Ashley v Chief Constable of Surrey [2008] - A was shot dead because the police had thought him armed and dangerous. Part claim of negligence/trespass on the person (assault) but family rejected compensation as they wanted a judgement on trespass to the person. Court ruled that it was reasonable to bring tttp as it was of public importance. Beyond compensation, tort is regarded as a vindicatory vehicle, directing public condemnation at the issue in hand.
Wilkinson v Downton [1897] - The plaintiff was told (by means of a practical joke) that her husband had been severely injured. She brought claims for psychiatric injury. Where a person wilfully does an act, or makes a statement which is calculated to cause and does cause physical harm, they are liable in tort.
Donoghue v Stevenson [1932] - Concept of relations giving rise to a duty of care. Atkin's 'neighbour' principle: "the answer [of "Who is my neighbour?"] seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in [mind] as being...affected [by] my acts or omissions"
Wainwright v Home Office [2003] - Strip-search humiliation of a mother and disabled son which resulted in compensatory and aggravating damages being awarded. This was overturned by the CoA who set aside 'invasion of privacy' damages as it was too uncertain.
Tomlinson v Congleton BC [2003] - A country park that had once been a sand quarry had a pool surrounded by sand. Although swimming was prohibited, someone dived into water that was too shallow and was paralysed. CoA said that CBC should have actively prevented people from swimming, not just had signs. However, when CBC destroyed the beach, did this infringe on people's freedom of enjoyment?
Harris v Perry - Two parents were watching a bouncy castle and another form of entertainment at a children's party when there was an accident. In FI, they claimed that they had not taken sufficient precaution, but CoA reversed thos, it was not reasonable to expect them to watch both. Would another careful adult have acted in the same way? Yes.
Poppleton v Portsmouth Youth Activities Committee [2008] - P was injured during the activity of 'bouldering', even though there was protection. He claimed that PYAC should have checked his level of experirence and also that the matting had lulled him into a false sense of security. Court ruled that there were inherent and obvious risks in the activity that he had undertaken.
Glasgow Corp. v Muir [1943] - Some children from a sunday school were burned by a tea urn whilst sheltering in a tea room during bad weather. The claim eventually lost as there was no fault. It is...left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have in contemplation, and what, accordingly, the party sought to bemade liable ought to have foreseen (objective and impersonal standard).
Roe v Ministry of Health [1954] - Anaesthetic from contaminated ampoules were adminstered to patients who subsequently were paralysed. At the time of the incident the way the contamination had happened had not been thought possible. The case had to be judged using scientific knowledge at the time of the incident, not with 'what we know now' (hindsight).
Abouzaid v Mothercare [2000] - A little boy was hit in the eye by straps from a pushchair as he attempted to do them up for his sibling. Nobody at the time could have foreseen this sort of accident happening. Negligence claim failed; strcit liability passed due to faulty product.
Qualcast v Haynes [1959] - Workman burnt his foot. He had been provided with protective clothing but, he contended, this was not sufficient: his employers should have required him to wear it. HoL reversed CoA's acceptance of negligence. Whether a defendant is in breach of his duty of care is not a matter of law, it is a matter of fact. Consequently, pronouncements of judges on these issues are not binding on any other judge, who should decide the matter on the basis of common sense.
Haley v London Electricity Board [1965] - A blind man was injured by falling down a hole which had been left by the LEB. Although precautions as to its existence were suitable for sighted persons, they were not for blind people. There is a duty to take special precuations for those who are abnormally vulnerable.
Paris v Stepney Borough Council [1951] - A mechanic who was already blind in one eye was blinded in the other whilst working. Although it was not usual practice for garage owners to provide goggles, HoL said that the consequences of losing the sight of one's only good eye was worse than losing the sight of one of one's two good eyes, therefore extra precautions should have been taken, and not providing goggles was negligent.
Walker v Northumberland County Council [1995] - An employee had a second work-related relapse. The employer was not liable for the first but was for the second in that he should have known of the fragility of the employee and therefore foreseen and guarded against this.
Watt v Hertsfordshire County Council [1954] - A fireman was crushed whilst heading to the scene of an accident when the driver was forced to brake suddenly and an improperly secured jack fell and crushed him. The fire-engine was not fitted to carry the hack, but they had needed it for the accident. CoA found that D had acted reasonably, Denning LJ the saving of life or limb justifies considerable risk.
Daborn v Bath Tramways [1946] - Was an accident which was had in an American left hand ambulance due to contributory negligence by the claimant? The importance of the purpose serves justified the assumption of abnormal risk.
Bolton v Stone [1951] - Even though it was foreseeable balls might be knocked out of a cricket ground, the cost of setting up a fence higher than the one that was currently there did not match up with the number of incidents.
Latimer v AEG [1953] - A factory was flooded, and this mixed with liquids on the floor. Although efforts were made to clean this up, a worker slipped and hurt himself. However the only way to completely oviate risk was to close the factory, and they were not obliged to do this after having taken every other reasonable step available.
Ward v Hertsfordshire County Council [1970] - A child at a primary school ran into a brick wall, but the only way to avoid would have been to stop them playing, or another equally disproportionate reason (cover walls with padding).
The Lady Gwendolen [1965] If you act in the manner of a skilled individual, you will be held to that standard.
Matrix Securities v Theodore Goddard [1998] - Claimants sued a barrister for a failed tax avoidance (NOT evasion) scheme; the standard to be judged against was those of a firm or chambers which were tax-specialists.
Philips v William Whitely [1938] - Where a person holds themselves as possessing a special skill over and above that of reasonable people, then they will be held to it. It is no excuse for a surgeon whose piercing of X's ears resulted in infection to say they were not entiteld to demand more in the way of hygiene or competence than you would expect had you visited a jeweller. However, a jeweller performing this same service need not match the standards of a surgeon if they have performed with the expected standard of their own trade.
Wells v Cooper [1958] - When a handle came off a door, the claimant fell backwards and suffered injury. The claim was dismissed as the job had been performed by a layman who did not realise the length of screws he had used was incorrect. He was judged against another 'reasonable' individual who performed DIY.
Mullin v Richards [1998] - Two girls were 'fencing' with plastic rulers when one snapped and the pieces went in one of the girls' eye, blinding her. CoA held that the test to apply was whether an ordinarily prudent and reasonable schoolgirl of that age would have realised that her actions gave rise to a real risk of injury. On the facts it was said it could not, they had never been told or warned of any injuries occasioned by it.
Carmarthenshire County Council v Lewis [1955] - HoL held an LEA liable for its failure to secure a playground which then meant a small child wandered onto the road and caused a lorry to swerve and crash, injuring its driver.
Daly v Liverpool Corporation [1939] - A 69 year old woman was run over by a rubbish truck. Court ruled there was no contributory negligence as she could not have been expected to move any faster.
Roberts v Ramsbottom [1980] - Driver could escape liability only if he demonstrated that his actions were wholly beyond his control at the relevant time. It was found that he had continued to drive when he was unfit to do so, and when he should have been aware of his unfitness.
Mansfield v Weetabix [1998] - A lorry driver was on the road when he suffered an hypoglycaemic episode and without realising it, progressively lost consciousness. He subsequently crashed his vehicle into the plaintiff's shop. The standard to be applied was one of a reasonably competent driver with the impairment in question - had the defendant matchied this, taking into account the reasonableness of expecting him to have ceased driving on becoming aware of the condition? He had been unaware of his condition, and therefore he not in breach of duty. Reverses Roberts which said that if you were conscious, you should drive reasonably.
Nettleship v Weston [1971] - A learner driver crashed into a lamppost and her instructor was injured. CoA held her liable to her instructor, in that she had fallen below the expected standard of a qualified and experienced driver; it was irrelevant that as a learner she might not be able to attain this. However, damages were reduced by 50% due to contributory negligence.
Bolam v Friern Hospital Management [1957] - A mental health patient decided to undergo ECT; however he was not given relaxant drugs, nor restrained and therefore suffered injury during the procedure. However, the defendant doctor was able to show that he had made a decision that a substantial body of other doctors would have also made. CoA held that his actions were compatible with the general standards and practices of the profession, and the presence of conflicting views was not sufficient to establish a breach in the duty of care.
Sidaway v Bethlem Royal Hospital [1985] - A woman who was not warned of the risks (1%) accompanying her operation developed paraplegia afterwards even though it was performed competently. Court held that consent did not require an elaborate explanation of remote side-effects and that there was a large body of opinion which would not have warned. Lord Scarman's dissent said that the Bolam test did not apply, and a doctor had a duty to inform patients of all risks.
Shakoor v Situ [2000] - X died of liver failure from rare allergy after taking 9 doses of traditional Chinese medicine. Held that where a practitioner prescribed a chemical or herbal remedy that would be ingested, it was implied that 1. he was presenting himself as competent to practice in accordance with the system of law and medicine under which his standard of care would be judged, 2. he knew, rather than believed, that the remedy was not harmful, 3. if the recipient reacted adversely to the remedy and as a consequence sought aid through orthodox medicine, the incident was likely to be discussed in an orthodox medical journal, accordingly, the practitioner was required to take sufficient steps so as to be confident that a remedy had not been reported adversely. No breach of duty though, as he had been consistent with the standard of care appropriate to traditional Chinese herbal medicine in accordance with the established requirements.
Marriott v West Midlands Health Authority [1999] - A man who had actually suffered a lesion on his brain was not referred to hospital, and therefore subsequently died - something that would have been avoided had he been referred. Court ruled against the GP as it would have been a reasonable exercise of the GP to send someone to the hospital for explatory procedures.
AUSTRALIA: Rogers v Whitaker
Scott v London & St Katharine's Dock Co [1865] - Sack of sugar fell on S from defendant's crane. D said there was no evidence and that there was no proof as to who did what. Judge ruled there was reasonable evidence from S based on circumstance to establish a lack of duty of care.
Grant v Australian Knitting Mills [1936] - G got dermatitis from a pair of defendant's underpants. D said to prove it as they had not had a complaint in the previous six years. However, court ruled in G's favour as the claimant does not have to lay his finger on the exact person.
Waugh v James K Allen [1964] - Driver died at the wheel therefore no negligence.
Barkway v South Wales Transport [1949] - Tyres were not inspected for impact fractures which was a known risk.
Fryer v Pearson [2000] - A gas fitter accidentally knelt on a needle imbedded in the carpet at a customer's home. No fault inferred as it could not be proved how the object of injury got there (i.e. it was nobody's fault).
Ward v Tesco Stores [1976] - Plaintiff slipped on a spill. Evidential burden on defendant to show that the accident did not occur through any want of care on their part, because of res ipsa loquitur. Negligence was proved. Rule overapplied.
Delaney v Southmead Health Authority [1992] - Plaintiff had sustained an injury after a successful operation to remove her gall bladder. She claimed that this must have been occasioned at some point during the administration, overseeing or conclusion of anaesthesia. The anaesthetist gave an explanation of his practice in carrying out anaesthesia which could not have caused the injury. The judge accepted his evidence. The injury was therefore one for which the defendant was unable to give an explanation and the patient's appeal failed. The court had been entitled to find that the anaesthetist had exercised all due care in carrying out the procedure even though that left the injury unexplained.
In medical negligence cases, where full evidence, including evidence from experts on both sides, has been heard, it is only in a rare case that the maxim res ipsa loquitur will assist the court: "For my part, I am doubtful whether it is of much assistance in medical negligence, at any rate when all the evidence in the case had been adduced. But even if Mr Stembridge is right in saying that at that stage the maxim applies, it is always open to a defendant to rebut a case of res ipsa loquitor either by giving an explanation of what happened which is inconsistent with negligence...or by showing that the defendant exercised all reasonable care."
Ng Chun Pui v Lee Chuen Tat [1988] - A coach overturned, but it was unclear as to whether a motorist had caused it to do so. The Privy Council says that if there is doubt, the claimant loses.
Moore v Fox [1955] - A machine exploded, but it was unclear whether it was the defendant's fault. D lost because the BoP was on them to prove they were not at fault as the occurrence was unlikely to have happened without interference. As such, claimant wins due to impetus of res ipsa loquitur.
Henderson v Jenkins [1970] - Unclear as to whether RIL reverses BoP or not.
The Ogopogo - Failure to get somebody who had fallen into the water. It was found that the individual had had a heart attack when this happened.
Barnett v Kensington & Chelsea HMC [1969] - Two people were poisoned with arsenic on New Year's Eve but refused treatment by staff because it was believed they were hungover. This was a breach of the hospital's duty of care. However, it was found that even if they had been treated they would have died anyway, therefore the breach was not the cause of death.
McWilliam v Sir William Arrol & Co [1962] - Construction worker who was not wearing a safety harness fell and died. It was a breach of the employer's statutory duty that they had not given him one, but it was found that even if they had provided one, he would not have worn it, therefore no causal link. Claim on negligently not educating her husband also failed.
Sykes v Midland Bank Executor & Trustee Co [1970] - Firm of surveyors were negotiating with a landlord through a firm of solicitors. The draft lease spoke about a 'change of usage' although the landlord must say 'reasonably' if this is forbidden. However, D said that the C would have signed the lease anyway.
Bolitho v City & Hackney HA [1998] - Child suffered brain damage when the head paedeatrician did not reply to her bleep as the batteries were flat.
Downs v Chappell [1997] - D lied to C by exaggerating shop takings to get him to purchase the business. C had to persuade the court of the balance of probabilities that he would not have bought the shop anyway. In an intentional tort (deceit) the BoP is reversed.
Pride of Derby Angling Association v British Celanese [1952] - a series of owners pollute the river; 'but for' would have lost as each defendant would have said that "this would've happened but for me".
Bonnington Castings v Wardlaw [1956] - A falls ill due to exposure of toxic elements at work: one being an inevitable cause and one being produced illegally (i.e. in breach of duty, or health and safety). These two processes caused damage to A, could he sue? FI said no, HoL applied cumulative causation in that the correct test to apply was whether the 'guilty' dust had made a material contribution to the disease. It only had to be proved that the 'guilty' dust made up a more than negligible proportion of the total amount of dust to which A was exposed. It was unnecessary to show that the 'guilty' dust was the sole cause of the disease.
Holtby v Brigham & Cowan [2000] - A ingested poisonous dust during working for separate employers B and C - was each employer liable for all, or did they pay half each? CoA ruled that A should only get half in total, as one of the employers had gone bankrupt, and you could not expect the other to pay that half as well.
USA/CANADA: Cook v Lewis [1952] - Two huntsmen accidentally shot a third simultaneously. However, only one bullet entered his body and both were using the same type. Both weapons were discharged negligently. Courts found each of the negligent hunters liable and apportioned loss equally. Approach now taken by the HoL.
McGhee v National Coal Board [1973] - Worker at a brick kiln was exposed non-negligently to dust. However, employer negligently destroyed the shower block in a breach of statutory duty. As such, they materially increased the risk of worker contracting dermatitis. Still, could not know whether had he taken showers, he would not have got it. Held that there as no difference in materially causing damage and materially substantially increasing the risk of harm. ("The creator of the risk who, ex hypothesi, must be taken to have foreseen the possibility of damage, who should bear its consequences.")
Fairchild v Glenhaven Funeral Services [2002] - X worked for a few employers, all of them in contact with asbestos. While working for the defendant, he got mesothelioma, which just needs ONE asbestos fibre to lodge in lung. Impossible to show which employer the asbestos was from. Defendant liable as if X was left without remedy, this would be unfair. Held that proof, on a balance of probabilities, that the wrongdoing of each employer had materially increased the risk to the employee, that he might contract the disease was to be taken as proof that each employer had materially contributed to it.
Wilsher v Essex Health Authority [1988] - Condition which caused child's disability could have resulted from a number of things, not necessarily attributable to the junior doctor's actions. Court said that acting in this way had increased risk, and therefore established causation like MCGHEE; however, HoL overruled this, as it could not be proved that the doctor's actions were the ones who caused the condition.
Fitzgerald v Lane [1987] - C crossed road without looking and was hit by a negligent driver who then threw him into the path of another negligent driver. Beyond the balance of probabilities it was impossible to tell who had caused him his injuries. CoA apportioned responsibility, even though it could not be shown on probabilities how much the second driver had contributed.
Kitchen v Royal Air Force Association [1958] - Solicitors failred to proceed with a claim which then became statute-barred. K sued them for damages as he was deprived of the chance to take legal action and won as she showed there was a chance of success if she had been able to make the claim.
Allied Maples Group v Simmons & Simmons [1958] - AM wanted to buy shops and SS failed to spot problem with agreement. AM lost money taking on shops on those terms. Held that it is enough to show that there was a substantial chance of success in that if they had been properly advised they would have succeeded in persuading the group to grant them the conditions they wanted.
Davies v Taylor [1974] - Claim by a widow whose husband was killed by a negligent driver. However, they were separated and contemplating divorce at the time. He had been trying to get her back, and reluctantly started divorce proceedings. Statistically a large number of affairs do not lead to divorce - could she get damages for loss of a chance of future support? Yes, even though the chance was small.
Hotson v East Berkshire AHA [1987] - D failed to correctly diagnose C's condition after a fall and there developed a serious disability of the hip joint. There was a 75% risk that this disability would have developed even if the claimant had been treated properly. Held that on balance of probabilities that disability would have occurred anyway so no liability for loss of chance of recovery.
Gregg v Scott [2005] - G got lump in armpit and GP failed to diagnose. It was lymphoma and by the time it was diagnosed cancer had spread. If it had been found earlier, 42% chance of survival, but chance of surviving when he found it (5yrs later) was 25%. HoL followed Hotson, and said he could not claim because chances were never good in the first place. Dissent said that as negligence was present it was unfair not to award anything at all. Majority went by the logic that it was unfair to allow a claim where D's negligence may have caused C to lose everything or nothing. Philips and Hale - rough justice.
Performance Cars v Abraham [1962] - D's car collided with C's causing damage to the wing and bumper meaning the lower half of the car had to be resprayed. Two weeks before the same car had been involved in another collision which had already damaged the wing so as to require a respray which had not been carried out. C's claim was against D for the cost of respaying. Dismissed as at the time of the collision the wing was already damaged, and therefore the respray was already needed.
Baker v Willoughby [1970] - B's leg hit by car, an accident in which both he and the driver were contributorily negligent. Before trial, he was shot in the injured leg by robbers and it had to be amputated. Held that the driver's liability could not be reduced for the leg, because although the shooting was also a concurrent cause, it could not diminish the damages. To allow D to only pay yp to the second incident he would've got less than if he had just lost the leg in the beginning.
Jobling v Associated Dairies [1982] - D's breach of duty caused C to suffer back injury and left him with continuing disability. 3 yrs later, before trial, C was diagnosed with a disease, unrelated to accident and arising after accident, which rendered him totally unfit for work. D said that the onset of the disease terminated the period in respect of which they were liable for the effects of the back injury. HoL said that the disease was one of the "vicissitudes of life’" for the chance of which the courts regularly made discounts in the assessments of damages for future loss of earnings.
Robinson v Post Office [1974] - Following an accident at work, the claimant had an anti-tetanus injection. Nine days later, there was an adverse reaction to the serum and brain damage resulted. No matter what tests the doctor might have performed, there would have been no sign of an adverse reaction within a reasonable time (Bolam). The doctor's reasonable decision to provide the standard treatment was therefore not the relevant cause of the brain damage, because the claimant would not have been injected "but for" the defendant's negligence.
McKew v Holland and Hannen [1969] - C got leg injury in the course of employment which made leg give way suddenly. Not long after, he sprinted down stairs, no handrail, leg gave way and fractured ankle severely. Tried to claim for the latter injury but sprinting was a novus actus interveniens as no reasonable man would have been as foolish as he was.
Wieland v Cyril Lord Carpets [1969] - D's negligence caused an injury to C's neck which needed her to wear a surgical collar. C also wore bifocals and the collar inhibited the normal movement of her head needed to maintain perfect vision. As a result, she fell down some steps causing herself further injury. It was held that her difficulties in seeing with her usual spectacles were within the risk created by D's original negligence, as she had not been unreasonable in attempting to go about her normal behaviours.
O'Reilly v National Rail [1966] - C and other foundary workers found a live shell. C hit it with a hammer at their encouragement and blew his leg off. Sued foundary for negligence and employee for urging him on. Court said he was the "sole author of his own misfortune".
Meah v McCreamer (No 1) [1985] - M got into car with drunk person and there was an accident. After, guy had personality change and developed tendency to sexually assault women. Could claim for damages for injuries resulting in personality change (though reduced because he knew he was drunk).
(No 2) [1986] - Women assaulted claimed from M and he tried to claim from driver, saying that without accident, he would not have committed. Could not claim because the women could not claim from driver (remoteness of damage and lack of duty of care), and to allow him to do so would be letting them essentially claim from the driver. Thus cannot because of public policy.
Kirkham v Chief Constable of Greater Manchester [1990] - Attempted suicide and was released from hospital, arrested and wife told police he was suicidal. Police negligently did not activate suicide watch and K killed himself. Widow sued police for breach of duty - police claimed suicide broke chain, but this was rejected. Court pronounced his act voluntary (could not control actions) as he had psychological problems, and it would have been ridiculous to allow police to get away with not doing something they should've.
Reeves v Metropolitan Police Commissioner [2001] - Police doctor pronounced R sane but just that he "had a wish to die". When he committed suicide, the police were liable, but R's had contributory negligence.
Orange v County Council West Yorkshire [2001] - No breach of duty as they did not know he was suicidal. REEVES must be taken on its own particular facts.
Corr v IBC Vehicles [2008] - C's ear was amputated in an accident at work. He suffered extreme pain in the treatments and developed PTSD and depression to the extent that he killed himself. Had commenced proceedings against D for PI, but widow wanted to add a new claim under the Fatal Accidents Act and therefore had to prove that the D was responsible for his death. HoL said that suicide did not break the chain, as D had made him psychiatrically ill. Also rejected argument that his death was an unforeseeable type of harm. Lord Scott did consider contributory negligence - what if he had hurt someone else whilst committing suicide? Some judges have a rather Victorian attitude to psychiatric illness.
The Oropesa [1943] - Held that the master’s directions of going out in the storm, was reasonable in the emergency situation and thus death of engineer was directly caused by collision for which both ships were responsible. Master’s decisions was not a novus actus interveniens.
Rouse v Squires [1973] - A jackknifed lorry on motorway when he was not paying attention. B who was also driving too fast then crashed into the ensuing wreck and ran over C who was helping. CoA held the second driver's negligence did not relieve the first of all responsibility, of which he remained a joint cause.
Knightley v Johns [1982] - There wasn an accident at the exit of a tunnel. Policeman forgot to close off entrance of tunnel so sent another police man against traffic back into tunnel (breaking rules) to remedy it. He collided with a motorist and was injured. Held that the orders were a novus actus interveniens and the injuries were result of the orders, not the original accident.
Wright v Lodge [1993] - Woman’s car broke down in fog and she was negligent in trying to restart it and not push it off highway. Negligent lorry came at high speed and crashed, overturning, causing more accidents. Held that lorry’s negligence caused everything and woman whose car broke down was not liable for the following accidents. Not every cause "but for which" there would have been no accident is causative for the purposes of liability.
Topp v London Country Bus [1993] - Bus was left outside a pub with keys in ignition for next driver. He never came and drunkards used the bus to run over T. Bus company not liable, as this was an NAI by people who should have known what they were doing.
British Virgin Islands v Hartwell [2004] - Police officer who had committed a number of misdemeanours whilst training was put in sole charge of a police station. He took a gun and attempted to shoot his unfaithful girlfriend but accidentally shot a tourist. Were the police liable? Chain was broken as his usage of the gun was purely motivated for jealous reasons and was not connected to his work as a police officer.
Stansbie v Troman [1948] - The owner of a house told the decorator to take care of it whilst she went out; however, when he left for supplies, he forgot to lock the door and the house was burgled. CoA ruled that he was negligent, and the chain was not broken. If someone entrusts their property to you, there is a higher standard of care and a broader range of negligence.
Carlslogie SS Co v Royal Norwegian Government [1952] - C's ship damaged in
collision which RNG wholly responsible. Had to made voyage to US for repairs, and on the way there, bad storms made damage worse. All damage fixed in US. Could not claim for the damages for the loss of use of ship during repairs because repairs included repairs to the damage by the storm, which was "not in any sense a consequence of the collision and must be treated as a supervening event occurring in the course of a normal voyage". Also when she was at the dock, no loss of profits because she wasn’t even fit to sail due to the damage by the storm anyway.
Chester v Afshar [2004] - Woman went for surgery. Doctor didn’t tell her of minimal risk of getting disease. She got disease. Said she would have gone anyway, but not then, so "but for" test satisfied. But risk was not increased, nor were the chances of avoiding it lessened, by what X had failed to say about it. However, duty of a surgeon to warn of dangers inherent in operation was intended to enable patient to make an informed choice whether to undergo the treatment and, if so, at whose hands and when. X violated C's right to choose for herself, even if he had not increased the risk to her. The function of the law was to enable rights to be vindicated and to provide remedies when duties had been breached. On policy grounds the test of causation was satisfied in the instant case. The risk was within scope of the duty to warn so injury can be regarded as having been caused (legally) by the breach of that duty.
The Wagon Mound (No 1) [1961] - D allowed oil to be spilt from their ship onto the water, which was then set alight and caused damage to P's wharf. Privy Council held whilst it was foreseeable that oil might foul the wharf, it was not foreseeable that the oil would be set alight and cause fire damage. The claim for that damage was disallowed. It was not enough that some damage was foreseeable; P also had to establish that the type of damage which occurred was also.
Re Polemis [1921] - The defendants negligently dropped a plank into the hold of the claimants' tanker, breaking some cans of benzine, which caught fire and did substantial damage to the vessel. CoA held that since the defendants should have foreseen the damage would result from dropping the plank, they were liable for the whole extent of the damage. This was so even though they would not have been aware of the extent of the damage that was likely to be caused.
Tremain v Pike [1969] - Farmworker who got Weil’s disease from contact with at urine, whose population was allowed to get unduly large. Farmer was not at fault for failing to take precautions because 1. disease was relatively unknown, 2. precautions were too excessive to take. Held that kind of damage was 'entirely different in kind' from that which is foreseeable, like rat-bite or food poisoning. Could not simply say that rat-induced disease was foreseeable and it occurred.
Page v Smith [1995] - P got into minor accident due to negligence of S. Shock from it led to the recurrence of his ME, which was dormant, which was not reasonably foreseeable. Judges said that it was counted as physical injury and since physical injury was foreseeable in a car accident such as this, S was liable. "Once it is established that D is under a duty of care to avoid causing personal injury to P, it matters not whether the injury in fact sustained is physical, psychiatric or both". (Egg shell skull rule).
Hughes v Lord Advocate [1963] - Workmen left a manhole in the street open, covered by a canvas shelter and surrounded by warning paraffin lamps. Boy aged 8 took one of lamps into shelter and played there until he stumbled over lamp and it fell in hole. Violent explosion and boy fell in and got burns. Quite unpredictable that lamp would explode, but that boys would play there with lamp was foreseeable, and if lamp fell and broke some burning would be foreseeable. So, the lamp which was a known source of danger caused injury through an unforeseeable sequence of events, but D still liable because type of injury was foreseen.
Jolley v Sutton LBC [2000] - Two boys came upon an abandoned boat and decided to repair it. They winched it up with jacks to crawl inside, but they collapsed, and the boat fell on one of the boys, paralysing him. HoL said it was reasonably foreseeable that someone would suffer damages from coming into contact with the boat; the types of damage that could be 'acceptably' suffered to come within LBC's responsibility were reasonably broad.
Crossley v Rawlinson [1981] - R was negligent and his lorry caught fire. C ran to rescue him with fire extinguisher, but on the way, tripped in a hole. Held that although foreseeable that someone would attempt a rescue, and might be hurt in the process, one must ask whether injury by falling (instead of say, burning) was reasonable.
Vacwell v BDH [1971] - X did not know that chemicals were explosive when in contact with water, although should have known. Sold chemicals, and when washing the label off, dropped one in sink and huge explosion was caused due to a domino effect with the other chemicals nearby. Although magnitude of explosion was not foreseeable, it was a direct effect of not giving a warning as to the nature of the chemical, therefore liable.
Smith v Leech Brain [1962] - S had a vulnerability to cancer and because of employer's negligence, hot molten metal splashed on the lip causing cancerous tissues to develop and for him to die 3 years later. Held that employers responsible as injury by burning (type) and the way it had occurred (splash) was reasonably foreseeable and therefore D was liable for full extent of damage, even if his death had not been foreseeable.
Malcolm v Broadhurst [1970] - After accident, husband’s personality changed and he became bad tempered, meaning that his wife could not work for some time because of this. Could claim and held that there was no difference between an egg-shell skull and egg-shell personality.
Lagden v O’Connor [2003] Overrules Liesboch (that damages for which D is liable cannot be increased by reason of the C's impecuniosity [lack of money]). L's car was damaged due to O’s negligence. He was unemployed and could not afford to pay for hire of replacement car so signed agreement with credit hire company, which would give him hire car and help him claim from O’s insurers. It was more expensive than ordinary hiring. Rule that C has to set off benefits received does not apply to a benefit which the C has no choice but to accept (he could not afford anything else and had no choice as to whether he wanted them to help him handle the damage claim). Held that the principle that D must take C as he finds him applies to the economic state of the claimant as much as to his physical or mental state, and his lack of means was not too remote a factor to take into account.
Darby v National Trust [2001] - D drowned while swimming in pond of stately home under NT's care. Wife said that they should have warned of drowning, as there were no signs in the area, even though the NT knew that people often swam there. NT said that this pond was no more dangerous than others and drowning was obvious (no duty of occupier to warn of obvious danger). Wife said that they should have warned of possibility of contracting Weil's disease, because then the husband would not have swam. Held that warning of Weil's disease was very different to warning of drowning, and breach of duty of warning for Weil's could not support claim for damages attributable to different cause (since risks were intrinsically different, so were any dependent duties). However, there was a question of whether the husband was a lawful visitor (if there had been signs, these would've kept him on the parts of the grounds where he would've been so), or a trespasser?
Mulkay v MOD - Sergeant fired a cannon near C whose hearing was affected. He subsequently sued the MOD for the sergeant's negligence. Court said that you cannot sue for issues arising from battle. There is no duty or liability in this situation regardless of how foreseeable the injury is.
Bourhill v Young [1943] - A pregnant woman got off a tram and heard a crash. She went round the side and saw the aftermath of a traffic accident between a motorcycle and a car. She went hgome and subsequently had a miscarriage (nervous shock). She sued the motorcyclist's esate but failed as it had not been foreseeable that his accident would harm her. Duty "only arises towards those individuals of whom it may reasonably be anticipated that they will be affected by the act which constitutes the alleged breach."
Palsgraf v Long Island Railroad - D's servants negligently pushed X who was attempting to board a moving train, and caused him to drop a packet containing fireworks. Resulting explosion knocked over some scales which struck the claimant many feet away, injuring her. Held that "if no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless...does not take to itself the quality of a tort because it happened to be a wrong". No reasonable person could have foreseen that harmless package contained fireworks.
Farrugia v Great Western Railway [1947] - GWR had goods lorries, one of which was negligently loaded too high. In travelling under a bridge a box fell off and hit F, a child who had been chasing the lorry trying to get on. Court said that this did not matter, as it was foreseeable a box might fall off. It didn't matter as to who it fell on or what they were doing.
Smith v Littlewoods [1987] - D were not liable when vandals entered empty cinema and caused a fire which spread to property next door. "So far as Littlewoods knew, there was nothing significantly different about these empty premises…people do not mount 24hr guards on empty properties". They did not know of previous fire incidents and the cinema did not pose as an exceptional fire risk.
Clark v Winchurch [1969] - Slow moving traffic queue was preventing C from pulling out. D flashed his lights to let him go and as C did he collided with a motorcyclist. Was D liable? Court said he owed no duty when he flashed his lights, and was therefore not negligent. Lights meant "I'm here", not "it's safe".
Anns v Merton LBC [1978] - Can an LA which has a duty to inspect building sites be sued by someone whose house has been badly constructed? There is liability - whether there was a sufficient relationship between the two (reasonable foreseeability) and then if so, if there are any limitations.
Yuen Kun Yeu v Attorney-General for Hong Kong [1988] - Investors lost money by relying on negligent accounts by auditors.
Murphy v Brentwood District Council [1991] - In relation to imposing duty on local authorities, where a defect in a building was discovered before any personal injury or damage to property other than the defective house itself had been done, the expense incurred in rectifying the defect (or vacating the premise) was pure economic loss and therefore irrecoverable in tort.
Hall v Simons [2002] - Solicitors were sued for negligence. They relied on the
immunity of advocates in negligence suits. Held that public policy arguments in favour of exemption were no longer appropriate. Standards of advocacy had not declined, cab rank rule argument was unverifiable, courts were well able to handle problems of relitigation. Therefore, no more exemption.
Watson v British Boxing Board of Control [2001] - BBBC required doctor to be by ringside, but no resuscitation equipment. Therefore brain damaged by the time reached the hospital. Liable because they were foreseeable injuries, people affected and no policy reasons to negate.
Islington Borough Council v University College London Hospital [2005] - As a result of hospital's negligence, X suffered a stroke, and the BC had to pay a lot of money for her residential care. However, no compensation for the BC as it was pure economic loss. This is quite hard on the BC as if it is a large body (i.e. a hospital) there is statutory equipment in place to claim back.
Customs & Excise v Barclays Bank [2006] - C&E wanted Barclays to freeze the accounts of some criminals but they did not act quickly enough so they were able to empty their accounts. On policy grounds the bank had no duty of care, as they were not required to do anything, but had had it forced upon them and then innocently not done it. This was not like WHITE v JONES.
In cases where liability has been imposed for economic loss, it is not normally because the claimant has relied on it, C&E had not. The bank was already in contempt of court for failing to obey the order, so there was no need to impose civil liability on top. There was also a floodgates argument. However, was the bank a contemnor? There was no suggestion it had knowingly and deliberately failed to act on the order, they just failed to take reasonable care.
Still, policy says that wrongs should be remedied and this one against C&E is through the bank. It is a very debateable case.
Stradhar v National Environment Research Council [2006] - NERC had a department to carry out a geological survey of Bangladesh aquifers so that the government could make wells. NERC tested the water and although it was clear of dirt, it was contaminated with natural arsenic. Basis of NERC's negligence was that they should've tested for this. The claim was struck out, as there was no notional duty of care, and no proximity.
Spartan Steel v Martin [1972] - An electric foundary's cable was dug up and therefore put out of action for 14 hours. The foundary did not own the cable but it was through that that it was supplied. No case as it is a risk that they ran, and therefore there was no rule for seeking compensation.
Swinney v CC of Northumbria Police [1997] - Police negligence in losing information that was in a notebook. CoA thought there was liability, although they normally do not support suing the police.
Palmer v Tees Health Authority [1999] - Schizophrenic guy told psychiatrist
that he heard voices telling him to kill. Held there was no proximity because you cannot really tell who victim will be.
Jones v Department of Employment [1989] - DOE negligently turned down his application. He was rejected, but as an applicant he could've used the international appeals procedure, or have gone to judicial appeal. There were more than enough remedies available.
Clunis v Camden & Islington Health Authority [1998] - X who had mental
disorder was discharged from hospital and put into care of CIHA. Said that if they had checked him properly, he would not have had the opportunity of committing manslaughter. Held that public policy prevented him on relying on his criminal act to show negligence. Also, there was nothing in Mental Health Act to show that Parliament wanted to confer a private law right of action for breach of statutory duty to provide care.
Spring v Guardian Assurance [1995] - If you speak badly of someone in a reference, there is normally no remedy unless they were malicious or lied. What happened when someone wrote a reference negligently (i.e. confusing one person with another)? Employee wanted a reference and got a bad one. Misrepresentations were made negligently and on the basis of rumour. Normal remedy for defamation had to be supported by negligence. They were negligent in that they had perpetuated inaccuracies and not researching the source. A misrepresentation to a third party, not to claimant themselves. There is no risk of floodgates, but these actions open up the employer to great financial damage, as the employee cannot take any insurance out against this.
Hill v CC of West Yorkshire [1989] - H's daughter was murdered by the Yorkshire Ripper so she tried to sue the police and failed. Not only were there many potential victims, but you cannot have the police always worrying about being sued for not catching people.
Marc Rich & Co v Bishop Rock Marine Co - An organisation called the classification society which paints plimsoll lines (measure of how heavily a boat can be loaded) along side of ships and inspects them for seaworthyness. One ship sank even though it had been inspected - the claim was brought by the owner of cargo, but it eventually failed in the HoL. The classification society would not be able to carry out their jobs as well if they were to be targets for lawsuits.
Perrett v Collins [1998] - By statute aircraft have to have a safety certificate and there was a scheme for light aircraft to be checked. X built his own plane but some parts were incompatible - something which was not noticed by the checker from the scheme. The plane crashed and X sued. MARC RICH was distinguished as PERRETT was about personal injury, not cargo.
Stovin v Wise [1996] - Local authority not liable for negligently failing to exercise the power it has. The LA had determined to improve a section of road, but did not ultimately do so. Not liable for resulting accident as there was no statutory duty.
Gorringe v Calderdale MBC [2004] - The LA was responsible under the Highways Acts 1980 for the maintainance of a country road. G drove too fast towards the crest of a hill, collided with a bus and was injured. G argued that LA's failure too paint 'SLOW' on the road surface constituted a breach of statutory duty. HoL said that it was not possible to impose upon a LA a common law duty to act based solely on the existence of a public law duty. A common law duty could not grow parasitically out of a statutory duty not intended to be owed to individuals. Because the complaint was that they had done nothing, the action failed.
Capital & Counties v Hampshire County Council [1997] - Fire brigade were negligent in not putting out fires. They would not have been liable if they did not get there (for whatever reason), but they are if they make the situation worse by turning off the sprinkler system.
Barnes v Hampshire County Council [1969] - A child was let out of school early and caused a traffic accident. Teachers who let schoolchildren go after class without adult supervision may be held liable if something happens.
Van Oppen v Clerk to the Bedford Charity Trustees [1989] - X's neck was broken whilst playing rugby. There was no liability but they were sued for not arranging insurance cover for pupils. Still no liability though.
Barrett v Ministry of Defence [1995] - B drank himself to death. Were owners of a bar liable if someone drinks such large amounts of alcohol that they die? No, but they were liable because of negligent way they dealt with him after noticing he was sick, although there was reduced liability because of contributory negligence.
Home Office v Dorset Yacht Co [1970] - Borstal authorities who failed in their duty of supervision of young offenders were responsible for damage done by escaping inmates in the immediate vicinity and in the course of escape. Where the defendant has control of both the claimant and the wrongdoer, e.g. in a prison, the case for the imposition of a duty is particularly strong.
Carmarthenshire County Council v Lewis [1955] - The LEA was found liable for not having a proper gate in a schoolyard which allowed a child to wander out and have an accident which caused someone to get killed. They knew it was foreseeable that this might happen.
Mercer v South Eastern and Chatham Ry Management Committee [1922] - When a railway crossing barrier was locked, a pedestrian wicket gate was also locked. People came to rely on knowing that when this gate was locked it was not safe, and when it was open, it was. There was no statutory duty for D to lock the gate, but they did it anyway. A jogger went through the gate when it was open and was ran over by a train. The D's were liable because people had come to rely upon this.
Kent v Griffiths [2001] - Woman with asthma attack called ambulance who said they were on their way a few times. They reached her really late and there was evidence that a respiratory arrest could have been prevented had it arrived on time. If she had been informed of the delay, she could have been brought to the hospital by other faster means. An ambulance service could owe a duty of care to an individual member of the public, once an emergency phone call providing the personal details of that person had been accepted by the service, therefore LAS was liable in damages to K.
Different from Police and Fire Brigade because they are there to protect general public, whereas ambulance has more of doctor/patient relationship. "This is not strictly an 'omission to act' case in the sense of a failure to address a potential problem at all (unlike Stovin v Wise), but rather it is a case of negligent performance of a duty undertaken".
AB v Leeds Teaching Hospital NHS Trust [2004] - Action brought by the bereaved parents of children who had died and whose body parts had been used. Not recoverable just due to anger.
Dulieu v White & Sons [1901] - Horsecart negligently driven into the bar of the pub where X was serving. Not necessary that claimant should actually be in danger, as long as she believes reasonably that she is. Enough that the claimant is within the zone of physical danger even if what triggers the mental injury is the sight of what happens to others.
McLoughlin v O'Brien [1983] - M's daughter was willed and her husband and other children maimed. She saw this at the hospital and claimed for shock. CoA said that on public policy you can only claim if you were in an accident or saw it happen. HoL reversed this and said that C could win if shock was a reasonably foreseeable consequence. Lord Wilberforce allowed an incremental development as he said she had seen the 'immediate aftermath'.
Alcock v Chief Constable of South Yorkshire Police [1992] - Aftermath of the Hillsborough disaster. A saw this on the TV and feared for relatives that were there. There can be no recovery for psychiatric illness 'caused by the accumulation over a period of time of more gradual assaults on the nervous system'. Must manifest itself in some recognizable psychiatric or physical illness. Sensations of fear or mental distress or grief arising from negligence cannot be claimed for.
Frost v Chief Constable of South Yorkshire Police [1999] - Traumatised police officers who were there won their case because they were employees and rescuers (normally get a favourable deal in psychiatric cases). HoL said that distributional justice (just outcomes and consequences) had to be applied and therefore police couldn't get anything either.
Chadwick v British Transport Commission [1967] - Volunteer helper at the scene of a rail disaster suffered mental trauma as a result. He had been in
physical danger from the collapse of the wreckage, so it was enough even if what triggers the mental injury is the sight of what happens to others.
Hunter v British Coal Corporation [1999] - There was no case in which a person who had not been present at the scene of an accident, and who had at no time after the accident attended the scene as a rescuer, had been able to recover damages for psychiatric injury as a primary victim. H's case had failed to disclose any basis for a conclusion that he was an actor in the fatal accident, and the necessary physical and temporal proximity to the accident had not been shown. Furthermore, there was nothing in the judgment in ALCOCK which suggested that H could be treated as a secondary victim.
Farrell v Avon AHA [2001] - F was called and told that ex-girlfriend was giving birth. He had not known about the pregnancy. Rushing to the hospital, he was told that baby was dead and given a dead baby to hold. Then told that mistake, and baby was alive. Had post-traumatic stress (even though delayed onset) caused by incident. Could claim as he was primary victim, and thus test was whether A ought to have reasonably foreseen that its conduct would subject guy to risk of psychiatric illness. Ruled that it would've.
McFarlane v EE Caledonia [1994] - In the Piper Oil disaster, someone on a neighbouring ship witnessed the burning of an oil rig, and because of various proximity factors he succeeded.
Greatorex v Greatorex [2000] - C was shocked by D's exposure of himself to danger. D seriously injured in road accident due to his fault. C, a fire officer and D's father, attended at the scene and contended that he had suffered post-traumatic stress from seeing D's injuries. C thus fulfilled requirements for secondary victim. But claim dismissed as D, who was primary victim, did not owe a duty of care to others not to inflict shock upon them by the self-infliction of his injuries.
Dooley v Cammell Laird & Co [1951] - Crane driver was driving a badly maitned crane. The rope of this broke and the driver thought he had killed people below. Not only could he sue for believing he had caused the accident (secondary victim), but also the people who escaped could too.
Attia v British Gas [1988] - D negligently destroyed C's house by fire and C suffered from psychiatric illness. Held that there is no reason in principle why damages for nervous shock should not be recovered after witnessing property damage; usually in property damage cases issue of psychiatric harm arises as consequential loss as a result of the damage to the property, and the test is remoteness of damage.)
North Glamorgan NHS Trust v Walters [2002] - The negligence of NG caused a baby to die before its mother's eyes. CoA said she could sue them as a primary victim because they counted her period of stress of as a single horrific incident.
W v Essex County Council [2001] - Couple underwent training to become foster parents and expressly said that because they had young kids, did not want sexual offender. Council gave them G, who was a known sexual offender and subsequently abused their children. Held that while usually local authority had no duty of care to anyone when exercising statutory discretion, here no policy reasons therefore matter becomes justiciable. Fair just and reasonable to impose duty on them and social worker should have told them.
Butchart v Home Office [2006] - Prison put B in a cell with a suicidal prisoner who killed himself infront of B. Case fell outside of HILLSBOROUGH ones, as where the HO knew or ought to have known that a remand prisoner was vulnerable to psychiatric harm, the duty of care that was owed to that prisoner by the HO included a duty to take reasonable steps to minimise the risk of psychiatric harm.
Barber v Somerset County Council [2004] - Teacher repeatedly showed and told that he could not cope with the workload, and even took 3 weeks MC off because of stress and depression. School still didn't do anything. Held liable because since they knew he was more susceptible to stress, they should have done more, even
though everyone else was overworked too.
McLoughlin v Jones [2006] - Solicitor negligently handled a criminal defence therefore M sued for psychiatric harm as he was sent to prison when he should not have been.
CJD Litigation: Group B Plaintiffs [1998] - Group of children injected with Hartree HGH in clinical trial which could have infected them with CJD. Held that there was a duty of care owed to them to avoid not only physical disease but psychological disease, psychiatric illness could be caused by the Department's negligence and it is claimable for damages. They sustained psychiatric illness from fear of the future and it should have been reasonably foreseeable that anyone injected with Hartree HGH would have a psychiatric illness after the increasing publicity about getting CJD.
Mcfarlane v Tayside Health Board [1999] - No compensation for the birth of a healthy child following a failed sterilisation. It would have been different had the child been disabled.
Parkinson v St James & Seacroft University Hospital [2001] - CoA applied the disability exception. If the sterilisation was to prevent the birth of a disabled child due to genetic factors, then damages would be correctly awarded. However, if the sterilisation was not for this purpose, then doctors are being found negligent for something out of their remit.
Rees v Darlington Memorial Hospital [2003] - A disabled mother gave birth to a healthy child. Reversal of MCFARLANE as she was awarded £15,000. This is a conventional sum, and no more than this is given, even if the child is disabled.
Emah v Kensington - It is not reasonable to expect a mother to have an abortion if a sterilisation fails. Egg shell principle applies in that you must take a person's principles and decisions as you find them.
McKay v Essex Area Health Authority [1982] - Mother who contracted rubella gave birth to a seriously disabled child. She claimed in the name of the child for being born. Lost, because of the 'sanctity of life' - you cannot claim for your life in damages. It was a natural disability.
Deyong v Shenburn [1946] - An actor's coat was stolen from a theatre, no negligence on part of theatre.
Edwards v West Hertfordshire Group Management [1957] - A doctor's property was stolen from a room at the hospital, no claim allowed.
Bradford v Pickles - P cut off ground water to his neighbour's property. No liability in nuisance even if his actions were malicious, as he was within his rights to do so.
Stephens v Anglia Water Authority [1987] - Should the answer to BRADFORD have been yes, they would have been liable, but as it was not, they were not negligent as there was no duty in care.
Leakey v National Trust [1980] - The owner of hilltop land was held liable for rocks and other debris that fell on land beneath. NT tried to take the old position regarding acts of nature but failed, as there was now a duty to prevent this. Movement from ruling based on classification of specific rights and duties relating to the land, to an increase in the role based on the standard of reasonableness.
West Bromwich Albion FC v Medhat El-Safty [2006] - Promising footballer was mistreated for a knee injury. The football club also saw fit to sue the doctor in terms of the money lost due to him not being able to play. This claim failed.
The Aliakmon [1986] - D carried steel coils on his ship belonging to X. These were damaged by D's negligence, but by this time X had already contracted to sell them to C, regardless of what condition they were in (took on the loss). Could C sue D? No, as D had damaged X's property, which was a mere economic loss to C.
Junior Books v Veitchi Co [1983] - X did not sue D (contractor), but Y (sub-contractor). He won, but this is wrong after MURPHY.
Simaan v Pilkington [1988] - A sheikh who had contracted S to build a palace who engaged X as sub-contractors, who got window glass from P. P messed up the order and S had to put it right, thus incurring a loss. S should have sued X, who in turn could've sued P, instead they just sued P directly. This failed as there were already contracts in place. Trying to circumvent this meant trying to get around the protective clauses in the contracts. If there is a contractual scenario, you must follow the chain of litigation.
D&F Estates v Church Commissioners for England [1989] - Damage from one component in a building was caused by a defect in another. Repairs to a defect in a building which have not caused injury to persons or other property are pure economic loss. Any harm a defective product causes to itself is economic loss; a claim can only be made if it damages other property.
Aswan Engineering v Lupdine [1987] - C bought some waterproofing from D, who supplied it in X's pails. However, the pails melted in the heat. C sued D for breach of contract, but D went into bankruptcy. C then sued X for negligence. Held that X was not negligent, as they did not know what use the pails would be put to, and couldn't've foreseen that they would be used in the hot sun.
Hedley Byrne v Heller [1964] - C was approached by D to arrange an advertising campaign on credit. C got their bank to approach D's bank to ascertain D's credit status. What the bank said was very vague, but C went ahead and did the work, only to never be paid. They tried to sue D's bank. Only liability if D had made a statement assuming responsibility, 'rely on me', or if there was a special relationship. The bank had a disclaimer which got around the first point.
Mutual Life v Evatt [1971] - D, an insurance company, had a policy with C. C noticed there was a related company to D in which he wanted to invest. Asked D if the company was good and was told yes; he invested and lost all his money. Claim failed because there was no special relationship. There would only have been one if D was in the business of giving specialist advice, which they had never claimed to be.
Chaudry v Prabhakar [1989] - The restriction in MUTUAL LIFE has never been used. A woman wanted to buy a car, so she asked a male friend to help her choose one. He found one and advised her to buy it as he had checked it over. However, once she bought it, the car turned out to be worthless. The woman sued the seller and her friend. Claim succeeded against her friend; although he was not a motor expert, she had relied on his advice to her detriment.
Smith v Bush [1990] - You normally have to get a mortgage to buy a house, and a building society had engaged a surveyor to check all houses that it was considering giving loans for. The buyers of the house did not bother to get their own surveyor, and just relied on the bank. However, it was found after the loan and purchase that there were serious structural faults which cost the buyers in repairs. Surveyor claimed there was a disclaimer, but the Unfair Contract Terms Act invalidated this if they were not reasonable. HoL agreed that the disclaimer was not so the surveyor was liable.
Caparo v Dickman [1990] - Company had to have an audit, but this was done negligently. C saw that the company was doing well, so they took it over, but soon realised it was in a bad state. C sought to sue the auditors. Court of FI said that the auditor was liable to the shareholders, but HoL said there was no liability at all, as the purpose of the audit was for the current shareholders to call to attention the directors of the company, not for people to decide how/whether to sell shares.
C was also a predatory company which knew what it was getting into. Allegedly, the auditors were fraudulent, but this does not allow C to hurt D, the company which was also stung.
Williams v Natural Life [1998] - A company set up by X to promote healthfoods also advised others how to set up franchises. NL managed to get W to invest in a shop, but it failed and they lost money. W sued NL for their advice, but as they had no money it folded. W then sued X, as he had produced the negligent advice, even if it was through NL. He was found not negligent, as individuals and companies have different legal personalities. The legal separation of business personalities is one thing when it is protecting a shareholder, but what about when it is protecting a director? In limited companies, a shareholder is only liable to lose their investment; they are not liable for the debt of the company if it fails to be successful.
Merrett v Babb [2001] - Surveyor who worked for a firm that went bankrupt had no insurance, so he was sued. He tried to argue that he was not liable, but he was both personally and vicariously so through the company.
Law Society v KPMG Peat Marwick [2000] - LS regulates solicitors, and if a firm looks suspicious they can shut them down. If clients lose money, then the LS has a compensation scheme they can claim from. All solicitors must have their accounts audited every year. However, KPMG were negligent and failed to pick up the fact that one firm was fiddling its customers. As such, they were liable because all solicitors were required to send a report to the LS.
Chappell v Somers & Blake [2004] - A solicitor was instructed to wind-up the deceased Mrs X's estate and distribute the revenue to a church, but they did nothing for several years, meaning that the estate missed out on the opportunity to earn revenue by being let etc. The executrix of the estate brought a claim which the solicitors attempted to strike-out, claiming that any loss was suffered by the church. This was refused as the church might claim from the executrix. It was decided that the executrix could bring proceedings as a matter of "practical justice".
Gorham v British Telecommunications [2000] - D was a life-insurance company which gave G bad advice so that he joined a pension scheme which gave him less than he would've gotten if he had joined another. Was D liable to G's family after his death for this negligent advice? CoA said yes, in that making provision for a family after death was analogous with making a will. Even though this was a company trying to sell its product, rather than a firm of solicitors, CoA thought the analogy still worked.
Henderson v Merrett Syndicates Ltd [1995] - People lost money underwriting insurance risks. They claimed that the people who had induced them to do this were negligent. There were potential contractual claims here, for which there would've been no problem in seeking pure economic loss. However, the limitation period for these had expired, so they sought to bring it within negligence. Where a person assumed responsibility to perform professional or quasi-professional services for another who relied on those services, the relationship between the parties was in itself sufficient to give rise to a duty on the part of the person providing those services, so the claimants won. Hedley Byrne not just restricted to statements, and also applies to professional services.
White v Jones [1995] - A father had two daughters who he fell out with and decided to disinherit them. However, they all then made up, so he wanted to draw up a new will. Unfortunately, his solicitors took such a long time to do this, that in the meantime the father died, meaning that the daughters were still disinherited. The assumption of responsibility by a solicitor to his client, who had given instructions for the drawing up of a will for execution, extended to an intended beneficiary under the proposed will where it was reasonably foreseeable by the solicitor that a consequence of his negligence might result in the loss of the intended legacy without either the testator or his estate having a remedy against him meant that the daughters eventually won.
The dissenting judgement was that there was no relationship between the solicitors and the daughters and also thatno damage had been done to them (they had not gained any money, but they had lost none either). Still, this would've been the solicitor committing a negligent omission as the daughters had missed out on a chance to get richer. They had had a reasonable expectation of receiving this money, so even though the solicitor's negligence caused a loss to someone else, practical justice suggests that the claim should win.
Anufriyva v Southwark LBC [2003] - Group of asylum seeker were looking to claim damages against the Home Office under Article 8. They eventually failed in the CoA.
Rigby v Chief Constable of Northamptonshire [1985] - In using a gas bomb to flush a criminal out of a shop, police destroyed the shop. Claim was for excessive degree of force, and they had gone beyond what they needed to do for their public duty. Taylor J said that the choice of the police to equip themselves with flammable weapons (even though there were alternatives) was a policy decision. However, the police were negligent in failing to have firefighting equipment there also.
D v East Berkshire Community Health NHS Trust [2005] - There was no liability for social workers who took children into care against parents' wishes. There is liability for negligent non-interference though, but parents saying children shouldn't've been taken into care still have no basis.
Jain v Trent Strategic Health Authority [2007] No liability for a PA who took steps to close an old people's home. They had the powers to inspect and to close the home if things were not as they should have been. There had been a reporting of a number of deaths at the home, so the PA decided to close it. However, the deaths were not suspicious so the PA's closing order was quashed. Still the CoA said that they still could not sue.
Kane v New Forest DC [2001] - A busy road near a housing development had a path built across it by the LA. K was injured going along the path, so that LA was liable as they had created the danger.
X (minors) v Bedfordshire County Council [1995] - Several cases in one regarding abuse and disadvantage. The latter sued LA for the negligence of experts employed by the LA who had not detected their condition. HoL said that they could proceed, but we don't know what the ruling is. Abuse cases failed as the LA was negligent in not taking children in care AND that they were negligent in taking them into care - both failed.
Barrett v Enfield London Borough Council [2001] - B was taken into care but suing for not being looked after. LA can be sued for failing to look after someone after they've taken them into care.
British Waterways v Severn Trent Water [2002] - D had a license to discharge water from their sewage operation into C's waterway. However, when the license expired, D kept on doing it, which was trespass.
Lemmon v Webb [1984] - Planting trees which grow over a neighbour's boundary is an indirect incursion as it was the tree that grew in a certain way, therefore it is not trespass but it may be private nuisance.
Anchor Brewhouse Developments v Berkley House Ltd [1987] - A crane on A's land overhung the adjoining land of B. Although there was no damage done, this was still a trespass. The claimants were entitled to injunctions to restrain continuing trespass, but the defendants would rather have paid damages, as an injunction would've meant they could not continue with work. As such, it is open to the courts to award this.
Bernstein v Skyviews and General Ltd [1978] - Airplanes flying over B's land was not a trespass, as his right to the airspace extended only to a height that was necessary for ordinary use and enjoyment of the land and its structures.
Director of Public Prosecutions v Jones [1999] - Some people gathered on the grass verge by the highway near Stonehenge to hold a peaceful demonstration. HoL said that this was not a trespass so long as it was reasonable and caused no obstruction. Lord Irvine added that any reasonable and usual mode of using the highway is lawful, provided it is not inconsistent with the public's right of passage.
Conway v George Wimpey & Co Ltd [1951] - GW had told his employees not to allow anyong in their lorries who did not work for the company. C from another company got a lift with X but in exiting the lorry he hurt himself. C tried to claim that GW was vicariously liable for X. However, as GW had given the instruction previously, C was a trespasser, and GW was also not aware of X's practice of giving lifts, so he was not vicariously liable. Just because X had claimed to have authority on behalf of GW, does not give C a right, even if he did not know of X's fib.
League Against Cruel Sports v Scott [1986] - Persistent hunting close to prohibited land in circumstances where it was effectively impossible to prevent trespass by the hounds could amount to evidence of an intention to trespass.
Smith v Stone [1647] - D claimed that he was carried onto C's land by hoodlums; involuntary entry without negligence does not create liability.
Yelloly v Morley [1910] - A lease was set up in which the landlord may enter the flat if the tenant did not pay the rent, or adhere to other conditions (i.e. making noise, not cleaning up mess etc). The tenant had put up a political poster which the landlord disagreed with, so he entered the property and destroyed it. This was an action for trespass, as it was not valid grounds for entry.
Fielden v Cox [1906] - Defendants who had set up devices by the highway to catch moths did not lead to an injunction as their incursion was too trivial.
The Calgarth [1927] - "When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters" (Scrutton LJ)
R v Jones and Smith [1976] - Son was held to be a trespasser when he entered his father's house with the intention to steal some goods, thereby knowing or being reckless as to whether his entry was in excess of the general permission that he had to enter his father's house.
The Six Carpenters [1610] - X refused to pay for vittels at a pub, but this was held as an omission not a positive act, so there was no trespass ab inito. Criticism is that the lawfulness of an action must be judged when it's taking place, not retrospective.
Cinnamond v British Airways [1980] - Mini-cab drivers at airport abused the authority that was given to them to pick up travellers, this was ruled as trespass ab initio.
Cope v Sharpe [1912] - D went onto C's land to prevent fire spreading onto land where his master had shooting rights.
Southwark London Borough Council v Williams [1971] - Squatters' ference was that they had invited homeless people to live in the property. Denning said that the courts must "take a firm stand [on this issue] and refuse to admit the plea of necessity".
Rigby v Chief Constable of Northamptonshire [1985] - Even where necessity is a defence for trespass, it cannot be a defence for a different tort (i.e. negligence).
Manchester Airport v Dutton [2000] - It is possible to obtain an 'order for possession' even when the rights that the claimant has over the land would not be sufficient to support an action for trespass, i.e. if C only had a license to 'enter and occupy' the site.
Countryside Residential v Tugwell [2000] - The above approach was not extended to a situation where the license was to 'enter and carry out work'.
Jaggard v Sawyer [1995] - Doubt as to the automatic injunction from BREWHOUSE, but it turns on the question "would it be oppressive to the defendant to grant the injunction to which the plaintiff is prima facie entitled?" (Millett LJ).
USA: Edwards v Lee's Administrators [1936] - Some caves that had been owned as tourist attraction were found to be going under a neighbour's land. They sued for a proportion of the profits.
Collins v Renison [1754] - You may only use reasonable force to eject someone; if the force used is not, then you cannot rely on self-help.
Arthur v Anker - Clamping a vehicle is not civilly actionable provided ther is a clear notice which prohibits parking, warns of clamping and promises release for a fee. Not a tort as the driver is taken to have consented to the risk of clamping and having to pay for release - in the absence of this, the clamper is liable for trespass to the car.
A-G v PYA Quarries [1957] - Contravenes principle of legality from rule of law (clear, precise and non-retrospective) - you must know in advance what is a crime. Regarding public nuisance, it is not always clear when one has been committed.
R v Madden [1975] - A single hoax telephone call falsely stating that there was a bomb in a factory affected only 8 security officers, so there was no public nuisance. 8 is too small for a 'class' of subjects, but if the workers had had to be evacuated, that would have been different.
R v Rimmington & Goldstein [2006] - Over 9 years, R sent 538 postal packages containing racially offensive material to members of the public selected by reason of their perceived ethnicity, which caused annoyance and distress. HoL held that there was no public nuisance, as the injury was not suffered by the community as a whole.
Goldstein - Was an Orthodox Jew in Manchester who bought food to sell from his friend in London. G owed X some money so he sent him a cheque with some salt (referencing Kosher practice). However, some leaked out at the sorting office, and the building was evacuated, and the second post of the day cancelled as it was thought to be Anthrax. Court said this wasn't public nuisance, as although the SHORROCK criteria were fulfiled, G had had no way of foreseeing that the salt would leak out.
R v Johnson [1997] - Obscene calls to 13 women, the CoA decided that the cumulative effect of these constituted pulic nuisance. However, in the light of the new law, the incident was suffered by separate individuals, not society as a whole.
Tsunami hoax case - X pretended to be from the Home Office and emailed relatives informing them of the deaths of their loved one. Again, this was decided wrongly as public nuisance as each person suffered separately.
R v Shorrock [1994] - S allowed his field to be used for a rave that he believed was for charity and would not have any alcohol. He was paid £2000 for this. However, when he left and the rave started, there were over 275 complaint calls over nuisance to the police. S was held liable on the basis that even if he didn't know about the public nuisance, he ought to have been aware of the risk of it taking place.
R v Wheeler [1971] - W kept a puma and two leopards in his garden near a highway. They scared people going past.
R v Holme [1997] - H would loudly play the same chord on his piano all night and imitated an ape on the highway.
Corby Group Litigation Claimants v Corby Borough Council [2008] - CG brought a public nuisance claim against the CBC (a local authority) for personal injury damages. They were born with upper limb deformities at a time when the LA had been developing contaminated land, and they claimed that their mothers' exposure to this during pregnancy had caused it. CBC's argument was that, following recent private nuisance cases you couldn't recover damages for public nuisance under personal injury. CoA said that this was wrong, as the essence of the right in public nuisance is not to be affected by someone else's action that would endanger life.
Benjamin v Storr [1894] - C's coffee business was disrupted by D's carriages blocking the way. C could recover damages.
CANADA: Hickey v Electric Reduction Co. of Canada [1970] - ERC had polluted an area of the sea, and H (a group of fishermen) brought damage claims saying their livelihoods had been affected. The Canadian Court said that they had no special damages, as all fishermen had suffered the same loss.
Tate v Lyle Industries v Greater London Council [1983] - D interfered with C's public right to navigation, and caused C to have to spend over one million pounds in dredging. C's first claim for private nuisance failed as he did not have the necessary proprietary interest in the riverbed, but his claim for public nuisance succeed, as D had interfered with everyone's right of navigation along the river. C had suffered more as he had had to pay a large amount for the dredging.
Hunter v Canary Wharf [1997] - Dust and interference with TV reception so no claim as nuisance is a tort against the land. Nowadays, this might be recognised as an actionable nuisance though. It was ruled no on the facts but this is because it was not nuisance to allow the landowner to build as high as he likes (it was the presence of a building which was preventing the TV signal). It would've been different had it been people/activity/building on the land that were maliciously preventing the signal from getting through. A defendant's conduct makes all the difference (Lord Cooke).
Hussain v Lancaster City Council [2000] - It specifies that it must be the owner on the owner's land. This then leaves out third parties who do something bad on someone else's land. This definition has not been taken up over HUNTER.
Smith v Giddy [1904] - D's tree was overhanging C's land. Held to be a nuisance as it was an example of encroachment.
St Helen's Smelting v Tipping [1865] - Noxious fumes were damaging the neighbour's trees. So long as you suffer damage, it does not matter if you live in a neighbourhood full of factories (locality is irrelevant).
Grosvenor Hotel v Hamilton> [1894] - Vibrations damaging neighbour's property.
Halsey v Esso Petroleum [1961] - EP's warehouse was smelly and noisy, and noxious acid smuts were damaging the neighbour's washing and car. Court said that even allowing for the location (London) that the warehouse's emissions were unacceptable.
British Celanese v Hunt (Capacitors) [1969] - D stored strips of metal foil, which were caught by a gust of wind and blown onto C's electricity substation; this caused a power failure that halted the production at C's factory. Lawton J held that an isolated happening can create an actionable nuisance.
SCM (United Kingdom) Ltd v Whittall & Son Ltd [1970] - Builders were preparing to build a wall, but whilst doing so they damaged an electricity cable which caused C's factory to shut down. Distinguished from CELANESE as that concerned an activity (storing strips), whilst here there was none. However, what constitutes an 'activity'? Put into place a restriction in that the damage must arise from a 'state of affairs'.
Crown River Cruises v Kimbolton Fireworks [1996] - Fireworks that were launched from a barge dropped onto other barges, so the display was held to be a nuisance. Again, this relates to the broadness of what is an activity.
Anglian Water v Crawshaw Robbins [2001] - A water repairman accidentally struck a gas pipe which caused water to leak through people's radiators. The judge rejected SCM's 'a one off incident is not enough' and went with CELANESE.
Robinson v Kilvert [1889] - D leased the upper floor of a warehouse to C so that C could use it to store his paper. D used the lower floor for manufacturing which required the air to be hot and dry. For this purpose he used a heating apparatus which damaged C's brown paper. However, it was found that the increased heat would have had no impact on normal paper, so there was no actionable nuisance.
McKinnon Industries v Walker [1951] - If interference with a neighbour would only have damaged sensitive plants (i.e. orchids) then there is no remedy. However, if D's actions would also have affected normal plants, then C can claim the full extent of damages actionable (i.e. both normal plants AND orchids). Exercise of egg-shell skull rule. Is this sort of behaviour by D affecting the land? Whether X is abnormally sensitive to noise etc whilst living at Property A, does not matter so long as A is not affected.
Michell v Darley Main Colliery Co [1884] - However, this sort of damage is not always actionable if the injury is too trivial.
Walter v Selfe [1851] - "ought this inconvenience to be considered in fact as more than fanciful, more than...mere delicacy or fastidiousness, as...materially interfering with the ordinary comfort...of human existence, not merely according to elegant or dainty modes and habits...but according to plain...and simple notions" (Knight Bruce)
Bridlington Relay v Yorkshire Electricity Board [1965] - Domestic TV viewing was seen as a mainly recreational matter, notwithstanding the educational content of some programmes. As such, because it was ruled as recreational, the judge said that there was no actionable nuisance. This would probably be ruled differently nowadays as far more people watch TV.
Network Rail v Morris [2004] - Trains interfered with a recording studio. NR claimed that M's equipment was abnormally sensitive. If ROBINSON was good, there would be no nuisance, but it was held that the use of sensitive electronic equipment was now part of everyday life. You can now recover for interference with TV signals and soundwaves. Although the concept of abnormal sensitivity is helpful, it is still rather unclear.
Heath v Brighton Corporation [1908] - A low buzzing noise emanating from D's lighting works could be heard during the silent parts of a church service but not at any other time. An ordinary person would not have been disturbed, so the action failed.
Sturges v Bridgman [1879] - A doctor extended his surgery and found that they were affected by D's behaviour. He could still claim damages even though D was there first. "What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey" (Thesiger LJ)
Thompson-Schwab v Costaki [1956] - The to-ing and fro-ing of prostitutes was interfering with C's comfort and enjoyment in his neighbourhood. The presence of a brothel in a good class residental area was ruled to be a nuisance.
Laws v Florinplace Ltd [1981] - An area (described as a village environment) was threatened by the arrival of a sex shop. The defendant said that the fears were exaggerated, and provided psychological evidence as to the nature of their customers. However, the court held that in these circumstances there was a triable issue in that D's conduct was a nuisance. This was not so much about the customers themselves, but rather as to how trade was carried out.
Miller v Jackson [1977] - New homes were constructed near a cricket ground which proved to be a nuisance. It was no defence that the cricket ground was established first.
Gillingham Borough Council v Medway (Clatham) Dock [1993] - GBC gave permission to convert a disused dockyard into a port. The permission was given on the basis of economic benefit to the people of the Borough. However, C applied for an injunction on the basis of there being noisy heavy goods vehicles. This was rejected as the planning permission changed a quiet residential neighbourhood into a busy commercial setting - and therefore the noise must be judged against the character of the new neighbourhood.
Wheeler v J.J. Saunders Ltd [1996] - D added two new sheds to his pig farm that C felt were too close to his property. Court said there was a difference a LA's strategic decision and the defendant's one off planning permission. This was the latter, and therefore the neighbourhood did not change. Planning permission is not statutory authority and therefore does not legalise an activity whose inevitable consequence is the nuisance.
Watson v Croft Promo-Sports Ltd [2008] - W sought an injunction restraining CPS's use of their land as a motor circuit. Planning permission had previously been granted for this purpose. However the court held that there was a nuisance and that i) the issue of whether planning permission would change locality was a matter of degree and fact and ii) they applied WHEELER, and found that between a LA and an individual, a change in the neighbourhood is more likely to the result from the former.
Christie v Davey [1893] - After suffering C's singing, D wrote to them to ask them to stop. When they ignored this, he began a campaign of malicious retaliation. As it was deliberate, it was a nuisance.
Hollywood Silver Fox Farm v Emmet [1936] - E was worried that HSFF's advertising was affecting the value of his land. He threatened HSFF in an attempt to get them to stop, but they refused. As such, he caused a disturbance by firing his gun, which made some of the foxes eat their cubs.
Bradford Corporation v Pickles [1895] - D's malicious actions deprived C of water, in a plan that D would be able to make a profit by ensuring that his land was the only one with water. This case should not be seen as going against the rule of other cases, but rather that there is a category of 'non-rights' which are not covered by the tort of nuisance. The right to abstract percolating water is entirely unprotected by nuisance.
Day v Brownrigg [1878] - C's house had been known for 60 years as 'Ashford Lodge', but D, his neighbour, decided to change his house to that name. C sued for nuisance, but the court said that there was no right in the name of the house, so it was not covered.
Sedleigh-Denfield v O'Callaghan [1940] - An LA placed a grill in a ditch on the defendant's land without his permission. This became blocked, and three years later the claimant's land was flooded. It was held that D was responsible for cleaning the ditch and therefore should have realised the risk of flooding; also D had been actively using the ditch so he was aware of it and had been continuing on the nuisance created by the third party LA.
Goldman v Hargrave [1967] - Lightning set trees and bushes on fire. D did not take reasonable steps to extinguish this and was therefore held liable for nuisance.
Holbeck Hall Hotel v Scarborough Borough Council [2001] - HHH fell into the sea as a result of coastal erosion affecting the bottom of the cliffs, which were SBC's property. However no liability arose on the facts because there was nothing SBC could reasonably have been expected to do which would've prevented the landslips responsible for the damage.
Delaware Mansions Ltd v Westminster County Council [2002] - D had refused to take action regarding tree roots causing damage to their neighbours' property. HoL held that they were liable to the current owners even if they had not been at the time the damage occurred. They were continuing a nuisance.
Marcic v Thames Water [2004] - M's home and garden were flooded by badly designed sewers. There was a statutory framework in place to which he could complain, and they would issue notices. As such, nuisance would be the wrong action, as it could not impose obligations over the scheme.
Rapier v London Tramways [1893] - R sought an injunction for noise from a station. The fact that LT had done everything they could to stop it was held to make no difference, the issue was whether he would continue to carry on doing it.
The Wagon Mound (No 2) [1967] - D owned a freighter ship named the Wagon Mound which was moored at a dock. P owned two ships that were moored nearby. At some point during this period the Wagon Mound leaked furnace oil into the harbour while some welders were working on a ship. The sparks from the welders caused the leaked oil to ignite destroying all three ships. Privy Council found that a reasonable person in the position of the ship's engineer would have been aware of the risk of fire. Since the gravity of the potential damage from fire was so great there was no excuse for allowing the oil to be discharged even if the probability or risk of fire was low. A reasonable person, the Council held, would only neglect a risk of such a potentially great magnitude if he or she had a reason to do so, e.g. if it were cost prohibitive.
Khorasandjian v Bush [1993] - A woman was receiving nuisance phone calls to the landline in her parents' house where she lived. It was ruled that she could sue in nuisance, even though she had no proprietary interest. This was overruled in HUNTER, as the people who sued were not only the owners, but also their spouses, children etc. It was held that people who did not have an interest or exclusive possession of the land would not be able to sue. This makes settling claims easier as it reduces the number of claimants.
McKenna v British Aluminium [2002] - A claim was brought by 30 children against BA's factory. Under HUNTER they would not have been able to sue, but the claimants pointed to a breach of EC law. Neuberger J therefore refused the defendant's strike-out actions. However, as it was only a case against the strike-out, more information is needed in this area.
Lippiatt v South Gloucestershire County Council [1999] - The licensees of a council property began to harass others. The council knew of this, but they did not act. They were held liable for the continuing presence on their land of these people who had a tendency to cause damage, not for the individual acts of nuisance caused.
Wringe v Cohen [1940] - If there is a natural projection over the highway, then the occupier is liable in negligence. However, if it is an artificial projection, one idea is that liability is also in negligence, but WRINGE suggests that liability is present, unless it was an observable act of nature, or a trespasser which caused the projection to create a nuisance.
Tetley v Chitty [1986] - The LA loaned out a piece of land for bolt-cutting purposes. They were liable for nuisance as it was a natural consequence of the activity.
Hussain v Lancaster County Council [1999] - H sued LCC for the behaviour of racist council tenants. No liability as the nuisance was not connected to the occupation of the houses. This case was distinguished in LIPPIAT as there they had used the land as a base for their activities. Here, the personal campaign of harrassment was not linked to, or damaging the land. It is still unrealistic to expect claimants to go after the tenants though, as they will often not have a lot of money. However this is not a very satisfactory distinction; maybe a better one is between licensees and tenants.
Dennis v Ministry of Defence [2003] - A stately home and estate neighboured on an RAF base. The action was for the noise of the planes, and damages were awarded in that the owner could not fully utilise the home for weddings and other profitable functions. Also, it was in the public interest that the pilots should be trained, so no injunction was granted. However, the MOD's claim that the planes had been flying for over 20 years (prescription) was rejected, as they had no proof of actual flight plans.
Shelfer v City of London Electric Lighting [1895] - Discretion to award damages in lieu of an injunction should only be exercised where i)injury to claimants' rights is small, and ii)where effect of an injunction would be too oppressive.
Miller v Jackson [1977] - The court felt that for public policy purposes, they should be allowed to play cricket, as it was for enjoyment.
Kennaway v Thompson [1981] - However, here, it was felt that public benefit should not be relevant when choosing whether to apply this discretion.
Regan v Paul Properties [2006] - CoA returned to SHELFER, but DENNIS was not cited.
Allen v Gulf Oil Refining Ltd [1981] - If the Parliament has authorised a particular activity, then the defendant is not liable for anything which is an inevitable consequence of that.
Rylands v Fletcher [1866] - R contracted with engineers to construct a reservoir. Unknown to anyone, beneath the reservoir lay disused mine workings that connected to F's working mine. Water from the reservoir burst into the disused workings and flooded F's mine. Court accepted that R was not at fault, but he was still strictly liable.
Transco plc v Stockport MBC [2004] - Unknown to anyone, a water pipe in D's multi-storey block of flats cracked without SMBC's fault, and large quantities of water escaped into the soil over an extended period of time, which lead to the nearby embankment being saturated, and eventually collapsing. This exposed the gas main so that T had to spend £90,000 to remedy the damage. Although SMBC was not at fault, T attempted to invoke the strict liabiilty of RYLANDS. The claimants failed, but not because the rule was no longer good law, but because it was inapplicable on the present facts. HoL held that a useful guide to whether the rule would apply was whether the damages was something that the claimant could reasonably be expected to insure against. It was held that in this case it was.
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] - Water stored by the CWC became contaminated by chemicals leaking from ECL's leather plant. The claimants tried to recover the cost of handling the contaminated water from the defendants under RYLANDS. There was no case in negligence, it having been conceded that the defendants had taken all reasonable precautions to store the chemicals properly. HoL was prepared to allow that the storage of chemical solvents was a 'non-natural user of land' under the terms of the rule in RYLANDS, but the effect of the leakage was too remote a consequence for the defendants to be held liable.
Read v J. Lyons & Co [1947] - D ran a munitions factory during WWII. One day, without any negligence by D, there was an explosion which injured C, a factory worker. The court held that in this instance, the manufacturing of munitions was held to be a natural user of the land. However, the nuisance claim failed, as C was on D's land at the time, so there was no 'escape'. If the damage occurs on D's land, it is not enough.
LMS International Ltd v Styrene Packaging and Insulation [2006] - A fire broke out at S's factory in Bradford and damaged adjoining properties belonging to LMS. The court had to decide whether S was liable for the damage, even though it claimed it had not been negligent in the cause of the fire. The court applied the rule in RYLAND that S would be liable for any damage regardless of fault. In any case it found S negligent because it had failed to take reasonable care to prevent a foreseeable fire from breaking out.
Hamilton v Papakura District Council [2002] - Privy Council held that it was not reasonably foreseeable that water containing herbicides at a fraction of the original concentration allowable for human consumption would cause damage to cherry tomatoes grown hydroponically.
Peters v Prince of Wales Theatre [1943] - P had consented to the presence of a sprinkler system in PWT. Today this would probably not be seen as under RYLANDS, as a sprinkler system is normal.
Rickards v Lothian [1913] - An unidentifiable third party caused a flood in some toilets. No liability as the action was deliberate and malicious, and the defendant is not liable for third parties.
Northwestern Utilities v London Guarantee and Accident Co [1936] - An occupier should reasonably be expected to foresee negligent acts by a third party and guard against them.
Perry v Kendricks [1956] - Some boys caused an explosion on a coach. It was not clear whether their actions were deliberate, but the difference does not depend on whether the third parties' actions were malicious or negligent but rather whether the intervention was a reasonable and probable occurence which the defendant ought to have foreseen. In this case, the condition of the coach being left in a carpark was not in such a way that it was reasonable to expect that children might meddle with it.
Nichols v Marsland [1876] - In the case of an exceptionally heavy rainstorm, the defence succeeded.
Greenock Corporation v Caledonian Railway Co [1917] - In the same situation, the defence did not work. As such, acts of God are very much ruled according to a matter of degree and now tend to be confined to extraordinary acts of nature such as hurricanes or earthquakes.
Musgrove v Pandelis [1919] - D was held liable after the engine of his car caught on fire whilst being started up in his garage. The crucial factor in this case was that the spread of fire to P's premises above the garage would not have occurred without D's servant's negligence. An alternative ground for the decision could also have been that keeping the car was a non-natural user of land which in itself deprived the owner of any immunity.
Honeywill and Stein Ltd v Larkin Bros Ltd [1934] - Contractors engaged to work in a cinema themselves employed photographers to record their handiwork on film. However, the sub-contractors' primitive flashlights set fire to the cinema. The contractors were held liable for the fire damage, even though they were not personally at fault, because they had instigated the dangerous operation.
Evans v Kosmar Villa Holidays plc [2008] - An 18 year old went on a package holiday to Corfu. This was a package which was obviously marketed at this age group. However, when he was drunk he jumped into the shallow end of a pool and was paralysed. The marking advising swimmers of this was not very good. Evans' counsel attempted to distinguish TOMLINSON but failed (tried to argue that it was a mistaken assessment of the risk, rather than the state of the property). The first instance court found Kosmar liable, but reduced the award by 50% for contributory negligence.
Wheat v E.Lacon & Co Ltd [1966] - There was a pub owned by brewery company L, who put in a manager, Mr Richards, who lived above the pub in a flat. They took in lodgers, in this case, the Wheat family. The pub and the flat had separate access points. However, one evening Mr W fell down the stairs and died. This happened because 1) the staircase which led to the flat had too short of a rail and 2) the lightbulb which should've been at the top of the stair had been taken out by an unknown party. Mrs W sued L and the HoL had to decide whether L counted as occupiers under the Act. However, can a fictional legal person be an occupier? Yes, it can by its employees - Mr R was acting as the human control which then effected legal control.
Exclusive control is not necessary and in this case the fact that L and Mr R were concurrent occupiers was not fatal to the claim that Mr R had some sort of control. Although HoL found for Mr W in terms of duty, they also found that L was not in a breach of its duty of care. The staircase was not dangerous by itself, and it was only when combined with the removal of the lightbulb by a stranger (which was not L's fault) that led to the accident.
Ferguson v Welsh [1987] - A council wanted to demolish some buildings on some land, so they contracted Mr Stuart to do this for them. He was forbidden from subcontracting this job out, but he went against this, and did so to the Welsh brothers. However, they were cowboy builders and in performing their bad work, injured one of their workers, Ferguson. W had no liability insurance, and were therefore not worth suing, so F also sued the council. HoL agreed that both could be joint occupiers.
Harris v Birkenhead Corporation [1976] - What happens if no-one is actually in control? Then the court has ruled that the right to take control is sufficient. A local authority compulsorily acquired a property with a view to knock it down. However, some yobs damaged the property before the building company came in to demolish it. This then allowed a young child to come in to the property and she sustained serious injuries. As the yobs could not be found, she sued the building company. HoL unhesitatingly found that they were responsible for the security of the building as soon as the previous owners moved out.
Glasgow Corporation v Taylor [1922] - A child was killed by eating berries that it found on some parkland. It was found that the occupier was just as responsible for the bushes and other greenery on their land as the buildings. There had also been no precaution taken for fencing off these bushes. However, this only works in the case of children (s.2(3)(a)) as an adult should be expected to know better.
Wheeler v Copas [1981] - A farmer made a contract with a bricklayer to build a house for him on his land. The farmer provided the equipment for him to use, but a ladder that was provided was not of the right sort, and so broke whilst the bricklayer was using it, injuring him. He then tried to claim under s.1(3) but the judge threw this out as the farmer had relinquished control over the ladder by handing it over to him, and therefore no liability could be found.
Stone v Taffe [1974] - The Gate Inn was owned by a brewery company, which in turn had it run by an employee, Mr Taffe. His contract with them prohibited him from having anyone on the premises after the pub was supposed to be closed. However, he was a member of an organisation like the Masons, and one night held an initation ceremony at the pub which went on long past closing. As one of the guests, Mr Stone, was leaving, he fell over, hit his head and died. His widow sued both Mr T and the brewery company. The question was whether S was a lawful visitor, or whether he had been a trespasser seeing as he had been there after closing? The court said that he had not ceased to be a lawful visitor after closing time, as there had been nothing to indicate to him that there was a prohibition in place against him. As such, the brewery was not only liable as occupier, but vicariously so through Mr T.
McGeown v N.I. Housing Executive [1995] - The appellant was the tenant of a house on a housing estate in Northern Ireland owned by the respondent housing authority which also owned certain open land surrounding and forming part of the estate. That land was crossed by three footpaths over which the public had a right of way. The appellant broke her leg when she tripped in a hole in one of the footpaths and fell. She brought an action for damages against the respondent claiming damages for personal injury. The trial judge found that the hole existed because of a failure to keep the surface of the pathway in good repair and constituted a danger to persons using the pathway but he held that he was bound by authority to dismiss the action. The appellant appealed to the Court of Appeal in Northern Ireland which dismissed her appeal.
She appealed to the House of Lords, contending (i) that the rule that the owner of land over which a public right of way passed was under no liability for negligent nonfeasance towards members of the public using it should be treated as no longer good law and (ii) that the appellant was not merely a member of the public but a visitor to whom a duty was owed by the landowner under s.2 of the Occupiers' Liability Act (Northern Ireland) 1957. Held, the rule that the owner of land over which a public right of way passed was under no liability for negligent nonfeasance towards members of the public using was good law. Rights of way passed over many different types of terrain and it would be unreasonable if landowners not only had to submit to the passage over them of anyone who chose to exercise the right to do so (for which it was not necessary to seek the permission of the owner) but also were under a duty to maintain them in a safe condition.
Furthermore, a person exercising a public right of way was, as such, neither the licensee nor the invitee of the occupier of the soil over which the right of way ran, and any licence to use the pathway formerly granted by the landowner before it became subject to the public right of way was merged in the right of way and extinguished, because once a public right of way had been established there was no question of permission being granted by the owner of the solum to those who chose to use it as they did so as of right and not by virtue of any licence or invitation. It followed that the appellant could not claim against the respondent either at common law or under the 1957 Act.
Holden v White [1982] - The plaintiff was a milkman who was injured when he stepped on a defective manhole cover in a pathway while delivering milk to a house. The house was owned by a third party and had 'a right of way at all times and for all purposes' over and along the pathway. The defendant was the owner of the land over which the pathway giving access to the house was laid. The plaintiff claimed damages against the defendant for breach of the duty of care she as an occupier owed to the plaintiff as a visitor pursuant to s.1(2) of the Occupiers' Liability Act 1957. The trial judge held that the defendant, as owner of the pathway in which the manhole was situated, was an occupier and owed a duty of care to the plaintiff as a lawful visitor. The defendant appealed, contending that the plaintiff was not her visitor and therefore she owed him no duty of care under the 1957 Act.
Held in order to determine whether a person was a 'visitor' under s.1(2) of the 1957 Act, that person had to be regarded at common law as an invitee or licencee or to be treated as such, and, because at common law a person who crossed land in pursuance of a public or private right of way was not an invitee or licencee or treated as such, such a person was not a 'visitor' under s.1(2). Accordingly, since the plaintiff was using the pathway pursuant to a right of way granted to a third party and since the defendant had no control over persons lawfully using the pathway pursuant to the rights of the third party, the plaintiff was there pursuant to an implied licence or invitation of the third party and not by the permission or invitation of the defendant. It followed that the plaintiff was not the defendant's visitor and had no cause of action against the defendant under the 1957 Act.
Laverton v Kiapasha (t/a Takeaway Supreme) [2002] - K owned and occupied a takeway in County Derry. Miss L was very drunk when she entered the establishment, but it had also been raining and the floor was wet. Due to a combination of these factors, as well as that she was very overweight and was wearing heels, Miss L slipped and fractured her heel. She sued K for failing under the standards of a reasonable occupier in that he had not 1) had a fixed doormat and 2) his system for mopping up was defective, as it could not be done when the shop was full. Although she actually won at first instance, the CoA said that it was not reasonable to expect a shop to have an expensive doormat, or to be able to close every time there was a small bit of water on the floor in order to clean. It was TOMLINSON reasoning that slipping on water was an obvious risk.
Phipps v Rochester Corporation [1955] - A 5 year old was walking home with his 7 year old sister across some grassland which was being developed for houses. However, the building company had dug a deep trench for some pipes which the 5 year old fell into and broke his ankle. The court decided that the children had implied permission to be there (it was well known that this route across the grassland was used as a shortcut). However, what was the occupier expected to do, as nearly everything is dangerous to children? The judge said that reasonable parents would not let their children enter dangerous premises unaccompanied. As the defendant had no reason to suspect that children would be using this route without parental supervision, they were not liable.
Simkiss v Rhondda Borough Council [1983] - A seven year old girl, who lived with her parents in a block of flats opposite a mountain with a bluff abutting the road, sustained severe injuries in a fall down the bluff while trying to slide down it on a blanket. Her claim for damages for negligence against the local council as occupier of the land was upheld by the trial judge on the basis that the area constituted a danger to children and should have been fenced. On appeal by the council, held the Occupiers' Liability Act 1957, s.2(2) imposed on an occupier a duty to take such care as in all the circumstances was reasonable to see that visitors to the area would be reasonably safe in using the premises for the purposes for which they were invited. The occupier had to be prepared for children to be less careful than adults.
However, the girl's father had given evidence (i) that he did not consider the bluff to be dangerous, (ii) that he would never have anticipated that his daughter might try to slide down it. There was no reason to require the council to apply a higher standard of care than a reasonably prudent parent. It was reasonable for the council to assume that parents would warn their children and would not allow them to play there unless the children appreciated the danger. Accordingly, the council was not liable.
Roles v Nathan [1963] - A boiler was giving off smoke and needed cleaning. Two chimney-sweeps (who had performed this sort of job before) were brought in, and warned by the occupier in advance that the boiler was giving off carbon monoxide and to be careful in confined spaces. However they ignored him and susbequently died. The widows tried to sue, but they failed; as the occupier had warned them, he wasn't expected to do any more.
London Graving Dock v Horton [1951] - Employee continually told employer of risk, but the employer didn't fix it so that the employee was eventually injured. The employee couldn't sue because he had known of the risk.
Rae v Mars (UK) Ltd [1951] - A surveyor was visiting the vacant site of a factory. However, he didn't know and hadn't been warned that one of the storerooms had a large hole just inside the room that he didn't know about. He entered the room, which had no natural light, and fell in. The judge said that even if there had been a warning, this would not have been sufficient, and the company would've been liable regardless as the only thing that would have sufficed was a physical barrier to prevent someone from entering.
Gwilliam v West Hertfordshire Hospitals NHS Trust [2003] - A hospital was organising a fund-raising event and they provided a 'splat wall' (trampoline + velcro wall). However the providers of this set the equipment up negligently and a 63 year old woman was injured. Normally the contractor would have had indemnity insurance which covered this so it would just be negligence, but here they didn't, so she sued the Trust. She said that their responsibility to check that the contractor and their work was reasonable also included a responsibility to check if they were insured. The CoA accepted that s.2(4)(b) might include this duty, but that the Trust hadn't breached it, as they had checked, and the contractor had lied to them. It was unreasonable to suggest that they should've gone farther and asked for copies of the certificates.
Naylor v Payling [2004] - Involved a case of bouncers outside a nightclub. CoA confined GWILLIAM and said that there was no general requirement to check for insurance.
Ashdown v Samuel Williams and Son Ltd [1957] - The claimant worked on an industrial site which was surrounded by land owned by the defendant. To get to her work she had to take a shortcut across this land - this shortcut was permitted by the defendant, and he had put up a notice excluding liability for its use. However, one day she was hurt by an action of one of the defendant's employees whilst on his land and sought to sue him. The court held that this was effective. The provision of a notice excluding liability must be explicit (any ambiguity will be construed against the occupier in the claimant's favour) and the occupier must take reasonable steps to bring the notice to the visitors' attention.
White v Blackmore [1972] - Mr W enjoyed jalopy racing and participated in one such event. However, he lost very early on so left to collect his family and come back later on as spectators. When they returned he got in free because he had raced in the morning. He and his family watched the race from behind some barriers which were ropes attached to wooden staves. However, a car crashed into the rope some hundred yards from where they were spectating and sent a ripple effect along the rope, throwing Mr W into the air as he had been leaning on it. He died from the fall and Mrs W sought to sue them. However, the race organisers had many notices displayed saying that they exluded all damage to spectators and ticket-holders. Mrs W first said that her husband was a participant (this failed as at the time he had been a spectator) and secondly that it was not explicit enough to exclude general negligence (the court found that it was as the organisers had been very thorough in their efforts to bring their exclusion to people's attentions). As such, she lost.
Monarch Airlines Ltd v Luton Airport Ltd [1998] - A plane was damaged coming into land due to a defective runway. There was an exclusion clause in the contract between the plane and the airport which purported to exclude liability for negligence that caused damage to any airplances. As such, when MA tried to sue, LA pointed to this, but MA tried to say it wasn't a reasonable restriction. However, the CoA disagreed as both parties had taken out insurance on the understanding that this was how the risk would be allocated.
British Railways Board v Herrington [1972] - The HoL had an opportunity to reconsider their stance on trespass with this case. A child wandered through a gap in a fence next to a railway and was severely electrocuted. The BRB had known of this hole, and that people used it, and yet had done nothing to fix it. The old law would have said there was no liability but the HoL sought to say that people should recognise a 'common duty of humanity'. However, the case was very confusing, but the Law Commission liked this idea and felt there should be some limited protection for trespassers by enacting the OLA 1984.
White v St Albans City Council [1990] - Claimant was trespassing by taking a shortcut across council property and fell into a deep trench. He sued them by saying that as they had put up a fence (in an attempt to keep out trespassers) they must have had reason to believe that they were in the vicinity. Court didn't accept this as having the fence there now meant that it was much more probable that there weren't any, so although there were at fault, they had no duty to him.
Swain v Puri [1996] - Child climbed over a barbed wire fence and a wall to get to the occupier's vacant premises. Whilst on the roof he fell through an open skylight. It was later revealed that there had been a gap in the barbed wire. The occupier said that although they knew of the open skylight, they had not known of the gap, nor could it be seen from the ground. The court agreed with the occupier as they said that the rule was not as wide as encompassing what an occupier 'ought to have known' or what a more prudent person would have.
Ratcliff v McConnell [1999] - A drunk student broke into a locked and barred outdoor pool and dived into the shallow end, paralysing himself. This was an obvious risk and therefore covered under s.1(3), as well as the threshold of danger in the condition of the premises not being reached. The court said that had there been an hidden object or obstruction then this might have been different.
Keown v Coventry Healthcare NHS Trust [2006] - An 11 year old child was climbing on the underside of a fire escape at a hospital and fell 30 feet to the ground. The hospital had no duty as a child of that age should have known the obvious risk. Therefore, duty in such cases very rarely arises.
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