Cases 1 - Tort revision

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CASES

Cork v Kirby MacLean Ltd

- Causation But for Test. A workman who had epilepsy was set to work painting the roof inside a factory, which necessitated his doing the work from a platform 23 t above the factory floor. The platform was 27 inches wide and was used for the deposit of the workman's bucket and brush. There were no guard rails or toe boards. The workman fell from the platform and was killed. Lord Denning - if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same , fault or no fault, the fault is not the cause of the damage .

Barnett v Chelsea and Kensington Hospital Management Committee

A patient was turned away from a casualty Dept by a doctor who refused to examine him. He later died of arsenic poisoning. It was shown that the man would not have recovered even if the doctor had treated him. The hospital was not liable for the clear breach of duty in failing to treat the patient . The failure to treat was not the cause of death, the patient would have died just the same.

Rothwell v Chemical & Insulating Co ( Pleural Plaques)

Court considered a number of conjoined appeals, in which the claimants had been exposed to asbestos dust. This led to the claimants: Developing pleural plaques, they were invisible with no external symptoms, being exposed to a risk of developing an asbestos related diesease in the future accompanied with anxiety of developing such a diesease in the future.HoL declared that the symptomless plaques were not compensatable damage and that neither the risk of future illness or anxiety about the possibility of that risk materialising amounted to damage for the purposes of creating a cause of action. Moreover it was not possible to establish a viable claim in negligence by aggregating three heads of damage, none of which were actionable in themselves.

Bonnington Castings v Wardlaw

The claimant contracted Pneumoconiosis after working for years in dusty conditions. Two main causes of dust in the foundry, one of which was required by law to be extracted. It was impossible to prove which dust the claimant had inhaled. Since the dust which should have been extracted was at least a partial cause of the damage, the defendant was liable in negligence. The claimant therefore only needs to show that a defendant's breach of duty 'materially contributed' to the damage.

Wilsher v Essex Area Health Authority

The claimant was born prematurely and needed an extra oxygen to survive. The junior doctor inserted a catheter into a vein rather than an artery. As a result the baby received to much oxygen, which caused damage to the retina and consequent blindness. Five possible causes of baby's blindness , it was impossible to say which of the five were the cause. Causation was thus not established, since none of the potential causes was more likely to have happened than any of the others, the balance of probabilities was not satisfied.

Mcghee v National Coal Board

The claimant was employed to clean out brick kilns. The working conditions were hot, dirty and dusty , but the defendants provided no adequate washing facilities. After some days working in the brick kilns, the claimant was found to be suffering from dermatitis. The evidence also showed that the fact that after the work the claimant had to exert himself further by bicycling home with brick dust added materially to the risk that he might develop the diesease. Although the employer was not liable for injury resulting from the claimant's exposure to dust in the normal course of his work, it had materially increased his risk of doing so, since the failure to provide washing facilities meant the claimant was caked in dust for longer than required as he cycled home. The employer was found liable in negligence for materially increasing the risk.

Fairchild v Glenhaven Funeral Services

The claimant worked for several different employers, all of whom had exposed him to asbestos. The late claimant contracted asbestos cancer and died. His wife sued the employers on his behalf in negligence, however since a single fibre of asbestos can trigger the form of cancer, it was impossible for the cause of death to be attributed to any single employer on the balance of probabilities. HoL held that the appropriate test in the situation was McGhee : whether the defendant had materially increased the risk of harm to the claimant. Therefore, the employers were jointly and severely liable. situation further considered in Barker v Corus

Barker v Corus Ltd

Claimant's husband, who died of mesothelioma, had been exposed to asbestos during three periods in his working life: first whilst working for a company which ahd since become insolvent, secondly while working for the defendant and thirdly while self-employed. On the claimant's claim in negligence, the judge decided that the defendant was jointly and severally liable with the insolvent company for the deceased's absbestos cancer, but that the damages should be subject to a 20% reduction for the deceased's contributory negligence while self-employed. Distinction from fairchild: all the possible defendants in that case had wrongfully exposed the deceased to asbestos. HoL held that this wrongful exposure by all defendants was not a necessary criterion for liability. Therefore a defendant who wrongly exposed the deceased to the risk may still be liable even though other exposures occurred naturally or resulted from the deceased's own acts.Main question in the case that had not arisen in fairchild was whether the solvent employers should bear the additional proportion of the damage for which the insolvent employers were responsible. HoL accepted the argument that the solvent employer should not. Lord Hoffman: in my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates. The defendant was a wrongdoer, yes and should not be allowed to escape liability altogether, but he should not be laible for more than the damage which he caused and. since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilites.

The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused harm. But when liability is exceptionally imposed, because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or the other caused harm.

Hotson v East Berkshire Area HA

A boy fractured his hip when he fell from a tree. The hospital made a misdiagnosis and the boy developed a hip deformity. Experts confirmed that he would have had a 75% chance of developing the deformity even if the diagnosis had been made correctly. The CA upheld the devision of the trial judge, who awareded the boy 25% of the damages that were considered appropriate for his injury for his lost chance of recovery. The HA appealed to the HoL. The decision of the CA was reversed. The HoL took a traditional ' all or nothing' approach and considered that, since there was only a 25% chance that the hospital's negligence had caused the boy's injuries, this did not satisfy the balance of probabilities. - Considered most importantly in the case of Gregg v Scott.

Gregg v Scott

The claimant consulted his doctor about a lump under his arm. The doctor should have referred the claimant to the hospital, but misdiagnosed the lump as being fatty tissue. In fact it was cancerous. Claimant admitted to hospital 9 months later and cancer was discovered. At the time of misdiagnosis, claimant's chance of survival for ten years was 42%. At the time treatment commenced it was 25%. At neither time was survival for over 10 years probable (on balance of probabilities). Trial judge considered himself bound by Hotson and dismissed the claim. CA also dismissed appeal by a majority. Decision upheld by HoL.

Performance Cars Ltd v Abraham

The first defendant negligently drove into a rolls-royce, The rolls-royce was later negligently struck by another car. Driven by Second defendant. The first defendant remained liable. The second defendant was not liable for the cost of the respray since the car already needed a respray at the time of the collision with the second defendant.

Baker v Willoughby; Jobling v Associated Dairies.

B & W the claimant was knocked down by a car due to the negligent driving of the defendant. He suffered a permanent stiff leg as a result. After the incident but before the trial, he was shot in the injured leg during a robbery at work. As a result the leg was amputated. J v A , the claimant was injured at work due to his employer's negligence. He slipped and injured his back. losing 50% of his earning capacity as a result. Three yrs later developed spondylotic myelopathy a spinal disease. This was not brought about by accident. Consequently unable to work. In B court held that the gunaman's act was not a NIA and defendant remained liable. The C's loss of earnings was a result of his original injury. The later robbery and consequent amputation did not change this, even though eventual damage was different and more severe. in J - the injury was held to be an NIA.

McKew v Holland & Hannen

As a result of D's negligence, C suffered a leg injury. Left leg seriously weakened. Fell later when attempting to descend steep flight of stairs without assistance. C's act was unreasonable, Court held that his act was a NIA which had broken the chain of causation. Defendants not liable for his second injury.

Corr v IBC Vehicles

Deceased suffered a serious accident at work. Employer admitted had been caused by its breach of duty. As a result. he had become depressed. His depression worsened until, 6 years after the accident, he committed suicide. Wife claim ed damages for the physical and psychological injuries that he had suffered. Employers were held liable and his deliberate act in taking his own life was not a NIA. The rationale for NIA's was fairness. usually it was not fair to hold a tortfeasor liable for damage caused by some independent supervening cause for which he was not responsible. However in this case, the deceased had not taken a voluntary, informed decision as an individual of sound mind. The suicide was the response of a man suffering from a severly depressive illness, which arose as a consequence of his employer's rot that had impaired his capacity to make reasoned and informed judgements about his future. Therefore it was not unfair to hold IBC responsible for the consequences of its breach of duty.

Carslogie steamship v Royal Norwegian Govt

Claimant's ship was damaged following a collision. After temporary repairs, the ship then set off on a voyage to a port in the US where permanent repairs could be carried out. During her voyage across the atlantic, the ship sustained further heavy weather damage during a storm. D could not be held liable for damage caused by storm. Court held storm could have happened on any voyage and therefore the storm damage was not a consequence of the collision. It was unforeseeable and separate.

Re Polemis and Furness, Withy & Co

The charterers of a ship filled the hold wiht a cargo including a number of containers of petrol. These filled the hold with petrol vapour which ignited when a heavy plank dropped into the hold by a stevedore whilst the ship was unloading, destroying the ship. Defendant's were liable for all the damage which resulted from the breach of duty, regardless of whether that damage was foreseeable by the defendant. As Scrutton LJ stated; if the act would or might probably cause damage, the fact that the damage it in fact causes is not the kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act.

Overseas Tankship v Morts Dock and Engineering (Wagon Mound 1 )

Defendants negligently leaked a quantity of bunkering oil into sydney Harbour from a tanker. This oil drifted into the claimant's wharf where it mixed with assorted detritus including cotton wadding. Welding was taking place in the wharf. The claimants sought and received assurances that it was safe for them to continue welding. However, sparks from the welding ignited the oily wadding which caused fire to spread to two ships damaging them. The wharf was fouled. At first instance, the trial judge applied the principles from Re Polemis finding that the defendants were liable for the fire damage, since the fouling to the wharf was a foreseeable consequence of the leakage. On appeal the privy council reversed the decision holding that the correct test for remoteness is reasonable foreseeability of the kind or type of damage in fact suffered by the claimant.

Smith v Leech Brain

The claimant was splashed by molton metal as a result of his employers negligence, suffering a burnt lip. This burn triggered cancer, from which the claimant died. Claimant's lip was pre-malignant at the time of the accident. Some form of harm from the burn was foreseeable although the particular type of harm in the particular circumstances was not. However, despite the fact that death from cancer was not a foreseeable consequence of the burn, the employers remained liable in negligence for the full extent of the damage.

Century Insurance v NI Road Transport Board.

Driver was employed to deliver petrol which involved transferring the petrol from his lorry to a storage tank at his destination. Whilst doing so, he lit a cigarette and threw the match on the ground, causing an explosion. Held that the driver was acting in the course of his employment, doing his job just in a careless manner.

Beard v London Omnibus Co.

A bus conductor drove a bus around the front of the bus depot as he knew that it was needed urgently for its next journey and the driver could not be found. Whilst manoeuvring the bus, the conductor injured a mechanic. It was not part of the conductor's duties to drive the bus, thus in doing so , he was outside the course of his employment. As such, the employer was not vicariously liable for the injury caused to the mechanic.

Lister and Others v Hesley Hall

Claimants were residential students at a school for difficult children owned by D. one of the wardens employed by the defendant was sexually abusing the children in his care and was eventually subjected to criminal proceedings. The claimants sought to hold the defendant vicariously liable for the harms they suffered as a result of the abuse. The HoL adopted ' closeness of connection ' to determine whether an intentionally wrongful act by an employee would fall within the course of employment. Here, the sexual abuse occurred on the employer's premises whilst the employee was engaged in performing his duties of caring for the children. As such there was a close connection between the employment and the abuse so the employer would be vicariously liable. This was particularly so as there was an obvious risk of sexual abuse in the circumstances so the employer should have been alert for it.

Gravil v Carroll

CA held rugby club vicariously liable for its semi pro player's tortious assault against a member of the opposing team after whistle had blown. Court said however, nothing in the judgment was relevent to the playing of rugby or any other game otherwise than under a contract of employment

Majrowski v Guys and St Thomas;s Nhs Trust

Employer could be vicariously liable for an employee's breach of a statuory obligation which sounded in damages. This case concernedbreach of section 1 of protection from harrasment act, where C alleged that he had been unlawfully harassed by his departmnetal manager. S3 of the Act created a civil wrong whereby a breach of S1 gave rise to the ordinary remedies for civil wrongs including damages.

Lloyd v Grace Smith

An employee responsible for conveyancing in a firm of solicitors fraudulently induces an elderly client to sign documents that pass ownership of her properties to him, . This was within the course of employment as it was a dishonest way of doing the tasks that the employee was engaged to carry out.

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