http://sixthformlaw.info/02_cases/mod3a/aqa/_cases_tort_1duty.htm#Caparo%20v%20Dickman%2
0(1990)%20HL
AB v Leeds Teaching Hospital NHS Trust [2004] QBD
Alcock v Chief Constable of South Yorkshire [1991] HL
Alexandrou v Oxford (1993) CA
Anns v London Borough of Merton (1977) HL
Barber v Somerset County Council [2004] HL
Barnett v Chelsea Hospital Management Committee (1969) QBD
Barrett v Ministry of Defence [1995] CA
Barrett (AP) v Enfield London Borough Council (1999) HL
Beasley v Buckinghamshire CC (1997) QBD
Bici v Ministry of Defence [2004] CA
Blyth v Birmingham Waterworks (1856) Exch
Bolam v Friern Barnet Hospital Management Committee (1957) QBD
Bolitho v City & Hackney Health Authority [1997] HL
Bolton v Stone [1951] HL
Bourhill v Young (1943) HL
Bradford Corporation v Pickles [1895] HL
Bradford-Smart v West Sussex CC [2002] CA
Carmarthenshire CC v Lewis [1955] HL
Caparo v Dickman (1990) HL
Capital and Counties plc v Hampshire County Council (1996) CA
Chadwick v British Railways Board [1967] QBD
Church of Latter-Day Saints v Yorkshire Fire Authority [1997] CA
Clunis v Camden & Islington Health Authority (1998) CA
Clay v Crump [1963] CA
Costello v Chief Constable of Northumbria Police [1999] CA
D v East Berkshire Community NHS Trust and others [2003] CA
Donachie v The Chief Constable of the Greater Manchester Police (CA) [2004]
Donoghue v Stevenson (1932) HL
East Suffolk Rivers Catchment Board v Kent [1941] HL
Farrell v Avon Health Authority [2001] QBD
Froom v Butcher [1975] CA
Gates v McKenna (1998)
Gibson v Orr CCof Strathclyde [1999] (OH) Outer House Scotland
Gorringe v Calderdale Metropolitan Borough Council [2004] HL
Griffiths v Brown and Lindsay [1999] QBD
Hale v London Underground Ltd [1993] QBD
Haley v London Electricity Board (1965) HL
Hall v Simons (2000) HL
Harris v Evans (1998) CA
Heaven v Pender (1883) CA
Hedley Byrne & Co Ltd v Heller & Partners Ltd ]1963] (HL)
Hill v Chief Constable for West Yorkshire (1988) HL
Hollywood Silver Fox Farm v Emmett [1936] QBD
Home Office v Dorset Yacht [1970] HL
Hotson v East Berkshire Health Authority [1987] HL
Hughes v Lord Advocate (1963) HL
Hunter v Canary Warf Ltd and London Docklands Development Corporation (1997) HL
Jebson v Ministry of Defence [2000] CA
Jobling v Associated Dairies [1981] HL
John Munroe (Acrylics) Ltd v London Fire and Civil Defence authority [1997] CA
Jolley v Sutton LBC (1998) HL
Junior Books v Veitchi (1983) HL
Kent v Griffiths [2001] CA
Kirkham v. Chief Constable of the Greater Manchester Police [1990] CA
Knight v Home Office (1990) QBD
L and another v The CC of the Thames Valley Police [2001] CA
Langley v Dray (1998) CA
Latimer v AEC Ltd [1953] HL
Law Reform (Contributory Negligence) Act 1945 s.1 (1)
Leach v Chief Constable of Gloucester (1998) CA
Mahon v Osborne [1939] CA
Mansfield v Weetabix (1997) CA
Margereson & Hancock v JW Roberts Ltd (1996) CA
Marc Rich Co AG and Others v Bishop Rock Marine Co Ltd and Others [1996] HL
Marshall v Osmond [1983] CA
Matthews v Ministry of Defence [2003] HL
McFarlane v EE Caledonia Ltd [1997] CA
McKay v Essex AHA (1982) CA
McLoughlin v O’Brian (1983) HL
McWilliams v Arrol [1962] HL
Mercer v South Eastern and Chatham Railway Companies' Managing Committee (1922)
KBD
Mulcahy v Ministry of Defence (1996) CA
Mullaney v CC West Midlands [2001] CA
Mullin v Richards [1997] CA
Murphy v Brentwood District Council [1991] HL
Nettleship v Weston [1971] CA
Newman & others v United Kingdom Medical Research Council (1996) CA
Ogwo v Taylor [1987] HL
OLL v Secretary of State for the Home Department (1996) QBD
Orange v Chief Constable of West Yorkshire [2002] CA
Osman v Ferguson (1993) CA
Osman v United Kingdom (1998) ECHR
Palsgraf v Long Island Railway Co (1928) New York Appeals
Palmer v Tees HA [2000] CA
Paris v Stepney BC [1951] HL
Peabody Fund v Parkinson [1984] HL
Perrett v Collins (1998) CA
Phelps v Hillingdon London Borough (2000) HL
R v Corydon Health Authority (1997) CA
Reeves v Commissioner of Police of the Metropolis [1999] (HL)
Rigby v Chief Constable of Northamptonshire (1985) QBD
Roberts v Ramsbottom [1980] QBD
Roe v Minister of Health [1954] CA
Rondel v Worsley (1969) HL
Rylands v Fletcher [1866] HL
Sayers v Harlow UDC [1958] CA
Sirros v Moore [1974] CA
Smith v Cribben [1994] CA
Smith v Leech Brain & Co (1962) QBD
Smith v Littlewoods Organisation Ltd [1987] HL
Smoldon v Whitworth [1997] CA
Spartan Steel v Martin [1972] CA
Stansbie v Troman [1948] CA
Stovin v Wise (1996) HL
Sutherland Shire Council v Heyman [1985] High Court of Australia
Swinney v Chief Constable of Northumbria Police (1996) CA
The Wagon Mound (1961) PC
Overseas Tankship v Morts Dock (The Wagon Mound (No 1)) [1961] PC
Overseas Tankship v Miller Steamship (The Wagon Mound (No 2)) [1966] PC
Thompson v Blake-James (1998)
Thompson v Smith Shiprepairers (North Shields) (1984) QBD
Three Rivers DC v Bank of England (No.3) [2000] HL
Topp v London Country Bus (South West) Ltd [1993] CA
Ultramares Corporation v Touche (1931) New York
Vaughan v Menlove (1837)
Vowles v Evans and Welsh Rugby Union Ltd [2003] CA
W v Essex County Council (1998) HL
Ward v Tesco Stores Ltd [1976] CA
Watson v BBBC (1999) CA
Watt v Hertfordshire PP [1954] CA
Wells v Cooper [1958] CA
White and others v Chief Constable of South Yorkshire and others [1998] HL
Wilson v Governors of Sacred Heart RC Primary School, Carlton (1997) CA
Wisniewski v Central Manchester Health Authority (1998) CA
X & Others v Bedfordshire County Council (1995) HL
Yuen Kun Yeu v Attorney General of Hong Kong (PC) [1988]
Z and others v The United Kingdom (2001) ECHR
AB v Leeds
Teaching Hospital
NHS Trust [2004]
QBD
^[Negligence - duty of care medical
practitioner removing and retaining organs
from child’s body owed a duty of care to the
parents]
D the hospitals that had retained tissue from the
bodies of deceased children taken at or after
post-mortem without the knowledge or consent of
the parents The claimants were three lead
claimants in group litigation. In each case, they
consented to the carrying out of a post mortem,
but were not informed in detail of the procedure
or that organs might be removed and retained.
Where organs had been retained, they were often
treated in some way so as to preserve them.
Held: In the case of a doctor treating a mother
who had had a child which had died, the doctor
would have a duty to advise the mother about
future pregnancies. That duty extended to giving
the parents an explanation of the purpose of the
post mortem and what it involved, including
alerting them to the fact that organs might be
retained.
Alcock v Chief
Constable of South
Yorkshire [1991]
HL
[Tort - negligence - duty of care- floodgates
and policy - rescuers]
A further action following the Hillsborough
tragedy brought by those that helped at the
scene.
Held: Rescuers should continue to qualify on
policy grounds even though they were not in a
close relationship with the victim. Friends and
relatives raised the spectre of the "floodgates"
argument, and the fear of opening up unlimited
liability.
Lord Oliver openly used the word "policy" in
explaining his decision.
Alexandrou v
Oxford (1993) CA
Also here
[Tort – negligence - duty of care – no duty
situations - public policy – no duty owed in
operational matters]
D, the police failed to respond effectively when
C’s alarm went off and a burglar escaped.
Held: There was no sufficient "special
relationship" between the shop owner and the
police to create a duty of care. If there were a
duty in this case, there would be a similar duty
towards anyone reporting a crime against his
person or property.
Anns v London
Borough of Merton
(1977) HL
C lost
[Tort – negligence - duty of care – proving
fault - development – 2 stage test – just and
reasonable]
D, the LA had allowed builders to construct a
block of flats with foundations which were only 2
feet 6 inches deep instead of 3 feet or deeper and
had failed to carry out the necessary inspections
C leased seven flats. Cracks in the walls and
sloping of floors occurred.
Held: A two stage test was developed, this has
now been replaced by the three stages in Caparo
v Dickman
This case overruled Murphy v Brentwood District
Council
Barber v Somerset
County Council
[2004] HL
Whole case here
[Tort – negligence – duty of care –
overworked schoolteacher – duty owed
when problem known or should have been
known]
D the council which employed C a 52 year old
schoolteacher as head of mathematics in a
comprehensive school. He worked long hours
about which he complained of ‘work overload’.
Following a period of sickness because he was
‘overstressed/depression’ he suffered a mental
breakdown at school.
Held: The school owed C a duty of care, and their
breach of that caused the claimant’s nervous
breakdown. The employer’s duty to take some
action arose when the claimant saw separately
each member of the school’s senior management
team. It continued so long as nothing was done
to help the claimant. The senior management
team should have made inquiries about his
problems and seen what they could have done to
ease them, instead of brushing him off
unsympathetically or sympathising but simply
telling him to prioritise his work.
Stokes v Guest, Keen and Nettlefold (Bolts
and Nuts) Ltd [1968] applied.
Barnett v Chelsea
Hospital
Management
Committee (1969)
QBD
C won
[Tort – negligence - duty of care – causation
in fact – negligence essential - omission can
give rise to liability]
D, hospital where C went because of stomach
pains and vomiting. The doctor refused to
examine him and sent him home untreated; he
died of arsenic poisoning five hours later. His
family sued the hospital.
Held: C would probably have died even if the
proper treatment had been given promptly, so
the hospital's negligence was not the cause of his
death.
C’s family lost
Barrett v Ministry
of Defence [1995]
CA
^[Tort - negligence - duty of care - C's own
actions - assuming a duty of care]
A naval airman became so drunk at the Royal
Navy Air Station where he was serving that he
died. The duty Petty Officer, had the rating placed
on his bunk he vomited and died as a result of
inhaling his own vomit.
It was alleged that D failed to enforce disciplinary
regulations to prevent drunkenness.
Held: The deceased alone was responsible for his
own actions and that no duty was owed to him in
this respect.
However, the Ministry was held liable on the basis
that, following his collapse, service personnel
voluntarily assumed a duty of care and were
negligent in that capacity.
Foresight of harm alone was not sufficient to
create a duty to guard him against his own folly.
Beldam LJ stated:
"To dilute self-responsibility and to blame one
adult for another’s lack of self-control is neither
just nor reasonable and in the development of the
law of negligence an increment too far.”
“Until he collapsed, I would hold that the
deceased was in law alone responsible for his
condition. Thereafter, when the defendant
assumed responsibility for him, it accepts that the
measures taken fell short of the standard
reasonably to be expected. It did not summon
medical assistance and its supervision of him was
inadequate”.
Airman's widow won
Barrett (AP) v
Enfield London
Borough Council
(1999) HL
[Tort – negligence - duty of care imposed on
Local Authority for children in care]
C was left psychologically damaged and an
alcoholic when he left care of D a Local Authority.
Whole case, here
Held: Taking a child into care pursuant to a
statutory power did not create a duty of care.
However, C’s allegations were largely directed to
the way in which the powers of the local authority
were exercised, a duty of care was owed and was
broken.
Whether it was just and reasonable to impose a
liability for negligence had to be decided on the
basis of what was proved. Which except in the
clearest cases, required an investigation of the
facts.
Beasley v
Buckinghamshire
CC (1997) QBD
C won
[Tort – negligence - duty of care – no duty
situations - distinction between policy and
practical considerations]
C a foster parent was injured while looking after a
foster child, a handicapped teenager. Foster
parent alleged council had not provided adequate
training and equipment.
Held: C’s complaint concerned not the policy
decision whether to use her services, but the
“practical manner” in which the council had acted.
They had not supplied proper training and
equipment
Bici v Ministry of
Defence [2004] CA
^[Tort - negligence - duty of care psychiatric harm - service personnel]
Soldiers taking part in United Nations
peacekeeping operations in Kosovo deliberately
fired on a vehicle full of people when they had no
justification in law for doing so, killing two and
injuring others.
Held: The soldiers were liable in negligence to
two of the claimants. They owed a duty to
prevent personal injury to the public and had
breached that duty by firing without
justification. There was no objective evidence
that they were about to be fired on by the
claimants. They were in breach of duty, not due
to the manner in which they fired their weapons,
but in firing at all. Furthermore, the claimants
were not contributorily negligent
Self-defence is available in negligence if it is
reasonable belief (in criminal law it is an honest
belief) the defendant’s conduct was not
reasonable.
Blyth v
Birmingham
Waterworks
(1856) Exch
Bolam v Friern
Barnet Hospital
Management
Committee (1957)
QBD
Combat immunity which was raised in Mulcahy,
has no place in this claim. Combat immunity is
not a defence but removes the action from the
jurisdiction of the court is:
"It is relied upon when a person is injured or their
property is damaged or destroyed in
circumstances where they are the “innocent”
victims of action which is taken out of pressing
necessity in the wider public interest arising out
of combat."
C won in part
(Obiter) Had the soldiers been acting in lawful
self defence, their firing, inaccurate as it was,
would not have been considered negligent in the
circumstances
[comment] This was the first claim for
compensation involving British peacekeeping
forces abroad.
[Tort – negligence - what it is]
Baron Alderson:
“Negligence is the omission to do something,
which a reasonable man, guided upon those
considerations, which ordinarily regulate the
conduct of human affairs, would do, or doing
something, which a prudent and reasonable man
would not do. The standard demanded is thus not
of perfection but of reasonableness. It is an
objective standard taking no account of the
defendant's incompetence - he may do the best
he can and still be found negligent”
[Tort – negligence - duty of care – standard
of care and skill expected of D]
D hospital gave electro-convulsive therapy that
broke D’s bones. Some doctors would give
relaxant drugs others would not.
Held: A doctor is not guilty of negligence is he
has acted in accordance with a practice accepted
as proper by a responsible body of medical men
skilled in that particular art.
Bolitho v City &
Hackney Health
Authority [1997]
HL
[Tort – negligence - duty of care – assessing
the standard of care and skill of D]
C aged 2 suffered serious brain damage following
respiratory failure. Several expert witnesses
supported the doctor, and on that basis, the
judge found that the doctor had not been
negligent.
Whole case, here
Bolton v Stone
[1951] HL
Held: A doctor may be negligent even if there is
a body of medical opinion in his favour: he must
also be able to show that this opinion has a
logical basis. Only very rarely would a judge
decide that the opinions of a number of otherwise
competent doctors were not reasonably held, and
this was not such a case.
C lost
[Tort – negligence - duty of care – factors to
consider – practicality and cost of
precautions]
D was a cricket club from where a cricket ball was
struck over a 17-feet fence. It hit C who was
standing on the pavement outside her house. The
ball must have travelled about 100 yards, and
such a thing had happened only about six times
in thirty years.
Held: The risk was so slight and the expense of
reducing it so great that a reasonable cricket club
would not have taken any further precautions.
Bourhill v Young
(1943) HL
C lost
[Tort – negligence - duty of care - proximity
- foreseeable]
D motorcyclist fatally injured. C pregnant fishwife
15 yards away saw blood but did not see actual
accident. Caused shock and, subsequently, a
miscarriage.
Held: C was not owed a duty of care it was not
reasonably foreseeable that accident would cause
her to suffer such injuries.
Bradford
Corporation v
Pickles [1895] HL
C lost
[Tort – negligence - duty of care - proving
fault - malice not normally relevant]
D owned land containing underground streams
which fed C's (Bradford Corporation) waterworks.
D began to sink shafts for the alleged purpose of
draining certain beds of stone. The effect of D’s
operations was to affect seriously the supply of
water to appellant’s springs. The corporation
alleged that defendant was not acting in good
faith, but to compel them to purchase his land.
Held: D has the right to divert or appropriate the
water within his own land so as to deprive his
neighbour of it. His right is the same whatever his
motive may be, whether genuinely to improve his
own land, or maliciously to injure his neighbour,
or to induce his neighbour to buy him out.
No use of property which would be legal if due to
a proper motive can become illegal if it is
prompted by a motive which is improper or even
malicious.
Bradford-Smart v
West Sussex CC
[2002] CA
^[Tort - negligence - duty of care - just, fair
and reasonable - test is the standard of
reasonable body]
D, the local authority of the school which C
attended. C was alleged to have been bullied on
the bus to and from the school and on the estate
where she lived. C suffered psychiatric harm.
Held: A school could be in breach of duty for
failing to take steps to combat bullying by one
pupil against another when they were outside
school.
However, a school would not be in breach of its
duty if it failed to take steps which were unlikely
to do much good.
If a reasonable body of opinion would not have
taken any steps then the school could not be
liable for its failure to act. Bolam v Friern
Hospital Management Committee [1957] applied
Carmarthenshire
CC v Lewis [1955]
HL
Approving the words of the trial judge:
"I have come to the conclusion that granted a
school knows that a pupil is being bullied at home
or on the way to and from school, it would not be
practical let alone fair just and reasonable, to
impose upon it a greater duty than to take
reasonable steps to prevent that bullying spilling
over into the school ...."
C lost
[Tort – negligence - duty of care - public
policy – duty owed in operational matters]
D a Local Authority employed a teacher who left a
4-year-old child alone for about ten minutes while
she did other things. The child left the classroom
onto a busy road, where he caused a lorry driver
to swerve and collide with a telegraph pole. The
lorry driver was killed and his widow sued the
education authority.
Held: The education authority had taken charge
of the child and had a duty to take reasonable
care to prevent him from causing harm to others.
Caparo v Dickman
(1990) HL
C won.
^[Tort – negligence - duty of care –
development – proximity - foreseeability - 3
stage test]
D auditors of company accounts. C, Caparo
bought shares and then discovered that the
accounts did not show the company had been
making a loss. C alleged that in negligence a duty
was owed to Caparo.
Held: Approving a dictum of Brennan J in the
High Court of Australia in Sutherland Shire
Council v Heyman (1985), that the law should
preferably develop novel categories of negligence
incrementally and by analogy with established
categories, rather than by a massive extension of
a prima facie duty of care restrained only by
indefinable "considerations which ought to
negative or limit the scope of the duty or the
class of person to whom it is owed".
No duty was owed in those two situations.
Steps to establish duty of care are;
a) Is there an existing case, which would hold
there to be a duty of care? If not then ask three
questions.
1. Was loss to the claimant foreseeable?
2. Was there sufficient proximity between the
parties?
3. Is it fair, just and reasonable to impose a duty
of care?
Capital and
Counties plc v
Hampshire County
Council (1996) CA
Auditors won
[Tort – negligence - duty of care – no duty
situations - public policy – no duty owed in
operational matters]
D, a fire officer negligently ordered the sprinkler
system turned off in a burning building to which
the brigade had been called.
Held: There is no public policy immunity in this
situation. The decision was an operational one,
not a matter of allocating scarce resources, and
given the brigade's exclusive control over the
situation it would be fair, just and reasonable to
impose on them a duty of care to the property
owner.
Chadwick v British
Railways Board
[1967] QBD
C won.
^[Tort - negligence - duty of care - rescuers
- nervous shock - duty owed to rescuers]
D the railway board responsible for a major train
accident caused by their negligence. C the wife of
a volunteer who took part in rescue work suffered
nervous shock and became psychoneurotic as a
result of his experiences.
Held: Damages were recoverable for nervous
shock even where the shock was not caused by
fear for oneself or the safety of one's children and
in the circumstances injury by shock was
foreseeable.
D ought to have foreseen the existence of a
rescuer and accordingly owed him a duty.
Church of LatterDay Saints v
Yorkshire Fire
Authority [1997]
CA
C won
Also here
[Tort – negligence - duty of care – no duty
situations - public policy – no duty owed in
operational matters]
D, the fire brigade, was unable to fight a fire at
C’s, premises effectively: three fire hydrants were
out of order and another four could not be found.
Held: The damage caused to C by D's negligence
was certainly foreseeable, and there was a
sufficiently proximate relationship between them,
but it would not be fair just and reasonable to
impose upon D a duty of care. The fire service is
an emergency service, and to allow claims such
as these would impose a burden that would
distract it from its proper task of fighting fires.
It is for the individual to insure his property
against fire, not for the community to do it for
him, and as a matter of public policy, the fire
service should not in general be open to claims of
this kind.
Clunis v Camden &
Islington Health
Authority (1998)
CA
Whole case, here
C lost.
^[Tort – negligence – duty – no duty
situations – statutory duty - defences – ex
turpi causa non oritur actio]
D a Local Authority released C from a psychiatric
hospital into "community care"; he then killed a
stranger for no evident reasons and was
sentenced to life imprisonment. C sought
damages for D's negligence in not providing
adequate treatment, and D asserted ex turpi as a
bar to such an action.
Held: The case should be struck out: the court
ought not to allow itself to be made an
instrument to enforce obligations alleged to arise
out of the complainant’s own criminal act.
Clay v Crump
[1963] CA
D won.
^[Tort - negligence - duty of care - two or
more defendants]
A dangerous wall left standing at demolition site
fell onto a work-mens' hut injuring C.
Held: Both the architect and the demolition
contractors should reasonably have foreseen that
a dangerous wall might fall and injure someone,
and, accordingly, they were both under a duty to
C.
If two or more persons contributed to an accident
by their negligence each must bear a part of the
blame, even though one of them had the last
opportunity of preventing it.
Costello v Chief
Constable of
Northumbria
Police [1999] CA
Whole case, here
C won
[Tort – negligence - duty of care – no duty
situations - public policy – breach – duty of
police in certain situations]
D the police force (vicariously) responsible for a
police inspector who failed to help C a woman
police constable who was attacked and injured by
a woman prisoner at a police station.
Held: There was a strong public policy
consideration that the law should accord with
common sense and public perception, and it
would be correct to say that, the public would be
greatly disturbed had the law held that there was
no duty of care. In addition, the public interest
would be ill-served if the common law did not
oblige police officers to do their personal best in
situations such as the present. It followed that B
had been in breach of duty in law in not trying to
help the claimant. The chief constable was
vicariously liable for that breach, but was not
personally in breach.
D v East Berkshire
Community NHS
Trust and others
[2003] CA
Whole case, here
C won
[Tort – negligence - duty of care to child Human Rights Act - duty owed in some child
abuse cases]
Parents sued for compensation for psychiatric
harm resulting from unfounded accusations of
child abuse.
Held: X v Bedfordshire County Council [1995]
(which denied a duty of care based on the "fair,
just and reasonable" test) could not survive the
Human Rights Act.
A duty of care could sometimes be owed to a
child suspected of being abused. But each case
was to be determined on its individual facts.
Where child abuse is suspected and removing the
child from the parents was justified, no duty of
care was owed to the parents.
Donachie v The
Chief Constable of
the Greater
Manchester Police
(CA) [2004]
One of the three children won
Tort - negligence - duty of care foreseeability of harm - directly caused or
other type of injury]
D, the police force in which C was serving in the
Regional Crime Squad. C was required to attach a
tagging device to the underside of a car believed
to belong to a gang of criminals. The car was
behind a public house in suspects were drinking.
The device failed to activate when attached until
the ninth attempt. Each trip had subjected him to
an increased risk of being caught in the act by the
suspects. He became increasingly frightened and
feared serious injury or even death.
As a result of the operation the claimant
developed a clinical psychiatric state, which lead
to an acute rise in blood pressure, which caused a
stroke.
Held: It had been a reasonably foreseeable that
the defendant’s breach of duty would have
caused physical injury to the claimant, although
not of the kind he had actually suffered, and
accordingly the defendant would be liable for the
unforeseen psychiatric injury caused by its
negligence.
Established authority provided that in claims for
nervous shock or other forms of psychiatric
injury, the application of the test of reasonable
foreseeability differed according to whether the
claimant was a ‘primary’ or ‘secondary’ victim.
However, where the court was satisfied that
reasonable foreseeability had been established,
whether for physical or psychiatric injury or both,
it was immaterial whether the foreseeable injury
caused had been caused directly or through
another form of injury not reasonably
foreseeable.
Page v Smith [1995] applied.
Donoghue v
Stevenson (1932)
HL
Whole case here
C won
^[Tort – negligence - duty of care – proving
fault – to whom duty owed - neighbour
principle]
C, Mrs Donoghue went to Minchella's Wellmeadow
Cafe in Paisley with a friend. The friend ordered
ice cream over which part of a bottle of ginger
beer was poured. When the remainder of the
ginger beer was poured, it was found to contain a
decomposed snail. Mrs Donoghue became ill
through having consumed contaminated ginger
beer.
Held:
"The rule that you are to love your neighbour
become in law, you must not injure your
neighbour; and 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
East Suffolk Rivers
Catchment Board v
Kent
[1941] HL
directing my mind to the acts or omissions which
are called in question."
C won.
^[Tort - negligence - duty of care - Board
empowered but not obliged to repair
breach]
D the Board who had statutory powers to repair a
breach in the sea wall. C whose land was flooded
during a very high tied breaching the wall.
D carried out the repairs so inefficiently that the
flooding continued for 178 days, instead of 14
days. C's pasture land was seriously damaged.
Held: D was under no obligation to repair the
wall or to complete the work after having begun
it, so they were under no liability to C, the
damage suffered by them being due to natural
causes.
Where a statutory authority is entrusted with a
mere power it cannot be made liable for any
damage sustained by a member of the public by
reason of a failure to exercise the power.
So long as the authority exercises its discretion
honestly, it can determine the method by which,
and the time during which, the power shall be
exercised.
Farrell v Avon
Health Authority
[2001] QBD
C lost
[Tort – negligence - duty of care – take
victim as found – foreseeability of harm]
D (maternity hospital) wrongly told C his baby
had died, C suffered psychiatric harm. C & E went
on holiday together and had sexual intercourse
once. There was no romance and the two went
their separate ways.
The baby was born prematurely C was very
excited and immediately went to see the baby. He
was told that the baby had died. The dead baby
was brought to him whom he then handled. After
about 20 minutes, the nurses returned and took
the baby away, saying that his baby was still alive
and that there had been a mistake.
C, who had problems with alcoholism and drug
abuse, developed post traumatic stress disorder.
Held: The claimant was a primary victim and
could recover for psychiatric injury although he
had neither sustained nor was it reasonably
foreseeable that he would sustain any physical
injury. It was foreseeable that there was a real
risk of him suffering a recognised psychiatric
disorder as a result of the incident.
A claimant would clearly be a primary victim if he
was physically involved in the incident itself so it
was sufficient for the claimant to show that the
defendant ought to have had psychiatric injury in
its contemplation. If the foreseeability test was
then fulfilled the defendant had to take the
claimant as it found him.
It followed that the test to be applied was
whether the defendant ought reasonably to have
foreseen that its conduct would expose the
claimant to the risk of a recognised psychiatric
disorder on the basis of facts known to the
defendant at the relevant time, that risk being a
real risk not merely a possibility.
Froom v Butcher
[1975] CA
C was awarded £10,000.
[Tort – negligence - duty of care – damages
– contributory negligence]
C was injured in a road traffic accident but was
not wearing a seat belt, which at the time was
again widely recommended but not legally
required.
Held: C’s damages were reduced by 25%.
For the future a deduction of 25% where wearing
a seat belt would have prevented the injuries, or
15% where there would still have been some
injuries but they would have been less severe.
Gates v McKenna
(1998)
[Tort – negligence - duty of care – level of
skill required]
D a stage hypnotist caused psychiatric damage to
volunteer from audience.
Held: Level of precautions expected should be
that of a ‘reasonably careful exponent of stage
hypnotism’.
Gibson v Orr CCof
Strathclyde [1999]
(OH) Outer House
Scotland
^[Tort - negligence - duty of care proximity - fair and reasonable]
D the chief constable whose officers left the scene
of a collapsed road bridge without ensuring there
was warning for vehicles on the other side of the
river. C was a passenger in a vehicle drove off a
collapsed bridge.
Held: Three elements had to be applied in
personal injury actions based on a duty of care.
Foreseeability, proximity and that it was fair, just
and reasonable that duty be imposed,
Once a constable had taken control of a road
traffic situation which presented a danger, the law
regarded that constable as being in such a
relationship with road users as to satisfy the
requisite element of proximity.
It was fair, just and reasonable to impose a duty
in the circumstances. There was no immunity for
a police force in performance of civil operational
tasks concerned with human safety on the public
roads and there was no overwhelming dictate of
public policy to exclude the prosecution of such
claims.
Gorringe v
Calderdale
Metropolitan
Borough Council
[2004] HL
Whole case here
C won
[Negligence – duty of care – private duty of
care not automatically derived from the
shadow of a statutory duty]
D was the local authority responsible under
Highways Act 1980 for the maintenance of a
country road. C drove too fast towards the crest
of a hill and collided with a bus suffering very
severe injuries. C argued that D’s failure to paint
the word ‘SLOW’ on the road surface constituted
a breach of its duty under the Highways Act and
the Road Traffic Act 1988. She argued that that
the statutory duties cast a common law shadow
and created a duty to users of the highway to
take reasonable steps in compliance with the
duties in the section.
Held: It was not possible to impose upon a local
authority a common law duty to act based solely
on the existence of a broad public law duty. A
common law duty of care could not grow
parasitically out of a statutory duty not intended
to be owed to individuals. The drivers had to take
responsibility for the damage they caused and
compulsory third party insurance is intended to
ensure that they would be able to do so. In the
instant case, where the complaint was that the
authority had done nothing, the action had to fail.
Stovin v Wise [1996] applied.
Griffiths v Brown
and Lindsay
[1999] QBD
C lost
^[Tort - negligence - duty of care - no duty
owed to passenger in a taxi - not fair,
reasonable nor practicable]
D a taxi driver (Lindsay) set down his intoxicated
passenger 30 to 40 yards from his destination, on
the other side of the road, but close to a
pedestrian crossing controlled by traffic lights, in
the event of the passenger sustaining injury on
being struck by a car (driven by Brown) as he
crossed the road.
Held: The taxi driver's duty to the passenger
came to an end once the passenger alighted and
it was neither reasonable nor practicable to
require a taxi driver to make an assessment of a
passenger's state of intoxication before setting
him down.
C lost
Hale v London
Underground Ltd
[1993] QBD
^[Tort - negligence - duty of care - rescuers
- psychiatric harm]
D the London Underground board. C a fire-fighter
who attended the fire at King's Cross
underground station in November 1987. He
entered the station several times, displaying
great bravery. He suffered no significant physical
injury, although he collapsed from exhaustion and
had to be assisted to the surface. He suffered
classic post-traumatic stress disorder and
depression.
Held: There was no consideration of duty of care,
as liability was admitted, the case concerned only
the amount of damages he could recover (about
£145,000).
Haley v London
Electricity Board
(1965) HL
[Tort – negligence - duty of care - to whom
owed – can be class of person - breach - the
vulnerable complainant]
D the Electricity Board, whose workmen were
preparing to carry out work on underground
cables. They dug a hole, and in order to give
warning of the danger they laid a long-handled
hammer across the pavement. C, a blind man
tripped over the hammer and was injured.
Held: D was liable they had given adequate
warning to sighted people, but it was common
knowledge that large numbers of blind people
walked unaided along pavements and the duty of
care extended to them as well.
Hall v Simons
(2000) HL
Whole case, here
C won
^[Tort - negligence – duty – no duty
situations - breach - professionals immunity
– advocates – not a special case]
One of several cases (conjoined cases) on similar
issues, where claimants had done less well than
they would but for negligence of their legal
advisers.
Held: It was no longer in the public interest that
advocates should enjoy immunity from being
sued for negligent acts concerned with the
conduct of litigation whether in civil or criminal
proceedings.
Harris v Evans
(1998) CA
Whole case, here
Change of rule on lawyers’ immunity
[Tort – negligence - duty of care – statutory
obligations - policy decisions]
D ran bungee jumps using a mobile crane, which
was checked by an independent inspector fro the
Health and Safety Executive. The inspector found
the jump unsafe (wrongly). C suffered loss of
profits.
Held: An inspector under the 1974 Act cannot be
made liable in an action in negligence for
economic damage caused to a business by
Notices under the 1974 Act.
D did not owe a duty of care to the proprietor of
that business. To impose such a duty of care
would be likely to engender untoward
cautiousness
Moreover, it was implicit in the 1974 Act that
improvement notices and prohibition notices
might cause economic loss or damage to the
business enterprise in question and the Act itself
provided remedies against errors or excesses on
the part of inspectors and enforcing authorities.
Heaven v Pender
(1883) CA
C lost
^[Tort - negligence - existence of a duty of
care]
D, a dock owner on whose scaffolding C was
working whilst he painted a ship. One of the
ropes broke, and C fell into the dock and was
injured.
Held: D was under an obligation to him to take
reasonable care that at the time he supplied the
staging and ropes they were in a fit state to be
used, and that for the neglect of such duty D was
liable to the C he had sustained:
Brett MR: A duty arises when every one of
ordinary sense would at once recognise that care
and skill was needed to avoid danger of injury.
Two drivers meeting have no contract with each
other, but have a reciprocal duty towards each
other. So two ships navigating the sea. So a
railway company has a duty towards passengers.
So the owner or occupier of house or land
towards visitors. A contract between two persons
does not prevent the existence of a duty.
Hedley Byrne & Co
Ltd v Heller &
Partners Ltd
]1963] (HL)
C won
[comment] Brett MR attempted to enunciated a
complex rule of logic that could be applied to
decide whether a duty of care existed, but this
'rule' has not been followed by other courts.
^[Tort - negligence - duty of care - extent of
the duty depends on the courts assessment
of demands of society]
D, a bank gave a reference to C (another bank)
regarding the financial responsibility of a
customer, expecting the bank to act on it. The
reference was given "without responsibility."
The second bank acted on the reference and
suffered financial loss as a result. They sued D in
negligence.
Held: The law will imply a duty of care when a
party seeking information from a party possessed
of a special skill trusts him to exercise due care,
and that party knew or ought to have known that
reliance was being placed on his skill and
judgment.
However, since here there was an express
disclaimer of responsibility, no such duty was, in
any event, implied.
Hill v Chief
Constable for West
Yorkshire (1988)
HL
Lord Pearce:
“How wide the sphere of the duty of care in
negligence is to be laid depends ultimately upon
the courts' assessment of the demands of society
for protection from the carelessness of others.”
C lost
[Tort – negligence – duty of care – no duty
situations - foreseeability - breach - acts of
third parties - public policy]
D the police failed to catch the "Yorkshire
Ripper". C, the mother of the lat (13th) victim
sued the police for negligence alleging inefficiency
and errors in their handling of the investigation.
Held: The police owed no duty of care towards
the daughter to protect her from the Ripper.
Some further ingredient is invariably needed to
establish the requisite proximity of relationship
between the complainant and the defendant; she
had been at no greater risk than most other
members of the public had.
Hollywood Silver
Fox Farm v
Emmett [1936]
QBD
C lost
[Tort – negligence - duty of care - proving
fault - malice not normally relevant abnormal sensitivity]
D, a landowner, maliciously caused his son to
discharge guns on his own land as near as
possible to fox breeding pens owned by C on the
adjoining land. C carried on the business of
breeding silver foxes and D wished to interfere
with the breeding of the foxes.
During the breeding season the vixens are very
nervous, and liable if disturbed either to refuse to
breed, to miscarry, or to kill their young.
Held: C was entitled to an injunction and
damages, although the firing took place on D’s
own land, over which he was entitled to shoot.
In the absence of malice the injunction would
probably have been refused on the grounds that
C was using the land for an unusually sensitive
purpose.
Home Office v
Dorset Yacht
[1970] HL
[Tort – negligence - duty of care – no policy
reason to allow Crown special immunity]
D’s, borstal officers allowed seven boys to escape
from a training camp on Brownsea Island in Poole
Harbour while they were asleep. They stole C’s
boat and caused damage to other boats in the
harbour.
Held: Borstal authorities owed a duty of care to
the owners of property near the camp. There
were no good reasons of public policy for allowing
the Crown any special immunity in this respect.
Liability restricted to the property-owners in the
immediate vicinity their loss was foreseeable, and
would not have extended to others further a field.
Hotson v East
Berkshire Health
Authority [1987]
HL
C won.
[Tort – negligence - duty of care – medical
treatment]
D a hospital where C was taken. He was a young
boy who injured his hip by falling out of a tree.
The injury was wrongly diagnosed and he was
thus given inappropriate treatment. He suffered a
permanent disability; the hospital admitted
negligence but denied liability.
Held: C had not proved on a balance of
probabilities that the negligent treatment had
caused his disability - on the contrary, the
probabilities were 75-25 that it had not. C
therefore had no claim whatever.
Hughes v Lord
Advocate (1963)
HL
[Tort – negligence - duty of care foreseeability of damage]
D the Post Office employed workmen who took a
break, leaving a manhole covered by a small tent
with a paraffin lamp at each corner. C, one of two
boys aged 8 and 10 took one of these lamps into
the tent. One of them tripped, the lamp fell into
the manhole and caused an explosion injuring
one boy.
Held: The accident was caused by a known
source of danger and that made it foreseeable
even though the way in which it happened was
unexpected.
Hunter v Canary
Warf Ltd and
London Docklands
Development
Corporation
(1997) HL
C won
[Tort – private nuisance]
CC alleged that their television reception had
been affected by the building of the Canary Wharf
tower.
Held: Overruling Khorasandjian on the point
that the occupation of property as a home (rather
Whole case, here
than a right to exclusive possession) was
sufficient capacity to bring an action in private
nuisance. And reaffirming the decision in Malone
v Laskey. The idea that the complainant needed
only a "substantial link" with the property
affected, was too vague, and would transform
nuisance from a tort to land into a tort to the
person.
There might be a nuisance if reception was
affected by activities (e.g. involving electrical
discharges) on DD's premises, but the mere
presence of a building was not capable of
constituting a nuisance.
The law of private nuisance does not extend to
personal injuries, which are properly covered by
the tort of negligence.
Jebson v Ministry
of Defence [2000]
CA
^[Tort - negligence - duty of care - C's own
actions - foreseeability]
D the army with whom C, a former Grenadier
Guard, attended an off duty trip to relax. They
travelled in a lorry and C attempted to climb onto
the roof of the lorry but lost his footing and fell,
sustaining severe injuries.
Held: While ordinarily drunkenness did not create
a duty on others to exercise special care, that
rule was not immutable.
It had been foreseeable that the soldiers would
behave in a rowdy manner on the return trip
thereby placing themselves at risk from some
form of injury, and that the MOD had failed in
their duty to supervise them. Furthermore, the
conduct of C had been within the genus of
behaviour which had been foreseeable. It was not
necessary that a precise injury should be
foreseen; instead it was sufficient to show that an
injury of a given description was likely to occur.
Jobling v
Associated Dairies
[1981] HL
The MOD had a 25 per cent liability for C's
injuries.
Jolley v Sutton LBC [2000] applied.
[Tort – negligence - duty of care –
sensitivity of complainant]
D the employer of a workman who suffered a
slipped disc through their negligence. His earning
capacity was reduced by half. Four years later, he
was found to have a pre-existing spinal disease
unrelated to his accident. When the case came to
trial, he was totally incapable of work.
Held: The employer was liable for only four
years' loss of earnings, this being a rare case in
which the "eggshell skull" rule operated to the
benefit of the defendant.
John Munroe
(Acrylics) Ltd v
London Fire and
Civil Defence
authority [1997]
CA
[Tort – negligence - duty of care – no duty
situations - public policy – no duty owed in
operational matters]
D employed fire fighters who wrongly thought all
the fires at C’s premises had been put out. One
of the fires flared up again, causing damage to
C’s premises. C sued D and others, alleging
negligence.
Held: D owed no duty of care to C. The
considerations set out in Hill are applicable as
much to the fire brigade as to the police.
Imposing a duty of care would not improve the
efficiency of the service but would lead to
defensive fire fighting. Above all, the imposition
of a duty of care in this situation would lead to a
flood of claims, since many fires were created by
Acts of God or acts of criminals and lunatics,
leaving only the fire service to be sued.
Jolley v Sutton LBC
(1998) HL
Whole case, here
C lost.
[Tort – negligence - duty of care – occupiers
liability – The common duty of care]
D the owners of land where an old boat had been
abandoned for about 2 years. C a 14-year-old
boy was seriously injured when he and a friend
had propped it up on a car jack while they tried to
repair the boat that fell on him. C sued under the
Occupiers' Liability Act 1957.
Held: The boat was something that would be
attractive to children (including those of C's age).
Some injury was foreseeable if children played on
or around it, and D had been negligent in not
removing it.
Junior Books v
Veitchi (1983) HL
Lord Hoffmann said that children's
"ingenuity in finding unexpected ways of doing
mischief to themselves and others should never
be underestimated".
C won
[Tort – negligence - duty of care development and scope - damage –
remoteness - economic loss]
D, specialist-flooring contractors negligently laid a
floor in C’s factory.
D as specialist flooring contractors knew what
products were required and were alone
responsible for the composition and construction
of the floor. C suffered loss and damages, such
as the cost of removal of machinery and loss of
profits while the floor was being re-laid.
Held: Te scope of the duty of care extended to a
duty to avoid causing pure economic loss
consequential on defects in the work.
Kent v Griffiths
[2001] CA
D lost
^[Tort - negligence – duty of care ambulance service owe duty if ambulance
failed to arrive within reasonable time due
to carelessness]
D the London Ambulance Service. C, an asthmatic
who suffered an attack. Her doctor telephoned for
an ambulance that took 30 minutes to arrive. C
suffered a respiratory arrest.
Held: There were obvious similarities between
the instant case and cases involving the police or
fire services, where it had been held as a matter
of public policy that there was no common law
duty to an individual member of the public. In
this case the fact that there was only one person
who would foreseeably suffer further injuries by a
delay was important in establishing the necessary
proximity.
Kirkham v. Chief
Constable of the
Greater
Manchester Police
[1990] CA
C won
^[Tort - negligence - duty of care to suicidal
prisoner]
D, the police force who detained the husband of
C. The prisoner was known to be suicidal but the
police failed to pass on the information to prison
authorities. The prisoner committed suicide in
prison.
Held: The police had assumed the responsibility
of passing information to the prison authorities
when they arrested him, the husband had relied
on that assumption of responsibility, there was a
duty of care and it was breached.
Since his act was the very occurrence which
should have been prevented, the defence of
volenti non fit injuria could not succeed.
Since suicide was no longer criminal act the
defence of ex turpi causa non oritur actio was not
available.
Knight v Home
Office (1990) QBD
C won
^[Tort - negligence - duty of care - prison
officers - duty towards their prisoners failure to provide care - omissions]
D, Home Office responsible for prisons where a 21
year old mentally ill prisoner committed suicide
while in the hospital wing of Brixton Prison. C the
deceased's personal representative suing on
behalf of his infant son. The prisoner was known
to have suicidal tendencies and was on a 15
minute watch.
Held: The argument that the same standard of
care applied to prison as to psychiatric hospitals
failed, as the primary function of the prison was
to detain the inmates and, although the prison
was required to care for physically and mentally
ill prisoners, it could not be expected to provide
the same degree of care as hospitals outside.
There was no evidence that the prison doctors
were negligent in their care of W.
L and another v
The CC of the
Thames Valley
Police [2001] CA
C lost
^[Tort - negligence – duty to take care –
police owing duty of care – just fair and
reasonable]
D, the police force to whom the mother of L
reported allegations of sexual abuse against L by
her father, C. Legal action followed.
It subsequently transpired that L’s mother had
suffered from Munchausen’s Syndrome by proxy
and that the allegations of abuse had been
fabricated.
The father sued because of harm suffered by him
and L because of the investigation.
Held: There had been a legal assumption of
responsibility and a special relationship between
the father and the investigators and that a duty
had arisen
It was fair, just and reasonable to impose a duty
of care
Langley v Dray
(1998) CA
Whole case, here
C won
[Tort – negligence - duty of care automatically owed by motorists to other
road users]
D driving a stolen car was chased by C, a police
officer. C was injured in accident.
Held: D owed a duty of care. He knew or ought
to have known that the police were in pursuit and
should not have gone so fast on ice. He had a
duty not to create such a risk.
Latimer v AEC Ltd
[1953] HL
C won
[Tort – negligence - duty of care –
practicality and costs of precautions]
D a factory owner. C slipped on an oily film and
injured his ankle. The sawdust put down to soak
up liquid did not cover the entire floor. The oily
film was due to water from an exceptionally
heavy storm caused.
Held: D had done all that a reasonable person
would do in the circumstances; they could not
have eliminated the risk completely without
closing the factory.
C lost
Law Reform
(Contributory
Negligence) Act
1945 s.1 (1)
Leach v Chief
Constable of
Gloucester (1998)
CA
Whole case, here
any person suffers damage as the result partly of
his own fault and partly of the fault of another
person or persons, a claim in respect of that
damage shall not be defeated by reason of the
fault of the person suffering the damage, but the
damages recoverable in respect thereof shall be
reduced to such extent as the court thinks just
and equitable having regard to the claimant's
share in the responsibility for the damage ...
[Tort – negligence - duty of care – no duty
situations - public policy – breach – no duty
of police in certain situations – even if
required by statute]
D the police had asked C a voluntary worker, to
act as an ‘appropriate adult’ (Code C PACE Codes
of Practice, requiring) during interview of
Frederick West (the child murderer). C suffered
posttraumatic stress disorder. The police had not
assessed her or trained her for such a case. No
counselling was provided (as had been for West’s
solicitors).
Held: It was arguable that the police owed no
duty of care in negligence to a volunteer they
called in to act as appropriate adult in harrowing
and traumatic police interviews who later suffered
nervous shock and stress as a result. In fact the
whole point of an ‘appropriate adult’ is that they
should act independently.
However, there were well-established duties of
care which the police undoubtedly owed to C just
as they owed them to anyone else who was
foreseeably at risk of personal injury C’s claim
would be allowed to proceed to trial on the issue
of failure to provide counselling services but the
particulars of claim so far as they related to the
duty of care towards C as an appropriate adult
would remain struck out.
Mahon v Osborne
[1939] CA
C won.
Considered in Costello
[Tort – negligence - duty of care – limits of
res ipsa loquitur]
A patient died shortly after an abdominal
operation and post-mortem examination found a
swab in his body.
Held: Negligence had been established.
Res ipsa loquitur applied only to things within
common experience, and that was not the case
with complex surgical procedures.
Mansfield v
Weetabix (1997)
CA
[Tort – negligence - duty of care – standard
of care expected of drivers]
D owners of lorry. Their driver suffered from lack
of glucose to the brain. He was unaware of effect
Whole case, here
on his driving, C suffered damage to their shop
when lorry left road on a bend.
Held: The standard of care that driver was
obliged to show was that which is expected of a
reasonably competent driver. The driver did not
know and could not reasonably have known of his
illness that was the cause of the accident.
Therefore, he was not at fault. His actions did not
fall below the standard of care required.
Margereson &
Hancock v JW
Roberts Ltd (1996)
CA
C lost
^[Tort - negligence - foreseeability of
harm]
D the owners of a factory near where the two
complainants had lived and played as children.
They contracted mesothelioma due to their
exposure to asbestos
Held: D was liable to C because they knew or
ought to have known that asbestos dust was
escaping from the factories into the surrounding
street and could cause harm to people who were
exposed to it.
Risk of harm of allowing asbestos dust to escape
factory was foreseeable
As stated by Lord Lloyd in Page v Smith
(1995), ’the test in every case ought to be
whether the defendant can reasonably foresee
that his conduct will expose the claimant to the
risk
Marc Rich Co AG
and Others v
Bishop Rock
Marine Co Ltd and
Others [1996] HL
C won
Also here
^[Tort - negligence - duty to take care - not
fair, just and reasonable to impose duty
when C assumes responsibility]
A surveyor acting on behalf of the classification
society had recommended that after repairs
specified by him had been carried out a vessel
should be allowed to proceed. It was lost at sea.
Held: The cargo owners could not recover
damages from the classification society. There
was no contact between them. It was not even
suggested that the cargo owners knew of the
survey, they simply relied on the owners to keep
the vessel sea worthy and to look after the cargo.
The classification surveyor did not owe a duty of
care to the ship owners. The decision turned
essentially on considerations of policy in relation
to the role of a classification society in the
context of the insurance of risks
A duty of care in this case would have severe
consequences for both marine insurance and
freight costs, furthermore, it might lead to the
classification society refusing to survey high-risk
vessels with potentially harmful consequences for
the public safety at sea.
Marshall v Osmond
[1983] CA
[Tort – negligence - duty of care – police
drivers same as public – error of judgment
not negligence]
D following C, an escaping criminal crashed the
police car into his, injuring him.
Held: The duty owed by a police driver was the
same as that owed by any other, namely, to
exercise such care and skill as was reasonable in
all the circumstances.
But where those circumstances were that he was
driving alongside another car in order to make an
arrest, the error of judgement he made in the
instant case did not amount to negligence.
Matthews v
Ministry of
Defence [2003] HL
Whole case, here
[Tort – negligence - duty of care – no duty
situations – The Crown – armed services]
C a former sailor was exposed to asbestos dust a
claim in tort was barred by The Crown
Proceedings Act 1947.
Held: C’s ‘civil right’ was satisfied under the
ECHR by certification by the ministry and his
entitlement to a pension. The Crown is immune
from proceedings in these circumstances because
the 1947 Act provided for a no fault
compensation scheme. This arrangement did not
infringe his rights to access to the courts. C had
no civil right to claim damages for tort against the
ministry.
McFarlane v EE
Caledonia Ltd
[1997] CA
C lost
^[Tort - negligence - duty of care - rescuers
- likely harm not possible harm - Piper Alpha
rescuers unable to recover damages]
DD, the owners and operators of the Piper Alpha,
an off-shore oil and gas platform. C a member of
the crew of the supply ship which went to assist
survivors.
C claimed that he was a participant in the disaster
or alternatively as a rescuer and had suffered
severe psychological injury as a result of
witnessing the catastrophe.
The issue was whether DD owed a duty of care.
Held: C could not recover damages in negligence
as a primary victim as, whilst the vessel on which
he was stationed was close to danger, it was
never actually in danger, which made C's fear for
his life unreasonable;
Although safety Regulations were intended to
ensure the safety of those near the rig as well as
on it, it was not enough that the breach of
statutory duty caused C's psychiatric injury. C
had to show that it was likely, not merely
possible, that the breach of duty would cause him
injury, in order to qualify for protection under the
Regulations.
McKay v Essex
AHA (1982) CA
"both as a matter of principle and policy the
court should not extend the duty to those who
are mere bystanders or witnesses of horrific
events unless there is a sufficient degree of
proximity, which requires both nearness in time
and place and a close relationship of love and
affection between plaintiff and victim."
C lost
^[Tort - negligence - duty of care - public
policy - wrongful birth creates no cause of
action]
DD, the doctors who did not advise a mother to
have an abortion. C was born disabled as a result
of an infection of rubella (German measles)
suffered by her mother while the child was in her
womb.
The child claimed damages on the ground that
she had been "suffered entry into a life in which
her injuries are highly debilitating," and for
distress, loss and damage.
Held: There is no claim in law which allows a
child born alive with deformities to claim damages
for negligence against doctors in allowing it to be
born alive.
The doctor was under no legal obligation under
the Abortion Act 1967 to the foetus to
terminate its life, and the child's claim was
contrary to public policy as a violation of the
sanctity of human life, and a claim which could
not be recognised since the court could not
evaluate damages for the denial of non-existence
The effect of the Congenital Disabilities (Civil
Liability) Act 1976 was that no child born after
the passing of the Act could have a cause of
action based on the loss of a chance to die.
McLoughlin v
O’Brian (1983) HL
C lost
^[Tort – negligence - development of duty
of care – 2 stage test - proximity - nervous
shock]
D a driver who caused an accident, which injured
C’s family. C visited hospital saw injured husband
and daughters. What she saw and heard from
witnesses caused severe nervous shock.
Distance and time are factors, but not legal
restrictions.
Held: Although not present at the accident, it
was a reasonably foreseeable consequence of the
defendant's negligence.
McWilliams v Arrol
[1962] HL
C won
[Tort – negligence - duty of care - causation]
D a building firm had not provided a safety belt to
a steel erector who fell 70 feet to his death. C
the widow. D was in breach of its statutory duty
to provide a safety belt (but not to insist that it
be worn) but, there was evidence to show that
the man would probably not have worn a belt
even had it been provided.
Held: The firm's negligence and breach of
statutory duty were not the cause of his death.
Mercer v South
Eastern and
Chatham Railway
Companies'
Managing
Committee (1922)
KBD
Mulcahy v Ministry
of Defence (1996)
CA
C lost
[Tort - negligence - duty of care - liability for
omissions]
D a railway company which kept locked a small
wicker gate when trains were passing, and was
unlocked only when it was safe to cross, and C
knew of this practice. Owing to the negligence of
D's employee the gate was left unlocked when a
train was approaching, C went through it, and
was injured.
Held: D, by leaving the gate unlocked, gave C an
invitation to cross the line, that in the
circumstances C, in acting upon that invitation,
had not failed to use ordinary and reasonable
care, and, therefore, that he was entitled to
damages.
"It may seem a hardship on a railway company to
hold them responsible for the omission to do
something which they were under no legal
obligation to do, and which they only did for the
protection of the public. They ought, however, to
have contemplated that if a self-imposed duty is
ordinarily performed, those who know of it will
draw an inference if on a given occasion it is not
performed. If they wish to protect themselves
against the inference being drawn they should do
so by giving notice, and they did not do so in this
case."
C won
[Tort – negligence - duty of care - no duty
situations - just fair and reasonable - public
policy – employers’ liability]
D, responsible for the army and therefore its
soldiers, employed a gun commander during the
Gulf War. C an artilleryman sustained damage to
his hearing when a howitzer was fired
accidentally.
Held: A serviceman owes no duty of care to his
fellow servicemen in battle conditions, since as a
matter of common sense and public policy it
would not be fair, just and reasonable to impose
such a duty. For the same reason the Ministry of
Defence as C’s employer does not have a duty to
provide a safe system of work in those
circumstances.
Mullaney v CC
West Midlands
[2001] CA
C lost
[Tort – negligence – duty to take care - no
policy considerations]
D the Chief Constable of the force where C, a
probationary police officer, sustained a serious
head injury whilst attempting to arrest a man for
importuning in public lavatories. He made four
radio calls for help but they went unanswered.
Held: D owed C a personal or non-delegable duty
as his quasi employer to take reasonable care to
devise and operate a safe system of work.
There were no public policy considerations to
exclude the imposition of such a duty.
The radio operator had assumed a responsibility
to the police officers involved in the operation,
including the claimant, to take reasonable care to
listen to the radio and to respond to calls for
assistance. M had wholly failed to discharge that
duty and was in breach of his duty of care to the
claimant.
Mullin v Richards
[1997] CA
Whole case, here
Murphy v
Brentwood District
Council [1991] HL
C won
[Tort – negligence - duty of care foreseeability – standards expected]
D a 15-year-old schoolgirl had a "sword fight"
with C with plastic rulers in their classroom. One
of the rulers snapped and a piece of plastic
entered C’s eye, causing permanent damage.
Held: Neither the teacher nor D had been
negligent. There was insufficient evidence that
the accident had been foreseeable in what had
been no more than a childish game.
C lost
[Tort – negligence - duty of care - general
principles - the nature of negligence - duty
of care - proving fault]
D, local authority negligently approved plans for
the footings (a concrete raft) of a house that
subsided. C the house owner could not afford
repairs and sold the house at a loss.
C alleged that he and his family had suffered an
imminent risk to health and safety because gas
and soil pipes had broken and there was a risk of
further breaks.
Held: The damage suffered by C was not material
or physical damage. D was not liable for pure
economic loss of the cost of remedying defects
To permit C to recover his economic loss would
logically lead to an unacceptably wide category of
claims in respect of buildings or chattels which
were defective in quality, and would in effect
introduce product liability and transmissible
warranties of quality into the law of tort by means
of judicial legislation.
C lost
Per curiam. It is unrealistic to regard a building or
chattel which has been wholly erected or
manufactured and equipped by the same
contractor as a complex structure in which one
part of the structure or chattel is regarded as
having caused damage to other property when it
causes damage to another part of the same
structure or chattel, since the reality is that the
structural elements in a building or chattel form a
single indivisible unit of which the different parts
are essentially interdependent and to the extent
that there is a defect in one part of the structure
or chattel it must to a greater or lesser degree
necessarily affect all other parts of the structure.
However, defects in ancillary equipment,
manufactured by different contractors, such as
central heating boilers or electrical installations
may give rise to liability under ordinary principles
of negligence.
Nettleship v
Weston [1971] CA
[Tort – negligence - duty of care – duty
owed to others – learner drivers]
D a learner driver went out for her first lesson,
supervised by a friend C. D crashed the car into a
lamppost, and C was injured.
Held: Even learner drivers are to be judged
against the standard of the reasonably competent
driver. The fact that a particular driver is
inexperienced and incompetent does not excuse
his falling short of this standard. It matters not
that a learner driver is doing her incompetent
best.
C won damages subject to a deduction for
contributory negligence.
Newman & others
v United Kingdom
Medical Research
Council (1996) CA
Whole case, here
Also here
[Tort – negligence - duty of care established when medical risk recognised]
Between 1959 and 1985, nearly two thousand
children whose growth was stunted were treated
with doses of Human Growth Hormone (HGH)
extracted from the pituitaries of human cadavers.
Many of them died of CJD.
Held: Research Council should have stopped
trials and established whether drug was safe
before continuing.
Ogwo v Taylor
[1987] HL
[Tort – negligence - duty of care foreseeability]
D negligently set fire to his house while using a
blowlamp. C a fireman was injured while fighting
the fire.
Held: C’s injuries were a foreseeable result of D's
negligence, and it was irrelevant that he was
employed as a fireman and expected to take risks
as part of his job.
OLL v Secretary of
State for the Home
Department
(1996) QBD
C won
[Tort – negligence - duty of care – no duty
situations - public policy – no duty owed in
operational matters]
D a company running outward-bound courses.
Four teenagers drowned in Lyme Bay after their
canoes capsized in heavy seas. They had been
inadequately equipped, trained and supervised,
and D1 had delayed calling for assistance. The
company had been warned twelve months earlier
of dangerous flaws in some of its working
practices.
Held: Coastguard does not owe a duty of care in
respect of rescue operations unless their activity
led to greater injury than would have occurred if
they had not been involved.
Orange v Chief
Constable of West
Yorkshire [2002]
CA
[Tort - negligence - duty of care by police to
prisoners known to be suicidal]
D, the police in whose custody the husband of C
committed suicide, by hanging himself with his
belt from the gate to the cell.
Held: The police were under a duty to take
reasonable steps to identify whether or not a
prisoner presented a suicide risk. The obligation
to take reasonable care to prevent a prisoner
from taking his own life only arose where the
police knew or ought to have known that the
individual prisoner presented a suicide risk,
Reeves v Commissioner of Police of the Metropolis
[2000] applied. The deceased was not a person
whom the officers knew or ought to have known
was a suicide risk.
Osman v Ferguson
(1993) CA
C lost
[Tort – negligence - duty of care – no duty
situations - public policy – breach – no duty
of police in certain situations]
D the police, failed to stop a man shooting and
killing C’s husband.
The man a teacher formed an unhealthy
attachment with C’s 14-year-old son and began
to harass him and his family. It was known he
might do something criminally insane.
Held: C had been exposed to a risk over and
above that of the public there was an arguable
case that there was a very close degree of
proximity amounting to a special relationship
between the C’s family and the investigating
police officers.
However, following Hill, it would be against public
policy to impose such a duty as it would not
promote the observance of a higher standard of
care by the police and would result in the
significant diversion of police resources from the
investigation and suppression of crime.
Osman v United
Kingdom (1998)
ECHR
C lost
[Tort – negligence - duty of care - Public
policy – police owe no duty of care to public]
This case followed Osman v Ferguson.
Held: C’s husband's right to life had not been
violated by inadequate police protection.
It might be necessary in a democratic society to
restrict the extent to which the police are liable in
negligence to members of the public. However,
the broad exclusionary rule laid down in Hill, to
which few exceptions could be made, meant in
effect that C was denied a proper adjudication of
her case on its merits, consequently her right to a
fair trial had been violated.
Palmer v Tees HA
[2000] CA
[Tort - negligence - duty of care - mental
patients - no liability for murder of a child lack of proximity - act of third party - just
fair and reasonable]
D, the health authority responsible for a former
patient undergoing out patient treatment who
sexually abused and murdered a 4 year old. C,
the child's mother who suffered psychiatric illness
as a result of the murder.
C claimed that D had failed in their obligation to
recognise the real, substantial and serious risk
that, a former patient undergoing outpatient
treatment, would sexually abuse and murder a
child and had failed to take appropriate steps to
avoid or minimise the risk of him doing so.
Held: There was no proximity between D the
child and C.
In Barrett C had been in the care of D and no
issue of proximity had been raised, and so was
distinguished.
Caparo Industries Plc v Dickman [1990] and Marc
Rich and Co AG v Bishop Rock Marine Co Ltd
[1996] did not take account of third party
intervention.
The court asked how the offences could have
been avoided even if sufficient proximity were
established.
Palsgraf v Long
Island Railway Co
(1928) New York
Appeals
C lost
[Tort – negligence - duty of care – to whom
owed - foreseeability of damage]
D employed a railway worker who carelessly
knocked a box to the ground. Unknown to him it
contained fireworks which exploded on impact;
the blast knocked a weighing machine onto C
standing some distance away.
Held: injury to C was not foreseeable from the
mere dropping of a box, and D was not liable for
C’s injuries.
Paris v Stepney BC
[1951] HL
C lost
[Tort – negligence - duty of care reasonableness of precautions]
D a Local Authority employed C as a garage
mechanic. C had lost the sight of one eye during
the war. In order to loosen a stiff bolt he struck it
with a hammer; a piece of metal flew off and
(because he was not wearing goggles) struck him
in his good eye, causing him to become totally
blind.
Held: The probability of such an event was very
small, but its consequences were very serious, his
employers, knowing of his disability, should have
taken extra care to provide goggles for him. The
more serious the possible damage, the greater
the precautions that should be taken.
Peabody Fund v
Parkinson [1984]
HL
C won
[Tort - negligence - duty of care requirement that it be fair and reasonable to
impose a duty on a local authority]
D the local authority approved building plans for
245 houses which included flexible drains. C
installed rigid drains instead of flexible drains, on
his architects' advice. The local authority's
inspector was aware of the departure from the
plans, but he did no use his power to require C to
relay the drains.
Two years later the drains had to be re-laid
resulting in loss of probably £1,000,000 to C.
Held: It was material to consider whether it was
just and reasonable to impose a duty of care. C
were responsible for ensuring that their own
drains conformed with the approved plan. The
local authority owed no duty to C to exercise their
powers which exist for the protection of other
persons - not for that of the person in default. It
was not reasonable or just to impose upon them
a duty to pay for C's loss arising through the
advice of their own architects and contractors
C could not say after the event "You knew what
we were doing; you should have required us to
stop." That would allow the owner, without
seeking new approval from the council, to throw
that system to the winds in favour of a defective
system, and then visit the consequences upon the
council for not stopping him.
Perrett v Collins
(1998) CA
Whole case, here
Lord Wilberforce in Anns v Merton London
Borough Council [1978] said it was:
"necessary to consider whether there are any
considerations which ought to negative, or to
reduce or limit the scope of the duty or the class
of person to whom it is owed or the damages to
which a breach of it may give rise ..."
C lost
[Tort – negligence - duty of care – just to
impose – not restricted by cost of insurance
or need for stricter regulation]
D built and flew a kit plane. C was a passenger.
The plane crashed C was injured. The certifying
authority and its inspector were both liable in
negligence having certified an experimental
aircraft as fit to be flown, and the duty extended
to any passenger who was carried in the aircraft.
Held: Imposing a duty of care, members of the
public would expect to be protected from injury
by careful operation of the regulatory system,
and to be compensated if injured by its negligent
operation.
Phelps v Hillingdon
London Borough
(2000) HL
C won.
[Tort – negligence - duty of care – no duty
situations -public policy – special
educational needs]
Whole case, here
D a local authority employed E an educational
psychologist to assess C who was underperforming at school.
E did not identify C’s dyslexia, C was thus not
given the appropriate additional support, and C
sued in negligence for the psychological and
emotional harm she suffered.
Held: Local education authorities could be
vicariously liable for breaches by educational
psychologists and teachers of their duty of care to
pupils with special educational needs.
R v Corydon Health
Authority (1997)
CA
Whole case, here
C won
[Tort – negligence - duty of care –
foreseeability of damage]
D x-rayed C as part of medical for job as nurse.
D failed to inform C and her GP of serious heart
problem. C had a child and later became
depressively ill thinking she had reduced life
expectancy.
Held: D not responsible for her becoming
pregnant, damages reduced.
Reeves v
Commissioner of
Police of the
Metropolis [1999]
(HL)
Whole case here
[Tort - negligence - duty of care - police duty
to suicidal prisoners - duty to care for
others]
D the police arrested a prisoner who was a known
suicide risk committed suicide whilst in their
custody. Officers left open the hatch of the cell
door and he took the opportunity to tie his shirt
to it and thus strangle himself.
The judge held that the duty of care had been
breached but inter alia suicide was a novus actus
interveniens; he assessed contributory negligence
at 100 per cent.
Held: Although persons of sound mind were
generally taken to be responsible for their own
actions, in rare situations a duty could be owed to
such persons to prevent them from self harm.
That had occurred in the instant case.
The duty represented an exception to the rule
that a deliberate act by a person of sound mind
taking advantage of the defendant's negligent act
would destroy the causative link. A deliberate act
of suicide was not a novus actus interveniens, if it
were the very act which the duty sought to
prevent would break the chain of causation.
L was held contributorily negligent and damages
were reduced by 50 per cent to apportion fault
equally.
C won reduced damages
Rigby v Chief
Constable of
Northamptonshire
(1985) QBD
[Comment] 100 percent contributory negligence
is rare and arguably illogical; only a contribution
between 1 - 99 percent is possible on strict
reading of the Law Reform (Contributory
Negligence) Act 1945 see also Pitts v Hunt
[1990]
[Tort – duty of care – private nuisance – no
duty situations - public policy –duty owed in
operational matters]
D, the police fired CS gas canisters into C’s shop,
hoping to flush out a dangerous criminal who had
taken refuge there. The shop caught fire and C
sued for (inter alia) trespass.
Held: Taylor J said it was common ground that
projecting an article such as a canister onto
another person's land from outside, without
justification or lawful excuse, constituted a
trespass. However, this had been a case of
necessity.
Roberts v
Ramsbottom
[1980] QBD
C lost
[Tort – negligence - duty of care - drivers]
D suffered a partial stroke while driving, and
drove on with impaired consciousness and collide
with two parked vehicles.
Held: Since he retained some limited control he
was still liable. Only total unconsciousness or
total lack of control would excuse him.
Alternatively, D knew he had been taken ill and
was therefore negligent in not stopping, even if
he did not fully realise he was no longer fit to
drive.
Roe v Minister of
Health [1954] CA
[Tort – negligence - duty of care foreseeability of harm]
A spinal anaesthetic had become contaminated
through invisible cracks in the glass vial, when
used, paralysed two patients.
Held: The cracks were not foreseeable given the
scientific knowledge of the time, The
foreseeability of harm is clearly a major factor in
determining how a reasonable person would act,
and although actual foresight by D is generally
irrelevant, a reasonable person would not have
taken precautions against a risk of which
reasonable people in that profession were not
aware.
Rondel v Worsley
(1969) HL
Rylands v Fletcher
D not liable.
[Tort - negligence - duty of care - liability of
lawyers - fair and reasonable test}
Overruled by Hall v Simons (2000)
[Tort – negligence - duty of care - proving
[1866] HL
fault - strict liability]
B constructed a reservoir which flooded A's
mineshafts. B employed a competent engineer
and a contractor, to construct the reservoir.
A had use of some mines under B's land. Some
old unused passages ran vertically up to B's land
but they were blocked with clay and earth. No
care was taken to block up these shafts, and
shortly after water had been introduced into the
reservoir it broke through some of the shafts,
flowed through the old passages, and flooded A’s
mine.
Held: A was entitled to recover damages from B
in respect of this injury, although there was no
precedent.
Sayers v Harlow
UDC [1958] CA
[Tort – negligence - duty of care foreseeability of damage]
D a local authority provided public toilets. When C
tried to leave the cubicle, she found the handle
was missing. After trying for fifteen minutes to
attract attention, she tried to climb out by
standing on the toilet roll holder, but the roll
rotated and C slipped and fell, injuring herself.
Held: Her actions were not unreasonable in the
circumstances and the injury was a natural and
foreseeable consequence of DD's negligence, and
not too remote. However, her damages were
reduced by 25% for her negligence in relying on
the toilet roll as a secure foothold.
Sirros v Moore
[1974] CA
[Judges immunity extends to acts done in
good faith]
D appealed to the Crown Court against a
magistrate's recommendation for his deportation.
The judge dismissed the appeal and when saw D
about to walk out of his court he called upon the
police to stop him.
Held: D's claim for damages for assault and false
imprisonment failed. Although the judge's order
was unlawful (D had not been remanded in
custody) the judge’s immunity extended even to
acts beyond his jurisdiction as long as they were
done in good faith.
Smith v Cribben
[1994] CA
Also here
[comment] this case was not brought in
negligence but habeas corpus, but it illustrates
the extent of public policy.
[Tort - negligence - duty of care - liability for
omissions - no liability to assist another
driver to complete a dangerous manoeuvre]
C overtook D dangerously on a dual carriageway
and the room for completing the overtaking ran
out. D did not slow down to allow him to complete
the overtake. C collided with oncoming traffic
where the dual carriageway became a single
carriageway.
Held: D was not negligent in continuing to drive
at a steady speed instead of slowing down.
Smith v Leech
Brain & Co (1962)
QBD
D won
[Tort – negligence - duty of care foreseeability of damage]
D the employers of a workman who was slightly
splashed by molten metal through his employers'
negligence and suffered a burn on his face. The
burn aggravated a pre-existing cancerous
condition and the man died. C his widow sued.
Held: "Injury to the person" was regarded as a
single kind of damage and some minor injury at
least was foreseeable.
Smith v
Littlewoods
Organisation Ltd
[1987] HL
C won
[Tort – negligence - duty of care foreseeability or type of harm - omission to
act - no general duty]
D owned a disused cinema where a fire was
started by vandals the fire caused damage to
neighbouring properties. The question was were
the cinema owners under a duty of care to
prevent the unlawful entry by vandals and
whether the fire damage was reasonably
foreseeable by the cinema’s owners. The owners
of the damaged properties had not informed
either the cinema’s owners or the police about the
regular entry into the cinema by unauthorised
persons and the evidence of attempts at starting
fires.
Held: There was no general duty of care, in all
cases, to prevent a third party from causing
damage to a claimant or his property by the third
party’s deliberate wrongdoing. But, as the
cinema owners did not know about previous acts
of vandalism, the starting of the fire was not
reasonably foreseeable by the cinema’s owners
and therefore, there was specific duty to prevent
vandals doing what they did.
Smoldon v
Whitworth [1997]
CA
Cinema owners not liable
[Tort - negligence -duty of care- omissions referee owes duty to young players whom
he should be controlling]
D was negligent in the refereeing of an under-19
colts' rugby match, in the course of which C
(aged 17) sustained a broken neck after a scrum
collapsed. There were a 3 or 4 times the normal
number collapsed scrums during the game.
Held: The referee owed a duty to the players,
although he would not be held liable for
oversights or errors of judgment that might easily
be made during a competitive and fast-moving
game.
One of the duties of a referee was to ensure the
players' safety and would be liable for the
foreseeable resulting spinal injuries.
It was not open to D to argue that C had
consented to the risk of injury by participating
voluntarily in the scrum. C might have consented
to the ordinary risks of the game, but could not
be said to have agreed to D's breach of duty in
failing to apply the rules intended to protect
players from injury.
Spartan Steel v
Martin [1972] CA
C won
[comment] this case was the first case of
negligence against a referee
[Tort – negligence - duty of care – damages
– public policy]
DD While digging a trench negligently cut off the
electricity supply to PC’s steelworks.
Held: The value of the "melt" that was ruined by
the power cut, including the profit directly
associated with it was allowed.
However, C did not succeed for loss of profits on
four further melts that could have been
completed during the period that the supply was
cut off.
The reason was probably the fear of opening the
floodgates to many similar claims if a contractor
severed the power supply to a whole estate or
even a small town.
C won.
Stansbie v Troman
[1948] CA
[Tort - negligence - duty of care - created by
contract]
D decorator was left alone on the premises by the
householder's wife. During her absence, he left
the house to obtain wall-paper. He failed to
secure the behind him. During the his absence a
thief entered the house and stole property.
Held:
1. A duty of care was created by the contractual
relationship.
2. It was a breach of that duty to leave the front
door insecure
3. As a direct result of that breach of duty that
the theft occurred.
C won
Stovin v Wise
(1996) HL
[Tort – negligence - duty of care - liability
for omissions - no duty situation]
D (the local authority) failed to order the removal
a railway bank on railway land adjacent to the
road. It had the power order the removal to
improve road safety; it restricted visibility at the
junction. C a motorcyclist was injured by a car
that emerged from a side road.
Held: D had no duty of care to C in respect of
this hazard. Even a statutory duty does not
automatically give a private right of action.
A statutory power does not create a common law
duty to be exercised. Unless it would be irrational
not to exercise that power.
There must be exceptional grounds for holding
that the policy of the statute requires
compensation to be paid to persons who suffer
loss because it is not exercised.
Sutherland Shire
Council v Heyman
[1985] High Court
of Australia
C lost
Applied in Gorringe v Calderdale Metropolitan
Borough Council [2004] HL
[Tort – negligence - duty of care development]
D the council had approved plans for C's house
that suffered subsidence because of inadequate
footings,
Held: As a general rule, the ordinary principles
of the law of negligence apply to public
authorities.
Brennan J expressed the view that “the law
should develop novel categories of negligence
incrementally and by analogy with established
categories." That approach was endorsed by Lord
Bridge in Caparo Industries PLC v Dickman
[1990] and by Lord Keith in Murphy v Brentwood
DC [1991]
Swinney v Chief
Constable of
Northumbria
Police (1996) CA
D won
[Tort – negligence - duty of care - no duty
situations - public policy – police – possible
exception]
C gave information to the police D helping identify
the driver X of a vehicle, which had killed a police
officer. The information was given in confidence.
C’s name and address were left in a police car,
which was stolen and the information came into
the hands of X. C consequently suffered threats
and psychiatric injury.
Held: The decisions in Hill and Osman had left
open a possible exception to public policy
immunity where the police or CPS voluntarily
assumed responsibility, as they had done in this
case by receiving the confidential information.
Moreover, public policy pointed not only towards
police immunity but also towards the protection
of informants.
The Wagon Mound
(1961) PC
Overseas Tankship
v Morts Dock (The
Wagon Mound (No
1)) [1961] PC
Overseas Tankship
v Miller Steamship
(The Wagon
Mound (No 2))
[1966] PC
C won.
[Tort – negligence - duty of care foreseeability of damage]
D the owner of a ship from which oil was spilled,
C the owners of the dockyard whose workman on
the wharf caused the oil to ignite by sparks. The
fire caused extensive damage to the wharf and
dockside buildings.
Held: If some damage, even minor damage, of a
particular kind was foreseeable, then D would be
liable for all such damage irrespective of the
foreseeability of its extent and its immediate
cause. However, in this case, the risk of fire
could not have been foreseen. The risk of
pollution could be foreseen. C was loath to admit
the foreseeability of the fire risk because it was
their workmen who actually set the oil alight.
C lost.
The owners of other ships damaged in the fire
brought a second action, and evidence was given
that the risk of fire was foreseeable, though
admittedly very small. The potential
consequences of that unlikely occurrence were so
serious as to give rise to a duty of care to avoid
it.
Thompson v BlakeJames (1998)
Whole case, here
C2 won.
[Tort – negligence - duty of care – causation
- intervening events]
D a doctor advised C, the parents of a child not to
have a measles vaccination. Child caught measles
and suffered brain damage. Child’s history
suggested to D that immunisation would be more
harmful than to most children.
Held: The advice given by other doctors to whom
C had consulted was an intervening event. It
broke the chain of causation because the parents
were not acting on D’s advice.
Thompson v Smith
Shiprepairers
(North Shields)
(1984) QBD
C lost.
[Tort – negligence - duty of care – the
standard of reasonableness - level of
precautions – common practice]
D shipyard owners. C worker who suffered
deafness.
Held: Although conditions were common across
the industry they fell below the required standard
of care. D could not evade liability just by
proving that all the other employers were just as
bad.
There were some circumstances in which an
employer had a duty to take the initiative to look
at the risks and seek out precautions to protect
workers.
However, this approach must still be balanced
against the practicalities. Employers were not
expected to have standards way above the rest of
their industry, though they were expected to keep
their knowledge and practices in the field of
safety up to date.
Three Rivers DC v
Bank of England
(No.3) [2000] HL
C won
[Tort - negligence - duty of care - cause of
action - EC law - and tort of misfeasance in
public office requires reckless indifference]
TRDC and other creditors of BCCI, a bank in
liquidation, brought proceedings against the Bank
of England for misfeasance in public office.
It was alleged that senior bank officials within the
Bank of England had acted in bad faith when
originally granting BCCI a banking licence as they
had deliberately overlooked the ongoing
operation of BCCI subsequent to granting the
licence and, furthermore, had failed to close down
BCCI when it was known that such action was
necessary.
It was also alleged that the Bank of England had
acted in breach of the requirements contained
within Council Directive 77/780.
Held: The Common Law tort of misfeasance in
public office arose where the actions of a public
officer were carried out in the knowledge of, or
with reckless indifference to the probability of,
injury being caused to a plaintiff, or a class of
persons of which the plaintiff was a member.
Liability arose where a public officer acted beyond
his powers and in the knowledge that such
actions would probably result in injury to the
plaintiff. Reckless indifference was sufficient to
establish liability.
No obligations were imposed on Member States
under Council Directive 77/780, the Directive did
not establish a general duty to supervise nor,
when circumstances required it, an obligation to
withdraw authorisation.
Topp v London
Country Bus
(South West) Ltd
[1993] CA
C lost in part the litigation continued
[Tort - negligence - duty of care - omissions
- actions of third parties]
D, a bus company left a mini-bus parked in a
public place with the keys in the ignition, the bus
was stolen, and, in the course of the theft, was
involved in an accident in which a woman cyclist
was killed. C, her husband (and daughter)
brought an action against the bus company for
negligence. The vehicle was left at a changeover
point that normally took 8 minutes, on this
occasion it rested there for nine hours.
Held: The bus company may have been negligent
to leave the bus with the keys in, in an easily
accessible place, they could not be held
responsible for the accident as it had occurred
through the voluntary act of a third party over
whom they had no control
Ultramares
Corporation v
Touche (1931)
New York
C lost
[Tort - negligence - duty of care in
misstatement cases -"floodgates" argument
- Cardozo and the "indeterminate class"]
Accountants who prepared and certified a balance
sheet owed no duty to banks and other lenders,
who advanced money in reliance on the accounts.
[comment] In claims for damages for economic
loss resulting from negligent misstatements,
there is a potential for foreseeable but
indeterminate and possibly ruinous loss by a large
and indeterminate class of claimants.
Foreseeability of reliance by itself is not an
adequate limiting factor. Courts have been
concerned to avoid, in the well-known words of
Cardozo CJ, 'liability in an indeterminate amount
for an indeterminate time to an indeterminate
class'.
This is the "Floodgates" argument
Vaughan v
Menlove (1837)
[Tort – negligence - duty of care – breach of
duty of care – test of reasonableness]
D built a haystack. C neighbour occupied cottage
near haystack. D was advised that the haystack
was poorly ventilated and could catch fire, which
it did. D who was insured said he would ‘chance
it’.
Held: Although D had acted honestly and in
accordance with his best judgment, this was not
enough, a reasonable person would have taken
precautions.
C won.
Vowles v Evans
and Welsh Rugby
Union Ltd [2003]
CA
Whole case, here
[Tort – negligence – duty of care – proximity
- foreseeability - just fair and reasonable referee owes duty to players]
DD the referee of a rugby match and the sport’s
governing body. C injured and confined to a
wheel chair when a scrum (where players bend
over and push each other) collapsed. C’s position
was hooker (right in the middle of the scrum).
Held: A referee and player have sufficient
proximity, it was foreseeable that if the referee
did not enforce the rules there would be injury
(that is what the rules are there to prevent).
It was just, fair and reasonable to impose a duty
of care. There was a structured relationship, the
referees acts or omissions were manifestly
capable of causing physical harm to others, and
in such circumstances the law will normally
impose a duty of care.
A referee of a game of rugby football owes a duty
of care to the players. The court did not consider
it logical to draw a distinction between amateur
and professional rugby.
The referee had breached that duty of care, the
referee had been in a position no more than basic
skill and competence at that level of the game
(see Bolam).
Lord Phillips, MR:
“Rugby football is an inherently dangerous sport.
Some of the rules are specifically designed to
minimise the inherent dangers. Players are
dependant for their safety on the due
enforcement of the rules. The role of the referee
is to enforce the rules. Where a referee
undertakes to perform that role, it seems to us
manifestly fair, just and reasonable that the
players should be entitled to rely upon the referee
to exercise reasonable care in so doing. Rarely if
ever does the law absolve from any obligation of
care a person whose acts or omissions are
manifestly capable of causing physical harm to
others in a structured relationship into which they
have entered. Mr Leighton Williams has failed to
persuade us that there are good reasons for
treating rugby football as an exceptional case. A
referee of a game of rugby football owes a duty of
care to the players.”
[Comment] This is the first case involving an
amateur game. The court applied Caparo Plc. v
Dickman [1990] HL and a line of cases where the
sport's governing body has been held responsible
for the safety of the players or participants. For
example, the brain damage suffered by the boxer
Michael Watson and his claim for negligence
against the British Board of Boxing Control had
forced the governing body into bankruptcy.
W v Essex County
Council (1998) HL
Whole case, here
C won
Also here
[Tort – negligence - duty of care –no duty
situations - statutory duty - duty of care, to
whom]
D, the council placed a known sex offender with
foster parents C. C’s children were abused. C
made it clear that they were anxious not to put
their children at risk by having a known sex
abuser in their home, the social worker and D
knew that and also knew that the boy placed had
already committed an act or acts of sex abuse.
The risk was obvious and the abuse happened.
Held: It was plainly arguable that there was a
duty of care owed to the parents and a breach of
that duty by the defendants.
Ward v Tesco
Stores Ltd [1976]
CA
C won.
[Tort - negligence - duty of care - evidential
burden lies on D to negative want of care]
D the well known supermarket. C a shopper who
was injured after slipping on some spilt yoghourt.
Held: C did not need to establish how long the
spillage had been on the floor and that the judge
was entitled to conclude that the defendants had
not discharged the evidential burden upon them
of showing that they had taken all reasonable
precautions.
Watson v BBBC
(1999) CA
Whole case, here
C won
[comment] this case succeeded in negligence
but the Occupiers Liability Act 1957 could
have been pleaded.
[Tort – negligence - duty of care – proximity
created by sports regulating body]
D the British Boxing Board of Control failed to
provide sufficient medical care at the ringside. C
a boxer suffered severe brain damage following
an injury in the ring, but the evidence suggested
his injuries would have been less severe had
better medical attention been available at the
ringside.
Held: The sport's controlling body owed a duty
of care to those who took part. Injury was
foreseeable. The licensing system created
proximity, and in all the circumstances it was
just, fair and reasonable to impose such a duty.
The duty alleged was not a duty to take care to
avoid causing personal injury, but rather a duty
to take reasonable care to ensure that personal
injuries already sustained were properly treated;
C won
Watt v
Hertfordshire PP
[1954] CA
[Tort – negligence - duty of care – factors –
risk involved – balance of risk and value]
D local authority that ran the fire brigade. C a
fire fighter was injured by equipment that slipped
on the back of a lorry. The lorry was used to
carry heavy lifting equipment needed at a serious
road accident where a person was trapped. The
lorry, which usually carried the equipment, was
engaged in other work at the time, and the fire
officer ordered the equipment be loaded into the
back of an ordinary lorry.
Held: Denning LJ:
One must balance the risk against the end to be
achieved. The saving of life or limb justified the
taking of considerable risks, and in cases of
emergency, the standard of care demanded is
adjusted accordingly.
Wells v Cooper
[1958] CA
C lost
[Tort – negligence - duty of care – standard
of care]
D fitted a door handle in his home. C a visitor
pulled on the handle and it came away in his
hand, causing the visitor to fall down several
steps.
Held: D was to be judged against the standards
of a reasonably competent carpenter, but not
necessarily against the standards that would be
expected of a professional carpenter working for
reward. This was the sort of job that a reasonable
householder might do for himself, and that was
the appropriate standard.
White and others v
Chief Constable of
South Yorkshire
and others [1998]
HL
Whole case here
C lost.
[Tort - negligence - duty of care - rescuers
no entitlement to damages for pure
psychiatric injury for police officers]
D the Chief Constable and employer of 4 officers,
C who had all suffered post traumatic stress
disorder as a result of their involvement in the
aftermath of the Hillsborough Football Stadium
disaster.
D admitted that the disaster had been caused by
police negligence.
Held: D owed officers under him a duty
analogous to that of an employer to care for the
safety of employees and to take reasonable steps
to protect them from physical harm, but there
was no extension of that duty to protect from
psychiatric injury where there was no breach of
the duty to protect from physical injury.
It was not possible to classify C as primary
victims, since none of them were at any time
exposed to personal danger nor reasonably
believed themselves to be so.
Recognition of C's claims would significantly
widen the established categories of cases for
which damages could be recovered for pure
psychiatric harm and to allow the claims would
not fit easily with the decision in Alcock v Chief
Constable of South Yorkshire [1992] to deny
compensation to bereaved relatives of victims of
the disaster who had not witnessed events at first
hand or acted as rescuers.
Wilson v
Governors of
Sacred Heart RC
Primary School,
Carlton (1997) CA
Whole case, here
C lost
[Tort – negligence - duty of care – common
practice]
D a school, C a nine-year-old boy who was hit in
the eye by a coat belonging to another boy.
Attendants were provided to supervise the
children during lunch break but not a going home
time.
Held: Most primary schools do not supervise
children at this time and the incident could as
easily happened outside the school gates. The
school had not fallen below the standard of care.
Wisniewski v
Central
Manchester Health
Authority (1998)
CA
Whole case, here
C lost
[Tort – negligence - duty of care –special
characteristics of defendant]
D heath authority employed midwife who
negligently failed to show cardiograph indicating
there were problems to the doctor. C child who
had cerebral palsy caused by complications at
birth.
Held: Adverse inference drawn about Dr’s
conduct he did not attend trial and did not
remember the birth. Inference was that Dr had
no answer to C’s complaint, which was supported
by expert evidence that no reasonable doctor
would have delayed examining the patient.
Bolitho followed.
X & Others v
Bedfordshire
County Council
(1995) HL
[overruled]
C won.
[Tort – negligence - duty of care development -breach – proximity - no duty
situations -public policy – local authorities –
statutory duties]
D local authorities. Combined appeals (abuse
cases, and education cases). C two children who
alleged negligent treatment of claims of child
abuse. In one case, the child was left with its
parents and suffered further harm, in the other it
was unnecessarily taken away from them.
In the education cases the issue was whether
special education needs had been met.
Held: Where a statutory discretion was conferred
on a public authority, nothing the authority could
do within the ambit of that discretion was
actionable at common law.
If a new duty of care by local authorities were
established, many more claims would be brought
placing further strain on an already overstretched
system.
No duty of care would be imposed on local
authorities fulfilling their public law duties
towards children in need.
C lost abuse case
C lost education cases because the LA had
no duty of care. But it was held that the LA
could be liable, both directly and vicariously,
for negligent advice given by their
professional employees.
Per curiam. The report of a psychiatrist instructed
to carry out the examination of the child for the
specific purpose of discovering whether the child
has been sexually abused and (if possible) the
identity of the abuser has such an immediate link
with possible proceedings in pursuance of a
statutory duty that such investigations cannot be
made the basis of subsequent claims.
Subequently:
This case was referred to the ECHR and there was
called Z and others v The United Kingdom (2001)
UCHR. The UCHR found against the UK for
not providing a remedy to the children.
This case could not survive the Human Rights Act
and was overturned by D v East Berkshire
Community NHS Trust and others [2003] CA
Yuen Kun Yeu v
Attorney General
of Hong Kong
(PC) [1988]
[Tort - negligence - duty of care - omissions]
D, a commissioner licensed deposit-takers in
Hong Kong. C deposited money with a licensed
deposit-taker who went into liquidation, and he
lost the money. C alleged that D knew, or ought
to know that the deposit-taker was a fraudster,
so was negligent licensing the deposit-taker.
Held: The requirements for duty of care were
foreseeability of harm, and a close and direct
relationship of proximity between the parties.
Only rarely would the question of whether public
policy required the conclusion of liability fall to be
considered.
Since the commissioner had no day-to-day
control over the deposit-taker there was no
proximity, and the nature of the ordinance was
not such as to warrant reliance by Y on the
soundness of a deposit-taker licensed under it.
Z and others v The
United Kingdom
(2001) ECHR
Summary of case
here
Lord Keith:
"Foreseeability of harm is a necessary ingredient
of such a relationship, but it is not the only one.
Otherwise there would be liability in negligence
on the part of one who sees another about to
walk over a cliff with his head in the air, and
forbears to shout a warning."
C lost
[Tort – negligence - duty of care - no duty
situations in respect of local authorities –
can not survive the Human Rights Act]
The parties in X & Others v Bedfordshire County
Council (1995) HL took their case to the ECHR.
Held: There was no dispute that the neglect and
abuse suffered by the four child applicants
reached the threshold of inhuman and degrading
treatment. The UK failed in its positive obligation
under Article 3 of the Convention to provide the
applicants with adequate protection against
inhuman and degrading treatment.
Although the applicants’ had not been afforded a
remedy in the courts, the Court found no violation
of Article 6, their remedy was under Article 3 and
13.
The applicants did not have available to them an
appropriate means of obtaining a determination
of their allegations or the possibility of obtaining
an enforceable award of compensation for the
damage suffered thereby. Consequently, they
were not afforded an effective remedy in respect
of the breach of Article 3 and there had,
accordingly, been a violation of Article 13.
Applicants succeeded