Tuesday 3 October 2006

We continued further with looking at whether or not the police are immune from being sued in negligence.

Orange v Chief Constable of West Yorkshire [2001] – a prisoner committed suicide in a police cell and his widow sued. Dismissing her claim, the Court of Appeal said the police have no general duty to prevent prisoners from committing suicide: they have a duty to assess the suicide risk, but the stronger duty arises only where they know such a risk exists.

Vellino v C.C. Greater Manchester Police [2001] – police officers who had arrested a suspect were not under a duty to take care that he was not injured in an attempt by him to escape from their custody.

Successful actions have been taken against the police in several cases, including:

Kirkham v Chief Constable of Greater Manchester [1990] – the police failed to pass on information relating to a suspect’s propensity to suicide.

Swinney and Another v Chief Constable of Northumbria Police [1996] – police officers may incur liability in the tort of negligence where innocent persons are adversely affected as a by-product of the way in which the investigations are conducted. The claimant supplied information to the police as to the identity of the driver of a vehicle which had killed a police officer who had tried to stop it. The suspect was notoriously violent, and the informant’s identity certainly needed to be kept secret. The information was recorded in documents left in a police vehicle which was stolen. The suspect discovered the claimant’s identity and threatened him with violence and arson, causing him psychological damage. The Court of Appeal remitted the case to the High Court, who held that there was no breach as the documents were stolen from a briefcase in a locked police car.

Leach v Chief Constable of Gloucester Constabulary [1998] – the claimant was asked to attend interviews with a suspect, as an appropriate adult. The suspect turned out to be Fred West and the claimant suffered post traumatic stress disorder. The claimant claimed she had not been warned about the nature of the case and had not been given counselling. In the Court of Appeal it was held that there should not be a general duty owed by the police to someone in such circumstances because the nature of police work often involved disturbing matters. But it was possible that a duty could be owed in respect of counselling.

Costello v Chief Constable of Northumbria Police [1998] – a police officer was attacked by a prisoner whom she was escorting to a cell and she was badly injured. A police inspector witnessed this but did nothing to help. The Court of Appeal said that the immunity of the police in negligence was not absolute and a duty could be owed to a particular individual. The inspector owed a duty to the police officer.

NB I have a feeling that I gave the defendant as the West Midlands Police. Sorry.

When bodies exercise a STATUTORY POWER there is a limited liability, and reference needs to be made to their statutory powers:

X v Bedfordshire County Council and Other Appeals [1995] – the mere assertion of the careless exercise of a statutory power or duty is not sufficient to found a cause of action flowing from the careless exercise of statutory powers or duties; instead, the claimant has to show that the circumstances are such as to raise a duty of care at common law. A straightforward breach of a statutory duty, whether the breach is careless or otherwise, will not support an action in negligence. In order to prove negligence it must be shown that either:

Ø the statutory duty gives rise to a common law duty of care owed to the claimant by the defendant to do or refrain from doing a particular act or,
Ø more often, that in the course of carrying out the statutory duty the defendant has brought about such a relationship between himself and the claimant as to give rise to a duty of care at common law.

Goodes v East Sussex County Council [2000] – the claimant was seriously injured when his car skidded on a patch of black ice. He claimed damages from the local authority, arguing that the duty to ‘maintain’ the highway (s4 HIGHWAYS ACT 1980) includes a duty to remove ice from the road. It was held that the local authority is under a duty to put the road in such a state of repair as to render it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition. However, this does not include a duty prevent the formation, or remove the accumulation, of ice and snow.

EMERGENCY SERVICES – under certain conditions the fire services will also enjoy an immunity against an action for negligence. The Court of Appeal considered a number of cases on this issue.

John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority and Others [1996] – the court decided that no sufficient proximity or special relationship existed between a fire brigade and the owner of premises which might be on fire, such as to impose upon the fire brigade, and vicariously the fire authority, a duty at common law to respond to a call of assistance. Considerations of public policy militated against the imposition of such a duty. Nor, merely by responding to an emergency call and visiting premises where a fire was burning, did the fire brigade put themselves into sufficient proximity to the building owner to impose a common law duty of care upon them, or assume a particular responsibility to those likely to be affected by the fire. A duty to the building owner might arise once they were fighting the fire because at that time they would have exclusive control of the fire fighting operation. If, during that time, they caused damage over and above that created by the original event, or they caused fresh damage, then they might become liable in negligence and would not escape liability on the ground of public policy.

Capital and Counties plc and Another v Hampshire County Council [1997] – a fire officer at the scene of a fire had ordered the shutting down of the sprinkler system serving the roof space of the burning premises. This decision led to a greater destruction of the premises than if the sprinkler system had been left on. As the officer concerned had no justification for making this decision, the fire authority was held to be negligent. The judge declared that the fire brigade’s exclusive control of its operation was a consideration against immunity on the ground of public policy and it was fair, just and reasonable that a duty of care to owners of burning buildings should exist.

Kent v Griffiths [1998] – the claimant suffered from asthma and was pregnant. She had an asthma attack and called her doctor, who examined her and called an ambulance. The ambulance did not arrive until nearly forty minutes later. The claimant suffered a miscarriage as a result and sued the ambulance service for negligence. The defendant claimed that there was no duty to answer an emergency call or to take care in dealing with such a call. The court said that accepting a call meant there was a duty to a named individual and therefore proximity. Although the ambulance service had budget restraints and problems of prioritising calls, once they had accepted a call the person needing help might rely on them. It was arguable that a duty existed.

DOCTORS have a duty of care in tort, and it was decided in Airedale NHS Trust v Bland [1993] that the duty to a patient was for treatment and care for the benefit of the patient. There was nothing to be gained by artificially preserving ‘life’ to which the patient did not consent and which conferred no benefit to him. The declaration was granted.

The CROWN PROSECUTION SERVICE enjoy immunity: Elguzouli– Daf v Metropolitan Police Commissioner [1995].

The Existence Of A Duty Of Care

• 
  The courts attitude will be considered in the following:
  
  Economic Loss
  Nervous Shock – including Hillsborough
  Omissions To Act
  Trespassers to land
  Negligent (Mis)statements
  
  Economic Loss
  
  The general principle is that economic loss is not recoverable for a negligent act, but may be recoverable for a negligent (mis)statement. The law of contract is where to seek redress for economic loss, where you will need:
  
  Offer
  Acceptance
  Consideration
  
  Thus, in Donoghue v Stevenson [1932] there existed:
  
  A duty of care (not to cause physical damage)
  A breach (the snail)
  Injury, as a result of the breach
  
  The claim is for the illness; the cost of the beer cannot be claimed as it is an economic loss. There is no contract to which she has privity as her friend bought the beer. In the area of defective products there is a distinction between:
  
  A dangerous product (tort)
  A defective product (contract)
  
  Weller and Co v Foot and Mouth Disease Institute [1965] – it was assumed that in consequence of a virus escape from premises used by the Institute for experimental work, and owned and occupied by them, cattle in the local vicinity became infected. An order was made closing cattle markets and the claimant (auctioneers) were unable to carry on their business and suffered loss. The claimant alleged that the defendant was negligent in allowing the escape and that the claimant’s loss was foreseeable. The defendant was not liable in negligence as the claimant was not the owner of the cattle, and the defendant didn’t owe them a duty of care (as opposed to the cattle owners) to avoid the escape.
  
  Cases have been allowed in some exceptions where a claimant suffers CONSEQUENTIAL economic loss:
  
  Spartan Steel and Alloys v Martin and Co [1973] – the defendant cut through a power cable leading to the claimant’s factory. The power was off for fourteen hours. The claimant could recover for the money lost in the smelting process, but not for the loss of profit for the rest of the day.
  
  Nervous Shock
  
  The claim is not for the ordinary grief and sorrow. It is established on the basis of medical evidence that the claimant has suffered a definite and identifiable psychiatric illness, so early cases failed due to the reluctance of the courts to find liability.
  
  Dulieu v White [1901] – a claim was allowed on behalf of a pregnant claimant who gave premature birth when a servant of the defendant negligently drove a horse van into a public house, as she had been in danger[1].
  
  Hambrooke v Stoke Brothers [1925] – the defendant left a lorry at the top of a hill, unattended and with its brakes off. It went downhill and crashed. The claimant’s wife had just left her children round a bend in the road saw the runaway lorry and feared for her children’s safety. She was told that a girl wearing spectacles had been injured, she thought it was her child, suffered nervous shock and died.
  
  Damages were awarded: she was in the foreseeable area of the impact but the shock was as a result of fearing for someone else’s safety. A new limitation was imposed; that shock should occur as a result of what the claimant had witnessed as a result of her own unaided senses, rather than as a result of what others had told her later[2].
  
  So, to recover for nervous shock you need not:
  
  Be in the area of the physical impact, or
  Fear for your own safety
  
  but nervous shock must be reasonably foreseeable.

THE HILLSBOROUGH DISASTER

On 15th April 1989 a semi final of the FA Cup was due to be played between Liverpool and Nottingham Forest at Hillsborough, Sheffield. There was a sell-out crowd. The television were there to record highlights. The match was halted after six minutes as the weight of numbers of people in the Leppings Lane pens created such pressure that spectators were trapped against wire separating pens from the pitch. Ninety-five people died, four hundred more needed hospital treatment. Thousands witnessed the scene from other parts of the ground, millions saw it on television or heard it on radio. Many who were watching or listening had loved ones at the match.

Sixteen test cases were brought to determine whether the Chief Constable owed them a duty of care, and were representative of a further one hundred and fifty further claims. Some claimants were at the ground, whilst others were watching television. All claimed to have suffered nervous shock. Before looking at the cases, let us look again at just what nervous shock is – an identifiable psychiatric illness, not just the ordinary grief and sorrow.

Jones v Wright [1991] (1st instance) – proximity is what it was about, relationship and geographical.

Relationship – Relatives other than spouses would be able to claim, they would foreseeably suffer nervous shock. These relatives would include brothers and sisters and grandparents bringing up a child from a baby.

Geographical – All those inside or immediately outside could claim, as could those who saw it on television, providing that the relationship issue was settled. Being told, or hearing of it on radio was not enough.

We are now left with:

Failed claimants in the High Court appealing to the Court of Appeal (best friends, perhaps?).
A cross appeal by the defendant Chief Constable, alleging that the Trial Judge had gone too far (granddad, television viewers?).

Alcock v Chief Constable South Yorkshire [1991] (Court Of Appeal) – the court severely criticised the decision of the trial judge and stated:

The television viewers claimants must fail as a television broadcast, whilst reasonably foreseeable that it would be broadcast, the intervention of a third party between the accident and a claimant meant that the television was not equivalent to the sight or sound of the accident.

Only the relationships that would have succeeded prior to McLoughlin should succeed, unless the defendant could prove that the claimant didn’t have a RELATIONSHIP OF LOVE AND CARE, or the claimant’s relationship is equivalent to a parent or spouse, e.g. a grandparent bringing up a child.

Leave to appeal to the House of Lords was granted to ten of the original claimants, and were unanimously dismissed.

Alcock v Chief Constable South Yorkshire [1991] (House of Lords) – requirements for a duty of care in nervous shock cases are:

Ø Harm was reasonably foreseeable.
Ø Proximity of relationship between the claimant and the victim. In spouse and parent-child relationships there is a rebuttable presumption, but it is open to other relationships to prove the existence of caring and loving relationships, e.g. Grandfather again, siblings, engaged couples.
Ø Proximity to the accident or its immediate aftermath must be sufficiently close in both terms of time and space.

SIGHT OR SOUND of the accident will continue to suffice, the law will not compensate shock brought about by a third party communicating it. Lord Jauncey stated that AS A MATTER OF PUBLIC POLICY THE SITUATION OF RESCUERS WOULD NOT BE AFFECTED.

White v C.C. South Yorkshire Police [1999] – the claimant officers had (i) carried dead bodies (ii) attempted resuscitation (iii) helped in the mortuary. The House of Lords held that they were secondary victims, and must satisfy Alcock. To allow a successful claim would open the floodgates, e.g. nurses and doctors.

Omission to Act

The general rule is that a pure omission is not actionable, if you want someone to act in a positive way on your behalf you must pay them.

Exceptions will include employer/employee relationships, and can also exist in relationships between an occupier/visitor and parent/child (omitting to send to school)

Breach Of Duty

The standard of conduct to be attained is that of the REASONABLE MAN as stated by Baron Alderson:

Blyth v Birmingham Water Works [1856]: “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”.

Nettleship v Weston [1971] – a learner driver, on her third lesson, hits a lamp post and injures the claimant. A learner driver may be doing her best, but an incompetent best is not good enough. She must drive in as good a manner as a driver of skill, experience and care.

Glasgow Corporation v Muir [1943] – the appellants allowed a church picnic to use their tea room on a wet day. Members of the party had to carry a tea urn through a passage where children were buying ice cream. The urn was dropped, and children were scalded. By the standards of the reasonable man test there is no liability. Lord Macmillan said that a reasonable man is presumed to be free from over apprehension or over confidence.

Roe v Minister of Health [1954] – the claimant was paralysed after an injection in hospital, caused by a leakage of phenol getting into the syringe through invisible cracks. There was no liability. At the time of the accident, judged by the standards of a reasonable man, the accident could not be avoided. The court will not condemn a defendant with the benefit of hindsight.
A child of the same age is a reasonable man:

Mullins v Richards [1998] – two fifteen-year old girls sword-fighting with rulers.

Magnitude Of Risk

Though harm may be foreseeable, there may be no liability if the risk is so slight that the reasonable man is justified in disregarding it.

Bolton v Stone [1951] – the claimant was hit by a cricket ball from the defendant’s ground. It had been hit one hundred yards and cleared a seventeen foot fence. Evidence was brought to show that it had happened only six times in thirty years.

Latimer v AEC Ltd [1953] – a factory was flooded and oil was washed onto the floors. Sawdust was placed on the floor to mop it up, but it wasn’t enough for all areas. The claimant slipped on one of the uncovered areas and was injured. He sued the defendant, alleging that the factory should have been closed. The defendant did all he could. The precaution suggested was out of all proportion to the risk.

Other factors to take into account in establishing whether or not there has been a breach of duty:

(1) The court takes into account not only the risk of any damage to the claimant, but also the extent of the damage risked.

Paris v Stepney Borough Council [1951] – the claimant is a one-eyed mechanic in the defendant’s garage. Part of his job was welding, and goggles were not normally supplied to men in such work. A piece of metal fled into the claimant’s eye, rendering him totally blind. The council was liable, although they would not have been to a person with normal sight. There was a greater risk to the claimant, and greater precautions have to be taken.

(2) The court may be called on to assess the social utility of the defendant’s conduct in determining negligence.

Watt v Hertfordshire County Council [1954] – the claimant fireman, was on duty in an emergency when a woman was trapped under a car. A heavy jack was placed on a lorry not equipped to carry it, it slipped and injured the claimant. The action failed. The risk was not so great as to prohibit an attempt to save life.

(3) “We have always done it this way”, is good evidence on the part of a defendant that he is not negligent. This is very helpful to professional people, where a code of conduct usually exists.

Professional people are not judged by the standards of the reasonable man, he knows little of heart surgery, but by the standards of the reasonable person possessing those same skills:

Bolam v Friern Hospital Management Committee [1957] – a case involving electro– convulsion therapy.

Final points:

Children standards are judged against those of a similar age.

Gamon v Rotherham Borough Council [1991] – a fourteen-year old dives into the shallow end of the swimming pool and breaks his neck. Should have known better.

Sportsmen have different standards, dependent upon ability.

Where a defendant acts in an emergency or in the heat of the moment the standard is adjusted to take account of the dilemma.

Sayers v Harlow UDC [1958] – old lady stuck in lavatory.

Proving the Breach

On the balance of probabilities by the claimant showing that the defendant was negligent. There are two exceptions:

SECTION 11 CIVIL EVIDENCE ACT 1988 permits a claimant to produce evidence of any criminal offence arising out of the situation which led to the action for negligence. This shifts the burden to the defendant to show he was not negligent. It is difficult, but not impossible. Driving through a red traffic light is a criminal offence, but does not necessarily amount to negligence.

We will look at the second one – res ipsa loquitur – next week.