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Cases - tort - negligence - breach of duty of care

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Blake v Galloway [2004] CA

Blyth v Birmingham Waterworks (1856)

Bolam v Friern Barnet Hospital Management Committee (1957) QBD

Bolitho v City & Hackney Health Authority [1997] HL

Bolton v Stone [1951] HL

Carroll v Fearon (1999) CA

Djemal v Bexley Health Authority 1995 QBD

Gates v McKenna (1998) QBD

Hall v Simons (2000) HL

Home Office v Dorset Yacht [1970] HL

Jolley v Sutton LBC (1998) HL

Latimer v AEC Ltd [1953] HL

Mahon v Osborne [1939] CA

Mansfield v Weetabix (1997) CA

Marshall v Osmond [1983] CA

Mullin v Richards (1998) CA

Nettleship v Weston [1971] CA

Newman & others v United Kingdom Medical Research Council (1996) CA

Paris v Stepney BC [1951] HL

Phillips v William Whiteley Ltd [1938] KBD

Roberts v Ramsbottom [1980] QBD

Roe v Minister of Health [1954] CA

Simonds v Isle of Wight Council (2003) QBD

Thompson v Smith Shiprepairers (North Shields) (1984) QBD

Vaughan v Menlove (1837) Ct CP

Vowles v Evans and Welsh Rugby Union Ltd [2003] CA

Watt v Hertfordshire PP [1954] CA

Wells v Cooper [1958] CA

Wilson v Governors of Sacred Heart RC Primary School, Carlton (1997) CA

Wiszniewski v Central Manchester Health Authority (1998) CA

 

Blake v Galloway [2004] CA

[Negligence - duty of care – horseplay – duty only breached by recklessness or high degree of carelessness]
D threw a piece of wood bark at C hitting him in the eye causing serious injury. They were throwing bark and twigs at each other during their lunch break. C and D were members of a jazz quintet (all about 15 years of age). D relied on C’s consent and volenti non fit injuria as defences (to battery and negligence).

Held: Only recklessness or a very high degree of carelessness is sufficient to breach the duty of care owed during horseplay. There is a close analogy between organised sport and horseplay. The absence of formal rules in horseplay is not sufficient distinction, both are consensual, involve physical contact, decision are made quickly or instinctively. C had consented to the risk.

C lost

Blyth v Birmingham Waterworks (1856) Exch

 

[Tort - negligence – breach -negligence – what it is – factors to consider - standard of reasonableness]
D water company was not negligent in allowing water to escape from its pipes.

Baron Alderson: 

“Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do. The standard demanded is thus not of perfection but of reasonableness. It is an objective standard taking no account of the defendant's incompetence - he may do the best he can and still be found negligent”

Bolam v Friern Barnet Hospital Management Committee (1957) QBD

 

 

[Tort – negligence - breach – factors to consider – test of reasonableness - standard of care and skill expected of D]
D hospital gave electro-convulsive therapy that broke D’s bones.  Some doctors would give relaxant drugs others would not.

Held: A doctor is not guilty of negligence is he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

 

C lost

Bolitho v City & Hackney Health Authority [1997] HL

 

Whole case here

 

[Tort – negligence - breach – factors to consider – test of reasonableness - standard of care and skill expected of D - causation]
C aged 2 suffered serious brain damage following respiratory failure. Several expert witnesses supported the doctor, and on that basis, the judge found that the doctor had not been negligent.

Held: A doctor may be negligent even if there is a body of medical opinion in his favour: he must also be able to show that this opinion has a logical basis. Only very rarely would a judge decide that the opinions of a number of otherwise competent doctors were not reasonably held, and this was not such a case.

C lost

Bolton v Stone [1951] HL

 

[Tort – negligence - breach - factors to consider – degree of risk - practicality and cost of precautions]
D a cricket club from where a cricket ball was struck over a 17-feet fence.  It hit C who was standing on the pavement outside her house. The ball must have travelled about 100 yards, and such a thing had happened only about six times in thirty years.

Held: the risk was so slight and the expense of reducing it so great that a reasonable cricket club would not have taken any further precautions.

C lost

Carroll v Fearon (1999) CA

^[Tort - negligence - damage causation and remoteness - type of damage - duty of judge to identify negligent act - consumer protection]
D negligently manufactured a tyre that disintegrated on a motorway causing a serious accident. No specific negligent act or omission on the part of the manufacturer had been identified.

Held: There was no requirement to specify either the particular persons responsible for the defect or the particular negligent act or omission. the tyre disintegrated because of an identified fault in the manufacturing process. The manufacturer could not explain how the defect could have been caused other than by its negligence,

D lost

Djemal v Bexley Health Authority 1995 QBD

[Tort - negligence – breach – factors to consider - standard of care - level of skill required]
Standard of skill and care expected in A&E departments
.

 

Gates v McKenna (1998) QBD

 

[Tort - negligence – breach – factors to consider - standard of care - level of skill required]
D a stage hypnotist caused psychiatric damage to volunteer from audience.

Held: level of precautions expected should be that of a ‘reasonably careful exponent of stage hypnotism’.

 

Hall v Simons (2000) HL

 

 

 ^[Tort - negligence – duty – no duty situations - breach - professionals immunity – advocates – not a special case]
One of several cases (conjoined cases) on similar issues, where claimants had done less well than they would but for negligence of their legal advisers.

Held: It was no longer in the public interest that advocates should enjoy immunity from being sued for negligent acts concerned with the conduct of litigation whether in civil or criminal proceedings.

Change of rule on lawyers’ immunity

Home Office v Dorset Yacht [1970] HL

 

[Tort – negligence - breach - no policy reason to allow Crown special immunity]
D’s, borstal officers allowed seven boys to escape from a training camp in Poole Harbour while they were asleep. They stole C’s boat and caused damage to other boats in the harbour.

Held: the Borstal authorities owed a duty of care to the owners of property near the camp. There were no good reasons of public policy for allowing the Crown any special immunity in this respect.

Liability restricted to the property-owners in the immediate vicinity their loss was foreseeable, and would not have extended to others further a field.

C won.

Jolley v Sutton LBC (1998) HL

 

Whole case here

 

^[Tort – negligence - breach - occupiers liability – foreseeability of type of accident]
D the owners of land where an old boat had been abandoned for about 2 years.  C a 14-year-old boy was seriously injured when he and a friend tried to repair it; they had propped it up on a car jack the boat that fell on him as a result of which he was a paraplegic. C sued under the Occupiers' Liability Act 1957.
 

The Court of Appeal wrongly found that the claimant had been engaged in was an activity very different from normal play, and that the accident was not, therefore, reasonably foreseeable.


Held: An accident of the type which had actually occurred was reasonably foreseeable on the particular circumstances of this case.

C won

Latimer v AEC Ltd [1953] HL

 

[Tort – negligence - breach - factors to consider – degree of risk - practicality and cost of precautions]
D, a factory owner. C slipped on an oily film and injured his ankle. The sawdust put down to soak up liquid did not cover the entire floor.  The oily film was due to water from an exceptionally heavy storm.

Held: D had done all that a reasonable person would do in the circumstances; they could not have eliminated the risk completely without closing the factory.

C lost

Mahon v Osborne [1939] CA

 

[Tort – negligence – breach - limits of res ipsa loquitur]
A patient died shortly after an abdominal operation and post-mortem examination found a swab in his body.

Held: Negligence had been established.

Res ipsa loquitur applied only to things within common experience, and that was not the case with complex surgical procedures.

 

Mansfield v Weetabix (1997) CA

 

^[Tort - negligence – breach -negligence – factors to consider - special characteristics of D - standard of care expected of drivers]
D owners of lorry.  Their driver suffered from lack of glucose to the brain.  He was unaware of effect on his driving, C suffered damage to their shop when lorry left road on a bend.

 

Held: The standard of care that driver was obliged to show was that which is expected of a reasonably competent driver. The driver did not know and could not reasonably have known of his illness that was the cause of the accident. Therefore, he was not at fault. His actions did not fall below the standard of care required.

C lost

Marshall v Osmond [1983] CA

 

[Tort – negligence -  duty of care – factors – risk involved – balance of risk and value of activity - police drivers same as public – error of judgment not negligence]
D following C, an escaping criminal crashed the police car into his, injuring him.

Held; The duty owed by a police driver was the same as that owed by any other, namely, to exercise such care and skill as was reasonable in all the circumstances.

But where those circumstances were that he was driving alongside another car in order to make an arrest, the error of judgement he made in the instant case did not amount to negligence.

 

C lost

Mullin v Richards (1998) CA

 

^[Tort - negligence – breach -negligence – what it is – factors to consider - standard of reasonableness - foreseeability – standards expected – special characteristics of D]
D a 15-year-old schoolgirl had a "sword fight" with C with plastic rulers in their classroom. One of the rulers snapped and a piece of plastic entered C’s eye, causing permanent damage.

Held: The neither teacher nor D had been negligent.  There was insufficient evidence that the accident had been foreseeable in what had been no more than a childish game.

C lost

Nettleship v Weston [1971] CA

 

[Tort - negligence – breach -negligence – what it is – factors to consider - standard of reasonableness - duty owed to others – learner drivers]
D a learner driver went out for her first lesson, supervised by a friend C. D crashed the car into a lamppost, and C was injured.

Held: Even learner drivers are to be judged against the standard of the reasonably competent driver. The fact that a particular driver is inexperienced and incompetent does not excuse his falling short of this standard.

C won damages subject to a deduction for contributory negligence.

Also here

Newman & others v United Kingdom Medical Research Council (1996) CA

 

[Tort – negligence – factors to consider – special characteristics of D - negligence established when medical risk recognised]
Between 1959 and 1985, nearly two thousand children whose growth was stunted were treated with doses of Human Growth Hormone (HGH) extracted from the pituitaries of human cadavers. Many of them died of CJD.

Held: Research Council should have stopped trials and established whether drug was safe before continuing.

Paris v Stepney BC [1951] HL

 

[Tort – negligence - breach - factors to consider – degree of risk – potential seriousness of injury – special characteristics of V]
D a Local Authority employed C as a garage mechanic. C had lost the sight of one eye during the war. In order to loosen a stiff bolt he struck it with a hammer; a piece of metal flew off and (because he was not wearing goggles) struck him in his good eye, causing him to become totally blind.

Held: The probability of such an event was very small, but its consequences were very serious, his employers, knowing of his disability, should have taken extra care to provide goggles for him. The more serious the possible damage, the greater the precautions that should be taken.

C won

Phillips v William Whiteley Ltd [1938] KBD

^[Tort – negligence - breach - standards of professionals]

D (a jeweller), 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. 

 

Held: 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.

 

C lost

Roberts v Ramsbottom [1980] QBD

 

^[Tort - negligence – breach -negligence – what it is – factors to consider - standard of reasonableness - foreseeability – standards expected – special characteristics of D - drivers]
D suffered a partial stroke while driving, and drove on with impaired consciousness and collided with two parked vehicles.

Held: Since he retained some limited control he was still liable.  Only total unconsciousness or total lack of control would excuse him. Alternatively, D knew he had been taken ill and was therefore negligent in not stopping, even if he did not fully realise he was no longer fit to drive.

 

D lost

Roe v Minister of Health [1954] CA

 

^[Tort – negligence -  breach - special characteristics of D - foreseeability of harm]
A spinal anaesthetic had become contaminated through invisible cracks in the glass vial.  When used, paralysed two patients.

Held: The cracks were not foreseeable given the scientific knowledge of the time, The foreseeability of harm is clearly a major factor in determining how a reasonable person would act, and although actual foresight by D is generally irrelevant, a reasonable person would not have taken precautions against a risk of which reasonable people in that profession were not aware.

D not liable.

Simonds v Isle of Wight Council (2003) QBD

[Tort – negligence -  breach - not applicable when child still in care of his mother]
Playing fields could not be made free of all hazards and because a school had diagnosed a hazard did not mean it was duty bound to take further steps to make access or use impossible.
The issue in this case was “causation”.

A five year old was told him to return to his teachers after lunch with his mum during a sports day. He went to play on swings and broke his arm.
 

Held: The school had been responsible for him all day and that the mother’s acts or omissions had not broken the chain of causation.

 

However, this was simply an accident which had not disclosed any causative fault. The school had had a good plan for dealing with the swings; no one other than the claimant had played on them.

 

Balancing the element of risk, it was not reasonable to impose a legal duty on a school to immobilise the swings any more than it would be to rope off a tree on the field. Playing fields could not be made free of all hazard.

 

Furthermore, since the boy’s mother had not redelivered him back to the care of the school, there was no breach of any duty by the school.

 

School won

Thompson v Smith Shiprepairers (North Shields) (1984) QBD

 

[Tort – negligence -  the standard of reasonableness - level of precautions – factors to consider - common practice]
D shipyard owners.  C worker who suffered deafness.

Held: Although conditions were common across the industry they fell below the required standard of care.  D could not evade liability just by proving that all the other employers were just as bad.

There were some circumstances in which an employer had a duty to take the initiative to look at the risks and seek out precautions to protect workers.

However, this approach must still be balanced against the practicalities.  Employers were not expected to have standards way above the rest of their industry, though they were expected to keep their knowledge and practices in the field of safety up to date.

C won

Vaughan v Menlove (1837) Ct CP

 

[Tort – negligence -  breach of duty of care – test of reasonableness]
D built a haystack.  C neighbour occupied cottage near haystack. D was advised that the haystack was poorly ventilated and could catch fire, which it did.  D who was insured said he would ‘chance it’.

Held: Although D had acted honestly and in accordance with his best judgment, this was not enough, a reasonable person would have taken precautions.

C won.

Vowles v Evans and Welsh Rugby Union Ltd [2003] CA

 

Whole case, here

[Tort – negligence – duty of care – proximity - foreseeability - just fair and reasonable - referee owes duty to players - breach – failing to enforce rules constitutes breach – amateur game referees expected to reach equivalent standard]
DD the referee of a rugby match and the sport’s governing body.  C injured and confined to a wheel chair when a scrum (where players bend over and push each other) collapsed.  C’s position was hooker (right in the middle of the scrum). 

Held: A referee and player have sufficient proximity, it was foreseeable that if the referee did not enforce the rules there would be injury (that is what the rules are there to prevent). 
It was just, fair and reasonable to impose a duty of care. There was a structured relationship, the referees acts or omissions were manifestly capable of causing physical harm to others, and in such circumstances the law will normally impose a duty of care.

A referee of a game of rugby football owes a duty of care to the players. The court did not consider it logical to draw a distinction between amateur and professional rugby.

The referee had breached that duty of care, the referee had been in a position no more than basic skill and competence at that level of the game (see Bolam).

 

Lord Phillips, MR:

“Rugby football is an inherently dangerous sport. Some of the rules are specifically designed to minimise the inherent dangers. Players are dependant for their safety on the due enforcement of the rules. The role of the referee is to enforce the rules. Where a referee undertakes to perform that role, it seems to us manifestly fair, just and reasonable that the players should be entitled to rely upon the referee to exercise reasonable care in so doing. Rarely if ever does the law absolve from any obligation of care a person whose acts or omissions are manifestly capable of causing physical harm to others in a structured relationship into which they have entered. Mr Leighton Williams has failed to persuade us that there are good reasons for treating rugby football as an exceptional case. A referee of a game of rugby football owes a duty of care to the players.”

[Comment] This is the first case involving an amateur game. The court applied Caparo Plc. v Dickman [1990] HL and a line of cases where the sport's governing body has been held responsible for the safety of the players or participants.  For example, the brain damage suffered by the boxer Michael Watson and his claim for negligence against the British Board of Boxing Control had forced the governing body into bankruptcy.

 

C won

Also here

Watt v Hertfordshire PP [1954] CA

 

[Tort – negligence -  duty of care – factors to consider – risk involved – balance of risk and value of activity]
D, local authority that ran the fire brigade.  C a fire fighter was injured by equipment that slipped on the back of a lorry.  The lorry was used to carry heavy lifting equipment needed at a serious road accident where a person was trapped. The lorry, which usually carried the equipment, was engaged in other work at the time, and the fire officer ordered the equipment be loaded into the back of an ordinary lorry.

Held: 
Denning, LJ:

" ... in measuring due care one must balance the risk against the measures necessary to eliminate the risk. [...] The saving of life or limb justifies taking considerable risk ...".

C lost

Wells v Cooper [1958] CA 

 

^[Tort – negligence -  breach – standard of care –factors to consider – special characteristics of D]
D fitted a door handle in his home. C a visitor pulled on the handle and it came away in his hand, causing the visitor to fall down several steps.

Held: D was to be judged against the standards of a reasonably competent carpenter, but not necessarily against the standards that would be expected of a professional carpenter working for reward. This was the sort of job that a reasonable householder might do for himself, and that was the appropriate standard.

C lost.

Wilsher v Essex Area Health Authority [1988] HL

[Tort – negligence – breach – professionals - junior doctor to reach standard of his post]
D the hospital where C was born prematurely. D negligently gave C excess oxygen. The catheter was twice inserted into his vein instead of his artery. He developed an incurable eye condition.

Held: The CofA held - and not disputed in the HofL -that here is no concept of team negligence, each member is required to observe the standard demanded.  Junior doctor does not owe a lower standard, he should be of the standard of someone holding his post
[comment] this may be logically impossible.

C lost, a retrial ordered.

Wilson v Governors of Sacred Heart RC Primary School, Carlton (1997) CA

 

[Tort – negligence – breach – factors to consider - common practice]
D a school, C a nine-year-old boy who was hit in the eye by a coat belonging to another boy.  Attendants were provided to supervise the children during lunch break but not a going home time.

Held: Most primary schools do not supervise children at this time and the incident could as easily happened outside the school gates.  The school had not fallen below the standard of care.

C lost

Wiszniewski v Central Manchester Health Authority (1998) CA

 

^[Tort – negligence - breach – factors to consider – test of reasonableness - standard of care and skill expected of D - causation]
D heath authority employed midwife who negligently failed to show cardiograph indicating there were problems to the doctor.  C child who had cerebral palsy caused by complications at birth.

Held: Adverse inference drawn about Dr’s conduct he did not attend trial and did not remember the birth.  Inference was that Dr had no answer to C’s complaint, which was supported by expert evidence that no reasonable doctor would have delayed examining the patient.  Bolitho followed.

C won.

 

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