Published: Fri, 12 Oct 2018
Negligence Duty Of Care Cases
EXISTENCE OF A DUTY
Donoghue v Stevenson  AC 562, HL
By Scots and English law alike the manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health:-
So held, by Lord Atkin, Lord Thankerton and Lord Macmillan; Lord Buckmaster and Lord Tomlin dissenting.
Relationship between claimant and defendant
Smoldon v Whitworth & Nolan  PIQR P133, CA
The plaintiff, who was aged 17 at the time, suffered very serious personal injuries when playing hooker in a colts rugby match, when a serum collapsed, and his neck was broken. He claimed damages against the first defendant, a member of the opposing team, and against the second defendant, the referee. The claim against the first defendant was dismissed, and there was no appeal against that decision.
The plaintiff argued that the second defendant owed him a duty of care to enforce the Laws of the Game, to apply them fairly, to effect control of the match so as to ensure that the players were not exposed to unnecessary risk of injury and to have particular regard to the fact that some of the players (including the plaintiff) were under the age of eighteen at the date of the match. The second defendant accepted that he owed the plaintiff a duty of care, but argued that the first defendant’s duty to the plaintiff was only to refrain from causing him injury deliberately or with reckless disregard for his safety, that this standard of care itself qualified or informed his own standard of care, and that he could only be liable where he had shown deliberate or reckless disregard for the plaintiff’s safety. The judge adopted the plaintiff’s definition of the second defendant’s duty. He found that the second defendant had not enforced safety requirements set out in the Laws of the Game which contained special provisions relating to players aged under nineteen, and requiring front rows to engage in a crouch-touch-pause-engage sequence. He also found that there had been roughly three or four times the number of collapsed scrums that would not be abnormal in such a game, at the conclusion of the last of which, close to the end of the match, the plaintiff sustained his injuries. He found that as as a consequence of the second defendant’s failure to instruct the front rows sufficiently and require the crouch-touch-pause-engage sequence the relevant scrum collapse and the consequential injuries to the plaintiff occurred, in breach of the second defendant’s duty of care to him. The second defendant appealed.
Held, dismissing the appeal, that the judge had adopted the correct formulation of the second defendant’s duty. It was not necessary to show a high level of probability that if the scrum collapsed serious injury of the kind which occurred was a highly probable consequence; serious spinal injury was a foreseeable consequence of a collapse of the scrum and of failure to prevent collapse of the scrum, and that was sufficient. The plaintiff was not volens to the risk of injury; he had consented to the ordinary incidents of a game of rugby, not to a breach of duty by the official whose duty it was to apply the rules and ensure, so far as possible, that they were observed.
Control of land or dangerous things
Dominion Natural Gas v Collins and Perkins  AC 640, PC
In actions for damages in respect of an accident against the appellant gas company it appeared that the appellants were not occupiers of the premises on which the accident had occurred and had no contractual relations with the plaintiffs, but that they had installed a machine on the said premises, and the jury found that the accident was caused by an explosion resulting from gas emitted, owing to the appellants’ negligence, through its safety valve direct into the closed premises instead of into the open air:-
Held, that the initial negligence having been found against the appellants in respect of an easy and reasonable precaution which they were bound to have taken, they were liable unless they could shew that the true cause of the accident was the act of a subsequent conscious volition, e.g., the tampering with the machine by third parties.
Haynes v Harwood  1 KB 146, CA
The plaintiff, a police constable, was on duty inside a police station in a street in which, at the material time, were a large number of people, including children. Seeing the defendants’ runaway horses with a van attached coming down the street he rushed out and eventually stopped them, sustaining injuries in consequence, in respect of which he claimed damages:-
Held, (1) that on the evidence the defendants’ servant was guilty of negligence in leaving the horses unattended in a busy street; (2) that as the defendants must or ought to have contemplated that some one might attempt to stop the horses in an endeavour to prevent injury to life and limb, and as the police were under a general duty to intervene to protect life and property, the act of, and injuries to, the plaintiff were the natural and probable consequences of the defendants’ negligence; and (3) that the maxim “volenti non fit injuria” did not apply to prevent the plaintiff recovering.
Brandon v. Osborne Garrett & Co.  1 K. B. 548 approved. Cutler v. United Dairies (London), Ld.  2 K. B. 297 distinguished, and dicta therein questioned.
Decision of Finlay J.  2 K. B. 240 affirmed.
A company, which carried on business as builders and contractors, undertook work on a well which involved clearing it of water. The well was some fifty feet deep and about six feet in diameter. H, a director of the company, and W and another workman employed by the company, erected a platform twenty-nine feet down the well and some nine feet above the water and lowered on to it a petrol-driven pump. After the engine of this pump had worked for about one and a half hours it stopped and a haze of fumes was visible in the well. The working of the petrol engine created also a dangerous concentration of carbon monoxide, a colourless gas. H returned to the well after working hours that evening and observed the haze and noticed a smell of fumes. On the following morning at about 7.30 a.m. H instructed the two workmen to go to the well, but said to W “Don’t go down that bloody well until I come”. The workmen arrived at the well at about 8.15 a.m., and, before H had arrived, one of the workmen went down the well and a few minutes later the other workman also went down it. Both were overcome by fumes. A doctor, who was called to the well, went down the well with a rope tied to his body in order to see if he could rescue the men, though be had been warned not to go. He also was overcome by fumes. Endeavour was made to haul him to the surface by the rope, but the rope caught in a down pipe in the well and he could not be brought to the surface until help arrived some time later. He died shortly afterwards. The court found that H had acted in good faith but that he lacked experience and did not appreciate the great danger that would be created in the well and did not seek expert advice on the proper method of emptying the well. In actions for damages for negligence resulting in the death of W and the doctor damages were awarded, but those awarded in the case of W were apportioned, one-tenth of the responsibility being attributed to W. On appeal,
Held: (i) the defendant company were liable for negligence causing the death of W because the method adopted to empty the well had created a situation of great danger to anyone descending the well on the morning in question, and the defendant company were negligent in that no clear warning of the deadly danger was given to W on that morning, H’s order not to go down the well until he came being insufficient to discharge the defendant company’s legal duty to take reasonable care not to expose W to unnecessary risk, though the apportionment of one-tenth of the responsibility to W would not be disturbed.
(ii) the defendant company were liable for negligence causing the death of the doctor because it was a natural and proper consequence of the defendant company’s negligence towards the two workmen that someone would attempt to rescue them, and the defendant company should have foreseen that consequence; accordingly the defendant company were in breach of duty towards the doctor.
Dictum of Lord Atkin in M’Alister (or Donoghue) v. Stevenson ( All E.R. Rep. at p. 11) applied.
(iii) no defence to the claim arising out of the death of the doctor was
afforded either (a) by the principle of novus actus interveniens, for that did not apply where, as in the present case, the act in question was the very kind of thing that was likely to happen as a result of the negligence. Dictum of Greer, L.J., in Haynes v. Harwood ( All E.R. Rep. at p. 107) applied.
or (b) by the maxim volenti non fit injuria, for that could not be successfully invoked as a defence by a person who had negligently placed others in a situation of such peril that it was foreseeable that someone would attempt their rescue. Dictum of Greer, L.J., in Haynes v. Harwood ( All E.R. Rep. at p. 108) applied.
(iv) the doctor had not acted recklessly or negligently and had neither caused nor contributed to his own death.
Per Willmer, L.J.: bearing in mind that danger invites rescue, the court should not be astute to accept criticism of the rescuer’s conduct from the wrongdoer who created the danger.
Decision of Barry, J. ( 3 All E.R. 147) affirmed.
(a) As a consequence of physical damage to a third party’s property
- Cattle v Stockton Waterworks (1875) LR 10 QB 453
- Defendants, a waterworks company, under their Act laid down one of their mains along and under a turnpike-road, made under an Act which declared the soil to be in the owners of the adjoining land, subject only to the right to use and maintain the road. K. was owner of land on both sides, at a spot where the road was carried across a valley on an embankment, and wanting to connect his land on either side, K. employed Plaintiff at an agreed sum, to make a tunnel under the road. In doing the work, it was discovered that there was a leak in the Defendants’ main higher up the road, and on the Plaintiff digging out the earth, the water from the leak flowed down upon the work and delayed it, so as to cause pecuniary damage to the Plaintiff, for which he brought an action against Defendants:
- Held, that assuming K. could have maintained an action against Defendants for injury to his property (as to which the Court gave no opinion), the damage sustained by Plaintiff by reason of his contract with K. becoming less profitable, or a losing contract, in consequence of the injury to K.’s property, gave Plaintiff no right of action against Defendants.
- The tunnel was formed by digging through half the width of the road, forming the tunnel, and then completing the other half in the same way. Before commencing the work K. obtained the consent of the road surveyor and the trustees:
- Held, assuming K. could, under the circumstances, have been indicted for the nuisance to the high road, the partial obstruction to the highway did not render the whole proceeding so illegal as to prevent Plaintiff who was engaged in it from recovering damages for a wrong.
- Weller v Foot and Mouth Disease Research Institute  1 QB 569, QBD
- The principle of the common law that a duty of care which arises from a risk of direct injury to person or property is owed only to those whose persons or property may foreseeably be injured by a failure to take care is not affected by the decision in Hedley Byrne & Co., Ltd. v. Heller & Partners, Ltd. ( 2 All E.R. 575); in order to have a right of action for negligence a plaintiff must show that he was within the defendant’s duty to take care, and he may then recover by way of damages for the direct and consequential loss reasonably foreseeable, but, though proof of direct loss is not an essential part of the claim, he must establish that he was within the scope of the defendant’s duty of care (see p: 570, letter D, post).
In consequence, as was assumed, of the escape of a virus imported by the defendants and used by them for experimental work on foot and mouth disease at land and premises owned and occupied by them, cattle in the vicinity of the premises became infected with the disease. Because of the disease an order was made under statutory powers closing cattle markets in the district, with the result that the plaintiffs, who were auctioneers, were temporarily unable to carry on their business at those markets and suffered loss. The court was required to assume that the loss to the plaintiffs was foreseeable and that there was neglect on the part of the defendants which caused the escape of the virus. On the question whether in law an action for damages would lie for the loss,
- an ability to foresee indirect or economic loss to another person as the result of a defendant’s conduct did not automatically impose on the defendant a duty to take care to avoid that loss; in the present case the defendants were not liable in negligence, because their duty to take care to avoid the escape of the virus was due to the foreseeable fact that the virus might infect cattle in the neighbourhood and thus was owed to owners of cattle, but, as the plaintiffs were not owners of cattle, no such duty was owed to them by the defendants. Hedley Byrne & Co., Ltd. v. Heller & Partners, Ltd. ( 2 All E.R. 575) distinguished. Donoghue (or McAlister) v. Stevenson ( All E.R. Rep. 1) and Morrison Steamship Co., Ltd. v. S.S. Greystoke Castle (Owners of Cargo) ( 2 All E.R. 696) considered and applied.
- the plaintiffs were also not entitled to recover under the rule in Rylands v. Fletcher ([1861-73] All E.R. Rep. 1) because they had no interest in the cattle endangered by the escape of the virus and the loss to the plaintiffs was not a sufficiently proximate and direct consequence of the escape of the virus. Dictum of Blackburn, J., in Cattle v. Stockton Waterworks Co. ([1874-80] All E.R. Rep. at p. 223) applied.
(b) As a consequence of acquiring a defective item of property
- Dutton v Bognor Regis UDC  1 QB 373, CA
By s 1 of the Public Health Act 1936 it was the duty of a local authority to carry the Act into execution. Pursuant to that duty, and under the statutory authority contained in s 61 of the Act to make building byelaws, the Bognor Regis Urban District Council (‘the council’) made byelaws regulating (inter alia) the construction of buildings in their area. The Act provided the council with powers to enforce the byelaws. The byelaws were in standard form and could not be relaxed except with the Minister’s consent. The byelaws governed every stage of building work; in particular byelaw 18 provided that the foundations of a building should be properly constructed to sustain the loads of the building and to prevent any settlement that might impair its stability. The byelaws also provided for the appointment of surveyors and inspectors to visit building work to see whether the byelaws were being complied with. Offences against the byelaws were punishable by a fine. In 1958 a builder, H, bought land in Bognor Regis for the purpose of developing it as a housing estate. He laid out the land in plots. One of the plots was on the site of an old rubbish tip, the tip having been filled in and the ground made up to look like the surrounding land. In October 1958 the builder submitted plans of this plot to the council for byelaw and planning approval. The plans showed that the house to be built on the plot had normal foundations for the type of soil in the area. In October 1958 the council gave byelaw approval to the plans, under the 1936 Act, on the printed form for that purpose. The form contained a note that all foundations and drains must be examined by the council’s surveyor before being covered up, and that no new premises were to be occupied before being certified by the council’s surveyor. A batch of notice forms was sent to the builder, with the form of approval for him to notify the council of the progress of the work. Planning permission for development of the plot was then granted. Having got the necessary approvals, the builder started work on the plot in 1959. While digging the trenches for the foundations he came on the remains of the rubbish tip; so he made the outer trench deeper than usual and reinforced the concrete floor with a steel mesh, but he did not bother about the inner walls. He duly notified the council that the foundations were ready for inspection. The council sent their building inspector to inspect them. The inspector approved the foundations for the purpose of the building byelaws. In doing so the inspector failed to carry out his task properly for had he made a competent inspection of the foundations he could easily have detected that the house was being built on a rubbish tip and that, in breach of the byelaws, the foundations laid by the builder were not properly constructed having regard to the nature of the land since they were not strong enough to take the load of the house. Having obtained approval for the foundations, the builder went ahead in building up the house to damp-proof course level, and the work at that stage too was passed by the council’s surveyor. The house was finished at the end of 1959, and early in 196o the builder sold it to C. In December 1960 C sold the house to the plaintiff. As the house was new the plaintiff did not herself employ a surveyor but it was common ground that if a surveyor had been employed he could not have found out about the hidden defect in the foundations. The surveyor of the plaintiff’s building society passed the house. Soon after the plaintiff had moved into the house in January 1961, the walls and ceiling cracked, the staircase slipped and the doors and windows would not close. This was due to subsidence of an internal wall caused by the inadequate foundations. The condition of the house got worse and in 1963 a surveyor instructed by the plaintiff’s solicitor found out that the house had been built on a rubbish tip. In 1964 the plaintiff issued a writ against the builder and against the council for negligence claiming damages of £2,740 (being £2,240 for the cost of repairing the house and £500 for diminution in its value).
- The council, through their building inspector, owed a duty of care to the plaintiff to ensure that the inspection of the foundations of the house was properly carried out and that the foundations were adequate, for the following reasons-
- There was no basis for the contention that, since under the 1936 Act the council merely had a power to examine the foundations and therefore could not be held liable for failing to exercise that power, it followed that neither could they be held liable for failing to exercise the power with proper diligence; that contention could not be sustained because-
- the effect taken together of the 1936 Act and the byelaws made thereunder by the council was to give the council control over building work and the way it was done; (per Lord Denning MR and Sachs LJ) that control carried with it a duty to exercise their powers properly and with reasonable care; in particular the council were bound to take reasonable care to see that the byelaws were complied with and to appoint competent inspectors for the purpose;
- (per Sachs and Stamp LJJ) even if all that the council had was a ‘mere power’ they were nonetheless liable for the negligent exercise of that power as the negligence occurred in the course of a positive exercise of it; the assumption of control over building operations by the making of byelaws was a positive act and thereafter any negligence in the exercise of their control could give rise to liability; thus (per Sachs LJ) failure to inspect the foundations at all might according to the circumstances have constituted negligence; (per Stamp LJ) but for the failure to make a proper inspection the damage could not have occurred to the plaintiff; the situation could not be equated with one where an authority bid failed to exercise their powers to prevent damage which would otherwise have occurred in any event; Geddis v Bann Reservoir Proprietors (1878) 3 App Cas 430 applied;
- It could not be argued that, in view of the fact that the builder, as the owner of the property, could not be held liable under the principle in Donoghue v Stevenson, therefore the council could not be held liable for passing the builder’s bad work because-
- (per Lord Denning MR and Sachs LJ) the distinction between liability for chattels and liability for real property was unsustainable; the principles enunciated in Donoghue v Stevenson were applicable to an owner of realty; accordingly a builder who created a hidden defect was not absolved from liability merely because he was the owner of the premises which he had built; dictum of Lord MacDermott in Gallagher v McDowell  NI at 41 applied; Bottomley v Bannister  1 KB 458 not followed;
- The building inspector owed a duty of care to the plaintiff as a professional adviser even though the plaintiff had not thought about and placed reliance on the inspector’s conduct, because a professional man who gave advice on the safety of buildings, machines or material owed a duty to all those whom he knew, or ought to have known, might suffer injury if his advice were unsound.
- The relationship between the building inspector and the plaintiff was sufficiently proximate to form the basis of a duty of care, although the plaintiff was only, a subsequent purchaser, since any defect in the foundations once covered up could not possibly come to light as a result of an intermediate examination but only when the damage appeared, therefore the inspector ought to have had the plaintiff in mind as someone likely to suffer damage if he was negligent in inspecting the foundations.
- (per Lord Denning MR and Sachs LJ) As between the council and the plaintiff there existed a duty situation because-
- although the plaintiff’s claim fell within the wide principle stated in Donoghue v Stevenson, that principle was not of universal application; it was a question of policy whether it should be applied to the novel claim for negligence made against the council; however, since the primary object of the legislation was to protect purchasers of houses from jerry building it followed that, unless there were countervailing reasons of policy which would lead to a contrary conclusion, the council, who could afford to bear the loss, should be held liable to purchasers for failure to carry out the responsibility which had been entrusted to them under the relevant legislation;
- there were no countervailing reasons why the council should not be held liable; as the builder would be liable for building the house badly there was nothing wrong in holding the council liable for passing the bad work and (per Sachs LJ) it was, in this category of case, particularly important that dual liability of the builder and council should exist; to impose liability on the council would not adversely affect the work of building inspection and to permit this new type of claim in negligence would not in practice lead to a flood of cases which neither the local authority nor the courts could handle.
- The council were liable to the plaintiff for the damage caused by the breach of duty by their building inspector in failing to carry out a proper inspection of the foundations; the plaintiff was not precluded from recovering damages on the ground that her loss was solely economic because (per Lord Denning MR and Sachs LJ) the damage to the house was physical damage and the plaintiff was entitled to recover the cost of repairs: (per Sachs and Stamp LJJ) as an action in negligence lay for economic or physical loss, the correct test in ascertaining whether any particular damage was recoverable was not whether it was physical or economic damage, but what range of damage was the proper exercise of the power designed to prevent or what was the character of the duty owed; applying that test there was nothing, in the nature of the loss sustained by the plaintiff to preclude a claim being maintained for that loss; accordingly the plaintiff was entitled to recover the damages claimed against the council as representing the cost of repairing the house although (per Sachs LJ) it was doubtful whether damages could be awarded for any reduction in market value.
Dulieu v White  2 KB 669
By her statement of claim A. alleged that while she was sitting behind the bar of her husband’s public-house (she then being pregnant) B.’s servant negligently drove a pair-horse van belonging to B. into the public-house. A. in consequence sustained a severe shock which made her seriously ill and led to her suffering a miscarriage. (She gave premature birth to a child. In consequence of the shock sustained by the plaintiff the said child was born an idiot.)
Held, that the statement of claim disclosed a good cause of action against B.
- Per Kennedy, J.: Mere fright not followed by consequent physical damage will not support an action, but if it is followed by consequent physical damage, then, if the fright was the natural result of the defendants’ negligence, an action lies, and the physical damage is not too remote to support it.
- Per Phillimore, J.: Where there is a legal duty on the defendant not to frighten the plaintiff by his negligence, then fright with consequent physical damage will support an action.
- Victorian Railway Commissioners v. Coultas (58 L. T. Rep. 390; 13 App. Cas. 222) considered and questioned.
Hambrook v Stokes Bros  1 KB 141, CA
The defendants’ servant left a motor lorry at the top of a steep and narrow street unattended, with the engine running, and without having taken proper precautions to secure it. The lorry started off by itself and ran violently down the incline. The plaintiff’s wife, who had been walking up the street with her children, had just parted with them a little a point where the street makes a bend, when she saw the lorry rushing round the bend towards her. She became very frightened for the safety of her children, who by that time were out of sight round the bend, and who she knew must have met the lorry in its course. She was almost immediately afterwards informed by bystanders that a child the description of one of hers had been injured. In consequence of her fright and anxiety she suffered a nervous shock which eventually caused her death, whereby her husband lost the benefit of her services. In an action by the husband under the Fatal Accidents Act:-
Held (by Bankes and Atkin L.JJ.; Sargant L.J. dissenting), that, on the assumption that the shock was caused by what the woman saw with her own eyes as distinguished from what she was told by bystanders, the plaintiff was entitled to recover, notwithstanding that the shock was brought about by fear for her children’s safety and not by fear for her own. Dictum of Kennedy J. in Dulieu v. White & Sons 1 2 K. B. 669 disapproved.
Greatorex v Greatorex and Others  The Times LR May 5, QBD
There was no duty of care owed by a victim of self-inflicted injuries towards a secondary party who suffered only psychiatric illness as a result of having witnessed the event causing the injuries or its aftermath.
The policy considerations against there being such a duty owed clearly outweighed the arguments in favour, since to impose liability for causing psychiatric harm in such circumstances, particularly where the parties were members of the same family, would be potentially productive of acute family strife.
Mr Justice Cazalet, sitting in the Queen’s Bench Division, so stated when dismissing an application on a preliminary issue in proceedings brought by the claimant, Christopher Greatorex, for damages against the first defendant, John Simon Greatorex, the second defendant, the Motor Insurers’ Bureau, and Haydon Pope, joined as a defendant in the proceedings under Part 20 of the Civil Procedure Rules by the MIB who were seeking an indemnity on the basis that he had allowed the first defendant to drive his car without insurance against third-party risks in breach of the Road Traffic Act 1998.
Mr Nicholas Mason for the claimant; Mr Graham Eklund for the MIB; neither the first defendant nor Mr Pope appeared or was represented.
MR JUSTICE CAZALET said that there was no reported English decision on the issue which in essence, was whether a victim of self-inflicted injuries owed a duty of care to a third party not to cause him psychiatric injury.
The agreed facts were that the first defendant, who had been drinking, negligently drove a car belonging to his friend, Haydon Pope, on the wrong side of the road. In the crash which occurred the first defendant suffered head injuries and was unconscious for about an hour. Initially he was trapped inside the car. The claimant, who was the first defendant’s father and a leading fire officer, went to the scene in the course of his employment and was subsequently diagnosed as suffering from long-term severe post-traumatic stress disorder as a result of the accident. His Lordship said that Caparo Industries plc v Dickman ( 2 AC 605) had confirmed that, besides foreseeability of damage and proximity between the parties, it must also be fair, just and reasonable to impose a duty of care in a particular situation. A quartet of House of Lords decisions, starting with McLoughlin v O’Brian ( 1 AC 41
Cite This Essay
To export a reference to this article please select a referencing style below: