Introduction to the Tort of Negligence - Cases
Donoghue v Stevenson [1932] AC 562, HL
The claimant drank a bottle of ginger beer, manufactured by the
defendant, which a friend had bought from a retailer and given to
her. The bottle contained the decomposed remains of a snail
which were not and could not be detected until the greater part of
the contents of the bottle had been consumed. As a result she
alleged that she suffered from shock and severe gastro-enteritis.
She accordingly instituted the proceedings against
the manufacturers.
By Scots and English law alike the manufacturer of an article of food,
medicine or the like, sold by him to a distributor in circumstances which
prevent the distributor or the ultimate purchaser or consumer from discovering
by inspection any defect, is under a legal duty to the ultimate purchaser or
consumer to take reasonable care that the article is free from defect likely to
cause injury to health:-
So held, by Lord Atkin, Lord Thankerton and Lord Macmillan; Lord Buckmaster and
Lord Tomlin dissenting.
Caparo Industries v Dickman [1990] 1 All ER 568, HL
For the facts of this case, see below.
The House of Lords held that the three criteria for the imposition of a duty of care were foreseeability of damage, proximity of relationship and the reasonableness or otherwise of imposing a duty. In determining whether there was a relationship of proximity between the parties the court, guided by situations in which the existence, scope and limits of a duty of care had previously been held to exist rather than by a single general principle, would determine whether the particular damage suffered was the kind of damage which the defendant was under a duty to prevent and whether there were circumstances from which the court could pragmatically conclude that a duty of care existed.
Kent v Griffiths and others [2000] 2 All ER 474
K suffered an asthma attack and was attended at her home by a doctor. The doctor telephoned the defendant ambulance service on the emergency 999 line, requesting an ambulance to take K immediately to hospital. The ambulance did not arrive for 40 minutes, although a record prepared by a member of the crew indicated that it had arrived after 22 minutes. K suffered a respiratory arrest, and subsequently brought proceedings for negligence against the ambulance service. At trial, the doctor gave evidence that she would have asked K’s husband to drive her to the hospital if she had known that the ambulance would take so long to arrive. The judge found that the record of the ambulance’s arrival had been falsified, that no satisfactory reason had been given for the delay and that in those circumstances the delay was culpable. He further held that the respiratory arrest would very probably have been averted if the ambulance had arrived in a reasonable time, and proceeded to award damages to K. The ambulance service appealed, contending that it had owed K no duty of care. In so contending, it relied on cases in which it had been held that the police and the fire service owed no duty of care in answering 999 calls.
Held: In
appropriate circumstances, an ambulance service could owe a duty of care
to a member of the public on whose behalf a 999 call was made if, due to
carelessness, it failed to arrive within a reasonable time.
Jolley v Sutton LBC [2000] 3 All ER 409
A small boat was abandoned in the grounds of a block of flats owned and occupied by the defendant local authority. The boat, which was left on a grass area where children played, became derelict and rotten. The claimant, a 14-year-old boy, attempted to renovate the boat with a friend, and jacked it up in order to repair the hull. He was under the boat when it fell on him, causing severe injuries. Subsequent proceedings were based primarily on alleged breaches of the Occupiers' Liability Acts 1957 and 1984. The judge held that the boat was a trap or allurement to children, that play could take the form of mimicking adult behaviour, that it was reasonably foreseeable that children would meddle with the boat at the risk of some physical injury, that the authority was in breach of its duty to the claimant as occupier of the land and that accordingly it was liable for his injury. On appeal, the authority conceded that it had been negligent in failing to remove the boat with its rotten planking, but contended that its negligence only created a foreseeable risk of children climbing on the boat and being injured by the rotten planking giving way.
The House of Lords held that a finding or admission of want of care on the part of a defendant established that it would have cost him no more trouble to avoid the injury which had occurred than he should have taken in any event. In those circumstances, the defendant would be liable for the materialisation of even relatively small risks of a different kind. Moreover, the ingenuity of children in finding ways of doing mischief to themselves or others should never be underestimated. For those reasons, in the instant case the judge had been correct to describe the risks as being one that children would meddle with the boat at the risk of some physical injury. Moreover, his observation that play could take the form of mimicking adult behaviour was a perceptive one, and he was justified in holding that an accident of the type which had occurred was reasonably foreseeable.
Bourhill v Young [1942] 2 All ER 396, HL
The appellant, on Oct. 11, 1938, was a passenger on a tramcar. She alighted from the tramcar some 50ft. from the junction of the road along which the car was travelling and a cross road. After alighting from the car she passed along its near side, round the front, and then to the entrance to the (driver's platform on the off-side. Here, with the help of the driver, she placed her heavy creel upon her back. At the same time a motor cyclist passed between the near side of the tramcar and the footway and, not having seen a motor car turning into the cross road by reason of his view being obscured by the tramcar, he collided with the car, was thrown off his motorcycle, fell on his head and was killed. The appellant saw nothing of the accident but merely heard the noise of the impact of the two vehicles. After the body of the motor cyclist had been removed, she approached the spot and saw blood on the roadway. The injuries alleged to have been sustained by the appellant were that she wrenched and injured her back by being startled by the noise of the collision and that she was thrown into a state of terror and sustained a severe shock to her nervous system, though there was no reasonable fear of immediate bodily injury to her. She was about 8 months pregnant at the time and gave birth to a still-born child on Nov. 18, 1938. The driver of the motor-cycle was admittedly negligent as against the driver of the motor car, but the question was whether he owed any duty to the appellant in that he ought, as a reasonable man, to have contemplated the likelihood of injury to her in the circumstances.
HELD : the question to be decided was one of liability and not one of remoteness of damage. In the circumstances of this case the motor cyclist owed no duty to the appellant since he could not be held to have reasonably foreseen the likelihood that the appellant, placed as she was, could be affected by his negligent act.
Topp v London Country Bus [1993] 3 All ER 448
The defendant bus company operated a shift system for their buses in the course of which at the end of a shift the driver would leave the bus parked at one of the regular change-over points, unlocked and with the ignition keys in it. It was the defendants’ and others’ common practice to leave buses unlocked in bus garages or depots and on the road and, although thefts of buses sometimes occurred, they were relatively infrequent. On 25 April 1988, because of a driver’s failure to report for duty and general staff shortages, one of the defendants’ minibuses was left unattended and unlocked for nine hours with the ignition keys in it at a bus stop situated outside a public house which was used as a change-over point for the defendants’ drivers. If the defendants’ schedule had run to time there would have been only an eight minute interval between shifts during which the bus would have been unattended. At 11.15 pm the minibus was stolen, and five minutes later the plaintiff’s wife, who was cycling home from work, was hit by the minibus and killed. The driver did not stop after the accident and was never identified. The plaintiff brought an action for damages against the defendants, contending that they were negligent in leaving an unlocked bus unattended for up to nine hours outside a public house, so that it constituted a source of danger to other lawful highway users in the form of an allurement on the highway to wrongdoers, thereby foreseeably resulting in the death of the plaintiff’s wife.
Held – The defendants owed no duty of care to the plaintiff’s wife because the parked minibus did not fall within a special category of risk as a source of danger on the highway, since the acts of the wrongdoer were to be regarded as a novus actus interveniens which broke the chain of causation. Nor (per Rose LJ and Peter Gibson J) was there sufficient proximity between the plaintiff’s wife and the defendants such as to give rise to a duty of care.
Home Office v Dorset Yacht Co [1970] 2 All ER 294
Ten borstal trainees were working on an island in a harbour in the custody and under the control of three officers. During the night seven of them escaped. It was claimed that at the time of the escape the officers had retired to bed, leaving the trainees to their own devices. The seven got on board a yacht moored off the island and set it in motion. They collided with another yacht, the property of the plaintiffs, and damaged it.
The House of Lords held, inter alia, that the fact that the immediate damage to the property of the plaintiffs was caused by the acts of third persons, the trainees, did not prevent the existence of a duty on the part of the officers towards the plaintiffs because (per Lord Reid) the taking of the yacht and the damage to the other was the very kind of thing which the officers ought to have seen to be likely, or (per Lord Morris and Pearson) the right of the officers to control the trainees constituted a special relation which gave rise to an exception to the general rule that one person is under no duty to control another to prevent his doing damage to a third.
Caparo Industries v Dickman [1990] 1 All ER 568, HL
The respondents owned shares in a public company, F plc, whose accounts for the year ended 31 March 1984 showed profits far short of the predicted figure which resulted in a dramatic drop in the quoted share price. After receipt of the audited accounts for the year ended 31 March 1984 the respondents purchased more shares in F plc and later that year made a successful take-over bid for the company. Following the take-over, the respondents brought an action against the auditors of the company, alleging that the accounts of F plc were inaccurate and misleading in that they showed a pre-tax profit of some £1.2m for the year ended 31 March 1984 when in fact there had been a loss of over £400,000, that the auditors had been negligent in auditing the accounts, that the respondents had purchased further shares and made their take-over bid in reliance on the audited accounts, and that the auditors owed them a duty of care either as potential bidders for F plc because they ought to have foreseen that the 1984 results made F plc vulnerable to a take-over bid or as an existing shareholder of F plc interested in buying more shares. On the trial of a preliminary issue whether the auditors owed a duty of care to the respondents, the judge held that the auditors did not.
Held - The auditor of a public company's accounts owed no duty of care to a member of the public at large who relied on the accounts to buy shares in the company because the court would not deduce a relationship of proximity between the auditor and a member of the public when to do so would give rise to unlimited liability on the part of the auditor. Furthermore, an auditor owed no duty of care to an individual shareholder in the company who wished to buy more shares in the company, since an individual shareholder was in no better position than a member of the public at large and the auditor's statutory duty to prepare accounts was owed to the body of shareholders as a whole, the purpose for which accounts were prepared and audited being to enable the shareholders as a body to exercise informed control of the company and not to enable individual shareholders to buy shares with a view to profit. It followed that the auditors did not owe a duty of care to the respondents either as shareholders or as potential investors in the company.
Hill v Chief Constable of West Yorkshire Police [1988] 2 All ER 238
Between 1969 and 1980 a series of 13 murders and 8 attempted murders were committed by S. All his victims were young women and the modus operandi in each case was the same. The appellant, the mother and administratrix of his last victim, brought an action under s 48(1) of the Police Act 1964 claiming damages against the chief constable in whose area most of the offences had taken place. She contended that the circumstances of the earlier murders and attacks were so similar that it was reasonable to infer that they had been committed by the same person, that it was foreseeable that unless apprehended that person would commit further offences of the same type, that it was the duty of the police to use their best endeavours and exercise all reasonable care and skill in apprehending him and that they had been in breach of that duty in the manner in which they had carried out their investigation, thereby failing to detect S before he murdered her daughter. The chief constable applied to strike out the appellant’s claim as disclosing no reasonable cause of action. The question arose whether the police, in the course of carrying out their function of suppressing crime, owed a duty of care to a member of the public who suffered injury through the activities of a criminal. The judge held that the police owed no such duty and the Court of Appeal affirmed his decision. The appellant appealed to the House of Lords.
Held: (1)
In the absence of any special characteristic or ingredient over and above
reasonable foreseeability of likely harm which would establish proximity
of relationship between the victim of a crime and the police, the police
did not owe a general duty of care to individual members of the public to
identify and apprehend an unknown criminal, even though it was reasonably
foreseeable that harm was likely to be caused to a member of the public if
the criminal was not detected and apprehended.
"In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further, it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward types of failure, for example that a police officer negligently tripped and fell while pursuing a burglar, others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell LJ, in his judgment in the Court of Appeal in the present case, was right to take the view that the police were immune from an action of this kind ..."
Capital and Counties plc; Digital Equipment Ltd v Hampshire CC [1997] 2 All ER 865
The plaintiffs were the lessees of a modern commercial building. A fire broke out in the roof void and the fire brigade were called. Although the seat of the fire had not been located, the fire officer ordered the whole sprinkler system to be turned off. That had an adverse effect on restraining the fire, which spread rapidly across the roof and eventually destroyed the entire building. The plaintiffs commenced proceedings against the defendant fire authority for damages for negligence. The judge held that, in turning off the sprinkler system, the fire officer had made an error that no reasonably well-informed fireman could have made and that the defendant’s conduct amounted to negligence, since a total loss would have been averted if the sprinklers had been left in operation while the fire brigade fought the fire.
Held: A fire brigade did not enter into a sufficiently proximate relationship
with the owner or occupier of premises so as to come under a duty of care
merely by attending at the fire ground and fighting the fire.
However, where the fire brigade, by their own actions, had
increased the risk of the danger which caused damage to the plaintiff,
they would be liable for negligence in respect of that damage, unless they
could show that the damage would have occurred in any event.
The decision to turn off the sprinkler system had increased the
risk of the fire spreading and, since the defendant could not establish
that the building would have been destroyed in any event, it was liable
for negligence and there was no ground for granting public policy
immunity.
Mullins v Richards [1998] 1 All ER 920
M and R, two 15-year-old schoolgirls, were fencing 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 useful sight in that eye. M brought proceedings for negligence against R and the local education authority. The judge, dismissed the claim against the education authority, but found that both M and R had been guilty of negligence of which M's injury was the foreseeable result and, accordingly, that M's claim against R succeeded subject to a reduction of 50% for contributory negligence. R appealed, contending, inter alia, that the judge had erred when considering foreseeability by omitting to take account of the fact that R was not an adult.
Held - Although the test of foreseeability in negligence was an objective one, where the defendant was a child the question for the judge was not whether the actions of the defendant were such as an ordinarily prudent and reasonable adult in the defendant's situation would have realised gave rise to a risk of injury, but whether an ordinarily prudent and reasonable child of the same age as the defendant in the defendant's situation would have realised as much. Since the judge in his judgment had referred to M and R's age, it followed that he had had in mind the correct principles and had approached the matter in the correct way. However, there was insufficient evidence to justify his finding that the accident was foreseeable, since there was no evidence as to the propensity or otherwise of such rulers to break or any history of their having done so, nor that the practice of playing with rulers was banned or even frowned on in the school, nor that either of the girls had used excessive or inappropriate violence. What had taken place was nothing more than a schoolgirl's game which was commonplace in the school and there no justification for attributing to the participants the foresight of any significant risk of the likelihood of injury. The appeal would therefore be allowed and judgment entered for R.
Bolam v Friern Hospital [1957] 2 All ER 118
In 1954 the plaintiff, who was suffering from mental illness, was advised by a consultant attached to the defendants' hospital to undergo electro-convulsive therapy. He signed a form of consent to the treatment but was not warned of the risk of fracture involved. There was evidence that the risk of fracture was very small, viz., of the order of one in ten thousand. On the second occasion when the treatment was given to the plaintiff in the defendants' hospital he sustained fractures. No relaxant drugs or manual control (save for support of the lower jaw) were used, but a male nurse stood on each side of the treatment couch throughout the treatment. The use of relaxant drugs would admittedly have excluded the risk of fracture. Among those skilled in the profession and experienced in this form of therapy, however, there were two bodies of opinion, one of which (since 1953) favoured the use of relaxant drugs or manual control as a general practice, and the other of which, thinking that the use of these drugs was attended by mortality risks, confined the use of relaxant drugs to cases where there were particular reasons for their use. The plaintiff's case was not such a case. Similarly there were two bodies of competent opinion on the question whether, if relaxant drugs were not used, manual control should be used. So, too, different views were held among competent professional men on the question whether a patient should be expressly warned about risk of fracture before being treated, or should be left to inquire what the risk was; and there was evidence that in cases of mental illness explanation of risk might well not affect the patient's decision whether to undergo the treatment. The plaintiff having sued the defendants for negligence in the administration of the treatment, viz., in not using relaxant drugs or some form of manual control, and in failing to warn him of the risk involved before the treatment was given, the jury returned a verdict for the defendants.
The jury were directed: (i) a doctor is not negligent, if he is acting in
accordance with a practice accepted as proper by a responsible body of medical
men skilled in that particular art, merely because there is a body of such
opinion that takes a contrary view.
(ii) that the jury might well think that when a doctor was dealing with a
mentally sick man and had a strong belief that his only hope of care was
submission to electro-convulsive therapy, the doctor could not be criticised if,
believing the dangers involved in the treatment to be minimal, he did not stress
them to the patient.
(iii) in order to recover damages for failure to give warning the plaintiff'
must show not only that the failure was negligent but also that if he had been
warned he would not have consented to the treatment.
Nettleship v Weston [1971] 3 All ER 581
Mrs W wanted to learn to drive. Her husband was quite prepared to allow her to learn in his car. Mrs W asked a friend of theirs, N, if he would give her lessons. N was not a professional instructor. He said that he was willing to teach Mrs W but before doing so wanted to check on the insurance in case there was an accident. Mr and Mrs W assured him that that they had a fully comprehensive insurance which covered him as a passenger in case of accident, and showed him the relevant documents. On the third lesson Mrs W was sitting in the driver's seat controlling the steering wheel and foot pedals. N was assisting her by moving the gear lever and applying the handbrake. Occasionally he assisted with the steering. They approached a road junction and stopped. N instructed Mrs W to move off slowly round the corner to the left. He took off the hand brake and put the gear lever into first gear. She let in the clutch and the car moved round the corner at walking pace. N told her to straighten out but she did not. She panicked, holding the steering-wheel in a 'vice-like grip'. N took hold of the handbrake with his right hand and tried to straighten out the steering-wheel with his left but just failed to prevent the car mounting the kerb and striking a lamp standard. N claimed damages against Mrs W for the injuries which he suffered in the accident.
Held - (i) N had a good cause of action in negligence against Mrs W for the
following reasons-
(a) (per Lord Denning MR and Megaw LJ) the driver of a motor car owed a duty of
care to persons on or near the highway to drive with the degree of skill and
care to be expected of a competent and experienced driver; likewise, unless the defence of
volenti non fit injuria was
available, the driver, however inexperienced and whatever his disabilities, owed
the same standard of care to any passenger in the car, including an instructor,
for to hold otherwise would lead to varying standards applicable to different
drivers and hence to endless confusion and injustice; accordingly Mrs W was
prima facie in breach of her duty of care to N; furthermore a driver was not entitled to claim the defence of
volenti merely on the ground that his passenger knew of the risk of injury or
was willing to take that risk; it must be shown that the passenger accepted for
himself the risk of injury arising from the driver's lack of skill and
experience; in the present case there was no evidence that N accepted the risk
of injury; on the contrary, his enquiry concerning the comprehensiveness of Mr
W's insurance policy was a positive indication that he had not done so;
(b) (per Salmon LJ) although in general a driver owed to a passenger in his car
the same duty as he did to the general public, ie to drive with reasonable care
and skill, measured by the standard of competence usually achieved by the
ordinary driver, there might be special facts creating a special relationship
which displaced this standard or even negatived any duty, although the onus
would be on the driver to establish such facts; in most cases, such as the present,
involving a learner-driver and instructor, the instructor knew that the driver
had practically no driving experience or skill and that he would therefore
almost certainly make mistakes which could well cause the instructor injury;
accordingly the relationship was usually such that the beginner did not owe the
instructor a duty to drive with the skill and competence to be expected of an
experienced driver for he knew that the driver did not possess such skill and
competence; alternatively it could be said that the instructor voluntarily
agreed to run the risk of injury in such circumstances;
accordingly, on the facts of the present case, Mrs W would not have been liable
to N but for the fact that before N undertook to give her driving instruction he
sought the assurance about W's insurance policy; this fact completely disposed
of any possible defence of volenti; and moreover the assurance became an
integral part of the relationship between the parties and altered its nature in
such a way that it became one under which Mrs W did in fact accept
responsibility for any injury which N might suffer as a result of any failure on
her part to exercise the ordinary driver's standards of reasonable care and
skill.
(ii) (Megaw LJ dissenting) However N was only entitled to recover half the
agreed damages in view of his own contributory negligence for at the time he was
partly in control of the car and if he had acted more quickly to apply the hand
brake the accident would have been avoided; (per Lord Denning MR) a
learner-driver and instructor were both concerned in the driving and were both
in control of the car; in the absence of any evidence enabling the court to draw
a distinction between them, they should be regarded as equally to blame for an
accident that would not have occurred with a careful driver; the result was that
the one who was injured could obtain damages from the other but his damages were
reduced by one-half owing to the contributory negligence on his part.
Wilsher v Essex Area Health Authority [1986] 3 All ER 801 (overruled on the issue of causation in [1988] 1 All ER 871, and a retrial ordered, see below)
The plaintiff was an infant child who was born prematurely suffering from various illnesses, including oxygen deficiency. His prospects of survival were considered to be poor and he was placed in the 24-hour special care baby unit at the hospital where he was born. The unit was staffed by a medical team, consisting of two consultants, a senior registrar, several junior doctors and trained nurses. While the plaintiff was in the unit a junior and inexperienced doctor monitoring the oxygen in the plaintiff's bloodstream mistakenly inserted a catheter into a vein rather than an artery but then asked the senior registrar to check what he had done. The registrar failed to see the mistake and some hours later, when replacing the catheter, did exactly the same thing himself. In both instances the catheter monitor failed to register correctly the amount of oxygen in the plaintiff's blood, with the result that the plaintiff was given excess oxygen. The plaintiff subsequently brought an action against the health authority claiming damages and alleging that the excess oxygen in his bloodstream had caused an incurable condition of the retina resulting in near blindness. At the trial of the action the judge awarded the plaintiff £116,199. The health authority appealed to the Court of Appeal, contending, inter alia, (i) that there had been no breach of the duty of care owed to the plaintiff because the standard of care required of the doctors in the unit was only that reasonably required of doctors having the same formal qualifications and practical experience as the doctors in the unit, and (ii) that the plaintiff had failed to show that the health authority's actions had caused or contributed to the plaintiff's condition since excess oxygen was merely one of several different factors any one of which could have caused or contributed to the eye condition from which the plaintiff suffered.
Held - (1) The standard of care required of' members of the unit was that of the ordinary skilled person exercising and professing to have that special skill, but that standard was to be determined in the context of the particular posts in the unit rather than according to the general rank or status of the people filling the posts, since the duty ought to be tailored to the acts which the doctor had elected to perform rather than to the doctor himself. It followed that inexperience was no defence to an action for medical negligence. However (per Glidewell LJ), an inexperienced doctor who was called on to exercise a specialist skill and who made a mistake nevertheless satisfied the necessary standard of care if he had sought the advice and help of his superior when necessary; and
(2) Although the junior doctor had not been negligent and had satisfied the relevant standard of care by consulting his superior, the registrar had been negligent in failing to notice that the catheter had been mistakenly inserted in a vein rather than an artery and accordingly the health authority was vicariously liable for the registrar's negligence.
Roe v Minister of Health [1954] 2 All ER 131
On Oct. 13, 1947, each of the plaintiffs underwent a surgical operation at the Chesterfield and North Derbyshire Royal Hospital. Before the operation in each case a spinal anaesthetic consisting of Nupercaine, injected by means of a lumbar puncture, was administered to the patient by the second defendant, a specialist anaesthetist. The Nupercaine was contained in glass ampoules which were, prior to use, immersed in a phenol solution. After the operations the plaintiffs developed spastic paraplegia which resulted in permanent paralysis from the waist downwards. In an action for damages for personal injuries against the Ministry of Health, as successor in title to the trustees of the hospital, and the anaesthetist, the court found that the injuries to the plaintiffs were caused by the Nupercaine becoming contaminated by the phenol which had percolated into the Nupercaine through molecular flaws or invisible cracks in the ampoules, and that at the date of the operations the risk of percolation through molecular flaws in the glass was not appreciated by competent anaesthetists in general.
HELD: having regard to the standard of knowledge to be imputed to competent anaesthetists in 1947, the anaesthetist could not be found to be guilty of negligence in failing to appreciate the risk of the phenol percolating through molecular flaws in the glass ampoules and, a fortiori, there was no evidence of negligence on the part of any member of the nursing staff. Since the plaintiffs had been unable to establish negligence on the part of any of the defendants they were precluded from recovering damages.
Bolton v Stone [1951] 1 All ER 1078
During a cricket match a batsman hit a ball which struck and injured the respondent who was standing on a highway adjoining the ground. The ball was hit out of the ground at a point at which there was a protective fence rising to seventeen feet above the cricket pitch. The distance from the striker to the fence was some seventy-eight yards and that to the place where the respondent was hit about one hundred yards. The ground had been occupied and used as a cricket ground for about ninety years, and there was evidence that on some six occasions in a period of over thirty years a ball had been hit into the highway, but no one bad been injured. The respondent claimed damages for negligence from the appellants, as occupiers of the ground.
HELD: for an act to be negligent there must be, not only a reasonable possibility of its happening, but also of injury being caused thereby; on the facts, the risk of injury to a person on the highway resulting from the hitting of a ball out of the ground was so small that the probability of such an injury would not be anticipated by a reasonable man; and, therefore, the appellants were not liable to the respondent.
Haley v London Electricity Board [1964] 3 All ER 185
The appellant, a blind man, while walking along a pavement in a residential area in Woolwich on his way to work (as he had done for six years) tripped over an obstacle placed by servants of London Electricity Board near the end of a trench which they were excavating in the pavement under statutory authority; the appellant fell and was injured. The obstacle, a punner hammer some five feet long, was resting across the pavement, with its handle at one end two feet above the ground on railings on the inside of the pavement, while the other end lay on the pavement about a foot from the outer edge, so that the hammer was at an angle of thirty degrees to the pavement. It had been placed there by the board's servants to protect pedestrians from the trench and to deflect them into the road. The appellant was alone and had approached with reasonable care, waving his white stick in front of him to detect objects in his way and also feeling the railings with it, but the stick missed the hammer and his leg caught it about four and a half inches above his ankle causing him to be catapulted over onto the pavement. The hammer gave adequate warning of the trench for normally sighted persons. In an action for damages on the ground of the board's negligence there was evidence that about one in five hundred people were blind; that in Woolwich there were 258 registered blind; that the Post Office took account of the blind in guarding their excavations, using for the purpose a light fence some two feet high, and that more than once the appellant had detected such fences with his stick.
Held: the duty of care owed by persons excavating a highway, in guarding the excavation made by them, extended to all persons whose use of the highway was reasonably likely and thus reasonably foreseeable, not excluding the blind or infirm, and the use of a city pavement such as this by a blind person was reasonably foreseeable; on the facts, the punner hammer was not an adequate or sufficient warning for a blind person who was taking the usual precautions by use of his stick, and accordingly the appellant was entitled to recover damages at common law for negligence. Per Curiam: in considering whether precautions over road obstructions are adequate to discharge the duty of care not to endanger road users it is to be assumed that a blind person, going unaccompanied in places where he may reasonably be expected so to go, will take reasonable care, to protect himself, as, e.g., by using a stick to detect obstruction.
Latimer v AEC Ltd [1952] 1 All ER 1302
Owing to a downpour of rain of an unprecedented character and through no want of reasonable care on the part of the occupiers, a factory was flooded and oil from a cooling mixture pumped to machines through channels in the floor became mixed with water. As the water receded, the floor, which was level and structurally perfect, was left in a wet and oily and slippery state, and could not be entirely cleared at once. In the course of his duty a workman slipped on a floor and was injured.
HELD: (i) the occupiers were not in breach of their duty to see that the
floor was "properly maintained" under s. 25 (1) of the Factories Act,
1937, since "maintained", as defined in s. 152 (1), meant maintained
in good repair and did not mean kept free from danger through slipperiness.
(ii) it would not have been reasonable for the occupiers to have closed the
factory on account of the danger caused by a slippery floor, and, therefore,
they had not been negligent in permitting the plaintiff to work in the factory
and were not liable in damages at common law.
Paris v Stepney Borough Council [1951] 1 All ER 42
If, to the knowledge of his employer, a workman is suffering from a disability which, though it does not increase the risk of an accident occurring while he is at work, does increase the risk of serious injury if an accident should befall him, that special risk of injury is a relevant consideration in determining what precautions the employer should take in fulfilment of his duty to take reasonable care for the safety of each individual workman.
The appellant was employed as a fitter in the garage of the respondent borough council. To the knowledge of the respondents, he had the use of only one eye. While he was using a hammer to remove a bolt on a vehicle, a chip of metal flew off and entered his good eye, so injuring it that be became totally blind. The respondents did not provide goggles for the appellant to wear, and there was evidence that it was not the ordinary practice for employers to supply goggles to men employed in garages on the maintenance and repair of vehicles.
HELD: (i) the condition of the appellant's eyes, the knowledge of the
respondents, the likelihood of an accident happening, and the gravity of the
consequences if an accident should occur, were relevant facts to be taken into
account in determining the question whether or not the respondents took
reasonable precautions for the appellant's safety.
(ii) (Lord Simonds and Lord Morton of Henryton dissenting) in the circumstances
the respondents owed a special duty of care to the appellant, and, whether or
not goggles should have been supplied to two-eyed workmen engaged in the same
work as the appellant, they should have been provided for the appellant, and the
respondents' failure to provide them rendered them liable in negligence.
Watt v Hertfordshire County Council [1954] 2 All ER 368.
London Transport Executive lent a jack to the defendants' fire station to be on call in case of need, but it was in fact rarely used. It stood on four wheels, two of which were castored, and it weighed between two and three hundredweight. Only one vehicle at the station was specially fitted to carry it. While that vehicle was properly out on other service, the station received an emergency call to an accident in which a woman had been trapped under a heavy vehicle two or three hundred yards away. The officer in charge ordered the jack to be loaded on a lorry, which was the only other vehicle there capable of carrying it and on which there was no means of securing it. On the way to the scene of the accident with a number of firemen employed by the defendants and the jack, the driver of the lorry had to brake suddenly and the jack moved inside the lorry and injured one of the firemen.
HELD: the defendants were under no duty to have a vehicle specially fitted to carry the jack available at all times; the risk taken was such as would normally be undertaken by a member of the fire service and was not unduly great in relation to the end to be achieved; and, therefore, the defendants were not liable for damages for negligence to the fireman.
Scott v London and St Katherine Docks (1865) 3 H & C 596
Held that in an action for personal injury caused by the alleged negligence of the defendant, the plaintiff must adduce reasonable evidence of negligence to warrant the Judge in leaving the ease to the jury.- But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.
-In an action against a dock Company for injury to the plaintiff by their alleged negligence the plaintiff proved that he was an officer of the Customs, and that, whilst in the discharge of his duty he was passing in front of a warehouse in the dock, six bags of sugar fell upon him. Held, reasonable evidence of negligence to be left to the jury: per Crompton, J., Byles, J., Blackburn, J., and Keating, J. Dissentientibus Erle, C. J., and Mellor, J.
Barnett v Chelsea & Kensington Hospital [1968] 1 All ER 1068
Three night watchmen drank some tea. Soon afterwards all three men started vomiting. At about 8am the men walked to the casualty department of the defendants' hospital. The nurse telephoned the casualty officer, a doctor, to tell him of the men's complaint. The casualty officer, who was himself unwell, did not see them, but said that they should go home and call their own doctors. The men went away, and the deceased died some hours later from what was found to be arsenical poisoning. Cases of arsenical poisoning were rare, and, even if the deceased had been examined and admitted to the hospital and treated, there was little or no chance that the only effective antidote would have been administered to him before the time at which he died.
It was held in the QBD (Nield J.) that in failing to see and examine the deceased, and in failing to admit him to hospital and treat him, the hospital's casualty officer was negligent and did not discharge the duty of care which in the circumstances was owed to the deceased by the defendants as hospital authority; but the plaintiff had not discharged the onus of proving that the deceased's death was caused by the negligence, or, if there were a burden on the defendants of showing that his death was not due to the negligence, they had discharged that burden, with the consequence that the plaintiff's claim failed. Nield J. stated: "My conclusions are: that the plaintiff has failed to establish, on the balance of probabilities, that the deceased's death resulted from the negligence of the defendants, my view being that, had all care been taken, the deceased might still have died. My further conclusions, however, are that Dr. Banerjee was negligent in failing to see and examine the deceased, and that had he done so his duty would have been to admit the deceased to the ward and to have him treated or caused him to be treated".
Wilsher v Essex AHA [1988] 1 All ER 871
The plaintiff was born prematurely suffering from various illnesses including oxygen deficiency. While in a special baby unit at the hospital where he was born a catheter was twice inserted into a vein of the plaintiff rather than an artery and on both occasions the plaintiff was given excess oxygen. The plaintiff was later discovered to be suffering from an incurable condition of the retina resulting in near blindness. The plaintiff's retinal condition could have been caused by excess oxygen but it also occurred in premature babies who were not given oxygen but who suffered from five other conditions common in premature babies and all of which had afflicted the plaintiff. The plaintiff brought an action against the health authority claiming damages for negligence and alleging that the excess oxygen in his bloodstream had caused his retinal condition. At the trial the medical evidence was inconclusive whether the excess oxygen had caused or materially contributed to the plaintiff's condition. The trial judge and Court of Appeal held the health authority liable.
It was held in the House of Lords that where a plaintiff's injury was attributable to a number of possible causes, one of which was the defendant's negligence, the combination of the defendant's breach of duty and the plaintiff's injury did not give rise to a presumption that the defendant had caused the injury. Instead the burden remained on the plaintiff to prove the causative link between the defendant's negligence and his injury, although that link could legitimately be inferred from the evidence. Since the plaintiff's retinal condition could have been caused by any one of a number of different agents and it had not been proved that it was caused by the failure to prevent excess oxygen being given to him the plaintiff had not discharged the burden of proof as to causation. A retrial would be ordered.
The Wagon Mound (Overseas Tankship v Morts Dock & Engineering) [1961] 1 All ER 404
By the carelessness of the defendants' servants furnace oil from a ship was spilt into a bay. The oil spread over the water to the plaintiffs' wharf, which was some six hundred feet distant and at which the plaintiffs were carrying out repairing work to a ship, including the welding of metal. Molten metal from the plaintiffs' wharf fell on floating cotton waste which, smouldering, ignited the furnace oil on the water. The plaintiffs' wharf sustained substantial damage by fire. In an action by the plaintiffs for damages for negligence it was found as a fact that the defendants did not know and could not reasonably have been expected to know that the furnace oil was capable of being set alight when spread on water.
The Privy Council held that the test of liability for the damage done by fire was the foreseeability of the injury by fire and, as a reasonable man would not, on the facts of this case, have foreseen such injury, the defendants were not liable in negligence for the damage, although their servants' carelessness was the direct cause of the damage.
Per Curiam: it is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule.
Smith v Leech Brain & Co [1961] 3 All ER 1159
Smith was employed by the defendants as a labourer and galvanizer. Whilst lowering articles into a tank of molten metal, a piece of molten metal spattered out and burned his lip. He later contracted cancer, underwent operations, and died. It was found that the defendants had been negligent, and that the burn was the promoting agency, promoting cancer in tissues which already had a pre-malignant condition.
It was held in the QBD that for the purposes of assessing damages a tortfeasor took his victim as he found him, and the decision in Overseas Tankship v Morts Dock & Engineering did not override this principle; accordingly, since the type of injury which Smith suffered, was reasonably foreseeable, the defendants were liable for the damages claimed, although they could not reasonably have foreseen the ultimate consequences of the initial injury, namely, that the burn would cause cancer from which Smith would die.
Hughes v Lord Advocate [1963] 1 All ER 705
Near the edge of a roadway, was a manhole over which a shelter tent had been erected, and four paraffin warning lamps were placed at its corners. Two boys took one of the paraffin lamps into the tent to explore. The plaintiff tripped over the lamp, which fell into the manhole. An explosion followed. The plaintiff was thrown into the manhole and suffered severe burns.
The House of Lords held that although in the law of negligence the duty to take reasonable care was confined to reasonably foreseeable dangers, the fact that the danger actually materialising was not identical with the danger reasonably foreseeable did not necessarily result in liability not arising; in the present case the happening of an accident of the type that did occur, namely, an accident to a child through burns, was reasonably foreseeable, and the further fact that the development of the accident as it actually happened (namely, the occurrence of the explosion) could not reasonably have been foreseen did not absolve the defendants from liability, and accordingly the plaintiff was entitled to recover damages for negligence.
Doughty v Turner Manufacturing [1964] 1 All ER 98
The plaintiff workman was injured at the factory where he worked when another workman inadvertently knocked a loose compound asbestos cement cover and caused it to fall into a cauldron of extremely hot molten liquid. The extreme heat caused the asbestos cement to undergo a chemical change creating or releasing water, which turned to steam which one or two minutes later caused an eruption of the molten liquid from the cauldron.
The Court of Appeal held that the employers were not liable because the eruption which injured the plaintiff was unforeseeable by a reasonable man at the time when the accident happened, and because, although risk by splashing was foreseeable this was an accident of an entirely different kind, its cause being the intrusion of a new and unexpected factor, namely, the chemical change of the compound asbestos cement at high temperatures. The Wagon Mound [1961] 1 All ER 404 applied. Hughes v Lord Advocate [1963] 1 All ER 705 distinguished.
Crossley v Rawlinson [1981] 3 All ER 674
The defendant was driving his lorry along a main road when a tarpaulin on the lorry caught fire. He pulled in and stopped the lorry at the side of the road about 100 yards away from an AA post where the plaintiff, an AA patrolman, was on duty. The plaintiff saw the fire, grabbed a fire extinguisher and ran alongside the road towards the lorry intending to put out the fire. As he was running he tripped in a hole which was obscured by grass, and was injured. He brought an action against the defendant for damages for personal injuries.
It was held in the QBD that although it was reasonably foreseeable that a person such as the plaintiff might attempt to come to the defendant's aid and might run along the path towards the fire, it was not reasonably foreseeable that such a rescuer would suffer any injury while running along the path towards the scene of danger, and accordingly, even though the defendant's negligence had caused the fire, it had not caused the plaintiff's injuries. The plaintiff's action would therefore be dismissed.
Bradford v Robinson Rentals [1967] 1 All ER 267
The plaintiff was employed by the defendants. In January 1963, at the time when it was known to the defendants that the weather was likely to be very severe, he was sent on a journey to change a colleague's old van; the round journey was between 450 and 500 miles and would involve about twenty hours' driving. The old van and the new van were unheated. As a result of cold on the journey, and despite precautions taken by the plaintiff, he suffered injury by frostbite, which was unusual in England.
It was held at Devon Assizes that the plaintiff had been called on to carry out an unusual task that would be likely to expose him to extreme cold and considerable fatigue, and thereby the defendants had exposed him to a reasonably foreseeable risk of injury; although the injury that he in fact suffered was not itself unusual, yet it was an injury of the kind that was foreseeable (namely, injury from exposure to cold), and, as liability did not depend on the precise nature of the injury suffered being itself reasonably foreseeable, the defendants were liable to the plaintiff in negligence. Hughes v Lord Advocate [1963] 1 All ER 705 applied.
Vacwell Engineering v BDH Chemicals [1969] 3 All ER 1681
Vacwell were manufacturers of plant and equipment designed to produce transistor devices. The plant required the use of certain chemicals. BDH were manufacturers and distributors of chemicals, which they had supplied to V over a period of time. BDH advertised boron tribromide as a new entry in their catalogue. It was known that boron tribromide reacted on contact with water, emitting a toxic vapour, but neither of the parties knew that it reacted violently and exploded on contact with water. V gave BDH an order for 400 glass ampoules of boron tribromide. These were supplied and a label affixed to each ampoule bore the warning words "harmful vapour". While two physicists were engaged on washing the labels off some 40 to 100 ampoules prior to using them in the manufacturing apparatus, an explosion occurred, killing one of the two men and causing extensive damage to V's premises. The overwhelming probability was that the explosion occurred as a result of the deceased physicist's dropping into the sink one or more of the glass ampoules, which had shattered, so releasing boron tribromide into the water which in turn shattered the remaining ampoules in the sink. V claimed damages against BDH. It was held in the QBD that BDH were liable to V because, inter alia:
(1) an explosion, albeit of a minor kind, was reasonably foreseeable as a result of BDH's breach of contract, and although an explosion of the magnitude which occurred was not reasonably foreseeable, it was caused by, and was the direct result of, the supply by BDH of boron tribromide without an adequate warning label, and on the facts of the case (including in particular the valuable and delicate glassware which constituted the equipment with which the chemical was to be used), the damage was not too remote to be recoverable.
(2) BDH were negligent in that (a) it was their duty to take reasonable care to ascertain major industrial hazards of chemicals marketed by them and to give warning of such hazards to their customers, and they failed to comply with this duty by failing to provide and maintain a system for carrying out adequate research into scientific literature to ascertain known hazards and by failing to carry out adequate research into the literature available to them on boron tribromide, and (b) it was a foreseeable consequence of the supply of boron tribromide without a warning - and a fortiori with an irrelevant warning about harmful vapour - that, in the ordinary course of industrial use, it could come into contact with water and cause a violent reaction and possibly an explosion with damage to property of the type although not of the magnitude which occurred and, on the facts of the case, the immersing of a large number of ampoules together in water did not constitute constitute contributory negligence by V.
Note: BDH appealed against the decision of Rees J. However, before the end of the hearing of the appeal counsel for BDH told the Court of Appeal that general terms of agreement had been reached between the parties on the basis that the appeal be allowed and the order of Rees J be varied by providing, inter alia, that judgment be entered for the plaintiffs on the issue of liability in negligence limited to 80 per cent of damages. It was also agreed that the parties go before the official referee, for the assessment of damages, on the basis that that part of Rees J's judgment dealing with remoteness of damage in negligence should not be challenged. Lord Denning MR held that the result of the agreement at which the parties had arrived would be very likely almost the same as the court would have arrived at if it had been fully argued and discussed. The appeal was allowed and the order of Rees J varied accordingly. See [1970] 3 All ER 553.