Tag: Negligence

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 . .

Gladwell v Steggall; 19 Jun 1839

References: 8 Scott 60, [1839] EngR 834, (1839) 5 Bing NC 733, (1839) 132 ER 1283
Links: Commonlii
The plaintiff was a girl of ten years of age claimed she had been negligently treated by the defendant surgeon and apothecary. She sued in an action ex delicto, alleging a breach of the contract under which they had been employed, though it was her father who had paid the bill.
A declaration in case stated that Plaintiff, an infant, had employed Defendant, a surgeon, to cure her, and then claimed damages for a misfeasance: Plea, that Plaintiff did not employ Defendant : Held, that it was immaterial by whom Defendant was employed ; or that, if material, Plaintiff’s submitting to Defendant’s treatment was sufficient proof of the allegation of employment by her.
This case is cited by:

  • Cited – Hedley Byrne & Co Ltd -v- Heller & Partners Ltd HL ([1964] AC 465, [1963] 2 All ER 575, UBC, Bailii, [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101)
    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 . .

Lewis v British Columbia; 11 Dec 1997

References: [1997] 3 SCR 1145, 43 BCLR (3d) 154, 1997 CanLII 304 (SCC), 153 DLR (4th) 594, [1998] 5 WWR 732
Links: Canlii, Canlii
Coram: Sopinka, Cory, McLachlin, Iacobucci and Major JJ
(Supreme Court of Canada) Torts – Negligence – Highways – Crown liability – Provincial ministry engaging independent contractor to remove rocks from cliff face – Contractor performing work negligently, leaving rocks protruding from cliff face – Driver fatally injured when one of rocks fell from cliff face and crashed through his windshield – Whether provincial ministry absolved from liability for contractor’s negligence.
Cory J said that a common law duty of care ‘does not usually demand compliance with a specific obligation. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care.’
This case is cited by:

  • Cited – Woodland -v- Essex County Council SC (Bailii, [2013] UKSC 66, WLRD, [2013] 3 WLR 1227, [2013] WLR(D) 403, Bailii Summary, UKSC 2012/0093, SC Summary, SC)
    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 . .

KLB v British Columbia; 2 Oct 2003

References: [2003] SCC 51, [2003] SCJ No 51, [2003] 2 SCR 403
Links: Canlii
Coram: McLachlin CJ and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ
Canlii (Supreme Court of Canada) Torts – Liability – Intentional torts – Abuse of children by foster parents – Whether government can be held liable for harm children suffered in foster care – Whether government negligent – Whether government vicariously liable for torts of foster parents – Whether government liable for breach of non-delegable duty – Whether government liable for breach of fiduciary duty.
Limitation of actions – Torts – Intentional torts – Abuse of children by foster parents – Whether government can be held liable for harm children suffered in foster care – Whether tort actions barred by Limitation Act – Limitation Act, R.S.B.C. 1996, c. 266, ss. 3(2), 7(1)(a)(i).
Torts – Damages – Intentional torts – Abuse of children by foster parents – Whether government can be held liable for harm children suffered in foster care – Proper basis for assessing damages for child abuse by parent or foster parent.
The court considered the difficulty of setting down a unifying principle of the idea of a non-delegable duty: ‘It may be that there is no single common law concept of non-delegable duty. Instead, the phrase seems to have been used to describe a number of situations in which special, non-delegable duties arise. If this is correct, then rather than seeking to state the doctrine in terms of a single principle, we should look to the different situations in which such duties have been found – an approach consonant with the traditional methods of the common law. In Lewis (Guardian ad litem of) v. British Columbia, 1997 CanLII 304 (SCC), [1997] 3 S.C.R. 1145, at para. 20, Cory J. suggested that these different situations comprise a ‘spectrum of liability’, and that ‘[w]ithin that spectrum there are a variety of legal obligations which may, depending on the circumstances, lead to a principal’s liability for the negligence of an independent contractor.’
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 . .

Vaughan v The Taff Vale Railway Company; 12 May 1860

References: [1860] EngR 749, (1860) 5 H & N 679, (1860) 157 ER 1351
Links: Commonlii
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 adopted every means which science can suggest to prevent injury from fire, and are not guilty of negligence in the management of the engine So held in the Exchequer Chamber (reversing the judgment of the Court of Exchequer).
This case cites:

  • Appeal from – Vaughan -v- The Taff Vale Railway Company ([1858] EngR 1160, Commonlii, (1858) 3 H & N 743, (1858) 157 ER 667)
    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 . .

Piggot v The Eastern Counties Railway Company; 2 Jun 1846

References: [1846] EngR 734, (1846) 3 CB 229, (1846) 136 ER 92
Links: Commonlii
Coram: Tindal CJ
Sparks from the engine of a passing mail train set fire to the plaintiff’s cart lodge. The claim against the railway company was that they ‘so carelessly, negligently, and unskilfully managed and conducted their said steam-carriage and steam-engine’ that the plaintiff’s cart house was set on fire.
Held: The point in the case was the admissibility of evidence.
Tindal CJ described the underlying legal principles of the claim as a whole: ‘The defendants are a company intrusted by the legislature with an agent of an extremely dangerous and unruly character, for their own private and particular advantage: and the law requires of them that they shall, in the exercise of the rights and powers so conferred upon them, adopt such precautions as may reasonably prevent damage to the property of third persons through or near which their railway passes. The evidence in this case was abundantly sufficient to shew that the injury of which the plaintiff complains was caused by the emission of sparks, or particles of ignited coke, coming from one of the defendants’ engines; and there was no proof of any precaution adopted by the company to avoid such a mischance. I therefore think the jury came to a right conclusion, in finding that the company were guilty of negligence, and that the injury complained of was the result of such negligence.’ Thus although the locomotive was regarded as ‘dangerous’, liability still turned on negligence.
This case is cited by:

  • 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 . .

Wyong Shire Council v Shirt; 1 May 1980

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

  • See Also – 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 . .

Martel Building Ltd v Canada; 30 Nov 2000

References: 2000 SCC 60, [2000] 2 SCR 860
Links: Canlii
Coram: McLachlin CJ, Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ
Canlii Supreme Court of Canada – Torts – Negligence – Economic loss – Whether Canadian law recognizes duty of care on parties in commercial negotiations – Whether tort of negligence extends to damages for pure economic loss arising out of conduct of pre-contractual negotiations.
Torts – Negligence – Economic loss – Whether tender-calling authority owed duty of care to bidders in drafting tender specifications – Whether sphere of recovery for pure economic loss should be extended to cover circumstances surrounding preparation of tender specifications.
Contracts – Tenders – Obligation to treat all bidders fairly – Whether tender-calling authority breached its implied contractual duty to treat all bidders fairly and equally – If so, whether bidder’s loss caused by contractual breach.
The prospect of causing deprivation by economic loss is implicit in the negotiating environment
This case is cited by:

  • Cited – Cramaso Llp -v- Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
    The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .

Bates v Batey and Ld: 1913

References: [1913] 3 KB 351
Coram: Horridge J
The defendants, who manufactured ginger beer, were held not liable to a consumer (who had purchased from a retailer one of their bottles) for injury occasioned by the bottle bursting as the result of a defect of which the defendants did not know, but which by the exercise of reasonable care they could have discovered.
This case is cited by:

  • Cited – Donoghue (or McAlister) -v- Stevenson HL ([1932] AC 562, [1932] SC (HL) 31, [1932] ScLT 317, Hamlyn, [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, Bailii, [1932] UKHL 100, [1932] Sol Jo 396, [1932] WN 139, [1932] SC 31, (1933) 4 DLR 337, 533 CA 47)
    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 . .

Selwyn-Smith v Gompels; 22 Dec 2009

References: Unreported, 22 December 2009
Coram: Recorder Adrian Palmer QC
Swindon County Court. A tree fell over from the defendant’s land onto the claimant’s garage.
Held: The claim failed. The law did not require the landowner to engage an expert ‘unless and until reasonable inspection by the standards of that knowledge discloses or should disclose that the tree might be unsafe’.
This case is cited by:

  • Cited – Stagecoach South Western Trains Ltd -v- Hind and Another TCC (Bailii, [2014] EWHC 1891 (TCC))
    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 . .

Lambourn v London Brick Co Ltd; 28 Jul 1950

References: [1950] EG 28 July 1950
Finnemore J stated that an unreasonable burden must not be placed on the reasonable owner: ‘the standard to be taken should be that of an ordinary landowner and not an expert. It was neither the duty nor the practice of the ordinary prudent landowner to make a meticulous examination of its individual trees.’
This case is cited by:

  • Cited – Stagecoach South Western Trains Ltd -v- Hind and Another TCC (Bailii, [2014] EWHC 1891 (TCC))
    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 . .

Corker v Wilson; 10 Nov 2006

References: Unreported, 10 November 2006
Coram: HHJ Simpson QC
Mayor’s and City of London Court – the defendant was an ordinary landowner who owned a tree by a road. A heavy branch fell onto a passing car. There was a crack at the junction of the stem of the branch, and the claimant’s case was that this should have been identified and the branch should have been lopped. The defendant said that the crack could not have been seen on a roadside inspection or even on a more detailed inspection and that the tree was in visibly good health.
Held: The judge rejected the claim. The defendant carried out informal observations of the tree on an ongoing basis and all the evidence was that the tree was in good health. There was nothing about the tree which should have alerted the defendant or led him to obtain a more detailed inspection by an arboriculturalist.
This case is cited by:

  • Cited – Stagecoach South Western Trains Ltd -v- Hind and Another TCC (Bailii, [2014] EWHC 1891 (TCC))
    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 . .

The ‘Spontaneity’: 1962

References: [1962] 1 Lloyd’s Rep 460
Where the negligence of vessel X caused vessel Y to run aground, vessel X was not liable for such damages as were attributable to the subsequent, clearly separate and negligent re-floating of vessel Y. The original negligence of vessel X had ceased to be operative.
This case is cited by:

  • Cited – Borealis Ab -v- Geogas Trading Sa ComC (Bailii, [2010] EWHC 2789 (Comm), [2011] 1 Lloyd’s Rep 482)
    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 . .

(This list may be incomplete)
Last Update: 28-Feb-16 Ref: 425892

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
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 – Polivitte Ltd -v- Commercial Union Assurance Co plc ([1987] 1 Lloyd’s 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 case is cited by: