Tuesday 26th September 2006

The two moist important defences were discussed next.

VOLENTI NON FIT INJURIA. No injury is done to one who consents. This consent can be expressed (participants in a boxing match) or implied (spectator at a cricket match).

Simms v Leigh Rugby F.C. [1969] – Simms broke a leg when tackled and thrown towards a concrete wall. He sued and failed because of volenti.

Morris v Murray [1990] – the claimant takes a ride in the defendant’s aircraft, knowing that the defendant was drunk. Although there was bad weather the plane took off and crashed immediately, injuring the claimant. The defendant actually died. The action failed due to volenti, the claimant consented to what had occurred.

It is important to distinguish between drunken pilots and drunken drivers. Volenti does not apply because of s149 Road Traffic Act 1988 which prohibits restrictions on a drivers’ liability to his passengers as he is required to be covered by insurance, although contributory negligence may still apply:

Owens v Brimmell [1977] – claimant and defendant went on pub crawl together. Defendant crashes into lamp post, seriously injuring the passenger claimant. Volenti cannot be used, but 20% reduction made because he knew the driver was drunk.

Hall v Brooklands Auto Racing Club [1933] – a racing car ploughed through protective fencing, killing and injuring spectators including the claimant. It had never happened before, and the court found that the protection was adequate and Hall must have consented to the risk. The action, therefore, fails.

Rescuers

They could be professional, e.g. firemen, cave and mountain rescue or they could be the man in the street. Does he consent to what happens to him/her? PUBLIC POLICY plays a part as courts do not want to deter rescuers.

Chadwick v British Rail [1967] – a duty of care is owed to rescuers.

The earliest case that established that being aware of a risk, and therefore consenting to it, might not be a bar to recovery was:

Haynes v Harwood [1935] – an unattended horse van was left near three schools. There were always children in the street. One of them threw a stone at the horse, which then bolted. The claimant, a police officer, saw that people were in danger and tried to stop the horse. He was injured in doing so. The defendant could not claim:

Ø Volenti as the claimant did not exercise a freedom of choice.
Ø Novus actus interveniens as what had occurred was the likely result of the original breach of duty by the defendant.
Ø Contributory negligence was not to exist for another ten years.

and so the action succeeded

COMPARE

Cutler v United Dairies [1933] – a milkman’s horse bolts off down the road and into a meadow. The milkman runs after it, and Cutler decided to help. He gets a good kick off the horse for his trouble. Here the defendant could claim:

Ø The claimant was volenti, he had a choice as to rescue
Ø There was a novus actus interveniens as the danger had passed

CONTRIBUTORY NEGLIGENCE is not a complete defence, it just reduces a claimant’s award against a defendant in proportion to the amount of contributory negligence, for example:

Ø The claimant driving his car is hit in the rear by the defendant.
Ø The claimant, who is not wearing a seat belt, hits his head on the windscreen, causing facial injury.
Ø The defendant is found to be negligent, and damages of £10,000 are awarded.
Ø The claimant is found to be contributorily negligent as he was not wearing his seat belt, assessed at sixty percent negligent.
Ø Damages of £4,000 are paid to the claimant.

The LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945 established the concept, as prior to the Act proof of contributory negligence was a complete defence. Lord Denning stated that it is a man’s carelessness in looking after his OWN SAFETY.

Armstrong v Cottrell [1993] – a twelve-year old girl ran into a busy road and was injured in a road accident. The damages were reduced by one-third as she should have been aware of the rudiments of the Highway Code.

Donelan v Donelan [1993] – a husband and wife are both drunk. He asks her to drive the car, even though she is inexperienced. It was held that he must bear the main responsibility for the accident, amounting to seventy-five percent of the damages.

Jones v Wilkins [2001] – a small child was travelling in the front of a car driven by her aunt, held on her mother’s lap. An accident occurred through the first defendant’s careless driving, and the child sustained serious injuries. The Court of Appeal applied and extended the principle in Froom v Butcher [1975] and affirmed the decision of the trial judge that the child’s damages be apportioned 75% against the other driver and 25% against the child’s mother and aunt.

Woods v Davidson [1930] – drunken claimant struck by car. As he would have still been run over if sober, there was no contributory negligence.

EX TURPI CAUSA. Not too important for us. The courts may deny a cause of action to a plaintiff who suffers damage while participating in a criminal activity.

Ashton v Turner [1981] the claimant and defendant made a getaway from a robbery in a car driven by the defendant. The car crashed and the plaintiff was injured. It was held that no duty of care was owed to the claimant on the grounds of ex turpi causa.

REMEDIES are mainly damages and injunctions, although not exclusively so.

The purposes of damages is to put him in the position he enjoyed before the tort occurred. The damages awarded may be:

NOMINAL – the tort is actionable per se, but no loss is suffered, e.g. trespass to land. Normal award is £2.

CONTEMPTUOUS – used in defamation actions only. The award is the least valuable coin of the real. It acknowledges the right to sue, but expresses derision: Reynolds v Times Newspapers [1999] – 1p.

EXEMPLARY – also called ‘punitive’. It is awarded to punish a defendant in addition to compensatory damages. It is controversial, and allowable in two cases:

Compensatory damages take account of:

Ø Pain and Suffering
Ø Loss of amenity
Ø Loss of past earnings
Ø Loss of future earnings (from trial onwards)
Ø Medical treatment
Ø Costs incurred by carers

See the handout of Lim Poh Choo v Camden and Islington Health Authority [1979].

The remedy of an injunction will be:

PROHIBITORY – stops a nuisance

MANDATORY – the defendant must take a positive step

INTERIM – issued during proceedings

An action cannot last forever, so the Limitation Act 1980 provides limitation periods for actions, including:

The normal period is six years from the date of damage
Libel or slander – one year from cause of action
Personal injury cases – three years from cause of action or date of knowledge (if later) of person injured

We then turned to the tort of NEGLIGENCE, the most important of the torts. To succeed in an action a claimant must prove:

Ø A defendant owed him a duty of care
Ø A defendant was in breach of that duty
Ø A claimant suffered damage caused by the breach
Ø Which was not too remote
Ø The absence of a defence

The two important defences are:

Ø Volenti
Ø Contributory negligence

Probably the most famous case in British legal history is Donoghue v Stevenson [1932] – why is it so important?:

Ø It destroyed the privity fallacy, an idea where a defendant was liable to one person for a breach of contract, he could not be liable to a third party in tort for the same act or omission.
Ø A new category of duty was created; that of manufacturers of dangerous products to their ultimate consumers: NARROW RULE.
Ø Lord Atkin stated his neighbour test for determining whether a duty of care existed: WIDE RULE.

Facts:

The appellant brought an action against the manufacturer of ginger beer bought for her by a friend at Minchella’s café in Paisley. She drank some of the ginger beer, and when the rest was poured into her glass she saw the remains of a decomposed snail floating from the opaque bottle into her glass. She claimed to have suffered gastro-enteritis and nervous shock as a result of drinking some of the ginger beer and the nauseating sight of the foreign body in her drink. The case proceeded to the House of Lords to decide on the preliminary point as to whether an action existed in tort irrespective of the fact that that there was no contract between her and the manufacturer. The House of Lords[1] laid down that a manufacturer of products owed a duty to take reasonable care to the ultimate consumer of the product. Lord Atkin also stated his famous “NEIGHBOUR PRINCIPLE TEST” as a device to determine when a duty of care is owed.

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in Law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

Walker v Northumberland County Council [1995]

Ø The claimant is employed by the local authority as the area social services officer from 1970 – December 1987
Ø The claimant suffers a nervous breakdown in 1986, due to pressure of work, and is off for three months
Ø Before returning to work his case load was discussed with a superior and assistance was offered
Ø On his return nothing had changed and he had to clear the backlog
Ø Six months later he had a second breakdown, resulting in permanent ill health
Ø In February 1988 he was dismissed by the local authority

He brought an action against the local authority for a breach of a duty of care to take reasonable steps to avoid exposing him to a health endangering workload

By looking at the neighbour principle we should be able to decide whether Walker can succeed in his action:

Ø Where it is reasonably foreseeable to an employer that an employee might suffer a nervous breakdown due to stress and pressure of workload, a duty of care existed.
Ø Prior to 1986 the illness was not foreseeable.
Ø The local authority ought to have foreseen the second illness, due to being exposed to the same workload.
Ø The local authority should have provided additional help, but did not and, therefore they are in breach of the duty of care
Ø The local authority is liable in negligence for the second breakdown

The Neighbour Principle

A duty is owed to a neighbour who is one whom you can REASONABLY FORESEE as being affected by your act or omission.

Home Office v Dorset Yacht Co [1970] – due to the negligence of prison warders some borstal trainees escaped and damaged neighbouring property, the Home Office was held to be liable.

This neighbour principle continued to develop, albeit slowly to begin with, and reached its zenith in:

Anns v Merton Borough Council [1978] – Lord Wilberforce in the House of Lords suggested that in order to establish whether a duty of care arises in a particular situation a two-stage question should be asked:

Did the parties satisfy the neighbour test? If yes, a duty of care exists, unless
Policy dictates that there should be no duty

This case has now been expressly overruled by a seven Judge House of Lords decision:

Murphy v Brentwood District Council [1990] –in relation to a further important rule that arose from the decision. The circumstances are that the claimant bought a pair of semi-detached houses from a builder. They were built on a concrete raft on an in-fill site. The raft was defective, and settlement caused cracks. It was alleged that the council was negligent for approving plans for construction of the raft. It was held that the council were not liable as the loss was ECONOMIC, and not within the accepted categories.

Caparo Industries v Dickman [1990] – the company accountants audited the accounts as per the rules of the COMPANIES ACT 1985. On the strength of those accounts further shares were purchased by an investor, who lost money. He alleged that they were inaccurate. No duty of care existed as the accounts had not been prepared for this purpose.

A duty of care is owed only as far as a defendant can REASONABLY FORESEE the likely outcome; what he does reasonably foresee and doesn’t take reasonable care to avoid creates a breach of duty.

Bourhill v Young [1943] – the claimant was descending from a tram when she heard a road accident. She suffered a miscarriage as a result. It was reasonably foreseeable that some people would suffer damage as a result of the defendant’s driving, but the claimant was not foreseeable as she was so far from the accident, and wasn’t owed a duty of care.

The present position is that there are three requirements for the existence of a duty of care:

Ø Foreseeability of damage
Ø Proximity
Ø Is it fair, just and reasonable to impose a duty?

Nervous Shock

The House of Lords is prepared to recognise a duty of care where the claimant suffers nervous shock. It must be established on the basis of medical evidence that the claimant has suffered a definite and identifiable psychiatric illness. No damages are recoverable for the ordinary grief, sorrow or distress.

Because of this early claims failed until psychiatry advances were able to identify between genuine and bogus claims. What is looked for is:

Ø The relationship of the person claiming
Ø Proximity to the accident
Ø The way in which the nervous shock was brought about

Galli-Atkinson v Seghal [2003] – the claimant’s daughter was killed in a RTA, but she was kept from the scene. She went to the mortuary, suffering nervous shock as a result. Thee Court of Appeal held that this visit to the mortuary was a part of the aftermath.

McFarlane v EE Caledonia Ltd [1994] – the claimant was a painter in an oil rig owned by the defendant. On 6th July 1988 he was lying on his bunk in a support vessel some 550 metres from the rig when a series of massive explosions occurred on the rig. The claimant witnessed the eventual destruction of the rig before being rescued. 164 men died, and the claimant came within 100 metres of the fire. The claimant claimed for psychiatric illness. It was held:

Ø To recover damages a person was a participant if he was:

§ in the actual area of the danger, even though he escaped physical injury by good fortune or,
§ although not actually in danger he thought he was because of the sudden and unexpected nature of events or,
§ although not originally in the area of danger he later became a rescuer.

Ø A mere bystander or witness could not recover unless there was sufficient proximity requiring both nearness in time and place and close relationship of love and affection between the claimant and victim,
Ø The claimant is not a rescuer. The defendant could not reasonably foresee that the claimant would suffer as he could have taken shelter.
POLICY
There are issues of policy where the courts will not determine that there is a duty of care:

JUDGES – immune from action in tort, as are arbitrators, whilst acting in their official capacity.

BARRISTERS - Hall v Simons [2000] – a seven-man House of Lords declined to follow its earlier decision in Rondel v Worsley [1969]. Advocates are no longer immune from suit for negligent work done in court, public policy requirements had changed.

SOLICITORS – they can be sued for negligence, within certain limitations: White v Jones [1995]. Compare with Hemmens v Wilson Browne (a firm) [1993].

POLICE – it is difficult to sue the Police on negligence grounds, public policy usually intervenes. The allegation is that the Police are negligent in the investigation of a crime and a member of the public suffers as a result.

Hill v Chief Constable West Yorkshire Police [1988] – the mother of one of the victims of the Yorkshire Ripper sued the Chief Constable for failing to exercise reasonable care in apprehending Sutcliffe, and had they had done so her daughter would not have died. It was held that there was no cause of action as the victim wasn’t at special risk.

We will continue with the police still further next week.