Tort 3: Negligence: duty of care and breach of duty
Terms in this set (102)
4 attempts to establish framework for duty of care
The neighbour principle
two-stage test in Anns v Merton London BC† [1978
The current test: foresight, proximity and fairness
alternative test: assumption of responsibility
Donoghue v Stevenson : importance on 2 points
1. HL recognised a new relationship as giving rise to a duty of care, that between manufacturers and the ultimate consumers of manufactured products (in this particular case a bottle of ginger beer). This is sometimes called the narrow rule in Donoghue v Stevenson: it still survives but has in practice been superseded by a new kind of liability established in the Consumer Protection Act 1987
2. Lord Atkin: broad principle of liability. A duty was owed to 'persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected...' He described such people as 'my neighbours': so his definition of the duty is called the 'neighbour principle'.
redefinition of the neighbour principle.
two-stage test in Anns v Merton London BC
first question was whether there was a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the D carelessness on his part may be likely to cause damage to the C. If so, a prima facie duty of care arose.
The second question was whether there were any considerations which ought to negative or reduce or limit the scope of the duty of care or the class of persons to whom it was owed. This test came under criticism in the following years as being too expansive and indeed the Anns case was itself overruled in 1991 (
current test: foresight, proximity and fairness
C has to show three things if there is to be a duty of care:
Caparo Industries v Dickman 
decision of the CA was overruled by the HL
It was reasonably foreseeable that a person in the C's position would be injured.
There was sufficient proximity between the parties.
It is fair, just and reasonable to impose liability.
Tests are general
Policy considerations are explicit in the second and third tests, but are implicit in Lord Atkin's test as well. Notice his use of 'ought' and 'reasonably'. There is a large moral component to his test. It is not just about what can be foreseen, but about what 'ought' to be foreseen.
of most use when the law is uncertain.
Once a duty situation is recognised, the test in a sense drops out of the picture. So, in an examination context, there is no need to go through the Caparo test unless either the situation is a novel one, where there are no clear precedents, or you are trying to argue that the law ought to be changed (as was done by the HL in respect to the liability of lawyers;
alternative test: assumption of responsibility
whether there had been a voluntary assumption of responsibility by the D for the C. This test is particularly used in cases of liability for omissions, for mis-statements and for economic loss
duty concept has been seen as serving two separate functions:
Is there a duty at the abstract level (the notional duty or duty in law): e.g. does a motorist owe a duty of care to other road users? Or do barristers owe a duty of care to their clients?
Is the particular C within the scope of the duty of care (duty in fact or the problem of the unforeseeable C): e.g. was this particular road user owed a duty by this particular motorist? NOTE: duty in fact can be also looked at either as a matter of breach of duty or as a matter of remoteness of damage.
An important problem is how far the D owes a duty to stop or prevent another person (X) injuring the C
examples affecting 3P
Should a school (or a parent) owe a duty of care to passing motorists to see that a child does not run out of the school and cause an accident?
Should a host at a party owe a duty of care to prevent a guest driving home drunk and injuring a pedestrian?
Should a car owner owe a duty of care to keep it locked up to prevent a thief stealing it and knocking down a pedestrian?
English law and duty
As a general rule English law does not impose a duty on 3P but exceptionally duty may arise: 2 questions to ask:
What is the relationship between X (3P) and D? Does D have some responsibility over X?
What is the relationship between C and D? Does it involve some obligation on D's part to protect C against harm?
Home Office v Dorset Yacht Co 
Some young offenders were doing some supervised work on Brown Sea Island under the Borstal regime. One night the Borstal officers retired for the evening leaving the boys unsupervised. Seven of them escaped and stole a boat which collided with a Yacht owned by the C.
The Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm would result from their inaction.
Home Office were vicariously liable for the Ts of the borstal officers. But the borstal officers were not vicariously liable for the Ts of the boys: they were primarily liable for their own Ts in allowing the boys to escape and cause harm.
Carmarthenshire County Council v Lewis
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.
education authority had taken charge of the child and had a duty to take reasonable care to prevent him from causing harm to others.
Topp v London Country Bus (South West) Ltd 
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 H (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.
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 3P over whom they had no control
Attorney- General of British Virgin Islands v Hartwell 
PC Laurent was still on probation and was subject to daily supervisory visits by a police sergeant from a nearby larger island. As the sole officer, PC Laurent had a key to the police station's strongbox which contained a gun. One night he took the gun and went to a restaurant where his W was associating with another man (the C). He then fired four shots injuring the two in addition to a tourist in the restaurant. The C brought an action against the police for allowing a probationary officer to have access to a gun.
A duty of care is owed by the police authorities in entrusting officers with guns.
owe to the public at large a duty to take reasonable care to see the officer is a suitable person to be entrusted with such a dangerous weapon lest by any misuse of it he inflicts personal injury, whether accidentally or intentionally, on other persons. no distinction is to be drawn between personal injuries inflicted in the course of police duties and personal injuries inflicted by a police officer using a police gun for his own ends. If this duty seems far-reaching in its scope it must be remembered that guns are dangerous weapons. The wide reach of the duty is proportionate to the gravity of the risks."
both vicarious liability and primary liability were considered as alternative causes of action.
Jebson v Ministry of Defence 
soldier, suffered severe injuries after a night out drinking C was transported with other soldiers in the back of an army vehicle with a canvass roof. On the return journey the C and other soldiers were very drunk. The senior officer travelled in the front of the vehicle and was unable to see what was going on in the back of the vehicle. The C climbed on to the tailgate and attempted to climb on to the roof. He fell and was struck by a lorry. The trial judge held that whilst it was foreseeable that an injury may occur by high spirits and stumbling inside the vehicle it was not foreseeable the C would attempt to climb on the roof and therefore the damage was too remote as it had not occurred in a foreseeable manner.
It was foreseeable that injury (whether slight or serious) would occur as a result of the drunken and rowdy behaviour of the passengers, including the danger that someone would fall from the vehicle as a result, such wider risk being apt to include within its description the accident which actually happened.
Duties of lawyers
until recently it was thought that no duty was owed by barristers (and later solicitors also) in respect of work closely connected with the presentation of their case in court. Putting it in terms of the Caparo test, it would be said that, while there was foresight and proximity, it was not fair, just and reasonable to impose liability.
Caparo Industries plc v Dickman 
three-fold test". In order for a duty of care to arise in negligence,
harm must be reasonably foreseeable established in Donoghue v Stevenson as a result of the defendant's conduct
the parties must be in a relationship of proximity
it must be fair, just and reasonable to impose liability
Arthur J. S. Hall v Simons 
e case involved N advice.
HL has now decided that in contemporary conditions there are no policy reasons sufficient to justify this immunity and it should be abolished:
Lawyers not the only professionals who have to balance their duty to an individual client and a code of ethics. It is essential to the proper administration of justice that barristers should be prepared to defend even the most unsavoury characters, who might well wish their lawyers to use all possible means, ethical or not, to secure their acquittal. These characters may wish to sue if they are acquitted on appeal.
Moy v Pettman Smith (a firm) 
circumstances in which a duty is owed for lawyers
Damages were claimed against a barriste After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the door of the court to accept an offer. The claimant was not advised as to potential difficulties in having essential evidence admitted, and the evidence was not admitted, and a much lower sum was received. CA had found the advice itself not to be negligent, but that she should have given the client more detailed advice.
question whether her advice was N has to be judged in the light of the choices that were available in the light of her assessment. She had to balance the possibility of her client's desire to achieve a full settlement against the loss of a chance to sue the solicitors for N. 'it is the substance of the advice, not the precise wording used to convey it, that needs to be examined in order to judge whether it was N. The significance of Miss Perry's failure to tell Mr Moy that the prospects of getting the evidence in were 50/50 has to be measured against what she did tell him, which was that she was hopeful that the judge would admit the evidence'. The CA had been wrong to disturb the finding that the barrister had not been N: 'it was not incumbent upon the appellant to spell out all her reasoning, so she was not in breach of her duty of care to the C in the advice which she gave.
Hall v Simons VIMP
What policy reasons previously were thought to justify the immunity? Why are those policy reasons no longer thought enough to justify it?
reasons for having the immunity: (i) the fact that lawyers in court owe a duty to the court that may sometimes conflict with the duty to their clients; (ii) that the prospect of being sued in N might adversely affect the quality of their argument by e.g. raising every conceivable point in their clients' interests; (iii) that suing the lawyer would to some extent reopen the correctness of the original decision. The HL thought these reasons no longer applied in 2002 (although there was a disagreement about whether the immunity should remain in criminal cases). A main reason was that the public would not understand why lawyers had an immunity that other professions did not enjoy.
(Civil Liability) Act 1976.
Human Fertilisation and Embryology Act 1990
These Acts impose liability only where the damage caused the disability from which the baby suffers when it is born. They do not allow an action where the N caused the baby to be born, but did not cause the disabilities. A doctor may, for example, Nly carry out a sterilisation procedure on either a man or a woman, or may fail to recommend an abortion: any child born as the result of this N has no claim.
ethical reasons do not apply where the claim is by the father or mother (or both) who have to bring up the child.
wrongful conception: claim that sterilaztion was N=> birth
wrongful birth: cases, where opportunity to terminate a pregnancy was lost, born due to N in an abortion.
where the child is healthy and is being raised in a loving family (McFarlane) HL 2000 $ not recoverable, policy distributive justice.
where the child is disabled (Parkinson) N sterilisation. damages awarded for maintenance.
where the child is healthy but the mother did not want children because of her own disability (Rees).CA awards damages, but HL confirms McFarlane. but gives award.
Emeh v Kensington 1984: CA damages awarded, including loss of future earnings and maintenance, note public policy, if this is denied, it will encourage late term abortions.
also hard to say pregnancy is NOT unwanted due to prevalent use of birth control.
McFarlane v Tayside Health Board 
M's husband had a vasectomy carried out in a hospital run by THB. Following tests he was advised by letter that his sperm count was nil and that he and his wife no longer needed to take contraceptive precautions. M subsequently became pregnant and gave birth to a healthy baby girl. M sought damages of GBP 10,000 from THB for the pain and suffering arising out of the pregnancy and labour and GBP 100,000 for the financial consequences of their duty to maintain the child. M's claim was dismissed in the Outer House but that decision was subsequently reversed and THB appealed.
Held, allowing the appeal in part, that although it was fair and reasonable to impose on a doctor a duty of care to prevent an unwanted pregnancy, it was unfair to extend that duty to include the costs of raising a child. It was impossible to value the pleasure received from the child's existence which would counteract the financial burden which would be placed on the parents. M was, therefore, entitled to compensatory damages for the pain and discomfort caused by the unwanted pregnancy, but THB could not be held liable for any further economic loss suffered by M, Caparo Industries Plc v Dickman  2 A.C. 605 applied.
decided that in claims for wrongful conception and wrongful birth maintenance costs are pure economic loss and are not recoverable in T. Three of five Law Lords based their arguments on principle of distributive justice while other two argued that liability was not " . . fair, just and reasonable" . . . All five relied heavily on " . . morality" . . to justify their conclusion that Cs should not recover. However, since pregnancy was a type of " . . physical" . . damage Cs were allowed to recover for all losses that flowed directly from that pregnancy. All their Lordships denied that public policy had a role in decision. A further difficulty with decision is that it might also jeopardise recovery for maintenance of a handicapped child
4 possible outcomes of
McFarlane v Tayside Health Board 
No recovery for either wrongful conception or birth;
Recovery allowed both for wrongful conception and wrongful birth (full recovery - the UK position prior to this case);
Full recovery for the wrongful conception but recovery for the wrongful birth should be offset against the benefits gained from having a healthy child (the benefits rule);
Recovery only allowed for the wrongful conception. No recovery for the wrongful birth (the limited damages rule).
McFarlane v Tayside Health Board 
criticism of :
Full recovery for the wrongful conception but recovery for the wrongful birth should be offset against the benefits gained from having a healthy child (the benefits rule);
Two of their Lordships' opinions were based on it being not " . fair, just and reasonable" . to impose a liability on the doctor and Health Board. Lord Clyde argued that it would not be fair to award damages for the birth of the child without taking into account the benefits gained from having the child. Since " . the value which is to be attached to these benefits is incalculable" . they cannot be offset against the damages so damages cannot be awarded because they would unjustly enrich the Cs. Unfortunately, their Lordships failed to consider that the detrimental side of childrearing is not purely economic. There are many practical detriments such sleepless nights, supervisory responsibilities, providing a taxi service etc. As Donnelly argues " . Non-pecuniary benefits should be offset against non-pecuniary damages... Because neither ... can be assessed with certainty, one should be presumed to cancel out the other. Thus the court will not have to become involved in the unhappy exercise of evaluating parental distress and children's worth. Instead, a court can arrive at a figure which is fair compensation for the economic loss of the parents" . (Donnelly 1997, p21). Their Lordships' failure to consider these non-pecuniary detriments must raise doubts about their conclusions on fairness.
McFarlane v Tayside Health Board 
Recovery only allowed for the wrongful conception. No recovery for the wrongful birth (the limited damages rule).
two judges opted for an argument based on the " . fair, just and reasonable" . criterion. The others, however, chose the road of distributive justice. In doing so they continued a line of argument that had been used by Lord Steyn in Frost v Chief Constable of South Yorkshire Police  3 WLR 1509 to prevent police officers involved in the Hillsborough disaster from recovering for psychiatric damage when the victims' families had not. Lord Steyn stated in McFarlane, " . It is possible to view the case simply from the perspective of corrective justice. It requires somebody who has harmed another without justification to indemnify the other. On this approach the parent's claim for the cost of bringing up Catherine must succeed. But one may also approach the case from the vantage point of distributive justice.
pecifically declined to consider whether the decision would be different for a handicapped child. However, given Lord Steyn's argument about ensuring that the law should be coherent with that regarding wrongful life there must be some doubt about whether the parents of a handicapped child can recover for the cost of raising their child. This is especially so since their Lordships considered the benefits/detriments balance as an all-or-none process. Could any court find that a handicapped child could never offer any joy to the family?
Concurrent with McFarlane, an English court awarded £1.3 million to the parents of a severely disabled child born after a failed sterilisation. Francis states: " . It is at least arguable that there is no difference in principle between the two cases. However the moral case in favour of providing the parent of an unwanted...
focus on the just distribution of burdens and losses among members of a society" . (McFarlane v Tayside HB  SLT 154 at 165). This, he argued, is a moral theory that required an answer to the question: " . Should the parents of an unwanted but healthy child be able to sue the doctor or hospital for compensation equivalent to the cost of bringing up the child?" .
Lord Steyn notes (at 165) " . T law is a mosaic in which the principles of corrective justice and distributive justice are interwoven" . . Even in this case their Lordships have adopted a mixed approach. Having labelled the cost of raising the child as pure economic loss they have applied corrective justice principles to the " . physical" . damage of pregnancy and distributive justice principles to the pure economic loss of raising the resultant child. There appear to be six reasons for the decision that the parents should bear the full cost of child maintenance:
Child maintenance is pure economic loss;
The unjust enrichment that would result from compensating the parents for child maintenance costs;
The moral intuition ascribed to the "traveller on the Underground";
The potential scale of the damages;
The incoherence of allowing a claim for wrongful birth but not wrongful life;
Judicial disquiet with the award of maintenance damages.
Child maintenance is pure economic loss; (Spartan Steel cannot claim for PEL)
distinction between pure and consequential economic loss is artificial and irrelevant since the " . conception and birth are the very things that the defenders'... were called upon to prevent. In principle any losses occasioned thereby are recoverable however they may be characterised
unjust enrichment that would result from compensating the parents for child maintenance costs;
suggestion that the " . traveller on the underground" . will conclude that the parents of a healthy child should not be compensated when the child is conceived through the N of the doctor is a spurious claim which is completely unsubstantiated by any evidence. It is, in reality, their Lordships' personal pro-life view disguised to appear objective. This judicial sleight-of-hand fools no-one. Furthermore, the substance of the moral answer is questionable. As Dickens notes, " . Underlying judicial refusal to award damages to cover costs of rearing a healthy child... is the view that all human life is a gift or blessing... However, this celebration of children denies the compatible social and legal reality that many conscientious, responsible couples do not want children either at all or at particular times" .
No court would be moved by the argument coming from a putative father that he should not be required to provide financial support for the child he has fathered on the grounds that he has bestowed on the mother a priceless blessing
Scale of damages
concern was simply that the potential scale of the damages could be excessively high. It was fuelled by Benar v Kettering Health Authority (1988) NLJ 179 in which Hodgson J. allowed damages for the cost of the future private education of the child. This worry, however, does not necessitate the complete negation of liability. Instead the court could assess damages objectively rather than subjectively
parents have not been warned that a child will be born with a specific disability, and if they had been warned would have terminated the pregnancy. It may include such things as wrong advice about the risks of a child being born with sickle cell disease, or simply forgetting to offer screening for Down's Syndrome to a woman at risk.
Parkinson v St James and Seacroft
University Hospital NHS Trust 
C underwent a sterilisation procedure, but this was unsuccessful and she conceived a fifth child, with severe learning difficulties. She brought a claim against the health authority and the matter came before the CA.
Summary: Following the birth of a disabled child as a result of a failed sterilisation operation it was not fair, just or reasonable to award damages for the basic costs of the child's maintenance, but damages representing the special needs and care costs attributable to the disability were recoverable.
Abstract: The NHS Trust, which had negligently performed a sterilisation operation on P, as a result of which she had given birth to a disabled child, appealed against a decision that P was entitled to compensation for the costs of providing for the child's special needs and care attributable to its disability. P cross appealed against a finding that she could not, in addition, recover damages for the basic costs of the child's maintenance.
Held, dismissing the appeals, that (1) as there was a direct causative link between the surgeon's negligence and the congenial abnormalities suffered by the child, the tests of foreseeability and proximity enunciated in Caparo Industries Plc v Dickman  2 A.C. 605 were satisfied. The special upbringing costs associated with rearing a disabled child would be fair, just and reasonable, Caparo applied and Fassoulas v Ramey 450 So.2d 822 (Fla 1984)(Supreme Court of Florida) considered, and (2) it would not be fair, just and reasonable to extend the scope of the dictum in McFarlane v Tayside Health Board  2 A.C. 59 by allowing recovery for basic child rearing expenses, McFarlane followed.
problem with McFarlane was that the five members of the HL had spoken with five different voices. Brooke LJ considered the distinction between "failed sterilisation" cases and "wrongful birth" cases, where the opportunity to terminate a pregnancy was lost.
no valid policy argument against parents being recompensed for the costs of extraordinary care in raising a deformed child to majority. Brooke LJ found this argument persuasive. He would apply the following principles:-
The birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon's careless failure.
ii) There was a very limited group of people who might be affected by this negligence.
iii) The surgeon should be deemed to accept the proposition that the surgeon should be deemed to have assumed responsibility for the foreseeable consequences.
iv) The purpose of the operation was to prevent the Claimant from conceiving any more children.
v) Parents in the Claimant's position were entitled to recover damages in these circumstances for 15 years between the decisions in Emeh and McFarlane. This was not a radical step into the unknown.
vi) For the reasons set out in (i) and (ii) above, the tests of foreseeability and proximity were satisfied, and an award of compensation which was limited to the special upbringing costs associated with rearing a child with a serious disability would be fair, just and reasonable.
vii) In terms of "distributive justice" ordinary people would consider that it would be fair for the law to make an award in such a case, provided that it was limited to the extra expenses associated with the child's disability.
Note Hale: Lady Justice Hale in dealing with issue of parental responsibility. She stresses that mother has automatic parental responsibility for child as she gives birth to child =>legal duty.parental responsibility goes beyond $ benefits of healthy child cancel out costs involved in rearing child. cases in which parents have actively sought sterilisation as a means of preventing pregnancy in first instance a claim for compensation will not succeed.
Rees v Darlington
Memorial Hospital NHS Trust 
Claimant gave birth to healthy child after negligently-performed sterilisation operation carried out by defendant - She claimed for the cost of rearing the child. Claimant not entitled to recover extra costs of child care occasioned by her disability - Claimant receive award of GBP 15 000. CA ruled that she could claim for the additional costs that she would incur, which were attributable to her disability. The D argued that this decision was inconsistent with the HL decision in McFarlane v Tayside Health Board  3 WLR 1301. The C argued that the decision in McFarlane was wrong.
Abstract: A disabled mother who gives birth to a healthy child after a negligently performed sterilisation operation can not recover as damages the costs of bringing up the child which are attributable to her disability. The trust appealed against a decision ( EWCA Civ 88,  Q.B. 20) allowing R to recover the extra costs of raising a healthy child attributable to R's disability. R suffered from a severe, progressive visual disability and had undergone a sterilisation operation as she considered that she would be unable to fulfil the ordinary duties of a mother. The sterilisation had been negligently performed and R gave birth to a healthy son. The trust argued that the decision was inconsistent with McFarlane v Tayside Health Board  2 A.C. 59, whereas R invited reconsideration of McFarlane . R sought to uphold the decision and cross appealed, claiming the whole cost of raising the child.
Held, allowing the appeal (Lord Steyn, Lord Hutton and Lord Hope dissenting), that the policy considerations which prevented recovery of the costs of a child's upbringing in McFarlane still held good. R was therefore not entitled to recover the extra costs of raising her child which were attributable to R's disability. However, in cases such as the instant case it was just, fair and reasonable to make a conventional award of GBP 15,000, reflecting the parents' loss of opportunity to limit their family and live life the way it had been planned, irrespective of the individual circumstances of the parents. Such an award would not be compensatory but would afford some measure of recognition of the wrong done and would be over and above any compensatory award related to the pregnancy and birth, McFarlane followed and Parkinson v St James and Seacroft University Hospital NHS Trust  EWCA Civ 530 considered.
By a majority, the House of Lords held that Mrs Rees was not entitled to recover any of the child rearing costs including those associated with her own disability. Instead, a conventional award of £15,000 would be ordered to reflect the fact Mrs Rees had been the victim of a legal wrong, in addition to general damages for the pregnancy and birth.
COMMENT: This decision will come as welcome news for defendants and their insurers who may now consider reducing their reserves for wrongful birth claims. By overturning the Court of Appeal, the House of Lords has reinforced the decision in McFarlane largely on policy grounds. The decision in Rees also casts a shadow over the correctness of the Court of Appeal decision in the wrongful birth case of Parkinson v St James and Seacroft University Hospital NHS Trust (2000)
Rees v Darlington
Memorial Hospital NHS Trust 
Lord Hope agreed with the CA in Parkinson that the question of whether the extra costs of raising a seriously disabled child were recoverable raised a separate issue. In principle, these costs constituted an extra and distinct burden on the parent who had suffered damage as a result of the Tfeasor's N. His view was that the fact that the child's parent is a seriously disabled person did provide a ground for distinguishing McFarlane and that it would be fair, just and reasonable to hold that such extra costs were within the scope of the T feasor's duty of care and were recoverable.
Lord Scott said that in his opinion the mother's visual disability did not take the case out of the exception to normal principle established by McFarlane, which was correctly decided. The question of how the McFarlane principle should be applied to a case in which the mother was health but the child was born with a disability was not one that needed to be resolved on this appeal. However Lord Scott felt that where the parents had no particular reason to fear that if a child was born to them it would suffer from a disability, he did not think that there was any sufficient basis for treating the expenses occasioned by the disability as falling outside the principles underlying McFarlane. Lord Scott doubted that the birth of a child with disabilities was reasonably foreseeable, and that the CA's conclusion in Parkinson was consistent with McFarlane. He would allow this appeal, but would agree with Lord Bingham that the C should be awarded £15,000.
Mulcahy v Ministry of Defence 
Summary: Personal injuries; soldier injured in battle; no duty in tort between soldiers in battle; Ministry of Defence not vicariously liable for negligent act of serving soldier
Abstract: MoD appealed against the refusal to strike out M's personal injury claim as having no reasonable cause of action. M was a soldier serving in the Gulf War, who suffered damage to his hearing when a fellow soldier fired a shell from a howitzer. M claimed that the MoD were vicariously liable for the negligence of the soldier who fired the shell.
Serving soldier deployed in Saudi Arabia during the first Gulf War. His unit was operating long-range artillery, firing shells at targets in neighbouring Iraq. The C alleged that his injury had been caused by the N of the gun command during the live-firing of rounds. The C was ordered by his commanding officer to fetch water stored at the front of the gun. As the C was in front of the gun his commanding officer ordered it to fire. The force of the weapon firing threw the C to the ground, causing him to suffer serious injuries in the process.
Held, allowing the appeal, that (1) where the Secretary of State had not acted to reintroduce the immunity contained in the Crown Proceedings Act 1947 s.10 the court had to consider whether a duty of care existed at common law and (2) although the instant case did contain the elements of proximity and foreseeability of damage, it was necessary to ask whether it was fair, just or reasonable to impose a duty of care in tort by one soldier for another engaging an enemy in battle conditions. The court's opinion was that no basis existed to extend the scope of the duty of care to such situations and therefore no duty of care existed between soldiers on active service. Nor was the MoD obliged to maintain a safe system of work in battle situations, Shaw Savill & Albion Co Ltd v Australia 66 C.L.R. 344 and Burmah Oil Co (Burma Trading) Ltd v Lord Advocate  A.C. 75 followed, Hughes v National Union of Mineworkers  4 All E.R. 278 considered.
CA held, in striking out the C's claim, that Mulcahy had been in a war zone taking part in warlike operations, and that as a soldier in these circumstances did not owe a fellow soldier a duty of care when engaging the enemy in battle conditions in the course of hostilities, the C did not have a cause of action against the Ministry of Defence. This was therefore a case where the Court felt that there was a sufficient link between the act of N and the military context within which the accident occurred (Mulcahy's unit were actively attacking the enemy when the accident occurred).
Vowles v Evans 
a rugby referee, appealed against a decision ( EWHC 2612, Times, December 31, 2002) that he had owed a duty of care to V, a rugby player who had sustained an injury in an amateur match that he was refereeing, and that he had breached that duty and the breach had been a cause of V's injury. V was left with permanent incomplete tetraplegia and confined to a wheelchair as a result of the injury he sustained when two front rows failed to engage cleanly in the final set scrum of the match. The match in question was being played under the 1997 version of the 'Laws of the Game' as issued by the Council of International Rugby Football Board. However the judge below found that on making a substitution the referee had failed to comply with Law 3(12) in that he had allowed a player who had lacked suitable training and experience to play in the front row. The issue before the court was whether it was 'fair, just and reasonable' that a duty of care towards the players be imposed on an amateur referee. E submitted that if referees were potentially liable in N for injuries to players, the supply of volunteers who served as referees would diminish. He went on to contend that it was not fair, just and reasonable that amateur referees who received no remuneration for their services risked being ruined by legal liability.
dismissing the appeal, that a rugby referee owed a duty of care to his players. Rugby was a dangerous sport and the rules of the game were designed to minimise the dangers. Players were dependant for their safety on the rules being enforced, and enforcement of the rules fell to the referee. Rugby was no exception to the fact that the law rarely if ever absolves from a duty of care a person whose actions or omissions were capable of causing physical harm to others in a structured relationship into which they had entered. In the instant case, E had failed to ask the team captain before the substitution was made whether the team had another player on the field suitably trained to play in the front row. Had E asked the team captain, the captain would not have been able to give an answer. Furthermore, both E and the captain did not ask the player himself whether he was suitably trained or experienced to play front row. In abdicating responsibility to the team captain, E was in breach of his duty to exercise reasonable care for the safety of the players.
Scope of the duty of care: cases
Bourhill v Young
Palsgraf v Long Island Railroad Co
Haley v London Electricity Board 
Urbanski v Patel (1978)
Goodwill v British Pregnancy Advisory Service 
Bourhill v Young
Young had been Nly riding a motorcycle along a road, and was involved in a collision with a car, fatally injuring him. At the time of the crash, Mrs Bourhill was about to leave a tram which she had been riding, around 50 ft from the scene of the accident. Mrs Bourhill heard the crash. Following the removal of Mr Young's body from the road, she approached the scene of the accident, seeing the blood remaining from the crash. Mrs Bourhill, at the time eight months pregnant, later gave birth to a stillborn child, and claimed she had suffered nervous shock, stress and sustained loss due to Mr Young.
(1.) that the duty of the motor cyclist on the public road to other persons using it was to drive with such reasonable care as would avoid the risk of injury (including injury by shock although no direct impact occurred) to such persons as he could reasonably foresee might be injured by his failure to exercise that care;
(2.) that the appellant was not within the area of potential danger arising as the result of his negligence, and, accordingly, he owed no duty to her and was not guilty of negligence in relation to her.
HL denied that Mrs Bourhill had been foreseeable to Mr Young, at the time of the accident. Lord Russell stated: " Can it be said that John Young could reasonably have anticipated that a person, situated as was the appellant, would be affected by his proceeding towards Colinton at the speed at which he was travelling? I think not. His road was clear of pedestrians. The appellant was not within his vision, but was standing behind the solid barrier of the tramcar.
Owed no duty to the appellant, and was, therefore, not guilty of any N in relation to her.
Palsgraf v Long Island Railroad Co
The events in this case took place at the East New York Long Island Rail Road station on Atlantic Avenue. A passenger carrying a package, while hurrying to catch and board a moving LIRR train, appeared to two of the railroad's (Defendant's) employees to be falling. The employees were guards, one of whom was located on the car, the other of whom was located on the platform. The guard on the car attempted to pull the passenger into the car and the guard on the platform attempted to push him into the car from behind.
The guards' efforts to aid the passenger caused the passenger to drop the package he was holding onto the rails. Unbeknownst to the guards, the package, which was approximately 15 inches long and wrapped in newspaper, contained fireworks, and the package exploded when it hit the rails. The shock reportedly knocked down scales at the other end of the platform (although later accounts suggest that a panicking bystander may have upset the scale), which injured Mrs. Helen Palsgraf (Plaintiff).
Palsgraf sued the railroad, claiming her injury resulted from negligent acts of the employee. The trial court and the intermediate appeals court found for Palsgraf (Plaintiff) by verdict from a jury, and Long Island Rail Road appealed the judgment. Mrs. Palsgraf's injuries were not physical; she claimed to be suffering from a "nervous disorder" as a consequence of the incident.
The Court of Appeals (the highest court in New York) reversed and dismissed Palsgraf's complaint, deciding that the relationship of the guard's action to Palsgraf's injury was too indirect to make him liable. Mrs. Palsgraf was also ordered, as a matter of routine practice at the time, to pay the railroad's legal expenses, estimated at $350 (about a year's pay for an average worker at the time, but about three times her annual income); however, the railroad never attempted to collect the payment.
Cardozo, writing for three other judges, wrote that there was no way that the guard could have known that the package wrapped in newspaper was dangerous, and that pushing the passenger would thereby cause an explosion. The court wrote that "there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff's safety, so far as appearances could warn him." Without any perception that one's actions could harm someone, there could be no duty towards that person, and therefore no negligence for which to impose liability (duty is a matter of law to be decided by a judge; therefore, a finding that there was no duty was sufficient to overturn the jury's verdict that the defendant was liable; however the case can be, and often is, read to establish that the guard did not breach a duty established by the heightened duty of care owed by a common carrier).
The court also stated that whether the guard had acted negligently to the passenger he pushed was irrelevant for her claim, because the only negligence that a person can sue for is a wrongful act that violates their own rights. Palsgraf could not sue the guard for pushing the other passenger because that act did not violate a duty to her, as is required for liability under a negligence theory. It is not enough for a plaintiff to merely claim an injury. "If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended."
This concept of foreseeability in tort law tends to limit liability to the consequences of an act that could reasonably be foreseen rather than every single consequence that follows. Otherwise, liability could be unlimited in scope, as causes never truly cease having effects far removed in time and space (ex. the Butterfly Effect).
Because of the vague nature of Palsgraf's sole injury, some legal scholars have suggested that Cardozo reversed the jury's verdict to erase a fraudulent claim.
Haley v London Electricity Board 
Some workmen were digging a trench in a pavement. They went off to lunch. They had nothing to fence of the trench so they left a shovel and pick at one end and a punner at the other end to warn pedestrians. The C, a blind man, tripped on the punner and fell hitting his head. As a result of the fall he became deaf. The D argued they had done all that was necessary to warn an ordinary person of the danger and there was no need to take extra precautions for blind persons as it was not foreseeable that a blind person would be walking unaided down that street.
Those engaged in operations on the pavement of a highway must act reasonably so as not to endanger those who may pass by, including blind people if (as is common knowledge) they are or should be foreseen. It is proper to assume that a blind person will take reasonable care of himself, e.g., by using a stick and stopping if it touches something unfamiliar. A blind man tripped over the guard left round works undertaken by an electricity undertaken in the highway and was injured and sued the undertaker. The guard was sufficient for a sighted, but insufficient for a blind, person.
D was in breach of duty. It was foreseeable that a blind person might walk down the street and they should be given appropriate protection. The undertaker had not fulfilled its duty of care and was liable in damages for negligence.
Urbanski v Patel (1978)
Patel, a surgeon, removed the only kidney of Shirley Firman believing that it was an ovarian cyst. As a result, she had to be placed on dialysis until she could find a kidney. Urbanski, Shirley's father, tried to donate his kidney to her, but it was rejected. Urbanski brought an action for the losses he experienced from the removal of his kidney.
Is donating a kidney a reasonable action attempting to protect his daughter from the harms of the doctor's negligence?
Wilson found that in the medical world, the donating of a kidney is accepted as a usual solution to a problem of this type. As a result, Urbanski was acting perfectly reasonably. This case, therefore, follows the ratio of Haynes v Harwood and Urbanski was entitled to recover.
Goodwill v British Pregnancy Advisory Service 
B appealed against the refusal to strike out G's claim for financial loss which alleged that B was in breach of its duty of care towards her in respect of advice given to her sexual partner concerning his vasectomy. G began her relationship with the man three years after he had undergone the vasectomy and been advised by B that he no longer needed to use contraception. G consulted her own GP who advised her that there was a minute possibility of becoming pregnant, after which she stopped using contraceptives. However, the vasectomy underwent a spontaneous reversal and G became pregnant. G argued that B had breached their duty of care to her by failing to warn her partner of the possibility of reversal and claimed damages for financial loss.
Ds told a vasectomy patient that there was no need to use contraception. later the patient began a sexual relationship with a woman. She fell pregnant, gave birth to a healthy girl, and sued the Ds for the expenses of the birth, the costs of bringing up her daughter, and the loss of income resulting from her reduced working hours.
Held, allowing the appeal, that to sustain a case in negligence for financial loss there had to be a proximity of relationship between the adviser and the person acting on the advice. B was not in a relationship of sufficient proximity to give rise to a duty of care, as when the advice was given G was not the man's partner but merely a member of an immeasurably large class of women who might in future have sexual relations with him. G's claim would be struck out.
CA held that the Ds owed no duty of care to the woman. Lord Justice Gibson wrote: "The Ds were not in a sufficient or any special relationship C . no knowledge of her, she was not an existing sexual partner of but was merely, like any other woman in the world, a potential future sexual partner of his.
Haynes v Harwood servant brought a two horse carriage into a residential neighbourhood and parked it across street from a police station while he was off doing work. Servant away, children upset horses and broke free and were on a path to injure people. Haynes, a police officer, ran out and stopped horses, however one of them fell and injured him.
court holds that in cases such as these, the volenti non fit injuria maxim does not apply. If someone acts to help those in danger as a result of a person's negligent actions, that person is liable for damages resulting from their actions as long as they are reasonable in the circumstances. Taking risk upon yourself is not applicable in rescue circumstances.
doctrine of the assumption of risk does not apply where the plaintiff has, under exigency caused by the defendant's wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is owed a duty of care by the plaintiff or not.
Donoghue v Stevenson
The neighbour test
neighbour test for establishing a duty of care can be broken down in to two requirements:
1. Reasonable foresight of harm
2. A relationship of proximity
Lord Aitken: The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question.
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.
Anns v Merton London Borough Council 
Cs were tenants in a block of flats. The flats suffered from structural defects due to inadequate foundations which were 2ft 6in deep instead of 3ft deep as required. The D Council was responsible for inspecting the foundations during the construction of the flats. The HL held that the D did owe a duty of care to ensure the foundations were of the correct depth. Lord Wilberforce introduced a two stage test for imposing a duty of care. This has since been overruled by Caparo v Dickman.
Anns v Merton London Borough Council  2 stage test
Lord Wilberforce's two stage test (overruled by Caparo v Dickman)
1. Examine whether the loss was reasonably foreseeable and there existed a relationship of proximity. If so a prima facie duty of care arises.
2. The defendant may put forward policy considerations to negate liability.
First stage was essentially the elements of the neighbour test, however in order to address the fears of the floodgates, this was subject to the second stage which provided a get out clause for Ds where there existed policy reasons for denying the imposition of a duty of care.
Anns test was still considered too wide.
Caparo Industries Plc v Dickman 
Lord Bridge's three stage test for imposing a duty of care, known as the Caparo test:
Under the Caparo test the claimant must establish:
1. That harm was reasonably foreseeable
2. That there was a relationship of proximity
3. That it is fair, just and reasonable to impose a duty of care
It can be seen that the first two stages are taken directly from the original neighbour test. Fair, just and reasonable relates to the same policy considerations under the Anns test. In fact the Caparo test contains the same elements as Anns. The main difference being, that under Caparo it is the C that must put forward policy reasons for imposing liability whereas under Anns, liability would arise once the C had established reasonable foresight and proximity and the D had to demonstrate policy factors for negating liability.
Duty of Care - Policy factors (Fair, just and reasonable)
Loss allocation:- floodgates
The practical effects of imposing liability
Who can afford to bear the loss?
Which of the parties have insurance/ is the situation one subject to compulsory insurance?
Is the defendant a publicly funded body?
Will imposing liability lead to a high volume of new claims?
What effect would this have on cost of insurance or its availability?
Will the courts be able to cope with the volume of cases?
The practical effects of imposing liability
Will the imposition of a duty of care act as a deterrent or raise standards?
Will imposing a duty have an adverse effect on decision making?
Will it effect the allocation of resources away from necessities?
D is gardening at the front of her house. She goes into the house to pour herself a drink and leaves a spade lying in the garden. X, a passer-by, picks it up and attacks C, D's neighbour. Is D liable to C? (In answering this question, think about various possibilities as to who X is, which might affect your answer.)
i) Foresight: reasonably foreseeable that a person in C's position would be injured: Seems unlikely or was not reasonably foreseeable that in leaving her spade in the garden that it would be used as a weapon to attack someone. Might be foreseeable that it would be stolen (depending on the neighbourhood) but stolen then used to injure someone. Per decision in Topp v London Country Bus, 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 3P over whom they had no control; Jebson v Ministry of Defence: Damage probably too remote to occur in a foreseeable manner. Thus, seems unlikely that D would be liable to C if X was a stranger / random 3P.
ii) Proximity: Sufficient proximity btwn parties: if X was another neighbour who was known to be violent and aggressive where it is arguable that the result might be different. Was D in a position of control over X when the incident occurred? Carmarthenshire County Council v Lewis; Home Office v Dorset Yacht
iii) Fairness: Fair, just & reasonable to impose liability / a duty of care
Normally in such a case there would be no liability, but consider exceptional cases.
To what extent is there (and should there be) liability:
iv. if a person negligently injures a pregnant woman and the child is born dead
Acts impose liability only where the damage caused the disability from which the baby suffers when it is born. They do not allow an action where the negligence caused
the baby to be born, but did not cause the disabilities. Remember to consider that, although there is no liability to the estate of the dead child, there may be liability to the mother and the damages would include the suffering sustained by the loss of her baby.
Parkinson: Following the birth of a disabled child as a result of a failed sterilisation operation it was not fair, just or reasonable to award damages for the basic costs of the child's maintenance, but damages representing the special needs and care costs attributable to the disability were recoverable.
If there was a direct causative link between the person's negligence and the death of the child, the tests of foreseeability and proximity in Caparo may be satisfied. Compensatory costs / Conventional award (Rees) associated with the pain & suffering occurring may be fair, just and reasonable, Caparo applied.
If there was no causal link between the child being still-born & the person's negligent action, it is unlikely that the person will be liable.
v. a doctor negligently fails to identify a risk that a foetus has been damaged and does not suggest an abortion: the child is born disabled
Neither the Congenital Disabilities Act nor the CL allows an action by the child: for the claim by the parents see McFarlane and later cases. Parkinson: following the birth of a disabled child, damages representing the special needs and care costs attributable to the disability were recoverable.
vi. a mother takes drugs throughout pregnancy: the child is born with a severe problem of drug dependency.
The Congenital Disabilities Act does not allow a claim by the mother. Ask yourself why mothers are not generally liable for damage to their unborn C, but are liable if they injure them by careless driving.
Clarissa thinks that she may be pregnant and consults a pregnancy advisory service. They confuse her records with those of another client and inform her that she is not pregnant. By the time she discovers that she is pregnant, it is too late for an abortion. Advise her.
No doubt the advisory service has a duty of care. Do you think that the reasoning in McFarlane etc. applies also to these facts? (In McFarlane etc. the negligence caused the pregnancy and not the failure to terminate it).
If the child is healthy, it seems unlikely that C will be compensated for costs of rearing the child; she may be awarded a conventional sum for the discomfort & pain for the birth (Rees). If the child is born disabled & there is a causal link, she may be able to recover damages representing the special needs & care costs attributable.
McFarlane: Recovery only allowed for the wrongful conception. No recovery for the wrongful birth (the limited damages rule).
In Allen v. Bloomsbury Health Authority, where the hospital negligently failed to diagnose that the mother was pregnant at the time of her operation for sterilisation and she would have terminated the pregnancy if it had been diagnosed at that time, Brooke J. held that the mother was entitled to recover general damages for the discomfort and pain associated with the continuation of her pregnancy and the delivery of her child, after setting off the benefit of avoiding the termination of the pregnancy.
Breach of duty: Has the D actually been negligent?
basic rule is that the D must conform to the standard of care expected of a reasonable person.
Blythe v Birmingham
Waterworks (1856) N defitnion
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 reasonable and prudent man would not do.
Glasgow Corporation v Muir  VIMP
consider the behaviour of an ordinary person in ordinary circumstances (not involving special skill or knowledge)
one simple question. Should Mrs Alexander, the manageress of a teashop, have told her child customers to stand outside while two people carried an urn of hot tea through the shop? The answer depends on what dangers a reasonable person would have expected and what steps (if any) such a person would have taken to avoid them. Lord Macmillan's words are appropriate whether you think of this primarily as a question of breach of duty or as a question of remoteness of damage.
held that the manageress in charge owed a duty of care, generally, to everyone in the tearoom. However, she did not owe a duty of care to the Sunday school, to take additional precautions to prevent their being injured as a result of her allowing them to enter. So long as the tearoom was run in the same manner as it was day to day, and to the same safety standards, she was not required to take extra steps to prevent the incident which occurred. It was not reasonably foreseeable that allowing the C to come into the premises would result in one of them being scalded. As such, the incident was put down as an accident which could not have been prevented.
Glasgow Corporation v Muir  VIMP
highlighted two important aspects of the test:
a. 'The standard of foresight of the reasonable man is an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.'
b. objective test. (cf subjective in Goldman v Hargrave.) The abstract reasonable person is put into the shoes of the D, who is expected to have the same general knowledge and understanding of risks as the reasonable person. The actual D may be stupider or more ignorant, or may be cleverer or more knowledgeable, but is still judged by this abstract impersonal standard.
c. 'It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation. Here there is room for diversity of view. What to one judge may seem far-fetched may seem to another both natural and probable.' The outcome is therefore to that extent unpredictable even in the tiny minority of cases that are resolved in court.
Glasgow Corporation v Muir
The manageress of a public tea room, to which access was obtained by way of a small shop, allowed two members of a picnic party to carry through the shop an urn containing several gallons of boiling tea, about a dozen children being then at the shop counter buying sweets and ices. For a reason which was not explained, the hold of one of the bearers slipped so that tea was spilt and scalded several children, on whose behalf an action was brought against the owners of the premises
(1.) that the manageress was bound to take such reasonable care as would avoid risk of injury to such persons as she could reasonably foresee might be injured by failure to exercise such care and that, in the circumstances, the standard of care owed by the bearers of the urn was at least as high as that owed by the manageress;
(2.) that the careful carriage of the urn past the children involved no such danger as could have been foreseen by an ordinary reasonable person as a natural and probable consequence, so as to lead him to clear the children out of the passage;
(3.) that in any event the action must fail since it had not been proved what was the cause of the accident.
Decision of the First Division of the Court of Session, 1942 S. C. 126 , reversed.
Defendant with special skills or qualifications
ask whether a reasonable 'person' would have driven the car, removed the appendix or designed the building in the same way as the actual motorist, surgeon or architect who is being sued. In such cases the D is to be compared to a reasonable person with the relevant skill or qualification
doubt as to exactly what skill or qualifications the D professes to have.
there may be doubt as to whether a large group (say car drivers or doctors) should be sub-divided into smaller categories for the purpose of comparison with reasonable members of the group.
Phillips v Whiteley 
employed a man to pierce C's ears, two weeks later she developed an infection that caused an abscess on her neck that required surgical draining.
Phillips v Whiteley  1 All ER 566. Did the D, who had pierced the C's ears, have to show the care of a reasonable surgeon or of a reasonable jeweller? A: A Reasonable Jeweler
A jeweller is not bound to take the same precautions as a surgeon would take, and D had taken all reasonable precautions. C was unable to prove that the operation was negligently performed, and that the abscess which formed in her neck was due to the negligence.
D is to be compared with a reasonable person of the same specialism and status: a general practitioner is not judged by the same standards as a consultant cardiologist
often no single 'right' way of proceeding. Faced with a particular patient, one doctor might recommend surgery, but another might recommend treatment with drugs.
Shakoor v Situ 
S, who was suffering from a skin condition, consulted a practitioner of traditional Chinese herbal medicine, SI, and was prescribed a course of herbal remedy which had been prepared in accordance with a traditional recipe or classic formula. Subsequent to taking nine doses S became ill and later died of acute liver failure which was attributable to a rare and unpredictable reaction to the remedy. S's widow brought proceedings against SI alleging that he had been negligent in prescribing the remedy, or in the alternative, had been negligent in prescribing such a remedy without providing a warning to S of the potential risks posed. A number of articles published in orthodox medical journals indicating the identified risks of liver damage from similar herbal remedies were submitted as evidence.
Held, giving judgment for the defendant, that it was necessary to consider the standard of care of a practitioner of alternative medicine with regard to that practitioner's knowledge that he was practising his art alongside orthodox medicine. Where a practitioner prescribed a chemical or herbal remedy that would be ingested, such as in the instant case, it was implied that (1) he was presenting himself as competent to practice in accordance with the system of law and medicine under which his standard of care would be judged; (2) he knew, rather than believed, that the remedy was not harmful, and (3) if the recipient reacted adversely to the remedy and as a consequence sought aid through orthodox medicine the incident was likely to be discussed in an orthodox medical journal. Accordingly, a practitioner was required to take sufficient steps so as to be confident that a remedy had not been reported adversely. Such steps included the subscription to a service which provided details of any reports published. In the instant case, the actions of SI had been consistent with the standard of care appropriate to traditional Chinese herbal medicine in accordance with established requirements. It followed that there had been no breach of duty.
Shakoor v Situ  4 All ER 181. Was he to be compared to a reasonable orthodox doctor, a reasonable traditional doctor practising in China or a reasonable traditional doctor practising in England? So long as the herbalist takes steps to keep abreast of pertinent information in the "orthodox" medical journals, it is appropriate to hold his standard of care to that of what a reasonable herbalist would do practising in England.
Consider the argument that a herbalist should be held to the same standard as a normal NHS doctor, but disagreed.
"The Chinese herbalist, for example, does not hold himself out as a practitioner of orthodox medicine. More particularly, the patient has usually had the choice of going to an orthodox practitioner but has rejected him in favour of the alternative practitioner for reasons personal and best known to himself and almost certainly at some personal financial cost. Those reasons may include a passionate belief in the superiority of the alternative therapy or a fear of surgery or of reliance (perhaps dependence) on orthodox chemical medications which may have known undesirable side effects either short- or long-term or both.
So long, said Livesey QC, as the herbalist complies with the UK's laws, does not prescribe prohibited or regulated substances under the Pharmacy and Poisons Act 1933, the Medicines Act 1968 or the Abortion Act 1967, so long as the herbalist takes steps to keep abreast of pertinent information in the "orthodox" medical journals, it is appropriate to hold his standard of care to that of what a reasonable herbalist would do. In this case the prescription had not been inappropriate for a reasonable herbalist, and accordingly Mr Situ of the Eternal Health Co. was not liable for the death of Mr Shakoor.
Nettleship v Weston 
N gave W driving lessons after having first satisfied himself that the car was insured to cover injury to passengers. W was a careful learner, but on the third lesson she failed to straighten out after turning left, and struck a lamp standard breaking N's kneecap. W was convicted of driving without due care and attention.
Many cases involve car drivers. The only standard of care is that of a reasonable driver, whether the actual driver is highly experienced, newly qualified or even just a learner. It is irrelevant that the learner driver D was doing as well as she could, given her lack of experience, if a reasonable driver would have done better.
Learner driver owes a duty to his instructor to drive with proper skill and care, the test being the objective one of the careful driver, and it is no defence that he was doing his best. Held, (1) since N had checked on the insurance position, he had expressly not consented to run the risk and there was no question of volenti non fit injuria (a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict); (2) the duty of care owed by a learner driver was the same as that owed by every driver, and W was liable in damages.
Bolam v Friern Hospital Management Committee 
courts do not insist that one of these approaches must be right and the other wrong: they require that the D has acted in a way that would be supported by 'a body of respectable medical opinion'
allows the medical profession to some extent to determine appropriate standards for itself, but the courts reserve the right to strike down a medical practice as unreasonable (Bolitho)
Bolam v Friern Hospital Management Committee  VIMP
Summary: This case is the basis for the "Bolam test" in negligence to determine the standard of reasonable care for doctors and other professionals.
C was undergoing electro convulsive therapy as treatment for his mental illness. The doctor did not give any relaxant drugs and the C suffered a serious fracture. There was divided opinion amongst professionals as to whether relaxant drugs should be given. If they are given there is a very small risk of death, if they are not given there is a small risk of fractures. The C argued that the doctor was in breach of duty by not using the relaxant drug.
Held: The doctor was not in breach of duty. The House of Lords formulated the Bolam test: "a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."
A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular form of treatment; nor is he negligent merely because there is a body of opinion which would adopt a different technique. In deciding whether a doctor is negligent in failing to warn a patient of the risks involved in a particular treatment, it is appropriate to consider firstly whether good medical practice required that a warning should have been given to the patient before he submitted to the treatment, and, secondly, if a warning had been given, what difference it would have made.
The plaintiff sustained fractures of the acetabula during the course of electro-conclusive therapy treatment given him while he was a voluntary patient at the defendants' mental hospital. He claimed damages against the hospital alleging that the defendants were negligent (1) in failing to administer any relaxant drug prior to the passing of the current through his brain; (2) since they had not administered such drug, in failing to provide at least some form of manual restraint or control beyond that given; and (3) in failing to warn him of the risks involved in the treatment. Expert witnesses all agreed that there was a firm body of medical opinion opposed to the use of relaxant drugs, and also that a number of competent practitioners considered that the less manual restraint there was, the less was the risk of fracture. It was the practice of the defendants' doctors not to warn their patients of the risks of the treatment (which they believed to be small) unless asked. The jury returned a verdict for the defendants.
Bolitho v City and Hackney
Health Authority  VIMP
Abstract: B, the administratrix of the estate of a child, P, who suffered catastrophic brain damage when respiratory failure resulted in cardiac arrest, appealed against a Court of Appeal ruling; dismissing her appeal against the dismissal of her claim for damages for medical negligence. The trial judge had found that P's doctor had breached her duty of care by failing to attend P, but that the breach had not caused P's death since, had the doctor attended, she would not have performed the intubation needed to save P's life and, on the basis of the expert medical evidence presented, she would not have been negligent in failing to do so. In reaching the latter conclusion, the judge had applied the test established in Bolam but the test had no application to issues of causation and the judge had misdirected himself in referring to it.
The HL held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is 'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the profession. However, Lord Browne-Wilkinson held that the court would hold a practice that was in conformity with a sound body of expert opinion to be negligent only in "a rare case".
Held, dismissing the appeal, that the Bolam test was of central importance in determining whether the doctor would have been negligent in failing to intubate. However, the court was not obliged to hold that a doctor was not liable for negligent treatment or diagnosis simply because evidence had been called from medical experts who genuinely believed that the doctor's actions conformed with accepted medical practice. The reference in Bolam to a "responsible body of medical men" meant that the court had to satisfy itself that the medical experts could point to a logical basis for the opinion they were supporting. Where cases concerned the balancing of risks against benefits, the court had to be sure that, in forming their opinion, the medical experts had considered the issue of comparative risks and benefits and had reached a view which could be defended. However, it would only be in rare cases that the court would reject the medical experts' view as unreasonable and the evidence did not support such a conclusion in the instant case.
In applying the Bolam test where evidence is given that other practitioners would have adopted the method employed by the D, it must be demonstrated that the method was based on logic and was defensible.
Whitehouse v Jordan 
Held, dismissing the appeal, that, although the judge had had the advantage of seeing and hearing the witnesses, including the plaintiff's mother, the Court of Appeal had been entitled to form an opinon on the question whether anything of evidentiary value could be extracted from her evidence, and that they had rightly rejected the judge's finding based on it that she had been pulled toward the bottom of the delivery bed in a manner and with such force as to be
inconsistent with a trial of forceps properly carried out; that the first defendant's account of what he had done was consistent with sound medical practice and with a possible use of the word "impacted" and the Court of Appeal had been entitled to take his evidence as evidence that he had not got the plaintiff's head wedged or stuck; that they had been justified in concluding that the use of the word "impacted" in the hospital report together with the mother's evidence had not been of sufficient strength to lead to a finding of professional negligence; and that they had been entitled, on well-established principles, to reverse the judge's decision.
The House of Lords dismissed an appeal from an infant, who had suffered severe brain damage at birth, in his claim against the consultant obstetrician and the health authority. The trial judge had allowed his claim, but the decision was overturned by the Court of Appeal. The House upheld the majority decision of the Court of Appeal in exceptionally reversing the trial judge's findings of fact since they could not reasonably be supported on the evidence. An error of clinical judgment might or might not be negligent: the test was that of the ordinary skilled man exercising or professing to have a particular skill. Dicta to the opposite effect in the Court of Appeal were wrong.
Per Lord Edmund-Davies, Lord Fraser of Tullybelton and Lord Russell of Killowen. It is not correct to say that an error of clinical judgment is not negligent. If the error is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If it is an error that such a man, acting with ordinary care, might have made, then it is not negligent.
Maynard v West Midlands Regional Health Authority 
Abstract: In the medical profession, as in others, there is room for differences of opinion and practice, and a court's preference for one body of opinion over another is no basis for a conclusion of negligence. M brought an action against the health authority for damages for negligence alleging that the decision to carry out an exploratory operation based on a mistaken diagnosis had been negligent. At trial a distinguished body of expert medical opinion was called approving the health authority's action, but the judge said that he preferred the evidence of an expert called for M who said that a correct diagnosis should have been made at the outset and that it had been wrong and dangerous to undertake the operation. The Court of Appeal reversed the decision of the trial judge.
I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.
Held, dismissing the appeal, that in the medical profession, as in others, there was room for differences of opinion and practice, and a court's preference of one body of opinion to another was no basis for a conclusion of negligence; that when it was alleged that a fully considered decision by two consultants in their own special field had been negligent, it was not sufficient to establish negligence for the plaintiff to show that there was a body of competent professional opinion that considered that the decision had been wrong if there was also a body of professional opinion, equally competent, that supported the decision as having been reasonable in the circumstances (Whitehouse v Jordan  1 W.L.R. 246 applied and Joyce v Yeomans  1 W.L.R. 549 applied).
Wilsher v Essex Area Health Authority ]
The onus of proving causation in a medical negligence case rested on the plaintiff. Where a medical condition could have been caused by a number of different factors, the defendants' failure to take steps which could have caused one of them did not prove the causation. The plaintiff was born prematurely and was placed in a special baby care unit at a hospital managed by the defendants. The plaintiff needed oxygen but a catheter was wrongly inserted into an umbilical vein as opposed to an artery and the plaintiff was supersaturated with oxygen. He developed retrolental fibroplasia which resulted in blindness. A likely cause of the condition but not a definite or the only cause was that he had been administered too much oxygen. He claimed damages from the defendant health authority for negligent medical treatment. The judge held that the defendants were liable since they had failed to prove that the plaintiff's condition had not been caused by the negligence of their employees. The Court of Appeal dismissed the defendants' appeal.
Held, HoL allowing the appeal, that the onus of proof of causation rested on the plaintiffs. Where a number of different factors could have caused the condition, including the administration of excess oxygen, its occurrence provided no evidence and raised no presumption that it was excess oxygen rather than one of the other factors which caused or contributed to the condition. Since there was a conflict of medical evidence as to whether the excess oxygen caused or contributed to the plaintiff's condition and the judge had failed to make relevant findings of fact on this, the issue of causation was remitted to a different judge to try (Bonnington Castings Ltd v Wardlaw  A.C. 613 applied; McGhee v National Coal Board  1 W.L.R. 1 distinguished). The Court of Appeal was not itself entitled to resolve a conflict between the experts which the judge had left unresolved, namely whether the defendants' actions were capable of causing or contributing to his condition.
Bolam test: where it is alleged that the doctor failed to give the patient sufficient warning of the risks of the proposed
asks whether the information given was in accordance with what a respectable body of medical opinion would have done, but Australian courts have taken a view more generous to the patient and ask what a reasonable patient would expect to be told.
UK: approach is sometimes criticised as showing a 'doctor knows best' attitude and ignoring the autonomy of the patient. The professional bodies now encourage greater openness and encourage doctors to explain the advantages and disadvantages of particular treatment unless there is a good reason for not doing so.It will now be more difficult for a doctor to argue that a reluctance to be open about the advantages and risks of treatment is in accordance with medical opinion.
case analysis for medical claims
Most cases are based on the idea that the individual doctor (or nurse, etc.) is negligent and that the health authority or private hospital is vicariously liable.
In some cases it may be appropriate to consider arguing whether the health authority or hospital is itself negligent, e.g. by enTing a procedure to an inappropriately junior doctor, or by overworking its staff so that they are too tired and make mistakes.
Sidaway v Board of Govenors
Abstract: Where a claim is made arising out of an alleged failure on the part of a surgeon to warn his patient of risks inherent in the operation the proper test is that used in Bolam, namely the standard of the ordinary skilled man exercising and professing to have the skill of the surgeon concerned. Per curiam: whilst it is primarily a matter for the surgeon concerned to exercise his own clinical judgment when weighing just how much disclosure of risk is advisable in the case of a particular patient, there could exist circumstances where the degree of risk was such that, whatever reponsible medical opinion might say to the contrary, a judge could be justified in holding the patient's right to decide to outweigh that body of opinion, and concluding that no reasonable medical man would have failed to disclose the particular risk under consideration.
S underwent surgery for persistent pain which carried an inherent risk of damage to the spinal cord, even if performed properly and skilfully, put at between one and two per cent. In the event the operation was performed with all proper skill and care, but S nevertheless suffered very severe injuries. She claimed that she had not been warned of the intrinsic risk of the operation, and that had she been so warned she would not have consented to the surgery. The judge found that by the accepted standards of 1974 (when the operation had been carried out) the surgeon had followed a practice accepted as proper by a responsible body of medical opinion in not warning S in detail of the risk of damage to the spinal cord. Accordingly he acquitted the surgeon of negligence and his decision was upheld by the Court of Appeal.
Held, dismissing the appeal, that the judge had been correct in applying the Bolam test and had been entitled to find that the surgeon had acted in accordance with a standard accepted as proper by a responsible body of medical opinion, and that he had not thereby departed from the standard of an ordinary skilled man professing to have those skills as a surgeon. Whilst ordinarily it would be impossible to hold a doctor negligent who had conformed to a view held by a respected body of medical opinion, the case could arise, where the degree of risk was substantial or the consequences particularly grave, that the patient's right to make the decision himself outweighed even the respected body of medical opinion. On the facts of the present case S had failed to prove the surgeon in breach of any duty of care and the appeal had to be dismissed.
Rogers v Whitaker
A medical practitioner has a legal duty to warn a patient of a material risk inherent in proposed treatment. A risk is material if a reasonable person in the patient's position would, if warned of the risk, be likely to attach significance to it.
Chester v Afshar
A neurosurgeon who failed to warn a patient of the small risk of injury inherent in surgery, even if properly performed, was liable to the patient when that risk eventuated, even though the risk was not increased by the failure to warn and the patient had not shown that she would never have had an operation carrying the same risk.
The appellant (X), a consultant neurosurgeon, appealed against a finding ( EWCA Civ 724,  Q.B. 356) that he was liable in damages for his failure to warn the respondent (C) of a risk inherent in surgery that he had performed on her. C suffered repeated episodes of low back pain and had been referred for surgery to X, who was experienced in disc surgery. C underwent the surgery and suffered a rare complication known as cauda equina syndrome, a risk in respect of which X had failed to warn her in advance. The judge had not found that X had been negligent in the actual performance of the surgery. However, he had found that X had failed to warn C of the small risk that the operation could adversely affect her, and that had she been warned of the risk, she would not have undergone the surgery at the time she did.
Held, dismissing the appeal (Lords Bingham and Hoffmann dissenting), that a judgment in C's favour could not be based on conventional causation principles. The "but for" test was satisfied since C would not have had the operation when she did if the warning had been given. But the risk of which she should have been warned was not created by the failure to warn. It was already there, as an inevitable risk of the operative procedure itself, however skillfully and carefully it was carried out. The risk was not increased, nor were the chances of avoiding it lessened, by what X had failed to say about it. However, the duty of a surgeon to warn of the dangers inherent in an operation was intended to help minimise the risk to the patient and was also intended to enable the patient to make an informed choice whether to undergo the treatment recommended and, if so, at whose hands and when. X had violated C's right to choose for herself, even if he had not increased the risk to her. The function of the law was to enable rights to be vindicated and to provide remedies when duties had been breached. Unless that was done, the duty to warn would be a hollow one. On policy grounds the test of causation was satisfied in the instant case. The risk was within the scope of the duty to warn so that the injury could be regarded as having been caused, in the legal sense, by the breach of that duty, Chappel v Hart  Lloyd's Rep. Med. 223 and Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son)  UKHL 22,  1 A.C. 32 considered.
Edward Wong Finance
Co Ltd v Johnson, Stokes and Master 
The conveyancing practices known as a "Hong Kong style" completion which involves the purchasers' solicitors forwarding the purchase money to the vendor's solicitors on undertakings by the latter is negligent, because there is a foreseeable risk of the latter decamping with the proceeds. The conveyancing practice in Hong Kong is for the purchaser's solicitor to forward the purchase money to the vendor's solicitors on undertakings by the latter to forward to the former the documents of title duly executed within a specified period on one such conveyance, the vendors's solicitor failed to honour his undertakings and decamped with the proceeds.
Even though completion in Hong Kong style was almost universally adopted in Hong Kong and was in accordance with a body of professional opinion there, the D's solicitors were liable for negligence because there was an obvious risk which could have been guarded against. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible.
Held, that the system was negligent because the risk of embezzlement by a vendor's solicitor could be foreseen. The purchaser's solicitors should have taken precautions to ensure that the purchasers would have an unanswerable claim for specific performance against the vendors before parting with the money.
Mullin v Richards 
M and R, two 15 year old schoolgirls, were play fighting with plastic rulers during a class when one of the rulers snapped and a fragment of plastic entered M's right eye causing her to lose all sight in that eye. M commenced proceedings in negligence against R and the education authority. The claim was dismissed against the education authority and upheld against R on the basis that she must have appreciated that what she was doing was dangerous, that she had used excessive violence and that it was readily foreseeable that her conduct might cause an eye injury to M. A 50 per cent reduction was made for contributory negligence. R appealed against the finding of negligence against her contending, inter alia, that there was not sufficient evidence for the finding that it was readily foreseeable that R's conduct might cause an injury of the type that M suffered.
CA found that the standard to be expected of a 15-year-old child was not the standard of a reasonable person, but that of a reasonable and "ordinarily prudent" 15-year-old. It was held that an ordinary prudent 15-year old could not have foreseen any injury when playing with rulers and the D was therefore found not liable in negligence.
Held, allowing the appeal, that the test of foreseeability in this context is whether an ordinarily prudent and reasonable 15 year old schoolgirl in R's situation would have realised that her actions gave rise to a risk of injury. A mere possibility of injury was not enough. The question of foreseeability must be judged against the evidential background concerning the prevalence of the practice of fencing with plastic rulers, the absence of prohibition, the absence of warning against it or of its dangers and the absence of any evidence of any previous injury. Further there was no evidence to support the judge's finding that M and R were guilty of using misdirected and dangerous force over and above that which was inherent in play fencing. Accordingly, the judge erred in finding negligence against R without there being material on which he could properly do so.
Blake v Galloway 
When taking part in informal games or horseplay, as opposed to organised or regulated sport or games, where the nature of the play was in accordance with tacitly agreed understandings or conventions, a participant could only be liable for the injury caused to another if his conduct in causing that injury amounted to recklessness or a very high degree of carelessness.
Abstract: The appellant (G) appealed against an order for damages based on a finding that the injuries of the respondent (B) had been caused by G's negligence and battery. G and B, teenagers, had been engaged in a game which involved throwing bark chippings at each other. One chipping, thrown by G at B, hit B in the eye causing significant injury. The judge rejected G's defence of volenti non fit injuria but reduced the agreed damages by 50 per cent by reason of B's contributory negligence. On appeal, G argued that the claim in negligence should have been dismissed as there had been no lack of reasonable care on G's part and if there had been, the judge was wrong to reject the defence of volenti.
Held, allowing the appeal, (1) that the participants in horseplay owed each other a duty to take reasonable care not to cause injury; that a participant breached that duty of care only where his conduct amounted to recklessness or a very high degree of carelessness; that the defendant's conduct constituted at worst an error of judgment or lapse of skill; and that, in the circumstances, there was no breach of the duty to take reasonable care. (2) That in a sport which inevitably involved the risk of physical contact, the participants were taken impliedly to consent to those contacts which could reasonably be expected to occur in the course of the game and to assume the risk of injury from such contacts; that although the horseplay in which the parties were engaged was not a regulated sport or game it was conducted in accordance with objectively ascertainable, tacitly agreed understandings or conventions; that by participating in the game the claimant impliedly consented to the risk of a blow on any part of his body, provided that the missile was thrown more or less in accordance with those understandings and conventions, without negligence and without intent to cause injury; and that, in the circumstances, the object was thrown in a manner to which the claimant had consented
The D had consented to the risk of injury occurring within the conventions and understanding of the game. Lord Justice Dyson: ". If the D in the present case had departed from the tacit understandings or conventions of the play and, for example, had thrown a stone at the C, or deliberately aimed the piece of bark at the C's head, then there might have been a breach of the duty of care. But what happened here was, at its highest, "an error of judgment or lapse of skill" (to quote from Diplock LJ), and that is not sufficient to amount to a failure to take reasonable care in the circumstances of horseplay such as that in which these youths were engaged. In my view, the D's conduct came nowhere near recklessness or a very high degree of carelessness."
Mansfield v Weetabix Ltd 
W appealed against a judgment holding them liable in negligence following an incident in which a lorry belonging to W, and driven by T, crashed into M's shop causing extensive damage. T suffered from malignant insulinoma which resulted in a hypoglycaemic state which had impaired T's ability to drive and that had caused the accident, although T himself was unaware of his condition. In the course of a 40-mile journey he was involved in two incidents of driving erratically and in a minor accident with another vehicle. Subsequently he failed to negotiate a bend and crashed into the plaintiff's shop causing extensive damage.
D may be liable even if he was doing his incompetent best. But if his behaviour was the result not of inexperience or incompetence, but of illness or other external forces, then he may be found not liable.
Held, allowing the appeal, that T's condition had to be considered and this was not a case in which strict liability should be imposed. The judge had erred in following test to be applied for a criminal case was different from that for a civil case.
Held that there was no reason in principle why a driver who was involved in an accident caused by a disabling event should not escape liability where the disabling event was not sudden, but gradual, provided that he was unaware of it; that the standard of care such a driver was obliged to show to other road users was that which was to be expected of a reasonably competent driver unaware that he was or might be suffering from a condition that impaired his ability to drive; that to apply an objective standard in a way that did not take account of such a condition would be to apply a test of strict liability; and that, accordingly, since the first defendant's driver did not know and could not reasonably have known of his infirmity which caused the accident, he was not at fault and was not negligent.
It was found that T would not have continued to drive had he been aware that his ability was impaired. The standard of care to be expected was that of a reasonably competent driver unaware that the condition from which he suffered impaired his ability to drive.
Eliminating harm must be proportional to the danger: Guidelines
a. likelihood of injury
b. seriousness of injury
c. difficult/cost to eliminate risk?
d. urgency of D action?
Bolton v Stone 
During a cricket match a batsman hit a ball out of the ground, and it struck and injured Stone, who was standing in the adjacent public highway. The hit was exceptional and a ball had only very rarely been hit out of the ground over a period of many years.
It was not enough for the respondent to say that the occupiers of the cricket ground could have foreseen the possibility that a ball might be hit out of the ground by a batsman and might injure people on the road; she had to go further and say that they ought, as reasonable men, to have foreseen the probability of such an occurrence; the probability of a ball so struck hitting anyone in the road was very slight; it was not actionable negligence not to take precautions to avoid such a risk.
Stone brought an action against the cricket club in nuisance and negligence. No breach of duty. The likelihood of harm was low the defendant had taken all practical precautions in the circumstances. The cricket ground had been there for 90 years without injury and provided a useful service for the community.
Per Lord Reid: "If this appeal is allowed that does not in my judgment mean that in every case where cricket has been played on a ground for a number of years without accident or complaint those who organise matches there are safe to go on in reliance on past immunity. I would have reached a different conclusion if I had though that the risk here had been other than extremely small, because I do not think that a reasonable man considering the matter from the point of view of safety would or should disregard any risk unless it is extremely small"
Wagon Mound (No. 2) 
D's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour due to the failure to close a valve. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The fire spread rapidly causing destruction of some boats and the wharf.
The damage to the respondents' vessels was "not reasonably foreseeable by those for whose acts the appellant was responsible." Further findings were that reasonable people in the position of officers of the Wagon Mound would regard furnace oil as very difficult to ignite upon water and that if they had given attention to the risk of fire from the spillage they would have regarded it "as a possibility, but one which could become an actuality only in very exceptional circumstances." Having made these findings, Walsh J. held that liability in nuisance did not depend on forseeability and that the appellant was liable in nuisance but not in negligence. Judgment was accordingly given for the respondents on the claim based upon nuisance and for the appellant on the claim based on negligence.
On appeal by the appellant against the judgment based on nuisance, and by the respondents, by cross-appeal, on the issue of negligence:- Held: (1) that creating a danger to persons or property in navigable waters (equivalent to a highway) fell in the class of nuisance in which foreseeability was an essential element in determining liability and that it was not sufficient that the injury suffered by the respondents' vessels was the direct result of the nuisance if that injury was in the relevant sense unforeseeable. (2) That, on the facts, a reasonable man having the knowledge and experience to be expected of the appellant's chief engineer would have known that there was a real risk of the oil on the water catching fire and the fact that the risk was small did not in the circumstances justify no steps being taken to eliminate it. Accordingly both the appeal on the claim based on nuisance and the cross-appeal upon the claim based on negligence would be allowed.
Defendants were in breach of duty. Although the likelihood of harm was low, the seriousness of harm was high and it would have cost nothing to prevent it. Although risk exceptional, it does not mean that a reasonable man would dismiss such a risk from his mind and do nothing when it was so easy to prevent. If it is clear that the reasonable man would have realised or foreseen and prevented the risk then it must follow that the appellants are liable in damages.
Does not establish a principle that small risks can be ignored, but rather that the risk must be balanced against the defendant's purpose in carrying on its activities and the practicability and cost of taking precautions.
Latimer v AEC [1952
C worked in the D's factory and slipped up on the factory floor. The factory had become flooded due to adverse weather conditions. The D's had put up warning signs mopped up and placed sawdust in the most used places to make it as safe as possible. The trial judge held that there had been a breach of duty as the Ds should have closed the factory if it was unnsafe. However, no argument had been advanced on this.
No breach of duty. There was no duty to close the factory. The D only had to take reasonable precautions to minimise the risk which they had done. There was no need to go to great expense to eliminate any possible risk and thus no obligation to close the factory.
Paris v Stepney BC 
A Local Authority employed Mr Paris as a garage mechanic. Mr Paris 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. After the accident, Mr Paris successfully claimed damages for his injury but this was overturned on appeal. Mr Paris then appealed to the HL.
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. Stepney Borough Council owed a special duty of care to P and had been negligent in failing to supply him with goggles, even though sufficient equipment was not given to other employees.
Held, further, (per Lord Normand, Lord Oaksey and Lord MacDermott, Lord Simonds and Lord Morton of Henryton dissenting) that the evidence was sufficient to sustain the finding that the employers were negligent in failing to provide this workman with protective goggles for work of this description, and that he was entitled to damages.
Watt v Hertfordshire CC 
Fireman, was sent out on a truck to help a woman who was trapped under a heavy vehicle. The regular truck which carried a heavy jack was not available and there was nothing on the truck to lash it to. The truck stopped suddenly at a red light and Watt was injured. Watt was unsuccessful at trial which he appealed - appeal failed.
Per Denning L.J. In balancing the risk against the measures necessary to eliminate it, the risk must be balanced against the end to be achieved.
Held, the purpose to be served in this case was the saving of life and the firemen were prepared to take that risk; they were not called on to take any risk other than that which normally might be encountered in the fire service; the employers had not been guilty of any failure of the duty which they owed to the firemen.
Though the fire authorities were under a duty to provide proper appliances and to take reasonable care to avoid exposing their firemen to unnecessary risks, they were not negligent in requiring the firemen to take abnormal risks which they were ready to take in order to save life and limb.
Judgment in favour of the defendants, holding that it was not shown that they had been guilty of any negligence towards the plaintiff or towards their other employees.
D is to be judged by how a reasonable person with the same skill, etc. would have behaved at the same time and in the same circumstances.
D must not be judged with the benefit of hindsight (making use of knowledge not available at the time of the alleged T) and allowance must be made for any special circumstances affecting the D (e.g. having to act under pressure or with limited time for full consideration).
Roe v Minister of Health 
Luxmoore May v Messenger,
May- Baverstock 
Moy v Pettman Smith 
Roe v Minister of Health 
Two Cs had been given an anaesthetic for minor operations. The anaesthetic had been contaminated with a sterilising fluid. This resulted in both Cs becoming permanently paralysed. The anaesthetic had become contaminated during storage. The anaesthetic was stored in glass ampoules which were emerged in the sterilising fluid. It transpired the ampoules had minute cracks which were not detectable with human eye. At the time it was not known that the anaesthetic could be contaminated in this way and the hospital followed a normal procedure in storing them this way.
Held, the anaesthetist, for whom the hospital authorities were responsible, was not negligent in relying upon visual inspection as a precaution against percolation from the ampoules and the nursing staff had no reason to foresee invisible cracks.
No breach of duty. The risk was not foreseeable as it was an unknown risk at the time.
Luxmoore May v Messenger, May- Baverstock 
D valued two Stubbs paintings at £30; they eventually sold at auction for £88,000.
MMB argued that they had, as the required standard allowed for differing views, including the wrong view, that the standard was to be judged against what could be expected of a general practitioner. The circumstances at the time and not hindsight were the bench mark against which the standard was to be tested. Valuation of a picture of was not an exact science and in deciding not to attribute the picture to a particular artist a valuer was not necessarily guilty of professional negligence
Moy v Pettman Smith
(C) appealed against a decision that although her assessment of the prospects of success of the application was not negligent, she had been negligent in failing to give the respondent (M) sufficiently detailed advice in deciding whether to accept a payment into court or to proceed with his claim. C had given advice to C on his prospects of beating a payment in during the course of medical negligence litigation in which a firm of solicitors (P) had acted for C. The advice was complicated by the fact that C was applying for the introduction of necessary evidence on C's behalf and the outcome of C's claim depended to an extent on whether or not that evidence was admitted. C had framed her advice to C on the basis that she was hopeful the evidence would be admitted and C decided to proceed. In the event the application to adduce further evidence failed and C consequently accepted a reduced offer. M brought a claim for negligence against P, and C was joined as a Part 20 defendant and codefendant. The trial judge held that C was not negligent and made an award solely against P. P appealed to the Court of Appeal which allowed their appeal and held C to have been negligent and liable for a proportion of the agreed damages payable to C. C submitted that (1) the approach of the Court of Appeal was incorrect and that if C's assessment of the risk was not negligent, it was difficult to see how the advice based on it could be negligent; (2) the judgment given by the trial judge in C's favour was, by the provision in the Civil Liability (Contribution) Act 1978 s.1(5), made conclusive so that it could not be challenged by P either in subsequent proceedings for contribution or by appeal in the action in which the judgment was given.
Held, allowing the appeal, that (1) public interest did not require advocates to be held immune from suit for the consequences of their negligence but that interest did require that the application of the principle should not stifle advocates' independence of mind and action in the manner in which they conducted litigation and advised their clients, Arthur JS Hall & Co v Simons  1 A.C. 615 applied. The Court of Appeal had judged C's actions too harshly when account was taken of all the circumstances. The instant court agreed with the trial judge that C's advice fell within the range of that to be expected of reasonably competent counsel of C's seniority and purported experience. It was possible that in hindsight C's advice to C to proceed was a wrong decision, but the court was not convinced that it was as mistaken a decision in all the circumstances as had been represented. C had had much to gain if the application to adduce evidence had succeeded and the action would then have been fairly straightforward. Above all there was a strong case to be made that it would have been artificial and unjust, despite all the errors of omission, to deprive C of the opportunity to adduce evidence that would have made such a profound difference to the value of his claim. It was not incumbent on C to spell out all her reasoning, so she was not in breach of her duty of care to C in the advice she gave. (2) Section 1(5) of the 1978 Act should be construed so as not to bar an appeal in a case such as the instant one and P's right of appeal was not barred by its operation.
Taking account of all the circumstances, advice given by the appellant barrister to the claimant fell within the range of that to be expected of reasonably competent counsel of the appellant's seniority and purported experience, and the Court of Appeal had therefore judged her actions too harshly.
Are decisions on breach questions of fact or law?
Previous cases can give guidance as to the criteria to be used and the objective test will be applied.
The issue will have to be decided in the light of the particular facts each time it occurs.
Once these principles have been applied, however, the decision on the particular facts of a case does not constitute a binding precedent. The fact, say, that it was held in a particular case that an employer was negligent in failing to ensure that an employee wore a particular kind of safety equipment does not mean that all other employers will also be held negligent if they behave in the same way.
Not very helpful to potential Ds such as building contractors, who do not want to know that they have to take reasonable care, but do want to know exactly what instructions, equipment and so on they have to supply. Thus common for regulations under the authority of various Acts of Parliament to set out detailed rules on such matters.
Qualcast v Haynes 
An experienced moulder pouring molten metal into a mould accidentally poured some on his foot and burned it. Although his employers, to his knowledge, kept a stock of them available for the asking; he had not been ordered or advised to wear them. He sued his employers for negligence. The judge expressed the view that that was all an employer was reasonably bound to do for his workman's safety.
The employers were under a duty to urge the moulder to wear the spats and found as a fact that they had not done so. The county court judge considered that the plaintiff was so experienced that he needed no warning, and that there was therefore no negligence on the part of the defendants.
HoL held, the employers were not negligent; the cases cited to the judge on different facts were no more binding on him than would have been the decision of a jury on those facts if the earlier cases had been tried by jury. He lost because he was experienced and should have guarded against the danger.
Proving breach of duty
res ipsa loquitur: 2 things to consider
elements of duty of care and breach can be sometimes inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved.
a. when it is legitimate to use the maxim?
b. what is the effect of invoking it?
If the claimant proves these two things then the defendant has to prove that he was not negligent.
Doctrine applies only exceptionally. Should not make use of it in answering questions unless there is a clear suggestion that there is no explanation for what has happened and the only inference is that the D must have been negligent.
Scott v London & St. Katharine's Dock
res ipsa loquitur
The claimant was hit by six bags of sugar which fell from the defendant's warehouse. The claimant could not say why the bags had fallen but the court ruled that the facts spoke for themselves and it was up to the defendant to prove that he was not negligent.
This case laid down 3 requirements for the doctrine to apply:
1) There must be reasonable evidence of negligence
2) The circumstances must be under the direct control of the defender or his servants: accident arose from want of care
3) The accident must be of such a type that would not occur without negligence: the accident in the ordinary course of things does not happen if those who have the management use proper care
The court held that sacks of sugar do not fall out of warehouses and crush passers-by without somebody having been negligent along the way.
Henderson v Henry E. Jenkins 
House described the burden of proof in a claim for negligence and the doctrine of res ipsa loquitur:
The onus is upon the respondents to establish that in all the circumstances which they know or ought to have known they took all steps that were necessary to avoid danger. The respondents' lorry, which was five years old, had a brake failure and as a result caused a fatal accident. The failure occurred in a part of a pipe which was hidden and could not have been detected upon a visual inspection that was carried out every week. Such failure of brakes normally become a real risk only after a period of two years. The Court of Appeal held that the respondents had established that they were not guilty of negligence.
On appeal, held (1) that the respondents had failed to prove that they had taken all proper steps to avoid danger; and (2) that the appellant was entitled to damages.
In an action for negligence the plaintiff has BoP, that the accident was caused by negligence on the part of the Ds. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the Ds, and if he is not so satisfied the plaintiff's action fails. The formal burden of proof does not shift." . However: " . if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the Ds, the issue will be decided in the plaintiff's favour unless the Ds by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation there is said to be an evidential burden of proof resting on the Ds.
Ng Chun Pui v Lee Chuen Tat
Where the plaintiff's case in negligence was based on res ipsa loquitur, the court should look at the evidence as a whole to see if any inference of negligence raised by the fact of the accident is rebutted. L was driving a coach owned by H along a dual carriageway when the coach crossed the central reservation and collided with a bus, killing one occupant and injuring four others. The injured, and the personal representatives of the deceased, sued, and called no oral evidence at trial, relying on res ipsa loquitur. The defendants gave evidence that an untraced car had cut in front of the coach, causing L to brake and swerve into the bus.
Privy Council found for the Ds as the Cs had failed to answer the defence put forward. The court emphasised that the principle was not really a doctrine per se but rather simply a way of expressing a common sense idea: that the D probably caused the accident. The burden was on the C to prove a prima facie case which the D could then rebut.
Held, on appeal against judgment for the plaintiffs, that it was misleading to speak of a shifting burden of proof in a res ipsa loquitur case. The judge gave judgment for the plaintiffs on liability holding that the defendants had failed to discharge the burden of disproving negligence. On appeal the Court of Appeal of Hong Kong reversed that decision and found that the plaintiffs had failed to prove negligence. Appeal Dismissed.
What is the level of the duty of care to be shown by:
1) A newly qualified solicitor:
D is to be judged by how a reasonable person with the same skill, etc. would have behaved at the same time and in the same circumstances. D must not be judged with the benefit of hindsight (making use of knowledge not available at the time of the alleged T) and allowance must be made for any special circumstances affecting the D (e.g. having to act under pressure or with limited time for full consideration).
Moy v Pettman Smith
2) A learner driver:
Irrelevant that the learner driver defendant was doing as well as she could, given her lack of experience, if a reasonable driver would have done better. Nettleship v Weston (reasonable driver)
3) A 12-year-old child:
Mullin v Richards  Blake v Galloway 
(horesplay normal risk for children of that age).
What standard of care would have to be shown by Deirdre, an ambulance driver, (i) when taking a seriously ill patient to hospital and (ii) when driving her family to the seaside in the family car?
The only standard of care is that of a reasonable driver, whether the actual driver is highly experienced (D), newly qualified or even just a learner.
i) When driving to hospital she still has to drive 'with reasonable care'. In an emergency it may be legitimate to drive in a way that is not ordinarily acceptable, but it still has to be reasonable in the circumstances.
ii) On going to the seaside, she is judged by the standards of an ordinary driver. She is not penalised because, as a highly trained driver, she might have been expected to do better in the circumstances.
D is a general practitioner. He prescribes certain tablets for his patient C, who is very fat. A recent article in a specialist journal of cardiology has suggested that there may be some risks in giving these tablets to overweight patients. C has a heart attack. Is D liable?
Examine the cases on standard of care to be shown by medical practitioners. You might note the following elements in the facts: (i) as a general practitioner, should he know about things discussed in a specialist journal? Shakoor v Situ; (ii) should he tell the patient about the risks? (consider Chester v Afshar and decide whether the facts are in any respects different).
D parks his car on a hill and walks away. Shortly afterwards, the car moves off downhill and strikes C. It is not clear why this has happened. Advise C
This might be one of the exceptional situations in which the maxim res ipsa loquitur can be applied.
Scott v London & St. Katharine's Dock
1) There must be reasonable evidence of negligence
2) The circumstances must be under the direct control of D
3) The accident must be of such a type that would not occur without negligence: the accident in the ordinary course of things does not happen if there was proper care
Henderson v Henry E. Jenkins
Onus upon the respondents to establish that in all the circumstances which they know or ought to have known they took all steps that were necessary to avoid danger.
Sutradhar v Natural Environment Research Council 
Bangladeshi suffering from arsenical poisoning action against Natural Environment Research Council for N arising from a geological report that, according to him, had induced health authorities in Bangladesh not to take steps that would have ensured that his drinking water was not contaminated by arsenic.
no connection with drinking-water project that had revealed presence of arsenic, and no one had asked it to test water for potability. It had owed no duty to government or people of Bangladesh to test water for anything. fact that a person had expert knowledge did not in itself create a duty to whole world to apply that knowledge in solving its problems. Moreover, fact that B had chosen to run tests for some elements could not create a duty to test for other elements. B had therefore owed no positive duties to government or people of Bangladesh to do anything. As to terms of report, relevant question was whether it was arguable that B owed a duty to population of Bangladesh not to publish a report that, although containing useful info about many other matters, implied, by what it did not say, that B shared then conventional wisdom about arsenic, namely that its presence was so unlikely that it was not necessary to test for it. question only had to be stated to show how improbable it was. necessary relationship of proximity was absent. B had no control whatever, whether in law or in practice, over supply of drinking water in Bangladesh, nor was there any statute, con or other arrangement that imposed on it responsibility for ensuring that water was safe to drink.
nature of damage
Rothwell v Chemical
Ct considered a number of test cases in which Cs had been exposed to asbestos dust. This had resulted in (i) pleural plaques which were symptomless and invisible, (ii) possibility of developing an asbestos-related disease in future and (iii) anxiety that they would suffer such a disease. It was held that head (i) did not amount to damage and that it was not possible to establish a claim by aggregating three heads, none of which on its own amounted to damage.
(c) Psychiatric illness Rejected
The Lords considered separately the appeal of Mr Grieves, who claimed that he had suffered a recognisable psychiatric illness (a depressive illness) as a result of knowledge of his pleural plaques and the risk of future illness. Lord Hope explained that the evidence given showed that Mr Grieves had a long-standing fear of developing an asbestos-related disease and one of the medical experts, Dr Menon, described his case as "relatively unique". The House upheld the decision of the Court of Appeal, concluding that the Appellant did not have a cause of action for his psychiatric illness because it was not reasonably foreseeable that pleural plaques would cause psychiatric injury.
The case of Page v Smith  AC 155 was distinguished by the House. The principle established in this case was that as long as a defendant can reasonably foresee that his conduct will expose a claimant to a risk of personal injury, the claimant will be entitled to recover for such injury, without establishing a further duty in relation to psychiatric harm. However, in Rothwell the Lords have held that this principle is of limited scope. The Lords confirmed that Page v Smith should be confined to situations where the psychiatric injury arises as an immediate foreseeable consequence of an accident exposing the claimant to the risk of immediate physical injury. Mr Grieves' psychiatric injury was held to be too remote, as his psychiatric illness was caused by his anxiety at the risk of future illness only.
Everett v Comojo (UK)
duty with 3Ps, relationship between mgmt of a nightclub and its guests, proximate to justify doc, risk of one guest assaulting another was foreseeable. DOC owed for actions of 3Ps on its premises, scope and standard of that DOC had to be just, fair and reasonable in circumstances. CA held that as between nightclub management and its guests, there should not be a higher degree of forseeability than is required pursuant to OLA 1957. for a DOC to exist. They also found that consumption of alcohol can lead to loss of control and violence, meaning a foreseeable risk that one guest might assault another. well established duty to visitors as an occupier in respect of condition of premises, it was fair, just and reasonable to extend that duty in relation to acts of a 3P, scope would vary . Applying that test, no BOD - this was a respectable club where violence was virtually unheard of, patron was a regular who had never caused a problem, no indication violence was imminent. Cases where liab can arise: entrants often have weapons=>search, if outbreaks of violence common, security personnel to be present at all times within areas where people congregate.
Jones v Kaney UKSC 13;  2 All ER 671, where Supreme Ct refused by a majority to recognise a principle that an expert witness had an immunity from liability in N to client (but witness was still entitled to absolute privilege in defamation).
Expert witnesses can now be sued for providing N expert EV just as they could be sued for Nly providing any other service. decis ion ends previously absurd position that, for example, a consultant neurosurgeon could be sued for Nly conducting brain surgery, but in any proceedings for clinical N his fellow consultant neurosurgeons would have immunity for any negligenc e while acting as expert witnesses. risk of liability for performing operation but immunity for talking about it.
Harris v Perry 
No BOD by parents when child injured by being accidentally kicked by another child on bouncy castle at children's party. Discussion of standard of supervision to be expected.
standard of care required was to act as a reasonable provider and supervisor of inflatable equipment for young children, or, which was same thing, that which a reasonably careful parent would have shown for his or her own children. Some activities involved a greater degree of risk and therefore a greater degree of supervision so as to restrict risk to an acceptable level, but that would depend on all circumstances, critically risks that reasonable parent ought to foresee would be involved in activity. Ds' duty was to protect against a foreseeable risk of physical harm. not reasonably foreseeable that collision between Sam's unshod heel and C's forehead would result in a serious injury, let alone one of severity suffered by C. nothing in hire document that Ds had read to inform them that such a risk existed. CA were not convinced that reasonably careful parent ought to have concluded that children should not somersault on castle, but in any event, in light of conclusion that it was not necessary to keep constant surveillance on children, this issue was academic. did not accept that reasonably careful parent should have prevented children of differing sizes from playing together on bouncy castle.
George v Eagle Air Services 
Apply test in Scott v London 1. clear that aircraft was under respondents control 2. without N accident would not have happened. This is not necessarily case as many complex causes can come together to cause an aircraft to crash and not by any means are these always due to N. where decision is most open to challenge i as a D may well be able to produce EV of air crash analysis which at least raises a question over issue. no EV on point before Ct . 3. no arguments were raised that there were alternative explanations for accident IMPACT: decision should be of assistance in cases where Tfeasor holds all cards in terms of investigating incident and can simply sit back and invite injured party to prove their claim or even establish that they have a claim at all.
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