Notesale: Turn your study into money

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Donoghue v Stevenson[1932] In Scotland, lady was bought a ginger beer in an opaque
bottle, drank most of it but at end found a decomposed snail in the bottle
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She didn’t buy the drink though so she
wasn’t involved in contract, and boyfriend couldn’t claim as he didn’t personally suffer
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Roe v Ministry of Health (1954) – we mustn’t judge a 1947 situation with 1954 spectacles
(with hindsight)
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Wasnt known that contamination could happen in the way that it did, so not liable
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Nettleship v Weston (1971) learner driver, ran into lamppost and injured claimant
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Wasn’t enough to say, not qualified but I
was doing my competent best
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Must be liable so injured can be compensated
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Had no idea obviously that this was about to happen
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Question is whether insurance company can avoid
paying by establishing he hadn’t fallen under standard
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Not liable (or differently put, claimant received NO
compensation)
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THIS WAS A ONE OFF CASE
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Mullin v Richards (1998) – the reasonable child of that particular age Sword fight with rulers,
one ruler shattered and left fragment in claimants eye but this behaviour is reasonable to 15
year old, cant be expected to understand implications (see also Orchard v Lee (2009))
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Quite serious injury

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Marshall v Osmond (1983); defendant acting in heat of moment, not a lot of time to think
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Actions
cannot be judged by same standard of care where there is a lack of time to think
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HoL lost her case because of the chance of that happening are
so low even though it was a foreseeable risk
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HoL said employers were negligent in not providing
goggles, so although risk was low, the fact was one eyed made it more serious
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HoL said factory owner not liable because only other precaution that
could have been taken was to shut entire factory
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Value of activity outweighed it so not liable
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Mrs Cole steps into hole breaking leg
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BL had tried to fill it in, and not clear how it had become dangerous again, so BL
not in breach of duty as members had tried
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Wagon Mound (no 2) (1967) Privy Council
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Across the wharf, labourers were working, and creating sparks, which ignited
the oil and created a lot of damage
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On balance,
should have taken precautions to lower risk, so B was lower than product of P and L

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Bolam v Friern Hospital Management Committee [1957]
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Sued for negligence for a) failing to warn him b)failing to give
relaxant drugs which could have made it less severe
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‘A doctor is not guilty of negligence is he has
acted in accordance with a practice accepted as aproper by a responsible body of medical
men skilled in that particular art
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Maynard v West Midlands Regional Heath Authority (1985) Conflict opinion between
medical experts not open to judge to choose between them
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Instead had to satisy that their opinion was reasonable
with logical basis for conclusion
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Sidaway v Bethlem Royal Hospital (1985)- Bolam applied to risk disclosure cases
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Chester v Ashvar (2005) shift away from ard deference and critical stance taken towards
clinician involved and acknowledgement of importance of patients autonomy and right to
self determination
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Courts critical of claimant, said he was confused
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Barnett suffered persistent vomiting after drinking tea
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Barnett later died of arsenic poisoning
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e
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‘But for’ the doctor’s negligence, Barnett
would still have died from the arsenic

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Wilsher v Essex Area Health Authority [1988] AC 1074
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Doctor
negligently administered excessive oxygen during post-natal care
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Excessive oxygen a known cause of eye condition
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Doctor’s negligence was only 1 of 5 potential causes of Wilsher’s

blindness
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The ‘but for’ test in operation: loss
of chance
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Hotson v East Berkshire Area Health Authority [1987] AC 750
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Hospital negligently failed to diagnose avascular necrosis straight away
though diagnosed a few days later
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Medical evidence suggested:
 Fall from tree had probably caused the damage
 75% chance Hotson would have suffered permanent disability even if
hospital had not been negligent
 But 25% chance Hotson would have avoided permanent disability if hospital
had acted properly
Trial judge awarded Hotson 25% of the damages
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No liability: Hotson could not show on a balance of probabilities that ‘but for’ the hospital’s
negligence, he would not have suffered permanent disability
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By majority of 3 to 2, House of Lords rejected ‘loss of chance’
claims in personal injury / medical negligence context
Bonnington Castings v Wardlaw [1956] AC 613
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Some of the dust he inhaled was ‘innocent’…an inevitable consequence of his work
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Over time, ‘guilty’ and ‘innocent’ silica dust
accumulated in Bonnington’s lungs and caused pneumoconiosis (a lung condition)
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Pneumoconiosis could have developed as a result of the ‘innocent’ silica dust
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Enough for Bonnington to show that the
defendant had materially contributed to the harm
Holtby v Brigham & Cowan (Hull) Ltd [2003] 3 All ER 421
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Court of Appeal: Holtby only entitled to recover damages proportionate to the
negligence of the defendant i
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employer to pay damages proportionate to ‘time-exposure’
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McGhee suffered dermatitis as result of
exposure to brick dust at work
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e
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But the brick dust became ‘guilty’ after work
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As it did not, the brick
dust remained caked on McGhee’s skin until he got home and was able to wash
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May have been caused by the accumulation of brick dust or a single abrasion
caused by the dust
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e
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On a strict application of the ‘but for’ test, McGhee’s claim should
have failed
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It was enough for McGhee to
show that the ‘guilty’ dust materially increased his risk of harm
 Lord Wilberforce:
 ‘It is a sound principle that where a person has, by breach of duty of care,
created a risk, and injury occurs within the area of that risk, the loss should
be borne by him unless he shows that it had some other cause
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Fairchild v Glenhaven Funeral Services [2002] UKHL 22
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Whilst agreed that
asbestos causes mesothelioma, it is unclear how it does so
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As such, one of Fairchild’s employers had caused his
mesothelioma but he could not prove on a balance of probabilities which one
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This was the Court of Appeal’s
view: Brooke LJ: ‘If we were to accede to the claimant’s arguments, we would be distorting
the law to accommodate the exigencies of a very hard case
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Lords applied the exception carved out in McGhee and Fairchild’s
claim was successful
...
In doing so, the House of
Lords did not overrule Wilsher
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Barker was exposed to asbestos by two employers (one
solvent and one insolvent)
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As a result of this exposure, he suffered mesothelioma
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The same causation problem arose as in Fairchild (don’t
know how it is caused)
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Should the Fairchild exception apply? Not certain any more that it is one of the
employers fault, and one isn’t even being sued
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Enough for Barker to show that the solvent employer materially
increased his risk of harm
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Also employer only liable to pay damages proportionate to the asbestos
exposure he was responsible for
Sienkiewicz v Greif [2011] UKSC 10
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Suffered mesothelioma as result
of asbestos
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Supreme Court: rejected this argument and applied Fairchild
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Lord Phillips argued that the
continuing gap in our knowledge surrounding how mesothelioma is caused ‘justifies the
adoption of the special rule of causation that the House of Lords applied in Fairchild and
Barker’
Baker v Willoughby [1970] AC 467
 Baker suffered injury to leg as a result of car accident negligently caused by
Willoughby
 Suffered pain and stiffness in leg and so had to find new employment
 Before his case against Willoughby was resolved, Baker was shot in the leg in a holdup at the scrap metal yard where he was then working
 Baker’s leg was amputated as a result of the shooting
 So the supervening event (the shooting) obliterated the effects of the first injury for
which Willoughby was responsible
 No question the criminals would be liable in tort for amputation of stiff leg

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Question: should Willoughby continue to pay compensation in respect of stiff leg he
had caused after the leg was amputated?
 Court of Appeal: no, only awarded damages up until time of shooting
 House of Lords: yes, concerned that otherwise there would be a gap in damages
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 Lord Pearson:
 ‘Thus the consequences of the original accident have been submerged and
obliterated by the greater consequences of the supervening event
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But it must not be allowed to succeed,
because it produces manifest injustice…He should not have less damages
through being worse off than might have been expected’
Jobling v Associated Dairies Ltd [1982] AC 794
 As result of workplace injury, Jobling suffered damage to back which reduced his
earning capacity
 Before trial against his employer, Jobling contracted unrelated back disease which
rendered him incapable of work
 House of Lords refused to follow Baker- but for test
 Account had to be taken of the ‘vicissitudes of life’ that a person might be expected
to encounter
 Associated Dairies only had to compensate Jobling for damage to his back up until
time of disease
Hughes v Lord Advocate [1963] AC 837
 Manhole in street left open by Post Office employees
 On finishing work, employees covered hole with a canvas tent and surrounded this
with paraffin lamps to alert public to the danger
 Hughes (aged 8) picked up one of the lamps and took it into the tent
 While playing, he knocked the lamp down into the manhole and this caused an
explosion
 Kind of harm must be reasonably foreseeable
 Hughes fell into the manhole and was badly burnt
 Defendants argued that it was not reasonably foreseeable that Hughes would be
burnt by way of explosion
 House of Lords: defendant held liable
 Reasonably foreseeable that the kind of harm Hughes would suffer = burns
 The exact means by which these burns were sustained did not matter
 So in Hughes court took a generous approach
Doughty v Turner Manufacturing Co [1964] 1 QB 518
 Doughty was a factory worker
 He suffered burns when an asbestos lid fell into a hot vat of liquid
 This created a chemical reaction which caused the hot liquid to erupt
 Doughty burnt as a result of the eruption
 Chemical reaction itself was not reasonably foreseeable
 Kind of harm must be reasonably foreseeable
 Doughty argued that the court should follow Hughes
 As lid falling in the vat would cause a splash of hot liquid which would cause a burn,
the ‘kind of harm,’ was reasonably foreseeable
 Court disagreed: eruption of boiling liquid different from being splashed by liquid
Tremain v Pike [1969] 3 All ER 1303

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Tremain worked on a farm
Defendant allowed farm to become infested with rats
Tremain contracted Weil’s disease as result of being exposed to rats’ urine on the
farm
 Weil’s disease is rare
 Court held that while injury from rat bites foreseeable, Weil’s disease was not
 Tremain’s claim failed
Page v Smith [1996] AC 155
 Page involved in road traffic accident caused by Smith
 The accident caused some physical damage to the cars but not to the drivers
 3 hours after the accident, however, Page felt exhausted and took to bed
 His exhaustion continued and he was later diagnosed with chronic fatigue syndrome
 Kind of harm must be reasonably foreseeable
 Page had suffered a mild form of fatigue syndrome sporadically in past but the
condition was now chronic and permanent
 By majority, House of Lords held that did not matter psychiatric injury was not
reasonable foreseeable provided some personal injury (i
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physical injury) was
reasonably foreseeable, enough for legal causation to be established
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’
Rouse v Squires:
 As a result of negligent driving, D1 jack-knifed lorry across motorway
 The car behind collided with the lorry
 Intervening act: minutes later, D2, also driving negligently, collided with the other
vehicles and killed Rouse who was assisting at the scene
 Widow settled claim against D2
 D2 sought contribution from D1
 D1 argued that the chain of causation had been broken by D2’s negligent driving
 Court of Appeal: chain of causation not broken
 D1 to contribute ¼ of damages
 D2 was the immediate cause of Rouse’s death but his death would not have
occurred but for the continuing danger from the obstruction caused by D1
 Buckley LJ: ‘no clear line’
Knightley v Johns
 Johns negligently overturned his car at the exit of a tunnel
 Police inspector took charge of scene and forgot to close off tunnel at its entrance
 He ordered Knightley (police motorcyclist) to ride back down tunnel, against flow of
traffic, in order to close it
 Knightley struck by oncoming motorist
 Knightley sued Johns, the police and the driver that hit him
 Chain of causation was broken between Johns and Knightley
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Police’s act broke chain of causation
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High Court of Australia: Mahoney v Kruschick (Demolitions) Pty Ltd (1985) 156 CLR 522
 ‘Where an injury is exacerbated by medical treatment, the exacerbation may easily
be regarded as a foreseeable consequence for which the first tortfeasor is liable
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The original injury can be regarded as carrying some risk that medical treatment
might be negligently given
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 School owed duty of care to claimant

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School had duty to prevent young children from wandering off onto busy road
without adult
Reeves v Commissioner of Police for Metropolis [2004]
 Prisoner on remand awaiting trial
 Police knew had made 2 suicide attempts and one was that morning
 Doctor said no problems that morning,
 Committed suicide
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 HoL: Police were right to make that concession
 Justified by degree of control exercised by police over prisoners and known risk of
suicide amongst prisoners
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Damaged reduced by 2/3 to reflect Barratt’s
contribution
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 No-one put in charge of returning soldiers
 Commander impliedly undertaken responsibility for soldiers safety on return trip
 Damages reduced by 75% to reflect soldiers contribution
Stansbie v Troman [1948]
 D decorating plaintiffs house
 Agreed to lock house if he went out
 Left house and it was burgled
 D owed a duty of care
Perl (exporters) Ltd v Camden London Borough Concil [1984]4
 2 adjoining flats, one leased to claimant, one empty,
 Empty has no lock
 Thieves entered, made hole in wall and burgled,
 CoA no duty in respect of burglars actions
 Even though reasonably foreeable, no proximity of relationship

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Palmer v tees Health Authority [2000]
 Armstrong mentally ill patient in care of Tees HA
 Whilst in treatment, he said he had sexual feelings towards children and threatented
to murder one
 Didn’t attend outpatients meeting
 Went on to sexually abuse and damage child
 Held no duty of care???
 Mitchell v Glasgow City Council [2009]
 Mitchell (72) killed by neighbour Drummond
 Both tenants of Glasgow CC
 CC had been aware of bad behaviour and warned him with eviction warning in a
meeting
 He then killed Mitchell
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 Carmathenshire County Council v Lewis [1955]
 Council failed to secure playground
 Small child wandered onto road
 Lorry swerves to miss it but is injured
 Driver sued council
 Held: council owed a duty to lorry driver in respect of childs action
 Home Office v Dorset Yacht Co Lts [1970]
 Young offenders detained in institution on island
 Supervisots negligently allowed group of boys to escape
 Boys damaged claimants yachts moored in harbour
 Home office (in control of insititution) had a duty of care
 Supervisory nature of relationship created sufficient degree of proximity between D
and third party
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 Haynes v Harwood [1935]
 D left horses untethered on busy street
 Bolted when boys threw stones
 Plaintiff was policeman who was injured when trued to help
 D owed duty of care
 Had created source of danger
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 Hill v Chief Constable of West Yorkshire [1989] AC 53
o Claimant’s daughter was the final victim of a serial killer (Peter Sutcliffe)
o Mother argued that police had been negligent in their detection and detention of
Sutcliffe (they’d even had him in for questioning but was released)
o House of Lords: no duty of care
o Lord Keith:
 Fear of liability might cause police to carry out their investigations
defensively which would not be desirable
 Many cases would concern the exercise of discretion as to the way an
investigation should proceed – this could not be called into question by the
courts
 Time, trouble and expense put into defence of claims would represent a
significant diversion of police manpower and attention from task of
suppressing crime
 Osman v UK [1999] 1 FLR 193
o Teacher became infatuated by schoolboy
o Harassed boy and his family
o Family reported it to police who didn’t do alot
o Teacher injured boy and killed father
o Family police for negligently failing to prevent the killing
o Court of Appeal struck the claim out on basis that not fair, just and reasonable to
impose such a duty on the police
o Relied on policy arguments from Hill: ‘doomed to fail’- no duty
o Family took case to European Court of Human Rights ECHR):
 Article 2 (right to life)
 Article 6 (right to a fair trial)- striking the case out just based on Hill case,
dismissed action without giving it thought
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g
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Uk tried to say striking out thing is not just a procedure but part
of substantive law that usually no cases against the police in this situation
Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495
o Brooks had been attacked alongside his friend, Stephen Lawrence
o Brooks suffered PTSD as a result of witnessing Lawrence’s murder but made worse
as result of way police treated him
o Official inquiry: police investigation into Stephen Lawrence’s death later found to
have been grossly mishandled and affected by institutional racism
o As result of racial stereotyping, treated Brooks as a suspect rather than a victim at
the scene
o No duty on policy grounds…whilst police should have acted differently, concerned
about defensive policing
o Lord Keith: could be some ‘cases of outrageous negligence by the police’ that would
fall beyond the general principle and in which a duty could be found
Smith v Chief Constable of Sussex Police [2009] 1 AC 225
o Smith attacked with claw hammer by his ex-boyfriend after break up and suffered
fractured skull and brain damage
o Smith had informed police of series of violent, abusive and threatening phone, text
and e-mail messages including death threats
o Notwithstanding the seriousness of the threats, police treated as a domestic matter
and took no steps to investigate or assess risk
o Trial judge struck claim out on basis of Hill
o Court of Appeal: arguable that police did owe duty
o House of Lords: no duty
o Concern: defensive policing
o Diversion of resources
o Lord Hope: police work elsewhere may be impeded if the police were required to
treat every report from a member of the public threatened with violence as giving
rise to a duty of care
o Lord Bingham dissented: not encourage defensiveness, only need to make
reasonable assessment of the threat posed to an identified potential victim by an
identified person
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o Once ambulance service accepts call in relation to named individual, that individual
is only one that can be harmed
Nicholls v Rushton (1992) The Times, 19 June (nervous reaction / shaken up following road
traffic accident)
Reilly v Merseyside Regional Health Authority (1995) 6 Med LR 246 (claustrophobia and fear
of being trapped in a lift accompanied by physical symptoms such as vomiting)
Victorian Railway Commissioners v Coultas (1888) 13 App
...
222
o Woman involved in accident, only psychiatric injury, courts dubious about evidence
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o Got 100m away in a rescue attempt
o Suffered psychiatric harm
o Tried to say felt in danger, should be primary victim, not accepted by courts
Hegarty v EE Caledonia [1997] 2 Lloyd’s Rep 259
o Same situation
o Wasn’t reasonable to fear
Sion v Hampstead Health Authority [1994] 5 Med LR 170
o Son had accident, went to hospital,

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o Father watched him deteriorate over 2 weeks before he died
o Courts said not sufficient because it was gradual, no one shocking event
Walters v North Glamorgan NHS Trust [2003] PIQR P16 (CA)
o Mothers find out something wrong with babies, something distressing happened at
end, so can identify a shocking event, so can allow
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Said that this was enough
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o Courts said 9 hours after was not immediate aftermath and he had been told what
he was going to see
White v Chief Constable of South Yorks
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Rare for them to have a close tie of
love and affection on a random rescue mission
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D was owner of the whole premises
o Manager of the pub lived in the flat, but he let some of the rooms out
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o Tenant fell down defective stairs, so sued owner but he said manager was the
occupier as he lives there
o Court: no owner is occupier even though letting out to manager
Harris v Birkenhead Corporation [1976] 1 WLR 279
o Local authority wanted to take control of one of its properties but it had a tenant in
it, so gave them notice, but tenant doesn’t move
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o 4 year old child wandered in and fell out of window, so parents sued council
o Held that they should have been in control as they were occupiers so should have
done something
Cunningham v Reading Football Club Ltd [1992] PIQR P141 (QB)
o Fight after match

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Bricks thrown at policeman
Sued the club
Because premesis had been allowed to fall into disrepair, hooligans were able to do
that
Tomlinson v Congleton BC [2004] 1 AC 46
o Someone went diving into water
o Hit head on bottom and was paraplegic
o His action’s fault
Siddorn v Patel [2007] EWHC 1248 (QBD)
o Dancing on roof, fell through skylight
o Courts said no, injured as a result of your actions
The Calgarth [1927] P 93
o When you invite someone to house to use stairs, not inviting them to slide down the
bannisters
Gould v McAuliffe [1941] 2 All ER 527
o Guy looking for loo in pub, so strayed off into area where he shouldn’t have been
...

o Held liable
Kiapasha (t/a Takeaway Supreme) v Laverton [2002] CA
o Kebab shop, rainy night, someon slipped, fell and sued takeaway
o Had put in non slip floor and doormat, mop system
o Had taken reasonable precautions given size and circumstance so not liable
Trustees of the Portsmouth Youth Activities Committee (A Charity) v Poppleton [2008] EWCA
Civ 646
o Claimant fell of climbing wall and injured himself so tried to sue maintaining there
wasn’t enogh padding to protect him
o Court held that always a risk of falling awkwardly, doesn’t matter how much padding
there is, so your fault
...

o Sister aged 7 and boy aged 5 and boy fell in one, so parents sued
o Not liable, parents should have made sure where children were and been
responsible
...
“He instigated [her drunken driving]
...
He was twice her age
...
He put her in a position of great difficulty
...
"
Stinton v Stinton [1993] 33% deduction because claimant also knew there was no insurance
Jones v Livox Quarries (1952)
o Riding on the back of the vehicle was a “cause” of P being crushed by the vehicle
behind
but it would only have been a “mere circumstance” of injury if P had been shot by
negligent sportsman whilst riding on the back
o The case rejects the use of foresight as a test for cause and thus contributory
negligence, and it substitutes instead “common sense”
Pitts v Hunt [1990]
o P = 18 year old pillion passenger on D‘s motorcycle
o P knew D, aged 16, was unlicensed and uninsured
o Both P and D were drunk
o D rode in a recklessly dangerous manner intending to frighten other road users
o Dangerous driving was encouraged by D
o Crash
...
P sued for £250,000
...

o (But C penalised in costs & subject to criminal prosecution)
Hewison v Meridian Shipping (2002)

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Claimant lies about epileptic condition to keep his job at sea
Thus obtains a pecuniary advantage by deception & could be guilty of theft
Claimant is later negligently injured & claims for loss of future earnings
Held - Claim refused because Claimant was relying upon his own unlawful & immoral
act in obtaining the job in the first place
o But one judge dissented because he did not consider the conduct to be o (1) disproportionate to the claim or an affront to the public conscience, nor
(2) so closely linked to the claim as to justify its refusal
o This dissent illustrates the difficulty in defining relevant conduct & a sufficient causal
connection
Agheampong v Allied Manufacturing (2008)
o C’s parked car was hit by Defendant & written off
o C’s car was illegally parked & had no liability insurance
o Defendant paid for the value of the car but refused to pay hire charges for a
substitute vehicle
o C argued that his lack of insurance was not a cause of the Defendant’s negligent
driving, but –
o Held –
o Illegality defence applied & claim for hire costs dismissed
o Majority in Hewison was followed
Cassel v Hammersmith HA (1992)
o child injured at birth
o Lost earnings - awarded over twice national average earnings
o attention was paid to the parents’ earnings & education to justify the child’s high
lost prospects
Herring v Ministry of Defence (2003)
o eg - university student (now unemployable) compensated on the basis that he would
have achieved a good job in the financial services sector irrespective of possible life
chance
Cooke v United Bristol Health Care (2003)
o Claimant brain injured at birth & needed 24 hour care
o Now aged 12, but was expected to live to 59
o Future care costs based on set 2 ½ % discount rate = £3 million
o But £6 million claimed because care costs will exceed inflation in prices
 NHS wage cost expected to exceed price inflation (RPI) by 2

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