A v Hoare [2008] HL

Whole case here

^[Precedent use of Practice Statement]
D, known as the Lotto rapist (convicted of several sexual assaults, including rape) attempted to rape V in 1989. He was given a life sentence. At that time, he was not worth suing for damages. In 2004, on day release from prison he bought a lottery ticket and won £7 million. So in 2005, V sued for personal injury, but the claim was rejected by the High Court because her claim had been brought after the six-year limit imposed by the Limitation Act 1980.

Held: A compensation claim against D could go to the High Court for hearing.

The Limitation Act 1980 requires a claimant to bring an action against her assailant for injury within 6 years.

However, Parliament could not have intended to exclude those who had been intentionally injured. Otherwise anomalies would arise such as S v W (child abuse: damages) [1995], in which it was held that a claimant suing out of time was able to pursue a claim against her mother for failing to protect her against sexual abuse by her father, but not a claim against the father himself.

The lower courts considered themselves bound by Stubbings v Webb [1993] HL in which it was held that the flexibility provided for elsewhere in the Act did not apply to a case of deliberate assault, including acts of indecent assault.

The claimant contended that Stubbings v Webb had been wrongly decided and that the House should depart from it. She relied, inter alia, on the Law Commission's report (Law Com No 270) which recommended a uniform regime for personal injuries, whether the claim was made in negligence or trespass to the person.

Courts had a discretion under s 33 of the Act to extend the time in the claimants' favour.
Time ran from when the claimant knew of the injury, which was both a subjective and objective test not whether the claimant considered it serious enough to justify proceedings but whether she would 'reasonably' have done so. Once it had been ascertained what the claimant knew and what she should be treated as having known, the actual claimant dropped out of the picture.

Stubbings v Webb [1993] HL overruled; Letang v Cooper [1964] approved.
KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2003] All ER (D) 101 (Jun) disapproved.

Claimant won

Also here

Addie v Dumbreck [1929] HL

Whole case

[Precedent - overruling by HoL -  ratio refined -  first use of Practice Statement 1966 – negligence duty to trespasser]

D the owner of a colliery where C’s 4 year-old son had been killed when he was playing on the wheel pit at a Colliery. The accident happened in a field about a hundred yards from a public road. "Trespassers will be prosecuted" notices were habitually ignored by adults and children.

Held: Lord Hailsham LC:

“Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger.”

C Lost
Overruled, or refined by British Railways v Herrington [1972] HL

Adomako, R v (1994) HL

[Precedent – overruling by HoL]
Rare use in criminal cases on the law of gross negligence manslaughter.  Overruled R v Seymour (1983)

Airedale NHS Trust v Bland [1993] HL

[Precedent - example of judicial law making]
Tony Bland seriously injured in the Hillsborough disaster, was being kept alive only by extensive medical care (not a life-support machine). He had survived for three years in persistent vegetative state (PVS). He continued to breathe normally, but was kept alive only by being fed through tubes. He had no chance of recovery; his doctors (with the support of his family) sought a declaration from the court that it would be lawful for them to discontinue treatment so that he might die peacefully.

 
Held: Treatment could properly be withdrawn in such circumstances, because the best interests of the patient did not involve him being kept alive at all costs.
 

Lord Browne-Wilkinson;

“The judges' function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society. If Parliament fails to act, then  judge-made law will of necessity through a gradual and uncertain  process provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed. The function of the court in these circumstances is to determine this  particular case in accordance with the existing law, and not seek to  develop new law laying down a new regimen …  it is for Parliament to address the wider problems which the case  raises and lay down principles of law generally applicable to the  withdrawal of life support systems.”  

Lord Browne-Wilkinson and Lord Mustill;

”It is imperative that the  moral, social and legal issues of the present case should be considered by Parliament”

In this case feeding him was treatment and that treatment would not cure him and therefore was not in his best interests.

It was lawful for D's doctors to stop feeding him artificially.

See also Frenchay Healthcare NHS Trust v S [1994] CA. Similar issues can arise in respect of the very elderly or in respect of babies born with very severe mental or physical handicaps, especially where major (and possibly repeated) surgery would be needed to keep them alive see Re J [1991].

It was lawful for D's doctors to stop feeding him artificially.  The court had no option but to make a decision one way or the other.

Also here

Anderton v Ryan [1985] HL

^[Precedent - overruling – law incorrectly applied]
The previous court did not correctly apply the law.  So this case overruled by R v Shivpuri [1986] concerning the Criminal Attempts Act 1981

British Railways v Herrington [1972] HL

Whole case here

^[Precedent – HoL  - examples of departing]
First major use of Practice Statement. C a 6 year-old boy, was burned on an electric rail.  The railway was separated from a play area by a fence that was broken. The stationmaster knew the fence was in poor condition, and knew children often trespassed, but took no steps to correct this.

Held: Applying Lord Atkin’s “neighbour” principle; the occupier might not owe to the trespasser a common duty of care, but did have a duty to treat him with ordinary humanity.

Overruled/Departed: Addie v Dumbreck [1929] which held that an occupier of premises had no duty of care to a trespasser and it was the responsibility of the parents to protect their children.

"Departed" rather than "overruled" because the House would have decided Herrington the way it did regardless of the 1966 Practice Statement, they would have distinguished the previous case.

In Addie, an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly.

In Herrington, they propounded the test of 'common humanity’, which involves an investigation of whether the occupier has done all that a humane person would have done to protect the safety of the trespasser.

Parliament had passed the Occupier’s Liability Act 1957. The lords were unanimous in deciding that there could be liability to a trespasser. Unfortunately five judges reached that decision in different ways and the matter was referred to the Law Commission, and eventually the passing of the Occupier’s Liability Act 1984 that now governs the position of trespassers and certain other non-visitors.

C won

C (a minor) v DPP [1995] HL

[Precedent – binding nature of Divisional Court - Judicial creativity – judicial cowardice]
A 12-year-old boy A was charged with interfering with a motor cycle.

Held: The presumption of 10-14 doli incapax (mischievous discretion) was ultimately abolished by the Crime and Disorder Act 1998.

Mann LJ said it was clear on authority that the Divisional Court had power to depart from its own previous decisions. The House of Lords did not expressly consider whether or not the Divisional Court was bound by its own decisions in appellate cases.

Lord Lowry gave the following guidelines for judicial law-making:

1. judges should beware of imposing a remedy where the solution to a problem is doubtful;

2. they should be cautious about making changes if Parliament has rejected opportunities of dealing with a known problem or has legislated while leaving the problem untouched;

3. they are more suited to dealing with purely legal problems than disputed matters of social policy;
   fundamental legal doctrines should not lightly be set aside; and

4. judges should not change the law unless they can achieve finality and certainty.

Caparo v Dickman [1990] HL

^[Precedent – persuasive precedent]
D auditors of company accounts.  C, Caparo bought shares and then discovered that the accounts did not show the company had been making a loss. C alleged that in negligence a duty was owed to Caparo.

Held: Approving a dictum of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985), that the law should preferably develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative or limit the scope of the duty or the class of person to whom it is owed".

No duty was owed in those two situations.

Steps to establish duty of care are;

a) Is there an existing case, which would hold there to be a duty of care?  If not then ask three questions.

1. Was loss to the claimant foreseeable?

2. Was there sufficient proximity between the parties?

3. Is it fair, just and reasonable to impose a duty of care?

Auditors won

Cassell v Broome [1971] HL

[Precedent – obligation to follow – status of per incuriam]
C appealed against the way exemplary damages had been assessed in a libel case.  The case concerned a book about a naval disaster.

The Court of Appeal believed that a decision of House of Lords in Rookes v Barnard [1964], had been made per incuriam and so they disregarded it.

Held: Lord Hailsham

“Decisions of the House of Lords are binding on the Court of Appeal and it is not open to that court to advise judges to ignore decisions of the House on the ground that they were decided per incuriam or are unworkable Furthermore (per Lord Hailsham of St Marylebone LC and Lord Diplock) although it is open to an appellate court to decline to follow one of its own previous decisions on the ground that it was decided per incuriam, the Court of Appeal is not entitled to disregard a decision of the House of Lords, nor is a judge of the High Court entitled to disregard a decision of the Court of Appeal, on that ground.”

Central Asbestos v Dodd (and Smith) (1973) HL

^[Precedent – finding the ratio]
C was informed by his works manager that he could not bring an action for damages against his employer for his contraction of asbestosis.

Held: It was reasonable for the claimant to accept the wrong advice of the works manager even though it was obvious that the works manager had no real competence to give the advice.

There was a division of opinion amongst the law Lords.  A majority allowed the claimant an extension of the limitation period but a different majority rejected the claimant’s reasoning. This not only perpetuated what was, apparently, a judicial misinterpretation of parliamentary meaning but must also have at least contributed to the prompt intervention of Parliament by the Limitation Act 1975; it is impossible to compute the cost to the public.

Lord Reid: of the 1963 Act said it had, 

“A strong claim to the distinction of being the worst drafted Act on the statute book.”

Clegg, R v [1995] HL

[Precedent – guidelines on judicial law making]
D fired several shots at a car whilst he was on check point duty in Northern Ireland. The car was approaching the checkpoint at speed and did not appear to be going to stop. One of the passengers was killed. Clegg was charged and convicted of murder.

It was argued that the House should make new law by creating a new qualified defence - available to a soldier or police officer acting in the course of his duty - of using excessive force in self-defence, or to prevent crime, or to effect a lawful arrest.  By doing so it would reduce murder in such cases to manslaughter.

Held: Lord Lloyd, whilst not averse to judicial law-making - citing R v R (1991) as a good example of it – said that he had no doubt that they should abstain from law-making in the instant case since the reduction of murder to manslaughter was essentially a matter for Parliament, and not the courts.