1966] 2 All ER 709, [1966] 3 WLR 498
Bailii
Australia
Citing:
Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .
Cited – Rickards v Lothian PC 11-Feb-1913
The claim arose because the outflow from a wash-basin on the top floor of premises was maliciously blocked and the tap left running, with the result that damage was caused to stock on a floor below.
Held: The provision of a domestic water . .
Cited – Goldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .
See Also – Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961
Foreseeability Standard to Establish Negligence
Complaint was made that oil had been discharged into Sydney Harbour causing damage. The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying ‘We have come back to the plain . .

Cited by:
Cited – Jan De Nul (Uk) Limited v NV Royale Belge CA 10-Oct-2001
The contractor undertook to dredge a stretch of river. Due to its failure to investigate properly, the result was the release of substantial volumes of silt into the estuary, to the damage of other river users and frontagers. The act amounted to a . .
Cited – Delaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster HL 25-Oct-2001
The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a . .
Cited – Cambridge Water Company v Eastern Counties Leather Plc HL 9-Dec-1993
The plaintiffs sought damages and an injunction after the defendant company allowed chlorinated chemicals into the plaintiff’s borehole which made unfit the water the plaintiff itself supplied.
Held: The appeal was allowed. Liability under . .
Cited – Tomlinson v Congleton Borough Council and others HL 31-Jul-2003
The claimant dived into a lake, severely injuring himself. The council appealed, 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 appeal . .
Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
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 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 – 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 – Gabriel v Kirklees Metropolitan Council CA 24-Mar-2004
The claimant (aged 6) sought damages after being hurt when other children playing on a building site threw stones from the site, hitting him as he passed by.
Held: The case raised questions of law and it was incumbent on the judge to provide . .
Cited – Pratley v Surrey County Council CA 25-Jul-2003
The claimant sought damages for personal injury namely stress suffered in the course of her work as a care manager. She said that she had been overworked, and suffered depression when a proposal for reducing the work load remained unimplemented. The . .
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 – Anthony and others v The Coal Authority QBD 28-Jul-2005
The claimants lived adjacent to an old coal tip, which caught fire spontaneously and burned for three years. They claimed in nuisance. The defendant argued that the risk of spontaneous ombustion was not reasonable, and that the use was safe.
Mentioned – Hone v Six Continents Retail Ltd CA 29-Jun-2005
The employer appealed a finding that it was liable in damages for negligence to the claimant, and employee who suffered psychiatric injury cause by stress at work. He said he had been left to work very excessive hours, between 89 and 92 hours a . .
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 – 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 – Dymond v Pearce CA 13-Jan-1972
A motorcyclist crashed into the rear of a lorry stationary on the carriageway. The plaintff said that the parking of the lorry was a nuisance, and that if it had not been so parked, there would have been no accident.
Held: The appeal failed. . .

Lists of cited by and citing cases may be incomplete.

Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.179686

Durkin v DSG Retail Ltd and Another: SC 26 Mar 2014

Cancellation of Hire Finance Contract

The claimant had bought a PC with a finance agreement with the respondent. He rejected it a day later, but the respondent refused to cancel the credit agreement. The respondent had threatened to report his non-payment to credit reference companies, which in due course caused the appellant more difficulties. He claimed damages of 250,000 pounds for this damage, alleging negligence. He had succeeded in establishing a right to reject the computer. The bank succeeded on appeal against a finding that it was liable in damages.
Held: The appeal succeeded. Lord Hodge said that the purpose of the restricted-use credit agreement is to finance a transaction between the consumer and the supplier. Where, as here, the contract is tied to a particular transaction, it has no other purpose. The rescission of the supply agreement excuses the innocent party from further performance of any obligations he has under it. It is inherent in a debtor-creditor-supplier agreement under the 1974 Act, which is also tied into a specific supply transaction, that if the supply transaction it financed is brought to an end by the supplier’s repudiatory breach of contract, the debtor must repay the borrowed funds recovered from the supplier. In order to reflect that reality, the law implies a term into such a credit agreement that it is conditional upon the survival of the supply agreement. The debtor on rejecting the goods and thereby rescinding the supply agreement for breach of contract may also rescind the credit agreement by invoking this condition.

Hale, Hodge LL
[2014] 1 WLR 1148, [2014] UKSC 21, [2014] WLR(D) 144, 2014 GWD 12-211, UKSC 2012/0135
Bailii, WLRD, SC Summary, SC
Consumer Credit Act 1974 75(1)
Scotland
Citing:
Appeal from – Durkin (Aberdeen Sheriff Court) v DSG Retail Ltd SCS 15-Jun-2010
The appellant had purchased a computer from an associated company of the defender with finance from the defender. He complained that on his return of the computer the defender had failed to cancel the consumer credit agreement, causing him losses. . .
Cited – United Dominions Trust Ltd v Taylor ScSf 1980
. .
Cited – Krell v Henry CA 1903
A contract to rent rooms for two days and from which the coronation processions of King Edward VII were to be viewed was frustrated when the processions were cancelled on the days the rooms were taken for because the contract was ‘a licence to use . .
Cited – McWilliams v Sir William Arrol and Company Ltd HL 21-Feb-1962
Damages were sought after the death of the pursuer’s husband working for the respondent. The trial judge had been satisfied that even if the defendants had performed their duty at common law and pursuant to statute, and had provided the deceased . .
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 – Federal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .

Lists of cited by and citing cases may be incomplete.

Consumer, Negligence, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.523194

Goldman v Hargrave: PC 13 Jun 1966

(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would burn itself out. The fire spread to neighbouring property.
Held: An occupier of land is under a general duty of care in relation to hazards, whether natural or man-made, occurring on his land to remove or reduce such hazards to his neighbour. The existence of the duty is based on the knowledge of the hazard, the ability to foresee the consequences of not checking or removing it and the ability to abate it by taking reasonable measures. Risks such as the spread of fire are not ones which, without more, call for the imposition of any risk based liability; liability if any must be based upon some antecedent creation of risk or some subsequent fault.
Lord Wilberforce said: ‘the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive’. And ‘one may say in general terms that the existence of a duty must be based upon a hazard, ability to foresee the consequences of not checking or not removing it, and the ability to abate it.’
The occupier here was in breach of his duty of care for failing to extinguish a fire which had started by natural causes. The defendant was found to be negligent because he chose not to put the fire out, but to let it burn itself out instead. This erroneous decision allowed a wind to revive the fire which then spread to the plaintiff’s property.
In the case of fire there was no difference between a fire that started from natural causes and one that had been started by human agency. Lord Wilberforce said: ‘Their Lordships would first observe, with regard to the suggested distinction, that it is well designed to introduce confusion into the law. As regards many hazardous conditions arising on land, it is impossible to determine how they arose – particularly is this the case as regards fires. If they are caused by human agency, the agent, unless detected in flagrante delicto, is hardly likely to confess his fault. And is the occupier, when faced with the initial stages of a fire, to ask himself whether the fire is accidental or man-made before he can decide upon his duty? Is the neighbour whose property is damaged bound to prove the human origin of the fire? The proposition involves that if he cannot do so, however irresponsibly the occupier has acted, he must fail. But the distinction is not only inconvenient, it lacks, in their Lordships’ view, any logical foundation.
Within the class of situations in which the occupier is himself without responsibility for the origin of the fire, one may ask in vain what relevant difference there is between a fire caused by a human agency, such as a trespasser, and one caused by act of God or nature. A difference in degree – as to the potency of the agency – one can see but none that is in principle relevant to the occupier’s duty to act. It was suggested as a logical basis for the distinction that in the case of a hazard originating in an act of man, an occupier who fails to deal with it can be said to be using his land in a manner detrimental to his neighbour and so to be within the classical field of responsibility in nuisance, whereas this cannot be said when the hazard originates without human action so long at least as the occupier merely abstains. The fallacy of this argument is that, as already explained, the basis of the occupier’s liability lies not in the use of his land: in the absence of ‘adoption’ there is no such use; but in the neglect of action in the face of something which may damage his neighbour. To this, the suggested distinction is irrelevant.’

Wilberforce, Perason, Morris of Borth-y-Gest, Reid LL
[1967] 1 AC 645, [1966] 3 WLR 513, [1966] 2 All ER 989, [1966] UKPC 2, [1966] UKPC 12
Bailii, Bailii
Australia
Citing:
Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .

Cited by:
Cited – Thames Water Utilities Limited v Marcic CA 7-Feb-2002
The claimant owned land over which sewage and other water had spilled from the appellant’s sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to . .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Leakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – Delaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster HL 25-Oct-2001
The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
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 – 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 – Gabriel v Kirklees Metropolitan Council CA 24-Mar-2004
The claimant (aged 6) sought damages after being hurt when other children playing on a building site threw stones from the site, hitting him as he passed by.
Held: The case raised questions of law and it was incumbent on the judge to provide . .
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 – Stockley v Knowsley Metropolitan Borough Council CA 1986
A council owned a two-storey building divided into four flats, one of which was occupied by the plaintiff. It failed to prevent frozen water pipes in the roof of the building (which was outside the demise to the plaintiff) from bursting and flooding . .
Cited – Bybrook Barn Garden Centre Ltd and Others v Kent County Council CA 8-Jan-2001
A culvert had been constructed taking a stream underneath the road. At the time when it came into the ownership of the local authority, it was adequate for this purpose. Later developments increased the flow, and the culvert came to become an . .
Cited – LMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
Cited – Lambert and Others v Barratt Homes Ltd (Manchester Division) and Another QBD 17-Feb-2009
The claimant sought damages in nuisance and negligence saying that in constructing a new housing estate, they had altered the land in such a way as to lead to the repeated flooding of their home.
Held: Both the developer and the council were . .
Cited – Lambert and Others v Barratt Homes Ltd and Another CA 16-Jun-2010
The claimants had bought houses from the first defendants, who in turn had bought the land from Rochdale, the second defendants. In preparing the land for construction the first defendants were said to have negligently filled in a drainage culvert . .
Cited – Page Motors v Epsom Borough Council CA 9-Jul-1981
The plaintiffs were lessees of land neighbouring that of the Council. Over several years the council’s land had been occupied by gypsies who, it was said had damaged the plaintiff’s business. Though the Council had obtained a possession order in . .
Determinative – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Cited – Stagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
Cited – Network Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
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.

Nuisance, Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.179685

Poulton v Ministry of Justice: CA 22 Apr 2010

The claimant was trustee in bankruptcy but the court failed to register the bankruptcy petition at the Land Registry as a pending action. The bankrupt was therefore able to sell her land, and the trustee did not recover the proceeds. The trustee sought to recover from the defendant who was responsible for the court service.
Held: The defendant’s appeal succeeded. The obligation under rule 6.13 and the court’s practice of complying with it, and would not imply that the court would serve the request itself. The contrasting provisions of the various Acts suggested an obligation to compensate: ‘Parliament had in mind the possibility that creditors might suffer from a failure on the part of the Land Registry to comply with its duties under section 61, and considered that a private claim against the Registry should not be permitted but that compensation should be provided for out of the insurance fund. By contrast, no such provision was made in the Land Charges Act, so that the Chief Land Registrar might be taken to be open to suit for failure under that Act. Equally there was no immunity for the court under rule 149A, so, again, a breach of that duty might be taken to be actionable.’ However, ‘The fact that occasionally there may be a failure due to oversight does not seem to me to be a sufficient reason to find a private remedy for breach of the obligation created by this rule.’ The freedom of the applicant to make an application indicated against giving a private right.
There was no basis for an assertion of a common law duty: ‘this is not a question of a duty of care; it would be a duty to do an act, which is either done or not done, and the complaint would be of failure to do it at all, not of doing it but without proper care and attention. Another is that, absent the obligation imposed by the rule, the petitioning creditor would have every reason to make the request itself, as it would be entitled to do. The only basis for saying that the creditor places reliance on the court is that the rule requires the court to give the notice.’

Pill, Lloyd, Pitchford LJJ
[2010] EWCA Civ 392, [2010] 3 WLR 1237, [2010] BPIR 775, [2011] 1 Ch 1
Bailii
Land Registration Act 2002, Insolvency Act 1986 284, Insolvency Rules 1986 6.13, Land Charges Act 1972
England and Wales
Citing:
Cited – Cutler v Wandsworth Stadium Ltd HL 1949
The Act required the occupier of a licensed racetrack to take all steps necessary to secure that, so long as a totalisator was being lawfully operated on the track, there was available for bookmakers space on the track where they could conveniently . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Ministry of Housing and Local Government v Sharp CA 1970
Mr Sharp was the local land registrar with statutory duty to maintain the local registry, issuing certificates in response to search requests. A clerk who had been seconded by another Council to assist him negligently issued an inaccurate . .
Cited – Smith (a bankrupt) v Braintree District Council HL 1989
The House considered the effects of bankruptcy on the imposition of a committal to imprisonment in default of paying rates.
The purpose of section 285 is to preserve the estate of the bankrupt for the benefit of his unsecured creditors.
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Negligence

Updated: 01 November 2021; Ref: scu.408567

Clark v Bowlt: CA 26 Jun 2006

A claim was made for personal injury suffered riding a horse.
Held: The court doubted whether a propensity occasionally to move otherwise than as directed can be described as a characteristic of a horse, for the purposes of s. 2(2)(b), but, if it can, the trial judge had failed to identify either the particular times of the particular circumstances when this characteristic manifested itself,

Lord Phillips MR
[2006] EWCA Civ 978
Bailii
Animals Act 1971 2
England and Wales
Citing:
Cited – Mirvahedy v Henley and another HL 20-Mar-2003
The defendants’ horses escaped from the field, and were involved in an accident with the claimant’s car.
Held: The defendants were liable under section 2(2). To bolt was a characteristic of horses which was normal ‘in the particular . .

Cited by:
Cited – Freeman v Higher Park Farm CA 30-Oct-2008
The claimant fell from a horse hired to her by the defendant. She claimed for her injuries, and appealed rejection of her claim in strict liability under the 1971 Act. The horse was known to be lively and occasionally to buck, but the claimant was a . .

Lists of cited by and citing cases may be incomplete.

Animals, Negligence

Updated: 01 November 2021; Ref: scu.243293

Watts and Co v Morrow: CA 30 Jul 1991

The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his negligent survey of a property. The plaintiff sought damages for distress, and the cost of making good the defects. The appellant argued that he should pay or only the diminution in value of the house by reason of the existence of those defects.
Held: The correct level of damages to be awarded are for the diminution in value of the property with those faults, not the cost of repairing the faults. ‘A contract breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy. But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead. If the law did not cater for this exceptional category of case it would be defective. A contract to survey the condition of a house for a prospective purchaser does not, however, fall within this exceptional category. In cases not falling within this exceptional category, damages are in my view recoverable for physical inconvenience and discomfort caused by the breach and mental suffering directly related to that inconvenience and discomfort. If those effects are foreseeably suffered during a period when defects are repaired I am prepared to accept that they sound in damages even though the cost of the repairs is not recoverable as such.’ Exceptions mayinclude ‘where the very object of the contract is to provide pleasure, relaxation, peace of mind or freedom from molestation’, but this is an ‘exceptional category’.

Bingham LJ, Sir Stephen Brown LJ, Bingham LJ
Gazette 08-Jan-1992, [1991] 4 All ER 939, [1991] 1 WLR 1421, [1991] EWCA Civ 9
Bailii
England and Wales
Citing:
Cited – County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) CA 1987
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated.
Held: The starting . .
Cited – Hayes and Another v Dodd CA 7-Jul-1988
The court considered what damages might be paid for inconvenience and distress. . .
Cited – Syrett v Carr and Neave 1990
The plaintiff sought damages for a negligent survey.
Held: On the particular facts, it was reasonable for the plaintiffs not to sell but to repair the property and seek the cost of such repairs. . .
Cited – Dodd Properties (Kent) Ltd v Canterbury City Council CA 21-Dec-1979
The defendants had, in the course of building operations, caused nuisance and damage to the plaintiff’s building. The dispute was very lengthy, the costs of repair increased accordingly, and the parties now disputed the date at which damages fell to . .
Cited – Philips v Ward CA 1956
The Plaintiff had relied on a negligent survey to purchase a substantial Elizabethan property and land. The report did not mention that the timbers of the house were badly affected by death watch beetle and worm so that the only course left to him . .
Cited – Hayes and Another v Dodd CA 7-Jul-1988
The court considered what damages might be paid for inconvenience and distress. . .
Cited – Bliss v South East Thames Regional Health Authority CA 1985
General damages cannot be awarded for frustration, mental distress or injured feelings arising from an employer’s breach of the implied term of confidence and trust. Dillon LJ said that damages for mental distress in contract are limited to certain . .
Cited – Perry v Sidney Phillips and Son CA 1982
In 1982 the surveyor failed to observe serious defects, including a leaking roof and a septic tank with an offensive smell. The plaintiff purchaser could not afford major repairs and executed only minor repairs himself. At the date of the trial the . .

Cited by:
Cited – Farley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
Cited – Smith and Another v South Gloucestershire Council CA 31-Jul-2002
The claimants purchased land. The local search did not reveal a planning permission which affected the value of the property by applying an occupancy condition. He claimed compensation. Compensation was eventually agreed to be payable, but the . .
Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Cited – Ezekiel v McDade CA 1995
As a result of the negligence of their builders, the plaintiffs were rendered homeless persons living in single room council accommodation for a long period. The builder appealed an award of andpound;6,000.
Held: The award should be reduced to . .
Cited – Boynton and Another v Willers CA 3-Jul-2003
The appellants challenged a finding that they were liable for their builders’ bill.
Held: Work which had been rejected had not in fact been charged for. The defendant’s appeal on that point failed. The measure of damages for distress and . .
Applied – Hamilton Jones v David and Snape (a Firm) ChD 19-Dec-2003
The claimant was represented by the respondent firm of solicitors in an action for custody of her children. Through their negligence the children had been removed from the country. She sought damages for the distress of losing her children.
Followed – Verderame v Commercial Union Assurance Co Plc CA 2-Apr-1992
The insurance brokers, acting to arrange insurance for a small private limited company did not owe a duty in tort to the directors of that company personally. Where an action was brought in a tort and in breach of contract, damages could not be . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Grobbelaar v News Group Newspapers Ltd and Another CA 18-Jan-2001
The claimant had been awarded andpound;85,000 damages in defamation after the defendant had wrongly accused him of cheating at football. The newspaper sought to appeal saying that the verdict was perverse and the defence of qualified privilege . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Bacciottini and Another v Gotelee and Goldsmith (A Firm) CA 18-Mar-2016
A property subject to a planning condition was purchased by the appellant under the advice of the respondent, who failed to notify him of the existence of a planning condition. The judge had awarded the claimant pounds 250 being the cost of the . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .

Lists of cited by and citing cases may be incomplete.

Damages, Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.90333

Regina v Inhabitants of High Halden: 1859

highhalden1859

The court considered the liability of the parish for injury arising from a failure to repair the road. The road was ‘an old soft road formed of Weald of Kent clay, and had never been repaired with hard substances’. The evidence was that in wet weather and in the winter months it was ‘very bad, soft and in an impassable state’ with deep ruts which ‘formed in fact the watercourses of the road’. Blackburn J directed the jury that the parish was not bound to make the road hard ‘. . but they were bound in some way, by stone or other hard substances to repair the road ; but they were bound in some way, by stone or other hard substances, if necessary, to put the road in such repair so as to be reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year.’ A guilty verdict was returned.

Blackburn J
26 Digest (Repl) 383, (1859) 1 F and F 678, [1860] EngR 93, (1860) 175 ER 903
Commonlii
Cited by:
Cited – Burnside and Another v Emerson and Others CA 1968
The plaintiffs were injured in a road accident caused by flooding. They sued the executors of the deceased driver whose car spun out of control into the path of their own car, and also the highway authority, who had installed a proper system of . .
Cited – Haydon v Kent County Council CA 1978
Impacted snow and ice had built up on a steep, narrow, made-up footpath from Monday to Thursday during a short wintry spell. The plaintiff slipped and broke her ankle. The highway authority operated a system of priorities. Their resources were fully . .
Cited – Department for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .
Cited – Griffiths v Liverpool Corporation CA 1967
The Highways Act of 1961 had enlarged the duty of the highway authority and made it a general duty to take reasonable care to secure that the highway was not dangerous to traffic.
As to the effect of the 1961 Act, Diplock LJ said: ‘The duty at . .

Lists of cited by and citing cases may be incomplete.

Negligence, Torts – Other, Road Traffic

Leading Case

Updated: 01 November 2021; Ref: scu.244626

David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others: SC 30 Jul 2014

The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: (Lord Hodge and Lord Toulson dissenting) The appeal was allowed. The natural meaning of the words ’caused as aforesaid’ in section 11(3) was adjectival: they described the loss with which the provision was concerned, but did not have the effect of postponing the running of time until the creditor was aware that the loss had been caused by a breach of duty. Properly construed, section 11(3) was concerned with latent damage. Construing it subjectively, as was in practice being suggested, would be anomalous. For the prescriptive period to begin under section 11(3) of the 1973 Act, the creditor needed to be aware (actually or constructively, if the creditor could with reasonable diligence have been aware) only of the occurrence of the loss or damage and not of its cause.

Lord Neuberger, President, Lord Sumption, Lord Reed, Lord Toulson , Lord Hodge
[2014] UKSC 48, 2014 GWD 25-5, 2014 SLT 791, UKSC 2013/0104
Bailii, Bailii Summary, SC, SC Summary
Prescription and Limitation (Scotland) Act 1973 6(1) 11(3), Public Authorities Protection Act 1893, Law Reform (Limitation of Actions) Act 1954
Scotland
Citing:
See Also – ICL Plastics Ltd and Others, Re Application for Judicial Review SCS 11-Mar-2005
The applicants were concerned at the decision to exclude them from their premises to investigate the cause of an explosion leading to the collapse of the factory. . .
At Outer House – David T Morrison and Co Ltd v ICL Plastics Ltd and Others SCS 9-Mar-2012
Outer House – Opinion – In May 2004 an explosion at the defenders factory caused nine deaths. A pipeline carrying LPG gas had not been assessed for risks. Morrison owned neighbouring premises which were damaged. They began an action for damages. The . .
Cited – Glasper v Rodger SCS 1996
First Division – Inner House – Lord President Hope said: ‘In our opinion the lack of awareness which requires to be established for the purposes of section 11(3) of the 1973 Act is a lack of awareness that a loss has occurred caused by an act, . .
Cited – Watson v Fram Reinforced Concrete Co (Scotland) Ltd HL 1960
A workman had been injured through the breaking of a defective part in the machine with which he was working. He brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had . .
Cited – Dunlop v McGowans HL 6-Mar-1980
The landlord of a block of flats needed vacant possession to pursue redevelopment. The respondent solicitors failed to give the necessary notice in good time, delaying the development by a year. The landlord appellant delayed five years before . .
Cited – Greater Glasgow Health Board v Baxter Clark and Paul SCS 1990
Outer House Court of Session – Lord Clyde held (obiter) that the ordinary and natural meaning of the phrase ’caused as aforesaid’ included the distinct ingredient of causation by negligence: ‘The question is one of the interpretation of section . .
Cited – Kirk Care Housing Association Ltd v Crerar and Partners SCS 1996
Outer House – Lord Clyde reiterated his view, rejecting a challenge by counsel for the defenders, that section 11(3) was concerned only with awareness of loss, a matter of fact, and not with matters of legal liability. . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – AMN Group Ltd v Gilcomston North Ltd and others SCS 20-Jun-2008
Outer House – The phrase ‘aware . . that loss, injury or damage caused as aforesaid had occurred’ as meaning ‘aware . . that a stateable prima facie claim . . could properly be advanced against someone’ the resolution of that issue will ultimately . .
Cited – Pelagic Freezing Ltd v Lovie Construction SCS 28-Oct-2010
Outer House . .
Cited – Ghani v Peter T McCann and Co 2002
. .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .

Cited by:
Cited – Gordon and Others v Campbell Riddell Breeze Paterson Llp SCS 8-Mar-2016
(Extra Division, Inner House) The claimant trustees appealed from rejection of their claims of professional negligence against the defendant solicitors as out of time. The parties disputed whether the limitation period ran from the service of . .
Cited – Gordon and Others (Trustees of The Inter Vivos Trust) v Campbell Riddell Breeze Paterson Llp SC 15-Nov-2017
The claimants appealed from rejection of their claims for losses saying that such losses had been caused by their solicitors in failing properly to identify the tenant and the relevant lease when issuing notices to quit. The solicitors argued that . .

Lists of cited by and citing cases may be incomplete.

Negligence, Limitation

Leading Case

Updated: 01 November 2021; Ref: scu.535437

Yarmouth v France: CA 11 Aug 1887

The plaintiff was employed by the defendant to drive carts. He objected that the horse had a vicious nature, but was obliged to drive it in any event. The horse kicked him.
Held: For the purposes of the 1880 Act, the plaintiff was an employee, the horse was plant in the employer’s business and its character was a defect in that plant. ‘plant’ includes whatever apparatus or instruments are used by a business man in carrying on his business. The employer was liable in negligence, and ‘The maxim Volenti non fit injuria was not wanted as between master and servant. It was only wanted, if at all, where no such relation as that of master and servant existed.’ Where the plaintiff knew of a defect: ‘mere knowledge of the danger will not do: there must be an assent on the part of the workman to accept the risk, with a full appreciation of its extent, to bring the workman within the maxim Volenti non fit injuria. If so, that is a question of fact.’
Lord Esher MR said: ‘I detest the attempt to fetter the law by maxims. They are almost invariably misleading; they are for the most part so large and general in their language that they always include something which really is not intended to be included in them.’

Lord Esher MR, Lindley LJ, and Lopes LJ (dissenting)
[1887] 19 QB D 647, 57 LJQB 7 (QBD)
Employers’ Liability Act 1880 10
England and Wales
Citing:
Distinguished – Thomas v Quartermaine CA 1887
Employer’s duty to his workman injured at work
The court considered an employer’s duty to his workman injured at work.
Held: Bowen LJ said: ‘It is no doubt true that the knowledge on the part of the injured person which will prevent him from alleging negligence against the occupier, must . .

Cited by:
Cited – Lissenden v CAV Bosch Ltd HL 1940
The defendant attempted to bar the workman plaintiff from appealing a compensation award on the ground that he had already accepted payment under it.
Held: The House considered the principle that a party may not blow hot and cold on an issue . .
Cited – McLaughlin and Others v Newall QBD 31-Jul-2009
The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher . .
Cited – Homer Burgess Ltd v Chirex (Annan) Ltd OHCS 25-Jan-2000
Although an adjudicator’s decision would normally be binding on the parties pending an appeal, that was not the case where the mistake alleged was as to his jurisdiction. In such cases the decision was reviewable, and was ineffective as a decision . .
Cited – Imperial Chemical Industries Ltd v Shatwell HL 6-Jul-1964
The respondent was employed as a shot firer in a quarry, and was to test the electric wiring connecting explosive charges. Contrary to instructions that testing must be done from a shelter, the respondent and another shot firer carried out a test in . .
Cited – Sian Williams v Revenue and Customs FTTTx 8-Feb-2010
FTTTx INCOME TAX – EMPLOYMENT INCOME – EXPENSES – television newsreader – expenses for purchase and laundering of professional clothing for studio and for professional hairdo and colouring – whether incurred . .
Cited – Joseph Smith (Pauper) v Charles Baker and Sons HL 21-Jul-1891
. .

Lists of cited by and citing cases may be incomplete.

Employment, Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.235909

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 that a reasonable person would not have anticipated it. It was not negligent for a cricket club to do nothing about the risk of someone being injured by a cricket ball hit out of the ground. They were carrying on a lawful and socially useful activity, and would have had to stop playing cricket at that ground. Even though injury was foreseeable it was still in all the circumstances reasonable to do nothing about it. There had to be a balance between the likely severity of the accident and the cost of avoiding the risk.
Read L said: ‘My Lords, it was readily foreseeable that an accident such as befell the respondent might possibly occur during one of the appellants’ cricket matches. Balls had been driven into the public road from time to time and it was obvious that, if a person happened to be where a ball fell, that person would receive injuries which might or might not be serious. On the other hand it was plain that the chance of that happening was small. ‘
and ‘If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all’.
Porter L: ‘But the question remains: Is it enough to make an action negligent to say that its performance may possibly cause injury, or must some greater probability exist of that result ensuing in order to make those responsible for its occurrence guilty of negligence.’ and ‘It is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken.’ and ‘The quantum of danger must always be a question of degree. It is not enough that there is a remote possibility that injury may occur: the question is, would a reasonable man anticipate it? I do not think that he would, and in any case, unless an appellate body are of opinion that he clearly ought to have done so, the tribunal upon whom lies the duty of finding the facts is the proper judge of whether he would or not.’
Lord Radcliffe: ‘I can see nothing unfair in the appellants being required to compensate the respondent for the serious injury that she has received as a result of the sport that they have organized on their cricket ground at Cheetham Hill. But the law of negligence is concerned less with what is fair than with what is culpable, and I cannot persuade myself that the appellants have been guilty of any culpable act or omission in this case.’ and ‘unless there has been something which a reasonable man would blame as falling beneath the standard of conduct that he would set for himself and require of his neighbour, there has been no breach of legal duty.’
Lord Oaksey said: ‘The standard of care in the law of negligence is the standard of an ordinarily careful man, but in my opinion an ordinarily careful man does not take precautions against every foreseeable risk. He can, of course, foresee the possibility of many risks, but life would be almost impossible if he were to attempt to take precautions against every risk which he can foresee. He takes precautions against risks which are reasonably likely to happen. Many foreseeable risks are extremely unlikely to happen and cannot be guarded against except by almost complete isolation.’

Porter, Read, Radcliffe, Oaksey, Normand LL
[1951] AC 850, [1951] 1 All ER 1078, [1951] UKHL 2
Bailii
England and Wales
Citing:
Appeal from – Bolton v Stone CA 2-Jan-1949
(Reversed, but dicta of Oliver J approved) . .
At First Instance – 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 . .
Explained – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .

Cited by:
Cited – Marvin John Pearson v Anthony Lightning CA 1-Apr-1998
The parties were golfers playing different holes at the same time. The shot of one hit the other in the eye. The shot was a recovery shot over where he should have known others would be playing. Where a golfer hit a shot which was difficult but . .
Cited – Tomlinson v Congleton Borough Council and others HL 31-Jul-2003
The claimant dived into a lake, severely injuring himself. The council appealed, 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 appeal . .
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 . .
Considered – 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 – 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 – 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 – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Gabriel v Kirklees Metropolitan Council CA 24-Mar-2004
The claimant (aged 6) sought damages after being hurt when other children playing on a building site threw stones from the site, hitting him as he passed by.
Held: The case raised questions of law and it was incumbent on the judge to provide . .
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, . .
Mentioned – Hone v Six Continents Retail Ltd CA 29-Jun-2005
The employer appealed a finding that it was liable in damages for negligence to the claimant, and employee who suffered psychiatric injury cause by stress at work. He said he had been left to work very excessive hours, between 89 and 92 hours a . .
Cited – Shine v Tower Hamlets CA 9-Jun-2006
The claimant a nine year old boy had attempted to leap frog a bollard. He was badly injured when it fell. The authority had identified that it was insecure some months earlier. The authority appealed a finding of negligence and breach of statutory . .
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 – Whippey v Jones CA 8-Apr-2009
The claimant was running along a river embankment. A large dog owned by the appellant, taking it for a walk, was off the leash. It ran out at the claimant who broke his ankle falling into the river. The defendant appealed against a finding that he . .
Cited – Various Claimants v The Catholic Child Welfare Society and Others CA 26-Oct-2010
Child sexual abuse was alleged by 150 claimants against staff members of a community home with teachers supplied by the defendants. The court had asked whether they had vicarious liability for the acts of their staff, and now whether the board of . .
Cited – Wooldridge v Sumner and Another CA 4-Jun-1962
The plaintiff photographer was injured when attending a show jumping competition at the White City Stadium. A horse caught him as it passed.
Held: The defendant’s appeal against the finding of negligence succeeded: ‘a competitor or player . .
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.

Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.184790

Thomas v Quartermaine: CA 1887

Employer’s duty to his workman injured at work

The court considered an employer’s duty to his workman injured at work.
Held: Bowen LJ said: ‘It is no doubt true that the knowledge on the part of the injured person which will prevent him from alleging negligence against the occupier, must be a knowledge under such circumstances as lead necessarily to the conclusion that the whole risk was voluntarily incurred. The maxim, be it observed, is not ‘Scienti non fit injuria,’ but ‘Volenti.’ There may be a perception of the existence of the danger without appreciation of the risk; as, where the workman is of imperfect intelligence.’ and ‘The defendant in such circumstances does not discharge his legal obligation by merely affecting the plaintiff with knowledge of a danger which but for a breach of duty on his own part would not exist at all. But, where the danger is one incident to a perfectly lawful use of his own premises, neither contrary to statute nor common law, where the danger is visible and the risk appreciated, and where the injured person, knowing and appreciating both risk and danger, voluntarily encounters them, there is, in the absence of further acts of omission or commission, no evidence of negligence on the part of the occupier at all. Knowledge is not a conclusive defence in itself. But, when it is a knowledge under circumstances that leave no inference open but one, viz. that the risk has been voluntarily encountered, the defence seems to me complete.’ The words at the end of s. 1 do no more than ‘remove such fetters on a workman’s right to sue as had been previously held to arise out of the relation of master and workman.’ S2(3) does not extend the master’s liability beyond that imposed by s. 1, and s. 2, sub-s. 1. In each case specified in s. 1, the maxim Volenti non fit injuria is applicable, and, if a workman, knowing and appreciating the danger and the risk, elects voluntarily to encounter them, he can no more maintain an action founded upon the statute than he can in cases to which the statute has no application.

Bowen LJ
(1887) 18 QBD 685
Employers’ Liability Act 1880 10
England and Wales
Cited by:
Distinguished – Yarmouth v France CA 11-Aug-1887
The plaintiff was employed by the defendant to drive carts. He objected that the horse had a vicious nature, but was obliged to drive it in any event. The horse kicked him.
Held: For the purposes of the 1880 Act, the plaintiff was an employee, . .

Lists of cited by and citing cases may be incomplete.

Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.235910

Forbes v Wandsworth Health Authority: CA 21 Mar 1996

The plaintiff had a history of circulatory problems in his legs. He underwent surgery losing his leg. The question was when he should have sought advice as to why an attempted by-pass operation had resulted in one leg having to be amputated. He enquired why only some 10 years after the event. He was told that it was because the operation had been unsuccessful and resulted in a loss of blood supply which threatened gangrene. This was not itself negligent, but the surgeon had made a second unsuccessful attempt to operate on the following day and the plaintiff was advised that he would have had a better chance of success if he had tried again earlier.
Held: The plaintiff did not have constructive knowledge that the loss of his leg was caused by any act or omission on the part of the surgeon. He trusted the surgeon (who had performed two previous successful operations on his legs) and thought he had simply suffered a misfortune. The limitation period begins to run after the Plaintiff has recovered sufficiently to be able to see need to take legal advice. The court applied a wholly objective test, holding that the average patient would have investigated the matter earlier, and doubted that the individual character and intelligence of the plaintiff was relevant to the inquiry: ‘It does not seem to me that the fact that a plaintiff is more trusting, incurious, indolent, resigned or uncomplaining by nature can be a relevant characteristic, since this too undermines any objective approach.’ and ‘In my judgment, a reasonable man in the position of the deceased, who knew that the operation had been unsuccessful, that he had suffered a major injury which would seriously affect his enjoyment of life in the future, would affect his employability on the labour market, if he had any, and would impose substantial burdens on his wife and family in looking after him, if he was minded to make a claim at any time, should and would take advice reasonably promptly.’
Evans LJ: ‘Since there is a wide discretionary power to extend the period in circumstances which Parliament has defined in section 33, there is no clear requirement to construe the knowledge provisions in section 14 narrowly or in favour of individual plaintiffs. I therefore consider that they should be interpreted neutrally so that in respect of constructive knowledge under section 14(3) an objective standard applies.’

Stuart-Smith LJ, Evans LJ
Gazette 24-Apr-1996, Times 21-Mar-1996, [1996/7] MLR 175, [1997] QB 402, [1996] EWCA Civ 1318, [1996] 3 WLR 1108, [1996] 7 Med LR 175, [1996] 4 All ER 881
Bailii
Limitation Act 1980 11(1)
England and Wales
Citing:
Doubted – Nash v Eli Lilly and Co CA 1993
The court considered whether a solicitor acting for a potential plaintiff was considered to be an expert for the purposes of the section.
Held: Purchas LJ said: ‘Of course as advice from a solicitor as to the legal consequences of the act or . .

Cited by:
Cited – O’Driscoll v Dudley Health Authority CA 30-Apr-1998
The plaintiff sought damages for the negligence of the respondent in her care at birth. Years later the family concluded that her condition was a result of negligence. They waited until she was 21, when they mistakenly believed that she became an . .
Persuasive – Adams v Bracknell Forest Borough Council HL 17-Jun-2004
A attended the defendant’s schools between 1977 and 1988. He had always experienced difficulties with reading and writing and as an adult found those difficulties to be an impediment in his employment. He believed them to be the cause of the . .
Cited – Smith v Leicestershire Health Authority CA 29-Jan-1998
The plaintiff appealed a finding that she had sufficient knowledge of her possible claim for medical negligence against the defendants, and that she was out of time. She had known of her condition, but said she had no sufficient reason to see that . .
Cited – McCoubrey v Ministry of Defence CA 24-Jan-2007
The defendant appealed a decision allowing a claim to proceed more than ten years after it had been suffered. The claimant’s hearing had been damaged after an officer threw a thunderflash into his trench on an exercise.
Held: The defendant’s . .
Cited – Buckler v J F Finnegan Ltd CA 21-Jun-2004
The claimant sought damages for personal injuries after ingesting asbestos while employed as a joiner by the defendant. The defendant appealed an order allowing the claim to go ahead despite being out of time. . .

Lists of cited by and citing cases may be incomplete.

Limitation, Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.80628

Esso Petroleum Company Ltd v Mardon: CA 6 Feb 1976

Statements had been made by employees of Esso in the course of pre-contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr Mardon was persuaded by the statements to enter into the tenancy; but he suffered serious loss when the actual throughput proved to be much lower than had been predicted. Mr Marden did his best but he lost his capital and incurred a large bank overdraft as a result of his trading losses.
Held: Mr. Mardon was entitled to recover damages from Esso, on the basis of either breach of warranty or (on this point affirming the decision of the judge below) negligent misrepresentation. A contractor is not free to carry on with a disastrous contract and then seek to recover any losses on the basis of fraud. A special relationship, giving rise to a duty of care, may arise between the parties negotiating a contract if information is given in connection with the contract.
Lord Denning MR held: ‘A professional man may give advice under a contract for reward; or without a contract, in pursuance of a voluntary assumption of responsibility, gratuitously without reward. In either case he is under one and the same duty to use reasonable care: see Cassidy v. Ministry of Health [1951] 2 K.B. 343, 359-360. In the one case it is by reason of a term implied by law. In the other, it is by reason of a duty imposed by law. For a breach of that duty he is liable in damages: and those damages should be, and are, the same, whether he is sued in contract or in tort.’ and: ‘He is only to be compensated for having been induced to enter into a contract which turned out to be disastrous for him. Whether it be called breach of warranty or negligent misrepresentation, its effect was not to warrant the throughput but only to induce him to enter the contract. So the damages in either case are to be measured by the loss he suffered. Just as in Doyle v Olby he can say: ‘I would not have entered into this contract at all but for your representation. Owing to it, I have lost all the capital I put into it. I also incurred a large overdraft. I have spent four years of my life in wasted endeavour without reward: and it will take sometime to re-establish myself.’ For all such loss he is entitled to recover damages.’
Ormrod and Shaw LJJ agreed that Mr. Mardon was entitled to recover damages either for breach of warranty or for negligent misrepresentation.

Lord Denning MR, Ormrod, Shaw LJJ
[1976] QB 801, [1976] EWCA Civ 4, [1976] 2 All ER 5
Bailii
England and Wales
Citing:
Cited – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .

Cited by:
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Applied – Archer v Brown 1984
The defendant sold shares in his company to the plaintiff. He had however already sold them elsewhere. The plaintiff sought both rescission and damages. The defendant argued that he could not be entitled to both.
Held: The misrepresentation . .
Cited – Geldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages, Negligence, Contract

Leading Case

Updated: 31 October 2021; Ref: scu.185449

Wakelin v London and South Western Railway Co: HL 1886

The liability of a defendant in negligence must rest in the first place on there being, per Lord Watson) ‘some negligent act or omission on the part of the company or their servants which materially contributed to the injury or death complained of . . Mere allegation or proof that the company were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no connection whatever with the injury for which redress is sought, and therefore the plaintiff must allege and prove, not merely that they were negligent, but that their negligence caused or materially contributed to the injury.’

Lord Watson, Lord Halsbury LC
(1886) 12 App Cas 41
England and Wales
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Negligence

Leading Case

Updated: 31 October 2021; Ref: scu.272565

Edwards v Railway Executive: HL 1952

A boy aged 9 was injured on a railway line. He had been warned not to go onto the land and had found his way through a defective fence. He claimed in negligence. The fence had been breached by children with some frequency for many years before the accident. When defects were observed by the Defendant’s employees, repairs were duly effected. These were required with frequency. The evidence was that the fence was intact on the accident date.
Held: He was a trespassr and not a licensee.
Lord Goddard said: ‘repeated trespass of itself confers no licence . . how is it to be said that (an occupier) has licensed what he cannot prevent . . Now, to find a licence there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it . . What then have they done in this case to lead anyone to suppose that they may go on to their property to play ?’
Lord Oaksey said: ‘In my opinion, in considering the question whether a licence can be inferred, the state of mind of the suggested licensee must be considered. The circumstances must be such that the suggested licensee could have thought and did think that he was not trespassing but was on the property in question by the leave and licence of its owner.’
Lord Porter said that the first question to be decided was: ‘whether there was any evidence from which it could be inferred that children from the recreation ground had become licensees to enter the respondent’s premises and toboggan down the embankment . . There must, I think, be such assent to the user relied upon as amounts to a licence to use the premises. Whether that result can be inferred or not must, of course, be a question of degree, but in my view a court is not justified in likely inferring it . . The onus is on the appellants to establish their licence, and in my opinion they do not do so merely by showing that, in spite of a fence now accepted as complying with the Act requiring the respondents to fence, children again and again broke their way through. What more, the appellants asked, could the respondents do? Report to the Corporation? But their caretaker knew already. Prosecute? First you have to catch your children and even then would that be more effective? In any case I cannot see that the respondents were under any obligation to do more than keep their premises shut off by a fence which was duly repaired when broken and obviously intended to keep intruders out.’

Lord Porter, Lord Goddard, Lord Oaksey
[1952] 2 All ER 430, [1952] AC 737
Cited by:
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Harvey v Plymouth City Council CA 29-Jul-2010
The Council appealed against a finding of liability under the 1957 Act after the claimant was injured after jumping over a fence to flee hving to pay a taxi, and falling down a steep slope onto a car park. The land had been licenced to the . .

Lists of cited by and citing cases may be incomplete.

Negligence, Personal Injury, Land

Leading Case

Updated: 31 October 2021; Ref: scu.182867

Hunt and Others v Optima (Cambridge) Ltd and Others: TCC 29 Apr 2013

Akenhead J
[2013] EWHC 681 (TCC)
Bailii

Updated: 27 October 2021; Ref: scu.503516

Dutton v Bognor Regis Urban District Council: CA 1972

The court considered the liability in negligence of a Council whose inspector had approved a building which later proved defective.
Held: The Council had control of the work and with such control came a responsibility to take care in performing all associated tasks.
Lord Denning MR said: ‘If Mr Tapp’s submissions were right, it would mean that if the inspector negligently passes the house as properly built and it collapses and injures a person, the council are liable : but if the owner discovers the defect in time to repair it – and he does repair it – the council are not liable. That is an impossible distinction. They are liable in either case’.
Lord Denning MR
[1972] 1 All ER 462, [1972] 2 WLR 299, [1972] 1 QB 373, [1972] CLY 2352
England and Wales
Citing:
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – Dorset Yacht Co Ltd v Home Office HL 6-May-1970
A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use . .
Cited – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited – Launchbury v Morgans CA 1971
The wife owned the car. The husband who had drunk to excess drove the car with her permission, causing severe injury to the passengers and his own death. She was not present.
Held: From considerations of policy, as the owner of the family car . .
Cited – SCM (United Kingdom) Ltd v W J Whittall and Son Ltd CA 1970
The defendants’ workmen damaged an electric cable belonging to the electricity board, cutting off several factories, including the plaintiff’s. The defendant sought to have the claim struck out.
Held: The part of the claim arising from . .

Cited by:
Cited – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
Cited – 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 – Bellefield Computer Services Limited, Unigate Properties Limited; Unigate Dairies Limited; Unigate (Uk) Limited; Unigate Dairies (Western) Limited v E Turner and Sons Limited Admn 28-Jan-2000
The Defendant builders constructed a steel building to be used as, inter alia. a dairy. The original owners sold it to the appellants. A fire spread from the storage area to the rest of the dairy and caused much damage. The Builders, had they . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.180551

Jarvis v Hampshire County Council: CA 23 Nov 1999

A child who did not receive sufficient education appropriate to his disability (dyslexia), did not acquire a right to claim in damages against the education authority. This applies both to claims of misfeasance in public office and in negligence. The authority owed him no direct duty of care. The claim of misfeasance implied dishonesty which would have to be clearly supported.
Times 23-Nov-1999, Gazette 17-Dec-1999
England and Wales
Citing:
Appealed to – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Cited by:
Appeal from – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Updated: 23 October 2021; Ref: scu.82500

Stovin v Wise (Norfolk City Council, 3rd party): CA 16 Feb 1994

A road user was injured on a corner which was known to the highway authority to be dangerous. The authority had sought to make arrangements with the owner of land adjoining the highway to remove a bank which obstructed the view.
Held: The Highway Authority could be liable in negligence for failing to achieve a remedy to a situation which it knew to be dangerous, but that no additional duty was owed, under its statutory duty to maintain the highway, to execute works on private land. Kennedy LJ ‘I agree with the judge that the statutory duty to maintain the highway does not extend to work on land not forming part of the highway. There is no definition of highway in the Act of 1980 beyond that in section 328(1), where it is defined as meaning ‘the whole or a part of a highway, other than a ferry or waterway,’ but the common law definition is that a highway is a way over which there exists a public right of passage. It seems to me that despite what is contained in the other statutory provisions to which we have been referred it would be stretching the meaning of both ‘highway’ and ‘maintain’ if this court were to say that in order to comply with its duty to maintain the highway authority had to remove an obstruction to visibility situated on adjoining land. In my judgment sections 79 and 154 are merely sections which enable the highway authority to carry out functions which go beyond the scope of section 41. Accordingly I conclude that the judge was right not to find any relevant breach of statutory duty.’
Nourse, Kennedy and Roch L.JJ
Times 08-Mar-1994, Gazette 13-Apr-1994, [1994] 3 All ER 467, [1994] 1 WLR 1124
lip
Highways Act 1980 41(1) 328(1)
England and Wales
Citing:
Considered – Haydon v Kent County Council CA 1978
Impacted snow and ice had built up on a steep, narrow, made-up footpath from Monday to Thursday during a short wintry spell. The plaintiff slipped and broke her ankle. The highway authority operated a system of priorities. Their resources were fully . .
Considered – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
Considered – 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 . .
Distinguished – East Suffolk Rivers Catchment Board v Kent HL 1941
An exceptionally high spring tide caused many breaches of the banks of the River Deben, and extensive flooding, including the respondent’s farm. By section 6 of the 1930 Act, the appellants had a statutory power to maintain the flood defences, but . .
Distinguished – Sheppard v Glossop Corporation CA 1921
. .

Cited by:
Appeal from – Stovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
Cited – 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 – Kane v New Forest District Council CA 13-Jun-2001
A pedestrian walked from a footpath into the road and was hit by a car. She sought damages from the highway authority, saying that they had allowed vegetation to grow to an extent to make it impossible to be seen. As a second tier appeal, the . .
Cited – Thoburn v Northumberland County Council CA 19-Jan-1999
The claimant alleged that the defendant by allowing a flood across a road not to be cleared was in breach of their statutory duty under the 1980 Act.
Held: Though the blockage was not entirely on the Highway, the nature and extent of it was . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.89578

Hayes and Another v Dodd: CA 7 Jul 1988

The court considered what damages might be paid for inconvenience and distress.
Purchas LJ, Staughton LJ, Waller LJ
[1988] EWCA Civ 8, [1990] 2 All ER 815
Bailii
England and Wales
Cited by:
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.252501

Talbot v Berkshire County Council: CA 23 Mar 1993

In a motor accident, both driver and passenger were injured. The passenger sued the driver. The driver’s insurers, without notice to the driver, made a third party claim against the Berkshire County Council, claiming contribution as between joint tortfeasors but including no claim for the driver’s own injuries. The driver later discovered his insurer’s action and himself sought damages from the council.
Held: A cause of action estoppel, which estops a plaintiff pursuing a second action which could have been combined with a first action, applied to an action for personal injuries to prevent a motorist suing a highway authority. The insurers’ solicitors appeared to have been negligent but the claim against the county council should be struck out unless there were special circumstances, and in this case there were not.
Stuart-Smith LJ said: ‘There can be no doubt that the [driver’s] personal injury claim could have been brought at the time of [the passenger’s] action. It could have been included in the original third party notice issued against the council (R.S.C., Ord. 16, r. 1(b)(c)); it could have been started by a separate writ and consolidated with or ordered to be tried with [the passenger’s] action: Ord. 4, r. 9. The third party proceedings could have been amended at any time before trial and perhaps even during the trial to include such a claim, notwithstanding that it was statute-barred, since it arose out of the same or substantially the same facts as the cause of action in respect of which relief was already claimed, namely, contribution or indemnity in respect of [the passenger’s] claim: Ord. 20, r. 5. In my opinion, if it was to be pursued, it should have been so brought.’ and

‘The rule is thus in two parts. The first relates to those points which were actually decided by the court: this is res judicata in the strict sense. Secondly, those which might have been brought forward at the time, but were not. The second is not a true case of res judicata but rather is founded on the principle of public policy in preventing multiplicity of actions, it being in the public interest that there should be an end to litigation: the court will stay or strike out the subsequent action as an abuse of process.’
Stuart-Smith LJ, Mann LJ, Nourse LJ
Times 23-Mar-1993, [1994] QB 290
England and Wales
Cited by:
Cited – C (A Minor) v Hackney London Borough Council CA 10-Nov-1995
The mother had claimed in damages for the injuries to her health from the landlord authority’s failure to repair. Her child then brought a subsequent action in respect of his own injuries. The authority claimed the action should be stopped as res . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – Divine-Bortey v London Borough of Brent CA 14-May-1998
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.89696

Sutradhar v Natural Environment Research Council: HL 5 Jul 2006

Preliminary Report of Risk – No Duty of Care

The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a claim in negligence. The claimant appealed summary judgment against him.
Held: The appeal failed. ‘the existence of a relevant duty of care aside, one of the other formidable difficulties in the claimant’s path would be to show that it was negligent of BGS, in the context of a report which did not purport to be a certificate of the potability of drinking water, not to have questioned the current orthodoxy that it was unnecessary to test for arsenic.’ and ‘if ever there were a case which is bound to fall at the proximity hurdle this surely is it. Whatever is required to constitute a sufficient proximity to support a duty of care – and I acknowledge the imprecision of the concept and the many criticisms it has attracted down the years-it is not to be found on any possible view of the facts here.’
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance
[2006] UKHL 33, Times 07-Jul-2006, [2006] 4 All ER 490
Bailii
England and Wales
Citing:
Appeal from – 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 – Le Lievre v Gould CA 6-Feb-1893
Mortgagees of the interest of a builder under a building agreement, advanced money to him from time to time, relying upon certificates given by a surveyor as to stages reached. The surveyor was not appointed by the mortgagees, and there was no . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Perrett v Collins, Underwood PFA (Ulair) Limited (T/a Popular Flying Association) CA 22-May-1998
The plaintiff was a passenger in an aircraft which crashed, and there was a preliminary issue as to the liability to him of those who certified that the aircraft was fit to fly. The propeller was mismatched to the gearbox.
Held: A certifying . .
Cited – Candler v Crane Christmas and Co CA 15-Dec-1950
Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
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 – Brooks v Commissioner of Police for the Metropolis and others CA 26-Mar-2002
The claimant was with Stephen Lawrence when he was murdered by a gang of white youths. He said that the police treatment of him exacerbated the post traumatic stress he suffered.
Held: His claim failed. The allegations against the police might . .
Cited – Parkinson v St James and Seacroft University Hospital NHS Trust CA 11-Apr-2001
A mother had undergone a negligent sterilisation, and in due course she gave birth to a disabled child.
Held: The right to bodily integrity is the first and most important of the interests protected by the law of tort. The cases saying that . .
Cited – Clay v AJ Crump and Sons Ltd CA 1964
An architect, a demolition contractor and a building contractor were each held liable to an employee of building contractors for the collapse of a wall which, with the architect’s approval, demolition contractors had left standing.
Held: As . .
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 – Michael Alexander Watson v British Boxing Board of Control Ltd, World Boxing Organisation Incorporated CA 19-Dec-2000
The claimant was seriously injured in a professional boxing match governed by rules established by the defendant’s rules. Ringside medical facilities were available, but did not provide immediate resuscitation. By the time he received resuscitation . .

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

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.242980

Geyer v Downs and another: 1977

(High Court of Australia) A pupil suffered injuries when hit by a softball bat by a fellow pupil at playing the game in the school playground before school. There was no supervision. The jury awarded the appellant damages. The verdict was set aside by the court of appeal.
Held: The appeal to the High Court was allowed: ‘It was urged for the respondent that there was no duty of supervision owed to the children before ‘school hours’. That expression was taken in the present case to mean the period of time beginning at 9.00 am, at which the ‘Daily Routine’ stated that the playgrounds were to be supervised. Reliance was also placed upon the departmental instruction 5.2.4.1 as set out, supra, which it was said produced the result that the headmaster had no power or authority to require teachers to supervise the playground otherwise than during the hours 9.00 am to 3.30 pm as set out in that instruction. It was said therefore that the headmaster could not be regarded as negligent by failing to take measures to provide supervision of the playground prior to 9.00 am when he had no authority to direct any teacher to be present to perform that function. So to regard the case is to take an unduly restricted view of the relevant circumstances. There is no case which lays down that there is no duty of supervision prior to ‘school hours’, however that expression may be understood. The point seems to have been seldom referred to. In Ward v Hertfordshire County Council [1970] 1 All ER 535 at 538; [1970] 1 WLR 356 at 361, Salmon LJ expressly reserved the question whether lack of supervision could give rise to a cause of action in a case where the injury occurs at 8.50 am but ‘the school does not start until 8.55 am’. There seems no basis for treating it as a rule that there can be no duty of supervision outside ‘ordinary school hours’ or ‘before school started’. The question must depend upon the nature of the general duty to take reasonable care in all the circumstances. It is not enough to look only at the departmental instructions and to say that the duty of supervision arises only during the periods referred to in those instructions.’
Murphy and Aickin JJ
[1977] 17 ALR 408
Australia
Cited by:
Cited – Kearn-Price v Kent County Council CA 30-Oct-2002
The claimant was injured, being hit in the face by a football in a school playground. It was before school started. There had been accidents, and there were rules which had not been enforced. The school appealed a finding of negligence.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2021; Ref: scu.214302

Boothman v British Northrop Ltd: CA 1972

Once relevant fault on the part of the plaintiff has been established, a reduction on account of his fault in the damages recoverable is obligatory Stephenson LJ: ‘Speaking for myself, I do not find that the words of section 1(1) of the Law Reform (Contributory Negligence) Act 1945 give any support to the view that the court can disregard negligence on the part of a plaintiff contributing to an accident if it thinks it just and equitable so to do. What the section says is that ‘the damages recoverable in respect thereof’ – that is, in respect of damage suffered by any person ‘as the result partly of his own fault and partly of the fault of any other person’ – ‘shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share of the responsibility for the damage’.
It has been held that the principle of de minimis applies to this as to other branches of the law and that where the contribution of a plaintiff’s negligence is virtually negligible it should be disregarded and the damages should be awarded him in full. If one looks at the words of section 1 (1) of the Act of 1945 they do not seem to leave much room for an application of the de minimis principle. But they certainly, in my view, do not encourage, and I very much doubt if they permit, not a reduction ‘to such extent as the court thinks just and equitable’ but no reduction at all because the court thinks it just and equitable that there should be no reduction. The judge having found (as I think, rightly) contributory negligence on the part of the plaintiff, I do not think it is open to Mr Carman to argue that even if that finding stands he should not have his damages reduced at all.’
Stephenson LJ
[1972] KIR 113
Law reform (Contributory Negligence) Act 1945 1
England and Wales
Cited by:
Cited – Badger v The Ministry of Defence QBD 16-Dec-2005
The widow of the deceased sought damages after his exposure to asbestos whilst working for the defendant. He had contracted lung cancer. The defendant argued that the deceased had continued to smoke knowing of the risks, and that he had made a . .

These lists may be incomplete.
Updated: 21 June 2021; Ref: scu.237431

Bird v Holbrook: 1828

References: (1828) 4 Bing 628
Ratio:
Jurisdiction: England and Wales
This case is cited by:

Cited – British Railways Board v Herrington HL (lip, [1972] AC 877, [1972] 2 WLR 537, [1971] 1 All ER 749, Bailii, [1972] UKHL 1)
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 . .

(This list may be incomplete)

Last Update: 10 March 2019
Ref: 180981

Caltex Oil (Australia) Pty Ltd v Dredge Willemstad”: 9 Dec 1976″

References: [1976] HCA 65, (1976) 136 CLR 529
Links: Austlii
Coram: Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
Ratio: Austlii (High Court of Australia) Negligence – Duty of care – Foreseeability of harm – Economic loss not consequential upon damage to person or property – Damage to property of one person – Economic loss suffered by person as a result – Pipeline carrying oil to plaintiff’s depot – Damaged by defendant’s negligence – Supply interrupted – Pipeline and depot owned by different persons – Expense incurred by plaintiff in arranging alternative means of delivery – Whether recoverable – Remoteness of loss or damage.
Shipping and Navigation – Action in rem – Action against ship – Negligence – Master not sued as defendant – Appearance entered by master – No proprietary interest in ship – Whether master liable to judgment.
A pipeline was damaged and the owner of the terminal (who was not the owner of the pipeline) incurred expense in transporting refined oil to the terminal while the pipeline was out of use.
Held: The plaintiff was entitled to recover that expense from the dredger which had damaged the pipeline. Jacobs J said that the duty of care owed to the owner of the pipeline was also owed to ‘a person whose property was in such physical propinquity to the place where the acts of omissions of the dredge . . had their physical effect that a physical effect on the property of that person was foreseeable as the result of such acts or omissions’.
This case is cited by:

Approved – Candlewood Navigation Corporation Limited v Mitsui OSK Lines Limited and Matsuoka Steamship Co Limited PC ([1986] 1 AC 1, Bailii, [1985] UKPC 21, [1985] 3 WLR 381, [1985] 2 Lloyd’s Rep 303, [1985] 2 All ER 935)
(New South Wales) Two ships had collided, after, without negligence, an anchor on one ship failed. The Supreme Court had found the crew negligent after failing to react appropriately to the loss of the anchor. The company now appealed against the . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD (Bailii, [2009] EWHC 685 (QB))
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .

(This list may be incomplete)
Jurisdiction: Australia

Last Update: 13-Jul-18
Ref: 331084

Parsons Corporation and others v CV Scheepvaartonderneming Happy Ranger”: ComC 9 Feb 2006″

References: [2006] EWHC 122 (Comm)
Links: Bailii
Coram: Mrs Justice Gloster DBE
Ratio: A large cylinder part was damaged as it was being loaded on board the Happy Ranger in Italy. A hook on the crane was brittle and did not meet the approriate specification. It had not been tested as required.
This case cites:

Cited – W. Angliss v Peninsular and Oriental Steam Navigation Co ([1927] 1 KB 456)
Wright J held: ‘The Carriage of Goods by Sea Acts have introduced a new and obligatory code of responsibilities and immunities as affecting carriers under bills of lading in place of the former rule that carriers by sea, while generally under the . .
Cited – Northern Shipping Company v Deutsche Seereederei Gmbh and others (‘The Kapitan Sakharov’) CA (Bailii, [2000] EWCA Civ 400, [2000] 2 Lloyd’s Law Rep 255)
A carrier: (a) should not be exposed to an infinite liability in time; and (b) is not, without more, liable for latent defects in a vessel before it acquired it. The relevant failure to exercise due diligence must relate to the performance of a . .
Cited – Riverstone Meat Co Pty Ltd v Lancashire Shipping Co (‘The Muncaster Castle’) HL ([1961] AC 807)
Persons employed by a carrier in the work of keeping or making a vessel seaworthy are the carrier’s agents whose diligence or lack of it is attributable to the carrier. A shipowner’s or carrier’s duty under Article III, Rule 1 would not start and he . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 14-Apr-17
Ref: 238654

Perre v Apand Pty Ltd; 12 Aug 1999

References: (1999) 198 CLR 180, [1999] HCA 36, [1999] 64 ALR 606, [1999] 64 73 ALJR 1190
Links: Austlii
Coram: Kirby J
Ratio: (High Court of Australia) The plaintiff farmers sought damages for financial losses incurred after the defendant negligently introduced a disease. Although the disease was not shown to have spread, neighbouring farm owners suffered economic loss by the imposition of a potato marketing ban in Western Australia attributable to the proximity of their farms to the outbreak of the disease, and sued the defendant for what was therefore pure economic loss (the absence of any escape of the disease preventing a claim under Rylands v. Fletcher).
Held: An important criterion for the imposition of liability for economic loss lay in ascertaining the extent to which the plaintiff was vulnerable to incurring loss by reason of the defendant’s conduct, and the extent to which that was or should have been apparent to the defendant.
Kirby J: ‘As against the approach which I favour, it has been said that the three identified elements are mere ‘labels’. So indeed they are. . . Labels are commonly used by lawyers. They help steer the mind through the task in hand.’
This case is cited by:

Cited – HM Customs and Excise v Barclays Bank Plc HL (Bailii, [2006] UKHL 28, [2007] 1 AC 181, [2006] 4 All ER 256, [2006] 2 LLR 327, [2006] 3 WLR 1, [2006] 2 Lloyd’s Rep 327, [2006] 1 CLC 1096)
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Calvert v William Hill Credit Ltd ChD (Bailii, [2008] EWHC 454 (Ch))
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, . .

(This list may be incomplete)

Last Update: 28-Aug-16
Ref: 242687

Tame v New South Wales; Annetts v Australian Stations Pty Limited; 5 Sep 2002

References: [2002] HCA 35, [2002] 211 CLR 317, [2002] 191 ALR 449, [2002] 76 ALJR 1348
Links: Austlii
Coram: Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Ratio: Austlii (High Court of Australia) Tame v New South Wales
Negligence – Duty of care – Psychiatric injury – Motor accident – Clerical error by police constable in recording driver’s blood alcohol content – Psychotic depressive illness caused by driver learning of mistake – Whether duty of care owed by police constable to driver – Whether psychiatric injury reasonably foreseeable – Whether sole determinant of duty – Other control mechanisms for imposition of duty – Normal fortitude – Sudden shock – Direct perception – Immediate aftermath.
Annetts v Australian Stations Pty Limited
Negligence – Duty of care – Psychiatric injury – Death of child – Assurances of constant supervision of child made by employer to parents – Whether duty of care owed by employer of child to parents – Whether psychiatric injury reasonably foreseeable – Whether sole determinant of duty – Other control mechanisms for imposition of duty – Normal fortitude – Sudden shock – Direct perception – Immediate aftermath.
This case is cited by:

Cited – Zurich Insurance Plc UK Branch -v- International Energy Group Ltd SC (Bailii, [2015] UKSC 33, [2015] Lloyd’s Rep IR 598, [2015] WLR(D) 233, [2015] 2 WLR 1471, [2016] AC 509, Bailii Summary, WLRD , UKSC 2013/0057, SC, SC Summary, SC Summary Video)
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 . .

(This list may be incomplete)

Last Update: 01-Jul-16
Ref: 566221

New South Wales v Lepore; 6 Feb 2003

References: [2003] HCA 4, (2003) 212 CLR 511, (2003) 195 ALR 412, (2003) 77 ALJR 558, (2003) 24 Leg Rep 2
Links: Austlii
Coram: Gleeson CJ, Gaudron, Mchugh, Gummow, Kirby, Hayne and Callinan JJ
Ratio: Austlii (High Court of Australia) 1. Appeal allowed in part
2. Paragraph 2 of the order of the Court of Appeal of New South Wales made on 23 April 2001 set aside, and in its place, order that the judgment entered in the District Court on 16 April 1999 be wholly set aside and that there be a new trial.
3. Appellant to pay the costs of the appeal to this Court.
4. Costs of the new trial to abide its outcome.
Callian J (majority) said: ‘Education authorities do not owe to children for whose education they are responsible (absent relevant contractual provision to the contrary) a particular or unique non-delegable duty of care, in practical terms, giving rise to absolute liability. There is no doubt that the ordinary standard of care in the case of such authorities is a very high one. Their duties include the engagement of reliable, and carefully screened, properly trained employees, and the provision: of suitable premises; an adequate system for the monitoring of employees; and, I would think, because, regrettably, the incidence of sexual abuse seems to have been more common than had previously been thought, an efficient system for the prevention and detection of misconduct of that kind. In saying what I have, I do not intend to state comprehensively a catalogue of the duties to which the relationship of education authority and pupil may give rise. But I do agree with the Chief Justice that absent fault on the part of an education authority, it will not be personally liable in situations of the kind with which these cases are concerned’.
McHugh J. (minority: he alone would have found non-delegable duties in the particular circumstances) said: ‘a State education authority owes a duty to a pupil to take reasonable care to prevent harm to the pupil. The duty cannot be delegated. If, as is invariably the case, the State delegates the performance of the duty to a teacher, the State is liable if the teacher fails to take reasonable care to prevent harm to the pupil . . The duty arises on the enrolment of the child. It is not confined to school hours or to the commencement of the teachers’ hours of employment at the school. If the authority permits a pupil to be in the school grounds before the hours during which teachers are on duty, the authority will be liable if the pupil is injured through lack of reasonable supervision. In Geyer v Downs this Court held that the education authority was liable for injuries suffered by a pupil playing in the school grounds at about 8.45am although teachers at the school were not required to be on duty at that time . . The duty extends to protecting the pupil from the conduct of other pupils or strangers and from the pupil’s own conduct The measure of the duty is not that which could be expected of a careful parent.
Murphy and Aickin JJ rejected the parent analogy in Geyer v Downs saying that it was unreal to apply that standard to ‘a schoolmaster who has the charge of a school with some 400 children, or of a master who takes a class of thirty or more children’.
This case is cited by:

Cited – Woodland -v- The Swimming Teachers’ Association and Others QBD (Bailii, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
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 . .

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 445625

National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’): 1993

References: [1993] 2 Lloyd’s Rep 68
Coram: Cresswell J
Ratio:Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation Whitehouse v. Jordan
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise . . An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion . . 4. An expert witness should make it clear when a particular question or issue falls outside his expertise. . . 5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one . . In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.’
This case cites:

Cited – Whitehouse -v- Jordan HL ([1981] 1 WLR 246, Bailii, [1980] UKHL 12, [1981] 1 All ER 267)
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 – Pollivitte Ltd -v- Commercial Union Assurance Company Plc ((1987) 1 Lloyds Rep 379)
An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. . .
Cited – Graigola Merthyr Co Ltd -v- Swansea Corporation ([1928] 1 Ch 31)
Tolmin J considered the duties of an expert witness: ‘long cases produce evils . . In every case of this kind there are generally many ‘irreducible and stubborn facts’ upon which agreement between experts should be possible and in my judgment the . .
Mentioned – In Re J ([1990] FCR 193)
An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. An expert witness should provide independent assistance to the . .

(This list may be incomplete)
This case is cited by:

Cited – Elf Caledonia Ltd -v- London Bridge Engineering Ltd and Northern Industrial and Marine Services Co Ltd and British Telecommunications Plc and Wood Group Engineering Contractors Ltd and Eastman Christensen Ltd and Kelvin International Services Ltd and Sten SCS (Bailii, [1997] ScotCS 1)
. .
Cited – McTear -v- Imperial Tobacco Ltd OHCS (Bailii, [2005] ScotCS CSOH_69, Times 14-Jun-05, Scottish CS)
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 – Meadow -v- General Medical Council Admn (Bailii, [2006] EWHC 146 (Admin), Times 22-Feb-06, [2006] 1 WLR 1452, (2006) 89 BMLR 143, [2006] Lloyds Rep Med 233, [2006] 1 FLR 1161, [2006] 2 All ER 329, [2006] 2 FCR 777, [2006] ACD 43)
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . .
See Also – The Ikarian Reefer CA ([1995] Lloyd’s Rep 455)
The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When . .
Cited – Bowman, Regina -v- CACD (Bailii, [2006] EWCA Crim 417, Times 24-Mar-06)
The defendant appealed his conviction for murder saying that evidence of other pathologists undermined the evidence given by similar experts for the crown.
Held: The court took the opportunity to give guidance on the provision of expert . .
Cited – Catlin Estates Ltd and Another -v- Carter Jonas (A Firm) TCC (Bailii, [2005] EWHC 2315 (TCC))
The defendants had been employed to manage a building project which it was said went wrong. The court had to consider several different factual claims. . .
Cited – Toth -v- Jarman CA (Bailii, [2006] EWCA Civ 1028, Times 17-Aug-06)
The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: . .
Cited – General Medical Council -v- Professor Sir Roy Meadow, Attorney General CA (Bailii, [2006] EWCA Civ 1390, Times 31-Oct-06, [2007] 2 WLR 286, (2006) 92 BMLR 51, [2007] 1 All ER 1, [2006] 3 FCR 447, [2007] LS Law Medical 1, [2007] Fam Law 214, [2007] ICR 701, [2007] QB 462, 92 BMLR 51, [2007] 1 FLR 1398, [2006] 44 EG 196)
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Approved – Philip Gerald Stanton; Sylvia Mary Stanton -v- Brian F Callaghan; Brian F Callaghan & Associates (a Firm); Brian F Callaghan and Partners (a Firm) CA (Gazette 15-Jul-98, Gazette 03-Sep-98, Bailii, [1998] EWCA Civ 1176, [2000] 1 QB 75)
The defendant, a structural engineer, was retained by the plaintiffs in a claim against insurers for the costs of remedying subsidence of the plaintiffs’ house. He advised total underpinning for £77,000, but later while preparing a joint . .
Cited – Downey, Application for Judicial Review QBNI (Bailii, [2000] NIQB 10)
. .
Cited – Richard Wilhelm Karling (Ap) -v- Dr Basil Nigel Purdue OHCS (ScotC, Bailii, [2004] ScotCS 221, 2005 SCLR 43)
. .
See Also – Comninos -v- Prudential Assurance Company Ltd (The Ikarian Reefer no 2) CA (Bailii, [1999] EWCA Civ 3019, [2000] 1 All ER 37, [1999] 2 All ER (Comm) 673, [2000] 1 Lloyd’s Rep 129, [2000] 1 WLR 603, [2000] Lloyd’s Rep IR 230, [2000] CLC 22, [2000] 1 Costs LR 37, [2000] CP Rep 13, [2000] ILPr 490)
Mr Comninos challenged the jurisdiction of the court to have made an order for costs made against him. . .
Cited – Starred Slimani (Content of Adjudicator Determination) Algeria IAT (Bailii, [2001] UKIAT 00009, [2001] UKIAT 01TH00092)
. .
Cited – LP (Ltte Area, Tamils, Colombo, Risk) Sri Lanka Cg IAT (Bailii, [2007] UKAIT 00076)
. .
Cited – Saunder -v- Birmingham City Council EAT (Bailii, [2008] UKEAT 0591_07_2105)
EAT Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke – Case management
Joint expert witness appointed by ET. Whether his evidence should be excluded on grounds of bias. Circumstances in . .
Clarified – Anglo Group Plc, Winther Brown & Co Ltd -v- Winter Brown & Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC (Bailii, [2000] EWHC Technology 127, (2000) 144 Sol Jo LB 197)
Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses generally – whether computer company liable . .
Cited – Cala Homes (South) Ltd and others -v- Alfred McAlpine Homes East Ltd ChD (Bailii, [1995] EWHC 7 (Ch), [1995] FSR 818)
The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing . .
Cited – Tradition (UK) Ltd, Tradition Bond Brokers Limited, Howard, Harland -v- Cantor Fitzgerald International ChD (Times 19-May-99)
When deciding whether a copying of a computer program was substantial, the test was not whether the program would run without that code. It had to be looked at as a whole allowing for the skill and labour which had gone into different sections of . .
Cited – Edwin John Stevens -v- R J Gullis and David Pile CA (Bailii, [1999] EWCA Civ 1978)
The new Civil Procedure Rules underline the existing duty which an expert owes to the Court as well as to the party which he represents. . .

(This list may be incomplete)

Last Update: 22-Jun-16
Ref: 226225

Eilzabeth Dakin, Administration Of William Dakin, Deccased, v Brown And Munt; 19 Jun 1849

References: [1849] EngR 749, (1849) 8 CB 92, (1849) 137 ER 443
Links: Commonlii
Ratio In case against engineers for so negligently constructing and erecting a machine, that it exploded, and killed the husband of the plaintiff, the defendants pleaded, that, at the time of the accident, the machine was unfit for use, by reason of the dampness of the brick-work in which it was set; that they so informed the deceased, and cautioned him not to use it; and that, by reason of the premises, the machine exploded, as in the declaration mentioned,-concluding with a verification :-Held, that the plea did not present a confession and avoidance of the whole cause of action,but was an informal traverse of a part only, and therefore bad.

Last Update: 16-May-16
Ref: 299054

Thompson v Johnson and Johnson Pty Ltd; 30 Nov 1991

References: [1991] 2 VR 449, [1991] VicRp 84, [1991] Aust Torts Reports 68-587
Links: Austlii
Ratio (Supreme Court of Victoria)

Last Update: 29-Mar-16
Ref: 226753

Mobil Oil Hong Kong Ltd v Hong Kong United Docklands Ltd. (the ‘Hua Lien’): 1991

References: [1991] 1 Lloyds Rep 309
This case is cited by:

Cited – Marc Rich & Co Ag and Others -v- Bishop Rock Marine Co Ltd and Others HL (Gazette 06-Sep-95, Independent 18-Aug-95, Times 07-Jul-95, [1995] 3 All ER 307, Bailii, [1995] UKHL 4, [1996] 1 AC 211, [1995] CLC 934, [1995] 2 LLR 299, [1996] ECC 120, [1995] 3 WLR 227, [1995] 2 Lloyd’s Rep 299)
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 . .

(This list may be incomplete)

Last Update: 24-Mar-16
Ref: 251598

Graham Barclay Oysters Pty Ltd v Ryan; 9 Aug 2000

References: (2002) 211 CLR 540, [2000] FCA 1099
Links: Austlii
Coram: Gaudron J
Austlii (Federal Court of Australia) TORT – Negligence – non-feasance by public authorities – non-exercise by local government council and State government to minimise faecal contamination of lake where oysters grown commercially – oysters carrying hepatitis A virus – consumer of oysters contracting hepatitis A – whether duty of care owed to be discharged by exercise of statutory powers – causation – whether local government council and State government required to carry out sanitary survey of shore of lake.
TORT – Negligence – whether duty of care owed by commercial farmer of oysters to consumers of them breached where oysters carrying hepatitis A virus due to faecal contamination of lake in which oysters grown – oyster farmer’s depuration plant not shown to be working unsatisfactorily – whether discharge of oyster farmer’s duty required it to carry out sanitary survey of shore of lake or to urge public authorities to do so – causation of oysters contaminated with hepatitis A virus as a result of faecal contamination of lake where oysters grown – whether circumstances show it was unreasonable for consumer to rely on skills or judgment of grower – whether oysters were as fit for purpose as reasonable to expect.
Gaudron J: ‘Although different concepts inform the law of negligence, ordinarily there is a duty to warn only if there is a foreseeable risk that a person will be led to believe that something is safe when it is not.’
McHugh J: ‘The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer. To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred). If the duty is formulated in specific terms, the issue on breach is whether the duty has been performed in accordance with the terms of the duty as formulated. But, as Wyong Shire Council v Shirt [footnote reference to (1980) 146 C.L.R. 40 at 47-48, per Mason J., Stephen and Aickin J.J. agreeing] shows, the question of breach is far more complex than an affirmative or negative answer to the question whether the defendant carried out the duty as formulated. It involves evaluating and weighing a number of competing considerations.’
This case is cited by:

Cited – McTear -v- Imperial Tobacco Ltd OHCS (Bailii, [2005] ScotCS CSOH_69, Times 14-Jun-05, Scottish CS)
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 . .

(This list may be incomplete)
Last Update: 29-Feb-16 Ref: 226698

Doe v Metropolitan Toronto (Municipality) Commissioners of Police; 30 Aug 1990

References: 74 OR (2d) 225, 72 DLR (4th) 580, 5 CCLT (2d) 77, [1990] OJ No 1584 (QL), 10 WCB (2d) 577, 1 CRR (2d) 211, 50 CPC (2d) 92, 40 OAC 161, 22 ACWS (3d) 869
Links: Canlii
Coram: O’Leary, Saunders and Moldaver JJ
Ontario – High Court of Justice, Divisional Court – Negligence — Duty of care — Police not warning potential victim of serial rapist due to stereotypical belief that her hysterical response to warning would scare off rapist and make apprehension more difficult.
Constitutional law — Charter of Rights — Right to life, liberty and security — Police not warning potential victim of serial rapist due to stereotypical belief that her hysterical response to warning would scare off rapist and make apprehension more difficult — Charter rights violated — Canadian Charter of Rights and Freedoms, s. 7.
Constitutional law — Charter of Rights — Equality rights — Police not warning potential victim of serial rapist due to stereotypical belief that her hysterical response to warning would scare off rapist and make apprehension more difficult — Charter rights violated — Canadian Charter of Rights and Freedoms, s. 15(1).
On August 24, 1986, the plaintiff was raped by a serial rapist who subsequently pleaded guilty to a number of sexual assaults including the attack on the plaintiff. All of the attacks occurred within a one-year period in the same vicinity and involved single white women living in second or third floor apartments to which the rapist gained entry through a balcony door. In this action, the plaintiff sued the Chief of Police at the time of the assault, the investigating officers in charge of the case and the Board of Commissioners of Police for damages. The plaintiff alleged a cause of action in tort and a cause of action for violating her rights to security of the person and her right to equal protection under ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms. The defendants moved to have the action dismissed as not disclosing a cause of action. The motion was dismissed. Leave having been granted, the defendants appealed.
Held, the appeal should be dismissed and the plaintiff’s action allowed to proceed.
This case is cited by:

Cited – Michael and Others -v- The Chief Constable of South Wales Police and Another SC (Bailii, [2015] UKSC 2, Bailii Summary, [2015] 2 WLR 343, [2015] Med LR 171, [2015] 2 All ER 635, [2015] HRLR 8, UKSC 2013/0043, SC, SC Summary, SC Videoa Summary)
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .

(This list may be incomplete)
Last Update: 21-Dec-15 Ref: 556824

Couch v Attorney-General; 13 Jun 2008

References: [2008] 3 NZLR 725, [2008] NZSC 45
Links: Nzlii
Coram: Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Nzlii Supreme Court of New Zealand – [1] The victim of a criminal assault claims exemplary damages from the Attorney-General for claimed failures of the Probation Service to exercise reasonable care in the supervision of the parolee who seriously injured her. Her claim has been struck out in the Court of Appeal on the basis that it discloses no cause of action because no duty of care was owed by the Probation Service to her. A further argument that the claim should be struck out on the basis that exemplary damages are not available for negligently causing personal injury did not have to be addressed in the Court of Appeal, because it took the view that no duty of care arose. Whether exemplary damages can be claimed, if a duty of care cannot be excluded, remains a live preliminary issue but is not disposed of in this judgment because the parties did not have time at the hearing to address the point. The question for determination now is whether the Probation Service may owe a duty of care in law to the victim. As the Court is unanimous in resolving this question in favour of the plaintiff, so that the basis on which the claim was struck out in the Court of Appeal falls away, it will be necessary to hold a further hearing on the availability of exemplary damages, if the parties require that matter to be determined before trial. Because the parties may wish to reconsider whether the availability of exemplary damages is suitable for determination before trial, in the light of the discussion in the reasons of the Court about the principles upon which strike-out is appropriate, the appeal is formally adjourned so that memoranda can be filed within one month on that point. If further hearing is required, a fixture will then be made. If further hearing is not necessary, formal orders reinstating the proceedings will be made.
[2] Whether the Probation Service may owe a duty of care to the victim of a criminal assault by a parolee under its supervision is not resolved by New Zealand authority. It falls to be determined in this Court on a strike-out basis, ahead of determination of the facts and before completion of pre-trial processes, including finalisation of the pleadings. Whether the circumstances relied on by the plaintiff are capable of giving rise to a duty of care is the question for the Court. If a duty of care cannot confidently be excluded, the claim must be allowed to proceed. It is only if it is clear that the claim cannot succeed as a matter of law that it can be struck out.
[3] We are of the view that the claim is not so clearly untenable as to be suitable for peremptory determination on untested facts. We are unable to agree with the majority in the Court of Appeal that it should be struck out. We consider that strike-out is premature for reasons similar to those that persuaded Hammond J to dissent in the Court of Appeal.
[4] Although we agree with Tipping J that the claim should not be struck out as disclosing no duty of care, we differ from him in the approach to be taken in ascertaining whether a duty of care can arise in these circumstances. Tipping J suggests that a duty of care to prevent harm inflicted by a third party arises only where the plaintiff, either as an individual or as a member of an ‘identifiable and sufficiently delineated class’, is known to the defendant to be ‘the subject of a distinct and special risk’ of the harm suffered because of particular vulnerability. [1] Requiring such test to be satisfied in all cases where harm results from third party intervention seems to us to introduce undesirable relational rigidity into the general organising principles for the tort of negligence applied in New Zealand in such cases as Bowen v Paramount Builders (Hamilton) Ltd [2] and South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd, [3] in application of Donoghue v Stevenson [4] and Anns v London Borough of Merton. [5] Whether there is sufficient relationship of proximity between the person injured by a parolee and the Probation Service supervising the parolee turns on a broad inquiry without controlling emphasis on the plaintiff’s membership of an ‘identifiable and sufficiently delineated class’.
[5] Two factors are likely to be key at trial. The first is the background of the Probation Service’s statutory obligations of supervision and control over the parolee, which included the power to control where he worked. The statutory obligations and powers are imposed in substantial part for the protection of the public. We do not think it can be confidently said at this preliminary stage that in carrying out its statutory responsibilities the Probation Service cannot owe a duty of care to the plaintiff, whether as fellow employee of the parolee (the basis upon which her counsel puts it) or indeed as a member of the public. The second factor is the knowledge held as to the risk the parolee presented and the means reasonably available to the Probation Service for avoiding harm through realisation of such risk. Cardozo CJ famously said of duty of care in negligence that ‘risk imports relation’.[6] Because the facts bearing on risk and its avoidance are not yet known, and in the absence of any other clear impediment to the existence of a duty of care (such as might be found if such a duty was inconsistent with the statutory functions of the Probation Service), we consider that to strike out the proceedings would be premature.
This case cites:

Cited – Smith -v- Leurs ((1945) 70 CLR 256, [1945] HCA 27, Austlii)
High Court of Australia – The parents of a child denied liability for harm caused by their son using a shanghai.
Held: Dixon J said that: ‘It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to . .

(This list may be incomplete)
This case is cited by:

Cited – Michael and Others -v- The Chief Constable of South Wales Police and Another SC (Bailii, [2015] UKSC 2, Bailii Summary, [2015] 2 WLR 343, [2015] Med LR 171, [2015] 2 All ER 635, [2015] HRLR 8, UKSC 2013/0043, SC, SC Summary, SC Videoa Summary)
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .

(This list may be incomplete)
Last Update: 20-Dec-15 Ref: 556829

Smith v Leurs; 22 Oct 1945

References: (1945) 70 CLR 256, [1945] HCA 27
Links: Austlii
Coram: Latham CJ, Starke, Dixon and McTiernan JJ
High Court of Australia – The parents of a child denied liability for harm caused by their son using a shanghai.
Held: Dixon J said that: ‘It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature.’
This case is cited by:

Cited – Couch -v- Attorney-General (Nzlii, [2008] 3 NZLR 725, [2008] NZSC 45)
Nzlii Supreme Court of New Zealand – [1] The victim of a criminal assault claims exemplary damages from the Attorney-General for claimed failures of the Probation Service to exercise reasonable care in the . .
Cited – Michael and Others -v- The Chief Constable of South Wales Police and Another SC (Bailii, [2015] UKSC 2, Bailii Summary, [2015] 2 WLR 343, [2015] Med LR 171, [2015] 2 All ER 635, [2015] HRLR 8, UKSC 2013/0043, SC, SC Summary, SC Videoa Summary)
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .

(This list may be incomplete)
Last Update: 16-Dec-15 Ref: 556830

Carmichele v Minister of Safety and Security; 16 Aug 2001

References: (2001) 12 BHRC 60, [2001] ZACC 22, 2001 (4) SA 938 (CC), 2001 (10) BCLR 995 (CC)
Links: Saflii
Coram: Ackermann, Goldstone JJ
Constitutional Court of South Africa – The applicant had been assaulted by a man awaiting trial for attempted rape. Both police and prosecutor had recommended bail despite a history of sexual violence. She applicant sued the ministers responsible for the police and prosecution service, saying that they had failed to ensure that the magistrate was properly informed about the risk he posed to women in the vicinity of his home, including the applicant. Her claim was dismissed by the High Court and its decision was upheld by the Supreme Court of Appeal, but she succeeded on appeal to the Constitutional Court, relying on a provision in section 39(2) of the constitution which required the courts when developing the common law to ‘promote the spirit, purport and objects of the Bill of Rights’. The Constitutional Court decided that it would not be appropriate for itself to determine whether the law of delict required to be developed so as to afford a right to the applicant to claim damages if the police or prosecutor were negligent. It said that it was by no means clear how the constitutional obligations on the state should translate into private law duties towards individuals, and that the court would be at a grave disadvantage in deciding the issue without a fully reasoned judgment of the High Court or Court of Appeal. It set aside the decisions of the lower courts and remitted the matter to the High Court.
This case is cited by:

Cited – Michael and Others -v- The Chief Constable of South Wales Police and Another SC (Bailii, [2015] UKSC 2, Bailii Summary, [2015] 2 WLR 343, [2015] Med LR 171, [2015] 2 All ER 635, [2015] HRLR 8, UKSC 2013/0043, SC, SC Summary, SC Videoa Summary)
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .

(This list may be incomplete)
Last Update: 20-Dec-15 Ref: 556811

Robert Addie and Sons (Collieries) Ltd v Dumbreck: HL 25 Feb 1929

References: [1929] UKHL 3, 1929 SC (HL) 51, [1929] AC 358
Links: Bailii

Jaensch v Coffey; 20 Aug 1984

References: (1984) 55 CLR 549, [1984] 54 ALR 417, [1985] CLY 2326, [1984] HCA 52
Links: Austlii
Coram: Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ
(High Court of Australia) The claimant’s husband was injured. She saw his injuries at hospital and was affected. She claimed damages for her own shock.
Held: The driver owed her a duty of care, and was liable for negligence which caused nervous shock. A finding at first instance that she had normal fortitude, her predisposition to anxiety and depression gave no defence.
Brennan J said: ‘Liability for negligence occasioning nervous shock has not been readily accepted, perhaps because the courts found evidence of psychiatric illness and of its aetiology to be too vague to warrant a finding of a causal relationship between psychiatric illness and careless conduct . . A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by ‘shock’. Psychiatric illness caused in other ways attracts no damages . . I understand ‘shock’ in this context to mean the sudden sensory perception – that is, by seeing, hearing or touching – of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness.’
This case cites:

Cited – McLoughlin -v- O’Brian HL ([1983] 1 AC 410, [1982] 2 All ER 298, Bailii, [1982] UKHL 3)
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident but went to the hospital immediately when she had heard what had . .

This case is cited by:

Cited – Alcock and Others -v- Chief Constable of South Yorkshire Police HL (Gazette 22-Jan-92, lip, [1991] 3 WLR 1057, Times 29-Nov-91, [1992] 1 AC 310, Bailii, [1991] UKHL 5)
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
Cited – Alcock and Others -v- Chief Constable of South Yorkshire Police QBD (lip, [1991] 2 WLR 814, [1991] CLY 2671)
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Cited – Taylor -v- A Novo (UK) Ltd CA (Bailii, [2013] EWCA Civ 194)
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .

Vaughan v The Taff Vale Railway Company; 20 Nov 1858

References: [1858] EngR 1160, (1858) 3 H & N 743, (1858) 157 ER 667
Links: Commonlii
A wood adjoining the defendants’ railway was burnt by sparks from the locomotives. On several previous occasions it had been set on fire, and the Company had paid for the damage. Evidence was given that the defendants had done everything that was practicable to the locomotives to make them safe, but it was admitted that even with these precautions the locomotives had been the means of occasionally setting fire to the wood. The banks of the railway were covered with inflammable grass. The jury found the Company guilty of negligence.
Held: First, that, assuming the fire to have been caused by lighted coals from the locomotives falling in the plaintiff’s wood, the defendants were liable. Secondly, that they were not excused by the Railway Clauses Consolidation Act, 8 & 9 Vict c. 20, s. 86 – Thirdly, that if the fire broke out on the defendants’ land and was communicated to the wood from the banks of thc railway, there was evidence to justify the verdict, and that the defendants were not protected by the 14 Geo 3, c 78, s. 84 -Fourthly, that it was no defence that the plaintiff had allowed his wood to become peculiarly liable to take fire by neglecting to clear away the dry grass and dead sticks.
This case is cited by:

Appeal from – Vaughan -v- The Taff Vale Railway Company ([1860] EngR 749, Commonlii, (1860) 5 H & N 679, (1860) 157 ER 1351)
A railway Company, authorized by the legislature to use locomotive engines, is not responsible for damage from fire occasioned by sparks emitted from an engine travelling on their railway, provided they have taken every precaution in their power and . .
Cited – Smith -v- The London and South Western Railway Company ((1869-70) LR 5 CP 98)
Workmen, employed by the defendant railway company to cut the grass and trim hedges bordering the railway, placed the trimmings in heaps near the line, and allowed them to remain there for fourteen days, during very hot weather in the month of . .
Cited – Smith -v- The London and South Western Railway Company ((1870-71) LR 6 CP 14,)
Blackburn J said: ‘I take it that, since the case of Vaughan v Taff Vale Ry Co, which was expressly affirmed in Brand v Hammersmith Ry Co, it is clear that when a railway company is authorized by their Act of parliament to run engines on their line, . .
Cited – Stannard (T/A Wyvern Tyres) -v- Gore CA (Bailii, [2012] EWCA Civ 1248, [2013] Env LR 10, [2012] WLR(D) 266, [2012] 42 EG 133, [2013] 1 All ER 694)
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .

Burnie Port Authority v General Jones Property Ltd; HCA 1994

References: [1994] 120 ALR 42, (1994) 179 CLR 520
Coram: Mason CJ
(High Court of Australia) The court treated the rule in Rylands v Fletcher as absorbed by the principles of ordinary negligence. The majority were influenced by the difficulties of interpretation and application to which the rule had given rise, the progressive weakening of the rule by judicial decision, by recognition that the law of negligence had been very greatly developed and expanded since Rylands v Fletcher was decided and by a belief that most claimants entitled to succeed under the rule would succeed in a claim for negligence anyway: ‘Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur . . even where a dangerous substance or dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains ‘that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances’: Adelaide Chemical & Fertiliser Co Ltd v Carlyle [1940] 64CLR514 at page 523. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of ‘reasonable care’ may involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety”
This case cites:

Explained – Rylands -v- Fletcher HL ((1868) LR 3 HL 330, Bailii, [1868] UKHL 1)
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .

This case is cited by:

Cited – Transco plc -v- Stockport Metropolitan Borough Council HL (House of Lords, [2003] UKHL 61, Bailii, Times 20-Nov-03, [2004] 1 ALL ER 589, 91 Con LR 28, [2004] 2 AC 1, [2004] Env LR 24, [2004] 1 P & CR DG12, [2003] 3 WLR 1467, [2003] 48 EGCS 127, [2003] NPC 143)
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – LMS International Ltd and others -v- Styrene Packaging and Insulation Ltd and others TCC (Bailii, [2005] EWHC 2065 (TCC))
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
Cited – Stannard (T/A Wyvern Tyres) -v- Gore CA (Bailii, [2012] EWCA Civ 1248, [2013] Env LR 10, [2012] WLR(D) 266, [2012] 42 EG 133, [2013] 1 All ER 694)
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .

Addie (Robert) and Sons (Collieries) Ltd v Dumbreck: HL 1928

References: [1929] AC 358, HL(Sc), 1928 SC 547
No occupier is under any duty to potential trespassers, whether adults or children, to do anything to protect them from danger on his land, however likely it may be that they will come and run into danger and however lethal the danger may be.
This case cites:

Appeal from – Robert Addie & Sons (Collieries) Ltd -v- Dumbreck SCS (1928 SC 547)
A boy trespassed on land and was injured on machinery there. The local working-classes resorted to the field regularly ‘(1) as an open space; (2) as a playground; (3) as a means of access to chapel and railway station; and (4) – as regards the less . .

This case is cited by:

Limited – British Railways Board -v- Herrington HL (lip, [1972] AC 877, [1972] 2 WLR 537, [1971] 1 All ER 749, Bailii, [1972] UKHL 1)
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 . .