Case Law

Question 1

Lewis v British Columbia [1997] SCR 1145

Answer 1

The duty of care is not an obligation

• A common law duty of care “does not usually demand compliance with a specific obligation [requirement or stipulation]. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care.” - Cory J

Question 2

Donoghue v Stevenson 1932 SC (HL) 31

Answer 2

• Duty of care
• issue before the HoL was whether in the absence of any contractual nexus between them, Mrs D, the ultimate consumer, could sue the manufacturer in delict
• held by majority of the HoL that she was entitled to sue S for delict as he owed her duty of care
• authority that a manufacturer of food and drink which he intends to be used by the ultimate consumer owes duty of care
• A will owe B a DoC not to do X or omit to X if it is reasonable forseeable that someone like B will suffer some form of harm/injury if A fails to do X

Question 3

Bourhill v Young 1942 SC (HL) 78

Answer 3

• B, alighting from tram; Y, motorcyclist, driving negligently; collision, and a person died.
• B could not see the accident, but she heard it, and claimed she suffered ‘nervous shock’ and a miscarriage.
• “The duty to take care is not owed to the world at large, but to those to whom injury may reasonably and probably be anticipated if the duty is not observed.” Lord Macmillan

Question 4

Muir v Glasgow Corporation 1943 SC (HL)

Answer 4

• owner of teashop allowed park goers to shelter indoors
• they carried a tea urn through narrow corridor but scalded children on the premises in the process
• court held that the manager in charge owed a duty of care, generally, to everyone in tearoom but not to the Sunday school, to take additional care to prevent their injury
• Question to be expressed: “Is the harm that has been incurred within the scope of duty?”

Question 5

Mitchell v Glasgow City Council [2009] UKHL 11

Answer 5

proximity and forseeability

• raised by the widow and daughter of an elderly man, James Dow Mitchell, who was attacked and killed by his next-door neighbour, James Drummond, following a long-running dispute
• Both the deceased and Drummond were tenants of the local housing authority
• The family claimed damages from the local authority for the loss, injury, and damage they had suffered

The House of Lords unanimously found that the Council did not owe such a duty to Mr. Mitchell. The decision relied heavily on the three-stage test set out in the case of Caparo v Dickman: (1) the loss must be foreseeable, (2) the relationship between the parties must be sufficiently proximate, and (3) it must be fair, just, and reasonable to impose the duty

Question 6

What are the 2 important limitations on the extent of the duty of care laid down in Donoghue

Answer 6

1. The duty only extends to latent effects. If defect is obvious then manufacturer may escape liability due to break in chain of causation or damages reduced. But bottle was opaque
2. The duty is to prevent harm to the ultimate consumer’s person or property. Cant sue if the only property damaged is the defective product itself

Question 7

Kay’s Tutor v Ayrshire & Arran Health Board 1987 SC (HL) 145

Answer 7

• Suspected meningtitis
• Young child admitted to hospital with suspected meningitis
• Administered adult dosage of penicillin
• Child was stated to have become deaf
• Court held that deafness couldnt be proven to be linked to the overdose, could be the meningitis

Question 8

McFarlane v Tayside Health Board 2000 SC (HL) 1

Answer 8

• failed vasectomy
• wife fell pregnant after procedure
• can you claim for pain and suffering of childbirth, cost of raising a child?
• Held that although doctor had duty of care to prevent unwanted pregnancy, it was unfair to extend that to including costs of a child
• M entitled to damages for pain and discomfort caused by pregnancy

Question 9

Mitchell v Glasgow City Council [2009] UKHL 11

Answer 9

• Man killed by neighbour
• Did council owe duty of care to inform man that the other was dangerous
• Held that, the local GCC had not made itself responsible for protecting M from criminal acts by D and couldnt have known that when D left the meeting there had been a real and immediate risk to M’s life

Question 10

Hill v Chief Constable of West Yorkshire [1989] AC

Answer 10

• Yorkshire ripper
• Victim part of a large population

Question 11

Bolton v Stone [1951] AC 850; Lamond v Glasgow Corporation 1968 SLT 951

Answer 11

Probability of injury
* Person inured by a ball hit by cricket player
* There was a fence on that side, but hit went over because it was superb
* Held that memebers couldnt be liable to damages as risk of injury to anyone in that place was so remote that a reasonable person would not have anticipated it

L v GC: an average of 6,000 golf balls playedonto footpaths
* forseeable

Question 12

oil spill

The Wagon Mound No2 [1967] 1 AC 617

Answer 12

• Involved a spill of oil into the Port of Sydney, which caused minimal damage to the plaintiff’s ships.
• The oil subsequently caused a fire when molten metal dropped into the water and ignited cotton waste floating in the port, destroying the ships.

Miller sued Overseas, the Wagon Mound’s owner, under theories of negligence and nuisance.
Court found in favor of Overseas, concluding that the likelihood of the oil igniting was so slight that the damage to Miller’s ships was not reasonably foreseeable. The Supreme Court of New South Wales affirmed

Question 13

Sutradhar (FC) v National Enviromental Research Council [2006] UKHL 33

Answer 13

• NERC tested ground water systems in Bangladesh for purpose of discovering if it contained toxic elements
• Did not include tests for arsenic
• 4 million drinking pumps installed
• S one of the thousands to suffer arsenic poisoning
• Held, dfendent did not owe the claimant a duty of care on the ground that there was no proximity between parties

Question 14

Malcolm v Dickson 1951 SC 542

Answer 14

• Painter set house on fire while working
• Guest staying there tried to save some of the property but collapsed and died
• Held, painter had not broken duty of care he owed to deceased because couldbnt be anticipated by a reasonable person that guest would try to salvage furniture. (also died from heart attack not smoke inhalation)

Question 15

Hughes v Lord Advocate 1963 SC (HL) 31

Answer 15

• Workers uncover a manhole in road; two young children remove the tarpaulin and take a lamp. They enter the shelter; a lamp is knocked over and paraffin unexpectedly vaporises, and bursts into flame.
• H loses his balance and falls, burning himself
• Held,railway company was liable because even though the immediate cause of the injury was the boy’s actions, the company’s negligence in leaving the explosives unsecured was the “but for” cause of the harm.
• Established that to establish negligence, it is sufficient to show that the harm would not have occurred “but for” the defendant’s breach of duty.

Question 16

McKillen v Barclay-Curle & Co Ltd 1967 SLT 41

Answer 16

Significant case in the area of personal injury law.

• worker fell and broke his ribs, which was the constitutive harm.
• worker also had Tuberculosis (TB), which was allegedly reignited by the injury.
• The question was what should the employer pay for. The TB wasn’t a reasonably foreseeable consequence for the employer

This case is often cited for the principle that the defendant must take their victim as they find them, also known as the “eggshell rule”. This means that if a person has a pre-existing condition that makes them more susceptible to injury, the defendant is responsible for all the damages resulting from their negligence, even if the damages are more severe than they would have been for a typical person

Question 17

Waugh v James K Allan Ltd 1964 SC (HL) 103 . p123

Answer 17

• lorry driver suffered symptoms of gastric attack
• once he felt like he had recovered he drove the lorry, but he actually had thrombosis and died at the wheel
• swerved and seriously injured a pedestrian
• Although driver owed the pursuer a duty of care, held that no breach of duty in this case
• because on medical advice he had no reason to suspect that he may die at the wheel
• his death was also involuntary = no breach of DoC

The driver was 44, had no history of cardiac illness, and generally had good health. As a reasonable man there was no reason for him to believe he was ill as it had transpired. No indication if serous risk. Therefore, his conduct in mounting the pavement was involuntary and he was no liable, therefore his employers were not liable.

Question 18

negligence law

Nettleship v Weston [1971] 2 Q.B. 691

Answer 18

• involved a road traffic accident where the claimant, a friend of the defendant, was teaching the defendant how to drive.
• During a lesson, the defendant panicked while executing a simple manoeuvre at slow speed, causing the car to crash into a lamppost and injure the claimant

Issues: whether the defendant should be held to the same standard as any other driver, whether the claimant had accepted the risk of being injured, and whether the defendant was solely responsible considering she was not in complete control of the vehicle

• The defence of volenti non fit injuria (consent to the risk of harm) was not applicable.
• Duty of care owed by a learner driver to the public, including passengers, should be measured against the same standard that would be applied to any other driver.
• Both the learner and the instructor were jointly responsible for the accident, leading to a reduction of damages by 50% for contributory negligence.

Question 19

Lamond v Glasgow Corporation 1986 SLT 951

Answer 19

• the claimant was struck by a golf ball. It was found that 6,000 golf balls had left the golf course and went onto the lane.
• The court held that a reasonable person would be expected to prevent the harm from occurring.
• As a result, the Glasgow Corporation was found to have breached their duty
• This case is often cited in discussions about the standard of care expected in negligence cases.

Question 20

Paris v Stepney BC [1951] AC 367; St George v Home Office [2008] EWCA Civ 1068

Answer 20

The potential magnitude of harm if injury occurs

• where there is a known vulnerability of the pursuer

P V S BC: employee not given any protective goggles, got splinter in only seeing eye, now blind.

StG v HO: A claim against the Home Office by a detainee who was injured by another detainee while in custody. Home Office should have foreseen, had been breach of duty of care

Question 21

Brisco v SofS for Scotland 1997 SC 14; Latimer v AEC Ltd [1953] AC 643 c.f. Collins v First Quench Retailing Ltd 2003 SLT 220

Answer 21

Reasonable precautions
B v SfS: said employers had breached duty of care for failing to instruct not to throw heavy objects in riot training

L v AEC: employer covered most of floor with sawdust, employee slipped on small area of floor left
* risk of exposure to relatively ‘small’ danger, employer hadnt breached DoC

C v FQR: employee work alone in off-licens, following armed robbery she suffered depression. Said employer should provide safety training
* employer negligent by allowing her to work alone

Question 22

Harris v Perry [2008] EWCA Civ 907; c.f. Anderson v Imrie [2018] CSIH 18

Answer 22

Setting the standard
H v P: parents back turned, one child harmed when other child attempted somersaults on bouncy castle
* found constant surveillance not necessary

A v I: 8 yo left unsupervised by not their own parent climbing on a gate in farmyard and suffered skull and head injury

Question 23

Roe v Minister of Health [1954] 2 QB 66

Answer 23

• Pateint given spinal anasthetic
• The anasthetic vial had developed invisible cracks and had become impregnated with the solution it was stored in
• Patient paralysed
• Held defendant had not broken duty of care owed to the plaintiff: given the state of scientific knowledge at the time, reasonable medical practitioner could not have forseen that paralysis was a reasonable and probable consequence

Question 24

McWilliams v Archibald Arrol & Co (1962) SC (HL) 70

Answer 24

Factual causation (causa sine qua non)

• Pursuers husband, a steel erector, was killed
• Held that defenders were in breach of duty of care towards McW in failing to provide him with a safety belt
• However, also established that McW wouldnt have worn it anyway
• Pursuer failed to prove that ‘but for’ the defenders breach of duty accident wouldnt have occured

Question 25

Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428

Answer 25

Factual causation
* Plaintiff’s husband drank poisoned tea
* Hospital doctor refused to treat him, telling him to see his own doctor
* Held that although defendent may have been in breach of duty of care, hospital not liable because the husband still would have died
* i.e. the husband did not die ‘but for’ the hospitals negligence

Question 26

McTear v Imperial Tobacco Lt (2005) 2 SC 1

Answer 26

Factual causation (causa sine qua non)
* Pursuer failed to establish that her husband would not have contracted lung cancer ‘but for’ smoking the defenders brand of cigarettes

Question 27

Sayers v Harlow UDC (1958) 1 WLR 623; McKew v Holland Hannen & Cubitts 1970 SC (HL) 20

Answer 27

S v H: Plaintiff tripped and fell over a piece of wood left on the pavement by council workers. Reasonably forseeable conduct of victim (no novus actus interveniens)

McK v HH&C: Electrician suffered injuries while working on a construction site due to a colleague’s negligence. Employer argued that the electrician was partially responsible for his injuries because he failed to use safety equipment provided. Unreasonable conduct of victim (is novus actus interveniens)

Question 28

sale of iron

Allan v Barclay (1864) 2 M 873

Answer 28

• Remoteness of losses
• A contract for the sale of iron, where the seller failed to deliver the goods on time. As a result, the buyer lost the opportunity to fulfill a separate contract to supply a third party with the iron.
• Held that the damages claimed by the buyer for the lost profit from the third-party contract were too remote and could not be recovered.
• The loss of the third-party contract was considered too remote because it was not within the contemplation of the parties at the time of contracting. Therefore, the buyer could only recover damages directly related to the breach of the original contract for the sale of iron.

Question 29

Remoteness - “deprivation of legal right”

Kyle v P&J Stormonth-Darling 1993 SC 57

Answer 29

• Kyle,sued former solicitors, P & J Stormonth Darling, WS, for negligently depriving him of the right to appeal against a decree that had passed against him
• The solicitors admitted negligence and breach of contract, but they denied that the client had suffered any loss as a result
• Held that it was unnecessary for the client to offer to prove that on a balance of probabilities the appeal would have succeeded
• Sufficient for him to aver that he had a reasonable prospect of success, for the right to appeal was an opportunity or chance upon which a value could be placed
• The court considered the value of a lost chance to make a claim and the causal link between the solicitor’s negligence and the loss sustained by the client
• The court upheld the decision to allow a proof
• The court found the client’s averments of “real prospects” to be legally sufficient despite the defenders’ objections, ultimately denying the reclaiming motion

Question 30

Remoteness - “utterly speculative”

Campbell v F&F Moffat 1992 SLT 96

Answer 30

• Man injured in a road accident had his employment terminated due to his inability to return to work.
• In 1991 the mill at which the man had been employed closed and persons employed at that time received redundancy payments.
• Man sought to recover damages in respect of the redundancy payment he would have received had his employment not been terminated as a result of the accident.

Held, that
(1) the question was not one of foreseeability but whether the damage claimed arose naturally and directly out of the wrong done;

(2) as a matter of pure relevancy it could not be said that the claim was so utterly speculative and so remote as not to be a natural and direct consequence of the wrong suffered and therefore irrelevant; and proof before answer allowed.

Question 31

non-Hodgkin Lymphoma

Greg v Scott [2005] 2 AC 176

Answer 31

“no remedy simply for reduction in the chance of recovery from illness”

• Defendant, Dr. Scott, negligently misdiagnosed the plaintiff’s malignant cancer (non-Hodgkin Lymphoma) as a benign collection of fatty tissue, which led to a delay in treatment of 9 months
  This delay reduced Mr. Gregg’s chances of surviving ten years from 42% to 25%2

The House of Lords held (in a notably and controversially split 3 – 2 decision) that loss of a chance was not a form of injury for which one could claim damages for tortious negligence in relation to medical problems

Question 32

McDyer v The Celtic Football and Athletic Company Limited 2000 S.L.T. 736

Answer 32

Man watching the special olympic games and a bit of wood fell from the roof and hit him causing him to fall off the wall
Both companies had control over stadium at this time

He argued successfully that the doctrine of res ipsa loquitur should be relied upon to help in his case
This doctrine is a rule of evidence that infers negligence from the very nature of an accident or injury, in the absence of direct evidence on how any defendant behaved.

Question 33

Scott v London and St. Katherine’s Docks (1865) 3 Hurl. & C. 596

Answer 33

• man walking along docks
• bag of sugar fell on head and injured him
• court decided that docks were in fact liable

Question 34

Ward v Tesco Stores [1976] 1 W.L.R. 810

Answer 34

• woman slipping on yoghurt
• obvious that spillage should have been cleaned up

Question 35

Dawson v Page 2003 SC 482

Answer 35

• D injured his wrist when he slipped on a wet plank in P’s garden
• Sought damages from P, based on a claimed breach of section 2(1) of the Occupiers Liability (Scotland) Act 1960

Lord Ordinary granted absolvitor in favour of the defender, P.
D reclaimed against interlocutor of LO
Claim failed

After noting that wet planks are slippery and a notice is not required to point that out, Lord Glennie found that there was no requirement on Ms Page to exclude people from the site or give warning of the risks

Question 36

cinema

Maloco v Littlewoods Organisation Ltd [1987] A.C. 241

Answer 36

• Littlewoods, were held liable for damages caused by a fire started by intruders on their premises
• As owners and occupiers of the Regal cinema, were alleged to have a duty to take reasonable care for the safety of adjoining premises
• Claims were based on the allegation that they knew or ought to have known that a disused cinema would be a ready target for vandals
• Alleged that they knew or ought to have known that their cinema was, in fact, the subject of extensive vandalism

HoL dismissed the appeals, stating that whether an occupier of a property owes a duty of care to the adjoining occupiers in respect of acts of trespass on his property resulting in damage to the adjoining properties depends on the circumstances of the case and socially accepted standards of behaviour
The defendants were not aware of previous attempts of vandals to start fire and as such, the building did not present an obvious fire risk

Question 37

defences - volenti non fit injuria

Titchener v British Railways Board 1984 SC (HL) 34

Answer 37

Appellant (15) seriously injured when she was struck by a train while crossing a railway line between two suburban stations.
This route was accessed by climbing an embankment and cutting through a gap in a fence that had fallen into disrepair and had not been maintained by the respondent, the British Railways Board
The appellant brought an action under the Occupiers Liability (Scotland) Act 1960, claiming that the accident was caused by a failure to maintain the fence

Appeal was dismissed. The court held that the duty that would have been owed under the Occupiers Liability (Scotland) Act 1960 was meant for specific individuals entering the premises in question. The respondents discharged their duty of care by building a fence which was deemed to constitute a sufficient warning to keep people out of the property.

Question 38

Taylor v Glasgow Cooperation 1922 1 AC 44

Answer 38

‘Such care that is reasonable’ means taking into account thecircumstances of the incident
- young child ate poisonous berries in glasgow botanics and died
- there had not been sufficient warning so were negligent

Question 39

lake

Tomlinson v Congleton [2004] 1 A.C. 46

Answer 39

• man broke his neck while swimming in the lake despite sign saying swimming was prohibited
• There is no duty to take any extra steps in relation to obvious dangers arising from natural features of the landscape

Question 40

Michael Leonard v The Loch Lomond & The Trossachs National Park Authority [2014] CSOH 38

Answer 40

• Boy had fallen walking down the path
• Wasnt an unusual dnager and the park authority had not breached any duty of care here

Question 41

shortcut

Taylor Neilson Barratt v Spice Lounge (Scotland) Ltd 2017

Answer 41

Defences - contributory negligence

• young woman too shortcut, tripped and broke arm and jaw
• court established defender was an occupier
• established sufficient lighting so restaurant had fulfilled duty of care and wasnt liable

Question 42

A (and others) v National Blood Authority [2001] 3 All E.R.289

Answer 42

• producer knew that some of his blood products might be infected but at the time no practical precautions that could be taken
• Court held that blood product was defective beause the public did not know of the risk and were entitled to expect blood transfused to them to be not infected

Question 43

B (a child) v McDonald’s Restaurants Ltd [2002] EWHC490

Answer 43

• children scalded by hot coffee
• found in favor of B, holding that McDonald’s had breached its duty of care can reasonably expect a cup of coffee to be hot and to handle it accordingly so liable
• The court awarded damages to B for the injuries sustained.

Question 44

tampons

Worsley v Tambrands Ltd [1999] EWHC 273 (QB)

Answer 44

• someone got TSS
• there was a warning on the product sosheilds it from liability

Question 45

Various Claimants v The Institute of the Brothers of Christian Schools [2012] UKSC 56

Answer 45

Employer’s Liability - vicarious liability

• Supreme Court found trustees vicariously liable for child sexual abuse carried out by monks who, while not employees, were nevertheless ina relationship akin to employment

Question 46

Cox v Ministry of Justice [2016] UKSC 10

Answer 46

Prison service was vicariously liable when a prisoner performing kitchen duties dropped a sack of flour injuring his supervisor
Employers liability - the control test

• delict should have been committed as a result of activity carried out by wrongdoer on behalf of defender
• wrongdoer’s activity is likely to be part of the business activity of the defender
• that the defender, by employing wrongdoer to carry on activity will have created the risk of delict committed by wrongdoer

Question 47

employers liability

Kirby v National Coal Board 1958 SC 514

Answer 47

An explosion of gas in the mine injured several miners, including Kirby.
The explosion was caused by a naked light from a match struck by an unidentified miner to light a cigarette

The court held that section 29 (1) imposed no duty to ventilate parts of the waste contiguous to working places
It also ruled that the act of the fellow miner was performed outside the course of his employment, and therefore, the National Coal Board was not liable for the consequences of his fault
This case was treated as the leading case of a series of actions brought by a number of miners who had been injured by the explosion

Question 48

Century Insurance Co. v Northern Ireland Road Transport Board [1942] AC 509

Answer 48

Employer’s liability - ‘in the course of employment’

• explosion took place when an employee lit a cigarette while transferring petrol
• HoL held that this was an unauthorised mode of doing his job which was to transfer petrol: employer vicariously liable

Question 49

Lister v Hesley Hall [2002] 1 AC 215

Answer 49

Employer’s liability - ‘close connection’

• A warden’s tortious acts in sexually abusing children in his care were so closely connected with his employment as to warrant the imposition of vicarious liability on his employer
• Wrongful behaviour that is closely connected toemployment can be counted as within the scope ofemployment.
• Thus, the employer can be vicariously liable

Question 50

Employers liability - personal vendettas

Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12

Answer 50

Employer’s liability - vendettas
* Acting on a personal vendetta makes it difficult to establish vicarious liability

• A British Virgin Islands policeman, L, abandoned his post and travelled to another island.
• He went into a bar, where his former partner worked as a waitress, and opened fire with a police service revolver.
• The plaintiff, Hartwell, was a British tourist who was at the bar and was shot and wounded by the policeman

The appeal was dismissed. The police owe a duty of care to the public at large to take reasonable care to see that police officers to whom they entrusted weapons were suitable. The wide reach of the duty is proportionate to the gravity of the risk
The police was negligent in permitting L to have access to a revolver, given that they knew or ought to have known that he was not a fit and proper person to be entrusted with a gun because, until his domestic problems were resolved, he was volatile and unstable

Question 51

Bernard v Attorney General of Jamaica [2004] UKPC 47

Answer 51

Employer’s liability - vendettas or frolics

• Policeman demanded to use phone box and then shot individual who refused
• A close connection between the employment and the activity can be made through purporting to be acting in the course of employment.
• Held, allowing the appeal, that an employer could be vicariously liable notwithstanding that the employee was acting exclusively for his or her own benefit.

Question 52

Employers liability

Kennedy v Cordia (Services) [2016] 1 W.L.R. 597

Answer 52

Employers have a duty to take reasonable steps to ensure safe workingconditions

• K, a carer, slipped and fell on icy footpath while ona home visit and injured her wrist
• Court of session intitially held that Cordia was liable for Ks injury, saying they failed to carry out a proper risk assessment
• Cordia appealed
• Supreme court allowed K’s appeal, ruling cordia failed to provide suitable protective footwear to K despite long-lasting severe weather

Question 53

Wilsons & Clyde Coal Co Ltd v English [1938] A.C. 57

Answer 53

Employers cannot delegate their way out of their duty of care

• E, employee of W&C, was going to the bottom of the mine pit when the haulage started.
• Despite trying to evade danger, he was crushed to death
• HoL held that W&C had a duty of care to ensure a safe system of work and this duty could not be fully delegated to another employee

Question 54

Unfair Contract Terms Act 1977

Answer 54

S16- an employers cannot remove their common law duty of care in acontract

Question 55

Safe equipment

Davie v New Merton Board Mills Ltd. and Another Respondents [1959] 2 W.L.R. 331

Answer 55

No liability for a defective tool that was sourced from reputable manufacturers and suppliers

• D lost sight in his left eye when a tool broke
• D was awarded damages against both defendants
• However, upon appeal, the House of Lords found the employer (New Merton Board Mills Ltd) not liable. This decision has since been overruled by statute

Question 56

bonus scheme

McGregor v AAH Pharmaceuticals Ltd (1996)

Answer 56

The case highlighted the importance of having a safe system of work and the need for this system to be implemented and in action

There was a bonus scheme that incentivised employees to retrieve items of stock from shelves quickly
The court found that while having a safe system is necessary, it is equally important that the system is also implemented and in action

Question 57

competent

Wilson v Merry & Cunningham (1866-69) L.R. 1 Sc. 326

Answer 57

• Duty to employ competent individuals
• Workman lost his life in an explosion of fire-damp at Haughead Pit, which was alleged to be due to faulty construction of a scaffold without proper ventilation.
• Plaintiff, the deceased workman’s mother, brought an action for damages against the coalmaster and alleged that the fault lay with the pit manager
• Court held that the coalmaster was not liable for the injuries sustained by the collier due to the fault of the pit manager, as they were fellow-servants
• The court emphasized that the maxim “respondeat superior” does not apply in the law of master and servant, except in certain exceptions

Question 58

Mohamud v Morrisons (supermarkets) plc [2016] UKSC 11

Answer 58

• employee attacked customer
• although job to interact with public, the attack was not closely connected to their employment
• employer not liable

Question 59

Waters v Commissioner of Police of the Metropolis [2000] 1 W.L.R. 1607

Answer 59

• PC Waters, alleged that she was raped by a fellow officer while they were both off duty in her police residential accommodation.
• Claimed that the respondent was vicariously liable for the acts of officers under his command in the Metropolitan Police
• After making a complaint, she was subjected to hostile treatment by colleagues and superiors
• House of Lords allowed an appeal in respect of negligence over the harassment, unfair treatment, and victimisation after the rape complaint
• where an employer knows that an employee might suffer physical/mental harm due to acts being done to them in the workplace, but does nothing about it, may be liable

Question 60

Hatton v Sutherland [2004] 1 W.L.R. 1089

Answer 60

Psychiatric Injury

• Employee told in order to maintan salary they would need to do other tasks, led to 70 hour working week, depression and stress
• Employers have a duty of care to take reasonable steps toavoid injuring employees’ mental health
• Employers are entitled to take what an employee says atface value and to assume that they can handle the normalpreassures of the job.
• The employee must show that there were reasonable stepsthat the employer did not take

Question 61

Keen v Tayside Contracts 2003 S.L.T. 500

Answer 61

• Road worker sought damages for PTSD
• Emplouer had instructed employee to help emergency services and then saw burned and crushed bodies
• Couldn’t be classed as PTSD

Question 62

testfor DoC

Caparo v Dickman [1990] 2 AC 605

Answer 62

The legal issue centred on the extent of the duty of care owed by auditors to third parties, specifically whether auditors owe a duty of care to outside investors who rely on audited financial statements for making investment decisions

• No duty was owed either to existing shareholders, or to potential investors, since for a duty to arise, three factors had to exist, namely:
  The House of Lords decision in this case introduced a three-part test to determine whether a duty of care exists in a particular situation.

The three-part test is as follows:
* Foreseeability: The harm that occurred must have been reasonably foreseeable by the defendant (the person being sued) at the time of the alleged negligence.
* Proximity: There must be a relationship of proximity between the defendant and the claimant (the person bringing the lawsuit), such that it is fair, just, and reasonable to impose a duty of care.
* Fairness: It must be fair, just, and reasonable to impose a duty of care in the circumstances, considering factors such as public policy, the parties’ relationship, and the potential consequences of imposing a duty.

Question 63

needle

Hunter v Hanley 1955 SC 200

Answer 63

Medical negligence case

• Pursuer alleged that the defender, a doctor, was negligent in using a needle which was not suitable for treating the patient

Hunter v Hanley tells us that to be successful, a pursuer must demonstrate that the defender has adopted a course of action which no professional person of ordinary skill would adopt if acting reasonably

Question 64

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Answer 64

Can help us understand Hunter v Hanley

• A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular form of treatment
• Nor is he negligent merely because there is a body of opinion which would adopt a different technique.
• It is appropriate to consider firstly whether good medical practice required that a warning should have been given to the patient before he submitted to the treatment, and, secondly, if a warning had been given, what difference it would have made.
• “…The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”(at 586)

Question 65

Gordon v Wilson 1992 SLT 849

Answer 65

• Argued that doctor was negligent in delaying to refer patient to specialist
• One body of opinion agreed with the pursuer, and one body of opinion agreed with the defender
• Professional negligence cannot be established by preferring one body ofopinion over another (Honisz v Lothian Health Board [2006] CSOH 24 at 39)
• No negligence simply where there is a contrary body of opinion (Bolam v Friern Hospital Management Committee)

Question 66

Wilsher v Essex Area Health Authority[1988] 1 AC 1074

Answer 66

• Premature baby developed a condition known as retrolental fibroplasia (RLF), resulting in blindness.
• Plaintiff argued that negligence by the defendant hospital, specifically the neonatal department, led to the baby’s condition.
• However, the court found it challenging to determine which of several potential causes had contributed to the RLF.

Ultimately, the House of Lords held that since there were multiple potential causes for the baby’s condition, including negligent and non-negligent factors, the plaintiff could not establish causation on the balance of probabilities. Therefore, the plaintiff’s claim failed, highlighting the importance of establishing causation in negligence cases

Question 67

montgomery

Sidaway v Bethlem Royal Hospital Board of Governors [1985] AC 871

Answer 67

• Prior to the SC decision in the Montogmery case, the failure of a doctor to disclose risks with very low probability of materialising would not normally be negligent

Question 68

JG Martin Plant Hire Ltd v Macdonald 1996 SLT 1192

Question 69

Unfair Contract Terms Act 1977

Answer 69

• Parties cannot contract out of owing a duty of care

Question 70

Hedley Byrne & Co Ltd v Heller & Partners Ltd 1964 AC 465

Answer 70

• Established that a party may be liable for negligent advice, even without a contractual relationship
• This case provides authority for the idea that liability will exist for advice, just as for acts
• Furthermore, there can be recovery of economic loss without damage to property

Necessary to show:

• That the pursuer relied on the statement made by the defender
• That the defender reasonably knew, or ought to have known, that the pursuer wouldrely on it
• That the party making the statement expressly or impliedly undertook responsibility forit
• Evidence of close proximity

Tells us that the defender should have reasonably known, or ought to have known, that the statement was going to be relied on by the pursuer

Question 71

Galoo Ltd v Bright Graham Murray [1994] 1 WLR 1360

Answer 71

In this case, a duty was deemed to arise only if the auditor was expressly made aware that a particular lender or bidder would rely on the accounts, without independent inquiry

Question 72

Goodwill v British Pregnancy Advisory Service [1996]1 WLR 1397

Answer 72

Need for pursuer to establish they were going to rely on the defender’s statements emphasised here

• After a vasectomy, a patient was assured they no longer needed to use any othermethod of contraception – a later sexual partner of the patient became pregnant andsued the defendants alleging that they owed her a duty of care
• Is this party sufficiently proximate to the defender?
• See Scottish case of McFarlane v Tayside Health Board [2000] 2 AC 59

Question 73

solicitor

Steel v NRAM [2018] 1WLR 1190

Answer 73

Reliance on misstatements, and the assumption of responsibility for the accuracy of a statement on the part of a defender, was examined in Steel v NRAM [2018] 1WLR 1190

• The defender, Steel (S), was a solicitor who acted for company X – X bought a business park with the assistance of a secured loan, provided by the professional lender NRAM (N) – the business park was comprised of four units
• During the sale of some of the units in the business park, the solicitor made a misstatement, which caused the lender to suffer losses
• The Supreme Court held that S did not owe N a duty of care.
• Solicitor would not assume responsibility towards the opposite party unless it was reasonable for the latter to have relied on what the solicitor said and unless the solicitor should reasonably have foreseen that he would do so.

Question 74

financial affairs

Henderson v Merrett Syndicates Ltd [1995] 2 AC 145

Answer 74

Professional negligence

• Managing agents were conducting the financial affairs of the claimants, it was alleged that they managed their affairs with a lack of due care, which resulted in losses
• So, rather than advice being relied on, there was reliance on the provision of services; the claimants were relying on the assumption of responsibility for sorting the financial affairs

Question 75

Bourhill v Young [1943] AC 9

Answer 75

In Bourhill v Young [1943], Mrs. Bourhill, who was not physically injured in a motorbike accident caused by Mr. Young’s negligence, suffered psychological shock leading to a stillbirth. The House of Lords ruled that Mr. Young owed no duty of care to Mrs. Bourhill because she was not within the “zone of danger” at the time of the accident, and her harm was not foreseeable to him. Therefore, Mr. Young was not held liable for her injuries.

Question 76

Walker v Northumberland County Council 1995 1 All ER 737

Answer 76

• An employer’s duty to take reasonable care to provide his employee with a safe system of work and take reasonable steps to prevent him from risks which are reasonably foreseeable extended to risks of psychiatric illness.
• W, who was responsible for four teams of social services fieldworkers employed by the NCC, suffered a mental breakdown in and was forced to spend four months away from work.
• Breakdown followed a lengthy period over which W’s work pressures increased significantly and, despite repeated attempts to do so, he had not persuaded the NCC either to increase staff or provide guidance as to work distribution or prioritisation.
• Upon his return he was offered no additional support from the NCC
• Suffered a second mental breakdown.
• He was dismissed on the grounds of permanent ill-health in
• Brought an action for damages against the NCC for breach of their duty of care to take reasonable steps to avoid exposing him to a health-endangering workload.
• Held, upholding W’s claim for damages, that (1) there is no logical reason why the risk of psychiatric damage should be excluded from the scope of an employer’s duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable

Question 77

Dooley v Cammell Laird and Co Ltd [1951] 1 Lloyd’s Rep 271

Answer 77

In this case, the plaintiff, a crane driver, was lent by the first defendants, along with his crane, to the second defendants, who were working on a ship in the first defendants’ yard. A crane sling provided by the second defendants broke, causing material to fall into the ship’s hold where men were working. The plaintiff suffered nervous shock due to the accident and claimed damages.

Judge Donovan held that:

• The first defendants breached regulations 33 and 36 of the Shipbuilding Regulations, 1931, contributing to the plaintiff’s injury.
• The second defendants owed a duty of care to the plaintiff, which they failed by providing a defective sling, and the resulting damage was not too remote.
• The first defendants were entitled to be indemnified by the second defendants for three-quarters of the damages and costs awarded to the plaintiff.

Underscores the importance of adherence to safety regulations, the duty of care owed by providers of equipment, and the principle of apportioning liability based on fault or contribution to harm.

Question 78

Dulieu v R White & Sons [1901] 2 KB669

Answer 78

Primary Victims

• Pregnant woman suffered severe shock when a horse van was negligently driven into a bar where she worked – as a result the baby was born prematurely
• Court allowed recovery of damages

Question 79

Page v Smith [1996] AC 155

Answer 79

Primary victims

• Medical condition (ME) was reactivated after a minor road traffic accident
• The House of Lords held that the claim for compensation should succeed, on the basis that if they had suffered any physical injury at all (which in this case they had not) they would be entitled to damages
• Personal injury will therefore include psychiatric harm

Question 80

Hambrook v Stokes [1925] 1 KB 141

Answer 80

Secondary victims

• Can a claim be made for fear for the safety of children?
• A distinction was drawn between shock caused by what the mother saw ’with her own eyes’ and what she had been told by bystanders, wherein liability would be excluded
• The claim succeeded

Question 81

McLoughlin v O’Brian [1983] 1 AC 410

Answer 81

Secondary victims

• One of M’s children was killed and her husband and other two children were severely injured in a road accident. The incident was reported to M while she was at her home, some two miles from the scene. At the hospital M saw the extent of the injuries to her family and heard of the death of her daughter, as a result of which she suffered severe and persisting nervous shock, for which she claimed damages.
• The House of Lords allowed the claim and reviewed the law to avoid ‘arbitrary lines’
• Not physically present at the scene
• Court considered the necessary degree of proximity
• Held, that the test of liability for nervous shock is the ordinary test of reasonable foreseeability.
• Set out tests to restrict liability –judicial safety valve
• Class of persons, close in time and space, how the shock was sustained

Question 82

Alcock et al v Chief Constable South Yorkshire [1992] 1 AC 310

Answer 82

Involved the Hillsborough football disaster
The test established in Alcock

• Close tie of love and affection (between the secondary and primary victims)
• Presence at the event or the immediate aftermath
• Direct perception

Question 83

Robertson v Forth Road Bridge Joint Board 1995 SC 364

Answer 83

Alcock criteria

• Robertson and colleague had spent nearly all of their working lives together, and went for a drink together once a week
• A large piece of metal sheeting was being moved in the back of a van, when the wind picked up and Robertson’s colleague was blown over the side of the bridge
• Sudden tragic loss of a work colleague
• Employer did not owe R and D a duty of care simply as employees and there had to exist the requisite relationship of proximity.
• R and D could not establish that there were such close ties of love and affection between them and the deceased, they had done nothing which could bring them within the category of a rescuer, and it could not be said that they were “involuntary cause of another’s injury”

Question 84

Wilkinson v Downton [1897] 2 QB 57

Answer 84

Intentional psychiatric harm

• Falsely told Wilkinson that their husband had had a serious accident – it was intended that this be believed – held liable for shock and medical expenses

Question 85

Re (a minor) v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB)

Answer 85

• Concerned a mother and grandmother who alleged they both had suffered PTSD after the mother experienced and the grandmother witnessed the negligent and traumatic delivery of the mother’s child
• The infant suffered a brain injury during the protracted birth
• The grandmother was present and witnessed the birth – does this satisfyAlcock?

Question 86

Liverpool Women’s Hospital v Ronayne [2015] EWHC Civ 588

Answer 86

• Husband who witnessed his wife suffer complications over a 36 hour period as a result of a negligently performed hysterectomy
• This was deemed not to satisfy theAlcock criteria – why?

Question 87

Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) [2024] UKSC

Answer 87

Recent developments in psychiatric harm

Question 88

Attia v British Gas plc [1988] QB 304

Answer 88

• Attia engaged British Gas to install central heating in their home, and returned home to find their loft on fire, resulting in the house and its contents becoming extensively damaged –the fire had been caused by the defender’s negligent installation of the central heating
• Attia claimed for the nervous shock sustained after seeing this damage
• It was held by the Court of Appeal that Attia could recover if they could prove at trial that the harm suffered was reasonably foreseeable

Question 89

X (Minors) v Bedfordshire County Council [1995] 2 AC 633

Answer 89

• child abuse cases, the plaintiffs claimed that the local authorities failed to safeguard their welfare under the Children Act 1989 and failed to apply for care orders. In the education cases, various plaintiffs alleged that local education authorities (LEAs) negligently failed to meet statutory duties under the Education Acts of 1944 and 1981, including failures to assess special educational needs and provide appropriate educational provision.
• held that a breach of statutory duty does not automatically give rise to a private law cause of action.
• Instead, a private right of action arises only if the statutory duty was intended to protect a limited class of the public, and Parliament intended members of that class to have a private right of action for breach of that duty. If the statute provides alternative means of enforcement, such as regulatory mechanisms, it may indicate that a private right of action does not exist.
• HoL recognised that if a state agency exercised its statutory powers carelessly, there could be liability at common law in negligence.
• But before there can be liability in negligence, the careless exercise of the statutory powers must amount to a breach of a pre-existing duty of care owed by the agency to the pursuer

Question 90

GN v Poole BC [2019] UKSC 25

Answer 90

The Delictual Liability of Public Bodies – Statute and Common Law

• the claimants sought damages from the local authority alleging breach of s 17 of Children’s Act 1989 which required the authority to safeguard and promote the welfare of children.
• Mother and 2 children had been housednnext to ‘neighbours from hell’ and suffered mental and physical harm. Contended the authority was in breach for failing to rehouse them
• Provisions of the act didnt allow basis for an imposition of duty of care at common law
• Case failed, no duty was owed
• “public bodies do not owe a duty of care at common law merely becausethey have statutory powers or duties, even if, by exercising their statutorypowers, they could prevent a person from suffering harm”

Question 91

The Delictual Liability of Public Bodies – Statute and Common Law

Morrison Sports Ltd v Scottish Power [2010] UKSC 37

Answer 91

• If the statute includes a penalty for a breach then no common law remedy
• Unless the statute benefits a class of persons
• building burnt down and source was found to be electricity meter
• MS alleged they had been negligent
• Case clarified that the negligent exercise of statutory powers by a public authority can give rise to liability in negligence if:

1. The statutory powers conferred on the authority are capable of being exercised negligently.
2. The negligent exercise of those statutory powers results in foreseeable harm to the claimant.
3. There is a sufficiently proximate relationship between the authority and the claimant to give rise to a duty of care.

Question 92

The Delictual Liability of Public Bodies – Statute and Common Law

Dawson v Bingley Urban District Council [1911] 2 KB 149

Answer 92

If the statute does not provide a method of enforcement then Parliament must have intended that a remedy should be available at common law

• In this case, a local authority affixed a plate indicating the position of a fire-plug in a street, but it was misleading, causing delay in fighting a fire nearby.
• The court held the authority liable for the extra damage caused by the fire due to their misleading indication, ruling it as an act of misfeasance rather than non-feasance.

Question 93

Osman v UK [1999] 1 FLR 193

Answer 93

The Delictual Liability of Public Bodies – Statute and Common Law

• The European Court of Human Rights held that to strike out a claim on the ground that the police enjoyed blanket immunity was a breach of the claimants right under Art. 6 of the European Convention on Human Rights
• ECtHR then decided no breach of Art 6
• Claimants obtained substantial damages for breach of their Convention of rights in circumstances, where damages not available due to judges’ refusal to impose duty of care

Question 94

Stovin v Wise [1996] 3 WLR 388

Answer 94

The Delictual Liability of Public Bodies – What Does the Court Consider?

• Plaintiff injured in road accident
• Local authority had known the wall was a hazard and had failed to exercise the power to have danger removed
• HoL held, while local authority had public law duty to consider whether to exercise the power, did not automatically confer a common law right on an individual to obtain damages if injured as a consequence of the authority’s decision to not exercise powers.

Question 95

Fire (Scotland) Act 2005

Answer 95

The delictual liability of public bodies
* s8(1) Scottish Fire and Rescue Service must make provision for the purpose of promoting fire safety in its area
* s9(1)(a) Scottish Fire and Rescue Service must make provision for the purpose of extinguishing fires in its area
*

Question 96

The Delictual Liability of Public Bodies - Justiciability

Rowling v Takaro Properties Ltd [1983] AC 473

Answer 96

• A company applied for consent to issue shares to a foreign investor, requiring approval from a Minister of State.
• The Minister refused consent, prompting the company to challenge the decision in court. Although the company initially succeeded in its challenge, it later sued the Minister for negligence in exercising his powers.
• The Court of Appeal ultimately reversed the decision, finding that even if the Minister owed a duty of care, he did not breach it in this instance.

Could the cure be worse than the disease?

• Disease is the harm the pursuant or claimant has suffered
• cure is the remedy, likely to be damages

Question 97

The delictual liability of public bodies - justiciability

Santander UK plc v Keeper of Registers of Scotland 2013 SLT 362 OH

Answer 97

• The Keeper of the Registers of Scotland did not owe a duty of care to a bank for acceptance and registration of a personally presented forged discharge of standard security by the purchaser of a heritable property where the bank bore certain risks in lending to the purchaser, and it would not be fair, just and reasonable to impose such a duty on the Keeper.
• Is the act or ommission complained of a matter of policy or an operational matter - operational

Question 98

Barrett v Enfield London Borough Council [2001] 2 AC 550

Answer 98

The delictual liability of public bodies - justiciability

• HoL held that once a child had been taken into care, a local authority could owe the child a common law duty to prevent him suffering mental harm caused by the authoritys failure to provide suitable support: irrelevant that the local authority’s decisios involved discretion of professional support workers
• An examination of the facts may be necessary to determine justiciability

Question 99

Robinson v Chief Constable of West Yorkshire [2018] UKSC 4

Answer 99

• Claimant was an elderly pedestrain who found herself at the bottom of a ruck involving two burly police officers and a suspected drug dealer
• A duty was owed to her by the police officers as a person within immediate vicinity whose physical injury was a forseeable consequence of the officers attempting an arrest in the street

Question 100

Delictual liability of the police- bridge

Gibson v Orr 1999 SC 420

Answer 100

• A bridge carrying a public road collapsed
• Police coned off the north side and positioned a police vehicle as a warning on south side. After an hour, left without knowing if barrier was in place on south side.
• Pursuer injured after being in a car driven onto the bridge from south side that fell in and 2 drowned
• Held that police owed pursuer a duty of care

Question 101

Delictual liability of the fire service

Capital and Counties plc v Hampshire County Council [1997] QB 1004

Answer 101

Facts:

• A fire brigade attended a fire at C’s premises and turned off a sprinkler system, fire to escalated and caused substantial damage.
• Another fire broke out at JM’s premises after the fire brigade purportedly inspected the area to ensure no danger remained from a previous extinguished fire caused by a third party.
• CJC’s claim for negligence and breach of statutory duty under the Fire Services Act 1947 s.13 was dismissed after the fire brigade was unable to fight a fire immediately due to the absence of an adequate water supply.

Outcome:

• The appeals were dismissed.
• The court held that the fire brigade’s statutory powers could not be converted into a common law duty, and they were not under a duty to answer calls for assistance or to take care to do so.
• However, if the fire brigade, through its own negligence, created the danger that caused the plaintiff’s injury, the plaintiff could recover damages for negligence.
• Section 13 of the Fire Services Act, which imposed a duty on the fire brigade to ensure an adequate supply of water for firefighting, did not confer a private law right on individuals. It was part of the brigade’s general administrative function and could not give rise to an action for breach of statutory duty.

Question 102

Delictual liability of the fire service

Jesus Christ of Latter Day Saints v Yorkshire Fire and Civil Defence Authority [1997] QB 1004

Answer 102

• The Fire Authority sought to strike out a claim by the Church alleging negligence and a breach of statutory duty in failing to secure an adequate water supply which, the Church contended, had led to the spread of a fire which totally destroyed its premises.

Held, allowing the application and striking out the claim, that:

• The Fire Services Act 1947 did not confer a private law right of action, meaning that the Church could not bring a claim under this statute.
• Although the damage was foreseeable and there was a sufficient proximity between the parties at common law, it was not fair or reasonable to impose a common law duty of care on the Fire Authority.
• Negligence claims against emergency services such as the police and coastguard were generally barred on public policy grounds, except in cases where the danger was created by the emergency service itself. Allowing such claims could burden the efficiency of the fire service and create unreasonable financial claims on the taxpayer.

Court concluded that the Fire Authority did not owe a duty of care to the Church in this case, and therefore, the claim was struck out. The decision was based on legal principles and public policy considerations surrounding the role and responsibilities of emergency services.

Question 103

Delictual liability of the fire service

AJ Allan (Blairmyle) Ltd v Strathclyde Fire Board 2016 CSIH 3

Answer 103

• Building burnt down after fire service had left having attended and apparently extinguished an earlier fire
• Capital and Counties was applied and it was held that there was no assumption of responsibility and duty on the fire service, which had not been breached, was restricted to not making matters worse

Question 104

Kent v Griffiths (No.3) [2001] QB 36

Answer 104

• Claimant suffered respiratory arrest and lost her baby because an ambulance failed to arrive within a reasonable time. No explanation given for delay; crew even falsified time records
• Held, since there was an ambulance available and no other demands of the crew, they owed her a duty of care; by accepting call they had assumed responsibility for patient
• They were negligent

Question 105

Delictual liability of the ambulance service

Aitken v Scottish Ambulance Service [2011] CSOH 49

Answer 105

• Patient who had epikepsy suffered seizure
• Individual paramedic in a car turned up 20 mins after, but could not help
• 33 minutes after original car ambulance turned up but too late and girl died
• Negligence found

Question 106

Delictual liability of local/ road authorities

Mitchell v Glasgow City Council [2009] 1 AC 874

Answer 106

murdered neighbour after meeting with council over dispute

Question 107

Delictual liability of road authorities- snow

MacDonald v Aberdeenshire Council 2014 SC 114

Answer 107

• Inner House accepted that Scots Law differed from English law in that ‘road authorities are liable in negligence, but only in respect of hazards, in the sense of defects that are unlikely to be noticed by reasonable road users’
• Since the duty is restricted to the removal of hazards that would not be noticed by a reasonable skilful driver, the scope of the duty is narrow
• No liability if the authority failed to clear snow as the reasonable driver would easily recognise hazard

Question 108

Delictual liability of local/road authorities

Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15

Answer 108

• Local authority had not provided a warning on a stretch of road of the danger of driving too fast
• The ommission in itself could not generate a common law duty of care when the authority’s failure to exercise powers under the RTA 1988 to promote road safety did not give rise to a private law remedy for breach of statutory duty
• Statutory powers do not give rise to a duty to confer a benefit on members of the public

Question 109

Delictual liability of local/road authorities

Ryder v Highland Council [2013] CSOH 95 Cairns v Dundee City Council [2017] CSOH 86

Answer 109

R v HC

• Decree of absolvitor was granted in favour of a roads authority in an action against them by the son of a car driver who sustained fatal injuries in a road traffic accident when she had lost control of her vehicle after encountering a patch of ice on the road where the authority had not failed to exercise reasonable care for the safety of road user
• was a forecast for rain so decided by person in charge that no point gritting or salting roads as it would be washed away
• Court decided decision was not unreasonable given the circumstancess.

C v DCC

• A pedestrian had failed to establish a breach by the local authority of the Occupiers’ Liability (Scotland) Act 1960 s.2(1) after he sustained serious injuries when he slipped on black ice in a public car park.

Question 110

The Police and Fire Reform (Scotland) Act 2012

Answer 110

Liability for Harm Caused by the Criminal Acts of Third Parties – The Police
s20 Constables: general duties
It is the duty of a constable—
(a) to prevent and detect crime,
(b) to maintain order,
(c) to protect life and property,
Are the public entitled to the police’s protection?

Question 111

ex

Smith v Chief Constable of Sussex [2008] EWCA Civ39

Answer 111

Liability for Harm Caused by the Criminal Acts of Third Parties – The Police
Liability to the Public

• Claim in negligence against the police, who allegedly had been informed of death threats but had failed to take the necessary steps, was not bound to fail and should not have been struck out as it was arguable that the police owed the victim a duty of care
• person threatened with violence by ex partner
• police investigated
• later was attacked by said ex

Question 112

threat

Michael v Chief Constable of South Wales [2015]UKSC 2; Sherratt v Chief Constable of Greater Manchester [2018] EWHC 1746 QB

Answer 112

Liability for Harm Caused by the Criminal Acts of Third Parties – The Police

Liability to the Public

• Woman phones police when ex outside her house threatening but call went through to wrong geographical location
• When transferred to right location the high risk label was lost
• when she phoned again an hour later it was too late and she was found murdered
• The police did not owe a common law duty of care in negligence to a specific member of the public where they were aware, or ought reasonably to have been aware, of a threat to her life or physical safety.
• Nor did they owe such a duty where a member of the public had given them apparently credible evidence that an identifiable third party presented a specific and imminent threat to her life or physical safety.

Sherratt:
* The police owed a duty of care to a woman who had committed suicide after the woman’s mother had made a 999 call expressing concerns about her daughter’s welfare.
* The police** had assumed responsibility for the woman’s welfare because of the 999 call handler’s assurances to the mother that officers would attend the daughter’s property** and arrange for her transfer to hospital, and because the mother had relied on that assurance to her detriment.

Question 113

lorry

Chief Constable of Essex v Transport Arendonk BvBA [2020] EWHC 212 QB

Answer 113

Liability for Harm Caused by the Criminal Acts of Third Parties – The Police
Liability to the Public

• lorry driver suspected to be found drink driving
• they take him and the keys and leave the lorry in an area known for theft
• people broke in and stole his possessions
• claimed negligence
• police found liable to owners of lorry

Question 114

Liability for Harm Caused by the Criminal Acts ofThird Parties–ThePolice

Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50

Answer 114

• State had called Van Colle as a witness in a trial
• Since there was no evidence to suggest that the accused was violent, it could not have been reasonably anticipated that the accused would kill him; consequently, no breach of Article 2
• Know or ought to know of a real and immediate threat to an identified individual by the criminal act of a third party.

Question 115

Commissioner of Police of the Metropolis v DSD [2018] UKSC11

Answer 115

Liability for Harm Caused by the Criminal Acts of Third Parties – The Police

The Human Rights Aspect
* In this case, the Commissioner of Police of the Metropolis appealed against a decision that he had breached the ECHR art.3 rights of several women by failing to conduct effective investigations into sexual assaults committed by a serial offender over a six-year period.
* The judge found systemic and operational failures by the police, amounting to a breach of the women’s art.3 rights.
* Appeal was dismissed.
* Court determined that the duty to investigate under art.3 could be owed to individual victims and did not require state complicity.
* However, compensation for breaches of art.3 duty was not automatic, and there was no common-law duty of care on the police regarding ECHR rights. The decision-making process in such cases should involve national courts, particularly where the ECtHR had not made a decision.

Question 116

Rathband v Chief Constable of Northumbria Constabulary [2016] EWHC 181 QB

Answer 116

Liability for Harm Caused by the Criminal Acts of Third Parties – The Police

Liability for Officers

• man went on armed rampage and told police he would shoot anyone who tried to capture him
• officer in charge didnt communicate this threat of violence against the officer
• was an operational matter under pressure, court decided it wasnt a justiciable matter
• had the police been found liable, other police forces would be hesitant to send out forces in future

Question 117

Liability for Harm Caused by the Criminal Acts of Third Parties:Pr.Srvce

Dorset Yacht Co v Home Office [1970] AC1004

Answer 117

• Borstal boys were working on the Isle of Wright under control of 3 brostal officers. Officers went to be, leaving boys to own devices
• 7 boys decide to escape, went on board a yacht and collided with plaintiff’s yacht
• Held that borstal officers owed duty of care to plaintiff which they had broken
• Sea was only means of escape for boys so was reasonably forseeable

Question 118

SHORT TERM LEAVE

Thomson v Scottish Ministers [2011] CSOH 90

Answer 118

The Scottish Prison Service did not owe a duty of care to a member of the general public who was killed by a prisoner on short term leave, where risk to the general public, even if grave, was not enough to satisfy the requirement of proximity; there had to be a special risk of harm to the injured party that they did not share with other members of the public.

• court determined scottish ministers not liable to family of murdered person

Question 119

Liability for harm caused by third parties - the prison service

Kaizer v Scottish Ministers [2017] CSOH 110

Answer 119

• prisoner threatened with violence and so reported it to prison officer, but they did not do anything about it
• threat was carried out and attempted murder took place
• court held that it was reasonably forseeable that the threatened action was likely to be carried out

Question 120

Collins v First Quench Retailing Ltd 2003 SLT1220

Answer 120

Liability for harm caused by the criminal acts of third parties

• An off licence manager would be awarded damages where she suffered depression and post traumatic stress disorder following an armed robbery at the premises when she was working alone
• Some form of attack on staff was foreseeable given the shop’s history
• The employers’ failure to take reasonable care and introduce double manning materially increased the risk of attack.

Question 121

Liability for harm caused by the criminal acts of third parties

Maloco v Littlewoods Organisation Ltd 1987 SC (HL) 37

Answer 121

• Defender owned empty cinema. Vandals broke in and started a fire which damaged neighbouring property
• Accepted by the court that had general duty of care to neighbours, but not to prevent a third party from using premises to cause injury or damage to neighbouring propety

Question 122

Breach of confidence test

Coco v AN Clark (Engineers) Ltd [1969] RPC 41

Answer 122

1. That the information was confidential
2. That the circumstances of disclosure imposed an obligation ofconfidence
3. That there was unauthorised use of the information by the defendant tothe detriment of the plaintiff

Question 123

Breach of confidence - was the information confidential

Attorney-General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109 – The Spycatcher Case

Answer 123

• The British government tried to prevent the publication of a book by former intelligence officer Peter Wright, claiming it contained sensitive information.
• House of Lords ruled that once information is in the public domain, it can’t be restrained by injunction.
• Upheld press freedom, allowing “Spycatcher” to be widely circulated in the UK despite government efforts to stop it.
  “There are three limiting principles… the first is that the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain… then, as a general rule, the principle of confidentiality has no application to it… the second limiting principle is that the duty of confidence applies neither to useless information, nor trivia… The third… is that… the law’s protection of confidence… may be outweighed by some other countervailing public interest which favours disclosure” per Lord Goff

Question 124

Breach of confidence

Duchess of Argyll v Duke of Argyll [1967] Ch 302

Answer 124

• Confidential communications between husband and wife during coverture are within the scope of the court’s protection against breach of confidence
• The wife’s own immorality does not nullify her right to protection against breach of confidence relating to past events, prior to the breakdown of the marriage
• “the plaintiff’s adultery, repugnant though it be, should not in my view license the husband to broadcast unchecked the most intimate confidences of earlier and happier days”

Question 125

Breach oconfidence-circumstances ofdisclosureimposeconfidence obligation

Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457

Question 126

Misuse of private information

Wainwright v Home Office [2004] 2 AC 406

Answer 126

• strip search of mother and son with physical and mental learning difficulties when visiting a prison, claiming that they suffered mental harm as result of humiliating circumstance
• the 1998 act did not exist at this time, but ECHR held claimants article 8 right had been breached
• no right to privacy under uk law

Question 127

public interest

HRH Prince of Wales v Associated Newspapers (No.3)[2008] Ch 57

Answer 127

• The test to be applied when considering whether it was necessary to restrict freedom of expression in order to prevent the disclosure of information received in confidence was not simply whether the information was a matter of public interest but whether in all the circumstances it was in the public interest that the duty of confidence should be breached
• “the law imposes a ‘duty of confidence’ whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase ‘duty of confidence’ and the description of the information as ‘confidential’ is not altogether comfortable. Information about an individual’s private life would not, in ordinary usage, be called ‘confidential’. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information”. per Lord Phillips of Worth Matravers

Question 128

MISUSE OF PRIVATE INFO - CONTRAST

Campbell v MGN Ltd; Ferdinand v MGN Ltd [2011] EWHC 2454 (QB)

Answer 128

Naomi Campbell:

• photos emerging from rehab published in press
• HoL held that claimants interest in protetecting her privacy was not outweighed by the public interest in being informed she had lied about not taking drugs

“My Affair with England Captain Rio”

• A publisher’s right to freedom of expression prevailed over an England football captain’s right to privacy in respect of an article concerning his alleged relationship and communications with a woman.
• There was a public interest in showing that the image he had previously tried to convey of himself was false, and a substantial body of the public would expect higher standards from the England captain

Question 129

ART. 8 AND 10 - child of murderer

Re S (A Child) [2005] 1 AC 593

Answer 129

• No injunction should be made restraining the publication by newspapers of the identity of the defendant in a murder trial in order to protect the privacy of her child, who was not involved in the criminal proceedings, because the freedom of the press to report the progress of a criminal trial without any restraint under the Human Rights Act 1998 Sch.1 Part I Art.10 outweighed the child’s rights under Art.8.

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”

Question 130

MISUSE OF PRIVATE INFO -ART 8 AND 10

McKennitt v Ash [2006] EWCA Civ 1714

Answer 130

• well-know canadian folk singerL McKennitt brought breach of confidence case against further publication of a book containing confidential info gleaned from long friendship
• Case wouldve succeeded under traditional formulation of breach of confidence, but Buxton LJ confirmed it as a case to be determined with ref to articles 8 and 10
• Is Article 8 engaged?
  Does the claimant have a reasonable expectation of privacy in respect of the information published? If not - dismiss
  If it is engaged, balance with Article 10
• A judge had been correct to prevent the further publication of parts of a book, written and published by the former friend of a well-known recording artist, which contained confidential information about the artist’s personal life that infringed her rights under the Human Rights Act 1998 Sch.1 Part I Art.8 , and those rights were not outweighed by the publisher’s right to freedom of expression under Art.10 of the Act.

Question 131

MISUSE OF PRIVATE INFO - BALANCING ART 8 AND 10

Axel Springer AG v Germany [2012] EMLR 15

Answer 131

• Does the article contribute to a debate of general interest?
• The subject of the article and how well-known the relevant person is
• The prior conduct of the person
• The method of obtaining the information

The imposition upon a German media company of an injunction preventing it from reporting on the arrest and conviction of a television actor for a drug offence was a violation of the European Convention on Human Rights 1950 art.10. The interference with the media company’s right to freedom of expression was not proportionate.

Question 132

MISUSE OF PRIVATE INFORMATION - ART 8 AND 10

Douglas v Hello! Ltd (No.6) [2005] EWCA Civ 595

Answer 132

The content, form and consequences for the person of the publication
The severity of the sanction imposed – “the chilling effect”

• In this case, a celebrity successfully sued a magazine for breach of confidence and violation of the Data Protection Act.
• He sought indemnity costs, but the court awarded only 75% of his costs, as he didn’t entirely succeed in his claims.
• The magazine’s conduct was criticized, but an award on the indemnity basis was deemed unnecessary, so costs were awarded on the standard basis.

Question 133

MISUSE OF PRIVATE INFO

Murray v Express Newspapers plc [2009] Ch 481

Answer 133

JK Rowlings son

Subject to the facts of the case, the law should protect the children of parents who were in the public eye from intrusive media attention, at any rate to the extent of holding that the child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on the child’s behalf.

• The attributes of the claimant
• The nature of the activity
• The location
• The nature and purpose of the intrusion
• The absence of consent
• The effect on the claimant
• The circumstances and purposes of the information reaching thepublisher

Question 133

MISUSE OF PRIVATE INFO - criminal investigations

Bloomberg LP (Appellant) v ZXC [2022] UKSC 5

Answer 133

• When a person is subject to a criminal investigation Article 8 will, at least to begin with, outweigh article 10
• A person under criminal investigation had, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.
• That was a general rule or legitimate starting point rather than a presumption; whether there was a reasonable expectation of privacy in the relevant information was a fact-specific enquiry.
• Reaffirmed the importance of open justice and the public’s right to access information about court proceedings. It clarified that reporting restrictions should be carefully considered and narrowly tailored to protect legitimate privacy interests without unduly restricting freedom of expression.

Question 134

MISUSE OF PRIVATEINFO - COPYRIGHT

Duchess of Sussex v Associated Newspapers Ltd[2021] EWHC 273 (Ch)

Answer 134

• Summary judgment was entered in favour of the Duchess of Sussex on her claim for copyright infringement against the owner of the Daily Mail and Mail online newspapers concerning their publication of large parts of a letter she had written to her father.
• The Duchess was bound to establish that she was the sole author and exclusive owner of the copyright in the letter.

Question 135

MISUSE OF PRIVATE INFO

C v Chief Constable of Police Scotland 2021 SC265

Answer 135

• In this case, ten police officers claimed their privacy rights were violated when messages they sent via an electronic system were used in disciplinary proceedings.
• The court found they had no reasonable expectation of privacy considering the messages’ content, senders, and recipients.
• Their claim was dismissed, affirming no violation of their rights under Article 8 of the ECHR.

Question 136

MISUSE OF PRIVATE INFO - CRIMINAL INVESTIGATIONS

Richard v BBC [2019] Ch 169

Answer 136

• As a matter of general principle, a suspect had a reasonable expectation of privacy in relation to a police investigation, which was not removed merely because the information had reached the media.
• The BBC was liable to Sir Cliff Richard for infringing his privacy rights by broadcasting the fact that he was the subject of a police investigation and that his property was being searched in connection with the investigation.
• The BBC was ordered to pay general damages, including aggravated damages, of £210,000

Question 137

Sim v Stretch [1936] 2 All ER 1237, HL

Answer 137

s1(4)(a) a statement about a person is defamatory if it causes harm to the person’s reputation (that is, if it tends to lower the person’s reputation in the estimation of ordinary persons)

Question 138

serious

Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB)

Answer 138

Give the word ‘serious’ its ordinary meaning; not ‘really seriois’ or ‘quite serious’

• Although the meaning of the words complained of in a newspaper article, which was the subject of libel proceedings brought by an international banker against a Portugese publishing company, implied illegality on the part of the banker, publication of the article had not caused serious harm to the banker’s reputation in England and Wales.
• To enable the banker to pursue libel proceedings in England following vindication of his reputation in Portugal would amount to an abuse of process.

Question 139

proof

Lachaux v Independent Print Ltd & Anor [2019] UKSC 2

Answer 139

• A question of fact
• Facts can be inferred from the circumstances such as the gravity of the statements
• English authority on the equivalent provision in the 2013 act holds that proof of actual or prospective harm to reputation must be established

The Defamation Act 2013 s.1(1) altered the previous common law in that a statement that would previously have been regarded as defamatory because of its inherent tendency to cause some harm to the subject’s reputation would no longer be so regarded unless it had caused, or was likely to cause, serious harm. Whether that was so was a proposition of fact that could be established only by reference to the actual impact of the words used, not just their inherent meaning.

Question 140

apology

Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB)

Answer 140

• Newspaper accused of being defamatory in an article about someone
• Published an apology which can reverse the effect of defamatory statement to an extent
• An apology?

Question 141

DEFAMATION & MALICIOUS PUBLICATION

Turley v Unite the Union & Anor [2019] EWHC 3547 (QB)

Answer 141

Small circulation publication
Position of claimant important
s1(3) For the purposes of subsection (2) (b), where B is a non-natural person which has as its purpose trading for profit, harm to B’s reputation is not “serious harm” unless it has caused (or islikely to cause) B serious financial loss

• A Labour MP was awarded £75,000 in damages due to a defamatory article which bore the meaning that there were reasonable grounds to suspect that she had dishonestly and fraudulently joined a trade union in order to vote in its leadership election.
• The union was also responsible for publication given that its press statement to the journalist who wrote the article bore the same meaning. The court rejected the defendants’ truth and public interest defences.

Question 142

DEFAMAMATION & MAL. PUBLICATION - CRIMINALITY

Monson v Tussauds Ltd [1894] 1 QB 671

Answer 142

The placing of a waxwork of a man acquitted of murder alongside others of those found guilty was held to be defamatory

Question 143

murderer

Harkness v Daily Record Ltd 1924 SLT 759

Answer 143

The key fact in this case is that it was considered defamatory to allege that someone is a thief, crook, or swindler

• article was false referring to the claimants brother (murderer)

Question 144

DEFAMAMATION & MAL. PUBLICATION - IMMORALITY

Prophit v BBC 1997 SLT 745

Answer 144

Allegations that a nun was dishonest, unchaste and a lesbian have been held to be capable of amounting to defamation

Question 145

DEFAMATION & MAL. PUBLICATION - FINANCIAL UNSOUNDNESS

Russell v Stubbs Ltd [1913] 2 KB 20

Question 146

Mackellar v Duke of Sutherland (1859) 21 D 222

Answer 146

DEFAMATION & MAL. PUBLICATION - PROFESSIONAL/BUSINESS COMPETENCE

Question 147

unprofessional

McRostie v Ironside (1849) 12 D 74

Answer 147

Allegations of conduct which isunprofessional in the circumstances are also defamatory: to accuse a solicitor of conducting a case for his own - as opposed to his clients - interests

Question 148

Defamation and Malicious Publication – Defences

Public Interest (replaces the Reynolds defence – Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL))

Answer 148

The Reynolds defence is designed to protect serious investigative journalists acting in good faith and reporting on matters of public interest

Question 149

English of nuisance

Fearn & others v Trustees of the Tate Gallery [2023]UKSC 4

Answer 149

Private nuisance in England is subdivided into several categories and generally more complex – reflecting many more cases, as expected in a larger jurisdiction

Question 150

Nuisance: forseeable harm

Cambridge Water v Eastern Counties Leather [1994] 2 AC 264

Answer 150

Whether the nature of the harm needs to be foreseeable – here the answer isprobably yes in both Scotland and England

Question 151

Nuisance: modern law

Watt v Jamieson 1954 SC 56

Answer 151

• Ingress of sulphurous water vapour from a neighbour’s gas heater; flue connected through a common gable. Caused damp, discolouration, crumbling of brick and plaster, damage to stonework and dry rot.
• (What remedies might the pursuer seek?)
• Following complaints it was disconnected, but the damage remained.
• The defender argued that it was a normal use of a dwelling house.

Held:
* That in general, ordinary use was not a defence to a nuisance action; and may not be a normal use here; and went to proof.
* The ‘proper angle of approach is from the standpoint of the victim’; The Court must consider the ‘…balance in all such cases….;
* ‘[W]hen (as in this case) the so-called “locality principle” applies, …. a certain amount ofinconvenience, annoyance, disturbance and even damage must just be accepted as theprice… for staying… in a city tenement. The critical question is whether what he wasexposed to was plus quam tolerabile … [in] all the surrounding circumstances’. (p 58)

Question 152

Nuisance: modern law

MacBean v Scottish Water [2020] CSOH 55, [2021] CSIH 36

Answer 152

Remedial works were undertaken to address smell nuisance from a wastewater treatment plant; subsequently the impact was ‘irregular,faint [and] transient’ [para 79]
Note also public interest question – there is a clear public interest in having wastewater collected and treated

Question 153

Nuisance: modern law, public interest

Ben Nevis Distillery (Fort William) Ltd v North British Aluminium Co 1948 SC 592

Answer 153

Noxious fumes, but a significant public interest; held this was not a reason to refuse the proof; and then, 1949 SLT (Notes) 14, that ‘reluctantly’, interdict would be deferred for remedial works.

Question 154

Nuisance: modern law, public interest

Webster v Lord Advocate 1985 SC 173

Answer 154

Nuisance action regarding the noise of the Military Tattoo and of the construction of the stands.

Question 155

Nuisance: fault and liability for damages

RHM Bakeries v Strathclyde Regional Council 1985 SC (HL)17

Answer 155

• The bakery was flooded with sewage from a collapsed sewer.The pursuers averred the flooding was caused by the sewer which SRC owned, but did not aver any failure to take reasonable care to maintain it. They also averred that SRC had an absolute duty to maintain the sewer under s 2 of the Sewerage (Scotland) Act 1968.
• The Inner House found for RHM.
• In the House of Lords, it was held that to be liable in damages there must be some degree of fault; and that the duty under s 2 to maintain was not absolute.
• However it was not necessary to ‘aver the precise nature of the fault’and it would be sufficient to aver that the collapse was evidence of failure of the duty to maintain (at p 44).

Question 156

specify fault

RHM, in Argyll & Clyde HB v SRC 1988 SLT 381

Answer 156

A water main in the control of the defenders had burst flooding the pursuers premises

The pursuers formulated their case based on a failure on the part of the defender to maintain pipe, but was again held to be irrelevant and lacking in specification.
They had not specified the nature of the fault or the type of maintenance that would be required, so their pleadings were inadequate

Question 157

Kennedy v Glenbelle Ltd 1996 SC 95

Answer 157

This involved damage to an upper flat cause by removal of a load bearing wall in the basement. Glenbelle Ltd. owned the basement and did not appear; the second defenders were Charles Scott, consulting engineers. There was a claim against both defenders: in nuisance, in that the engineers instructed the works which they should have known would cause harm, and in negligence, for failing to take reasonable care.

Held: that both grounds merited a proof.
Culpa could arise in 5 ways: by malice; intent; recklessness; negligence; or perhaps by conduct with a ‘special risk of abnormal damage’ where fault could always be inferred (p 99). If negligence, the normal rules of negligence would apply

Question 158

Total Network SL v HMRC [2008] UKHL 19

Answer 158

Conspiracy: unlawful means
per Lord Hope:
‘designed only to enforce standards of civilisedbehaviour in economic competition between tradersor between employers and labour’

Question 159

economic wrongs: causing loss by unlawful means

Allen v Flood [1898] AC1, HL

Answer 159

• Boilermakers objected to the practice of employing shipwrights to repair ironwork on board ships
• Plaintiffs were shiprights who were employed to repair woodwork on board ships.
• Members of boilermakers union discovered they had been previously employed to repair woodwork on certain ships, so approached current employer of shipwrights and informed him that unless he dismissed the plaintiffs, his other employees would strike. This was done maliciously, to punish the plaintiffs
• Employer dismissed the plaintiffs who brought the action against the trade union representative.

HoL held that no wrong was committed even thought the defendent had acted maliciously.
Authority: An individual can wield economic pressure to force another to act to their own/ another’s economic harm-so long as they are using lawful means.

Question 160

economic wrongs: causing loss by unlawful means

OBG v Allan [2008] 1 AC 1, HL

Answer 160

Facts: The claimant company, OBG, was insolvent. A creditor of the company, on advice of solicitors, appointed two individuals as receivers of the company. It was later admitted that the advice was negligent and the receivers were not entitled to be appointed. The receivers terminated the contracts of the majority of the company’s subcontractors and settled claims under the contracts. Shortly after, the company went into liquidation

Held (House of Lords): The appeal was dismissed; no action of conversion can lie against a contract.
unlawful means are restricted to civil wrongs

Question 161

economic wrongs: conspiracy

Crofter Handwoven Harris Tweed Limited v Veitch 1942 SC (HL)

Answer 161

• Mill owners on Isle of Lewis who made and sold tweed cloth from yarn spun on the island were unable to agree a 100% union membership agreement with TGWU because of competition from rival producers on the island (thepursuers) who obtained yarn cheaper form mainland and sold for cheaper prices.
• Mill owners instructed TWGU to refuse to handle the yarn being brought from mainland.
• Case proceeded on the basis that the dockers were not in breach of their contract with port authority in refusing to handle the imported yarn because the combination amounted to an actionable conspiracy.
• The question was whether the combination amounted to such actionabke conspiracy

HoL held that since no unlawful means were used because the dockers were not in breahhof their contracts of employment, ie there was no conduct which would be actionable if done by one person alone, the conspiracy would be wrongful only if the pursuers could establish a predominant motive o intention of the conspirators was to harm the pursuers
Defenders not liable

Question 162

economic wrongs: conspiracy

Lonrho v Al-Fayed (No.1) [1992] 1 AC 448

Answer 162

Conspiracy: unlawful means

• Lonrho argued taht the defendants had committed an unlawful means conspiracy against them, an alleged fraudulent misrepresentation to the Secretary State constituting unlawful means

HoL held that Lord Diplock’s analysis in Lonrho Ltd v Shell Petroleum Co Ltd (No. 2) was not intended as a definitive account of the law relating to the means conspiracy.

The limits of the tort had not yet been established and the process of refining the law should be carried out only on the facts presented, rather than any hypothetical cause of loss. Loss could be clearly identified on the facts. Lonrho were entitled to damages

Question 163

economic wrongs: inducing breach of contract

British Motor Trade Association v Gray 1951 SC586

Question 164

economic wrongs: inducing breach of contract

OBG v Allan [2008] 1 AC 1, HL

Answer 164

Inducing breach of contract is an example of accessory liability- A is only liable if B breaches their contract with C because of A’s actions

• The tort of intentionally inducing a breach of contract was essentially different from the tort of inflicting harm by unlawful means, although in some factual situations they might overlap.
• Unlawful means consisted of acts intended to cause loss to the claimant by interfering with the freedom of a third party in a way that was unlawful as against that third party.
• The tort of conversion did not extend to the appropriation of choses in action.

Question 165

economic wrongs: inducing breach of contracts

Global Resources Group v MacKay 2008 SLT 104

Answer 165

• To establish the delict of inducing breach of contract, it was not sufficient that harm to one of the contracting parties was foreseeable as a result of a third party’s actions.
• Where the third party was the sole shareholder and director of one of the companies party to the contract, it was necessary that the pleadings addressed what effect this might have before the case could proceed to a proof.

Question 166

economic wrongs: passing off

Colin the Caterpillar vs. Cuthbert the Caterpillar

Question 167

economic wrongs: passing off

Argos v Argos Systems (2015); Martinez v Prick Me Baby One More Time

Answer 167

Goodwill

Argos

• A preliminary issue in a claim for trade mark infringement and passing off, namely whether a US company’s website had been targeted to attract traffic from a UK retailer’s customers, was unsuitable for summary judgment.
• Although passing off law judged liability objectively, it seemed wrong to disregard evidence of an actual intent to target website viewers in another country. There was no authority directly in point, and the case should be decided at a trial in the context of specific findings of fact

Martinez

• The passing off claim brought by a tattoo and piercing parlour based on the use of the word PRICK as a trading name by a cactus and succulent shop was dismissed where, although the tattoo parlour had generated local goodwill in the PRICK name, there was no material misrepresentation by the cactus shop that the goods and services offered by it were somehow authorised by or connected with the tattoo parlour.

Question 168

economic wrongs: passing off

Scottish Milk Marketing Board v Dryborough & Co Ltd 1985 SLT 253

Answer 168

The pursuer, who marketed ‘Scottish Pride’ butter, failed to interdict the defender from selling ‘Scottish Pride’ lager since it was unlikely that the products - being soo different - would be confused.
Although confusion is more likely to be established where there is a common field of activity, a common fiel of activity is not essential where the device to be protected is, for example, a household name.

Question 169

economic wrongs: passing off

Dunlop Pneumatic Tyre Co v Dunlop Motor Co (1906) 8F1146

Answer 169

Held that the pursuers, a large manufacturer of tires, would not be confused with a small family-owned garage of a similar name in Kilmarnock
There is less likelehood of confusion where the products do not belong to a ‘common field of activity’

Question 170

economic wrongs: passing off

Lego System A/S v Lego M Lemelstrich Ltd [1983]FSR 155

Answer 170

• P manufactured children’s toys made of plastic, in kits, named LEGO, and had a substantial reputation in the market.
• D were an old Israeli company which manufactured, inter alia, plastic garden sprinklers.
• They marketed under the trade mark LEGO. Prior to 1979 they had not marketed in the UK P sought quia timet relief alleging that the public would be misled

Claimant had established reputation in mark ‘Lego’ that was capable of extending far beyond toys.

Thus was real risk that public would believe there was connection between Claimant and Defendant

Question 171

economic wrongs: passing off

Fenty and Others v Arcadia Brands [2015] EWCA Civ 3

Answer 171

• The unauthorised sale of a t-shirt bearing a pop star’s image by a high street fashion retailer amounted to passing off.
• In circumstances where the retailer had, over time, emphasised its connection with that pop star, the sale of the t-shirt bearing that particular image amounted to a representation that the pop star had endorsed it, which was likely to lead people to buy it.

Question 172

Allan v Barclay

Answer 172

‘the grand rule on the subject of damages is, that none can be claimed excpet such as naturally and directly arise out of the wrong done; and such, therefore, as may reasonably be supposed to have been in the contemplation of the wrongdoer’

Question 173

Brown v Rolls Royce

Answer 173

Failure to adopt a normal practice is not conclusive proof of negligence

Question 174

Barnett v Chelsea and Kensington Hospital Management Committee

Answer 174

Explains legal principle of ccausa sine qua non
Irrespective of the defenders conduct, the pursuer wouldve died anyway