Private II Cases Flashcards

Question

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

Answer 1

Factual Causation causa sine qua non The claimant was an experienced steel erecter who fell 70 feet to his death from a steel tower he was working on. His employer had failed to provide him with a safety harness and his widow sought damages at common law and for breach of statutory duty for failing to provide appropriate safety equipment, given the height at which her husband was working. The trial judge held breach of duty was established but the claimant would not have worn a belt even if one had been provided, her claim, therefore, failed on causation. The widow appealed. The widow’s appeal was dismissed by the House of Lords. Although she had successfully established breach of duty, it was reasonable to infer the deceased would not have worn the harness had one been provided and he would, therefore, have suffered the same injury in any event.

Answer 2

Factual Causation causa sine qua non 3 nightwatchmen went to the hospital casualty department complaining of vomiting after drinking tea They were turned away by the hospital One of them died from Arsenic poisoning, his heirs sued the hospital for negligence The hospital was not liable due to lack of causation On the balance of probability, as he would have died anyways since the antidote for arsenic could not have been delivered before his death

Answer 3

Factual Causation - causa sine qua non Alfred McTear sued Imperial Tobacco Limited (ITL), claiming that his lung cancer was caused by smoking cigarettes manufactured by ITL. After Mr. McTear’s death, his widow pursued the case. Mrs. McTear claimed that throughout the period during which her husband smoked, ITL was negligent in selling cigarettes or in selling them without appropriate warnings. The Court ruled in favor of ITL because the Mrs. McTear could not prove that her husband was not aware of the dangers associated with smoking and thus she had failed to establish the elements necessary for a successful claim. Significantly, the Court held, among other things, that there is no causal connection between smoking and disease and that “epidemiology cannot be used to establish causation in any individual case . . . .”

Answer 4

reasonably foreseeable conduct of victim (no novus actus interveniens) Were the attempts of the plaintiff to climb over the door of the toilet cubicle natural and probable consequences of the negligent act of the defendant? The appeal was allowed. (1) In determining the remoteness of the damage, the court needs to balance the risks taken by the plaintiff against the consequences of the defendants’ breach of duty. (2) The plaintiff did not take a risk that was disproportionate to the necessities of her situation. Therefore, the injury that the plaintiff sustained was not too remote from the negligent act of the local authority. (3) However, on the facts, the plaintiff is guilty of contributory negligence, as having realised that she could not climb over the door, she should have appreciated that she could not rely entirely on the toilet roll holder to support her weight. Hence, she was 25 per cent to blame for the accident.

Answer 5

unreasonable conduct of victim (is novus actus interveniens) While the defendant accepted liability for the leg injury resulting from the accident at work, the issue in this case concerned the ankle fracture sustained in the second incident. The defendant disputed liability for the act by the complainant. The court must answer whether this was a new intervening act that would break the chain of causation and whether damages were recoverable for the complainant’s ankle injury. While the employer was negligent and liable for the initial injury, the new action by the complainant was a novus actus interveniens that broke the chain of causation. The complainant had taken an unreasonable risk that could not be foreseen and the defendant could not be liable for the ankle injury. Lord Reid made it clear that an injured person should act reasonably and carefully in his recovery. Trying to descend steep steps unaided with the possible of his leg giving way was an example of unreasonable behaviour.

Answer 6

Remoteness - Foreseeability “The grand rule on the subject of damages is that none can be claimed except such as naturally and directly arise out of the wrong done, and such therefore, as may reasonably be supposed to have been in the view of the wrongdoer”. Lord Kinloch This approach equates direct consequences with those that are reasonably foreseeable

Answer 7

Reviewes 30s judgement Liability limited to foreseeable consequences (see full test per Lord Rodger at para 67) S was employed at a steelworks in Cambuslang. He suffered a severe blow to the head which caused headaches, dizziness and blurred vision for several weeks. His employers were found liable for this injury and S was awarded £3,573 compensation. After the accident, S, who had earlier warned British Steel of the danger inherent in the procedure which caused the accident, became angry that the accident had occurred when it could easily have been avoided. This anger exacerbated S’s pre-existing skin condition — psoriasis — and as a result the employer’s Medical Officer had refused to allow him to return to work. S’s prolonged absence from work made him become preoccupied with the accident and more angry, particularly with the employer’s personnel department’s failure to visit him. This resulted in a deterioration of his mental state and a severe depressive illness. S claimed compensation for his mental illness. At first instance his claim was dismissed on the basis that he had not established that his mental condition was directly attributable to the accident, given that it was some time after the accident that his anger had exacerbated the psoriasis which led to his absence from work and the deterioration in his mental state. An appeal was allowed. The Scottish court ruled that S’s psoriasis had worsened within a matter of days and there was a direct causal link between the accident and S’s dermatological and psychiatric conditions. British Steeles appeal to House of Lords dismissed.

Answer 8

Remoteness – loss of chance - Deprivation of legal right Failure to launch court appeal papers, whole appeal was abandoned- loss of chance to advance his claim- deprivation of legal right

Answer 9

Remoteness – loss of chance - Utterly speculative

Answer 10

Remoteness - loss of chance - no remedy simply for reduction in the chance of recovery from illness Medical Negligence - 'Loss of a chance' - tricky application of the balance of probabilities. The claimant, Gregg, noticed an unusual lump under his arm and subsequently sought a medical opinion regarding it. His doctor incorrectly and negligently diagnosed the lump as benign. In fact, the lump was a malignant cancer which was not discovered for a further nine months, resulting in a sizable delay in when the claimant begun receiving the correct treatment for the lump. Could a claimant successfully claim for their ‘loss of a chance’, that is a greater likelihood of having survived treatment. The House of Lords held (in a notably and controversially split 3 – 2 decision) cited Hotson v East Berkshire Area Health Authority [1987] AC 750 with approval. Thus, whilst the defendant had indeed been negligent in his original assessment, it remained 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.

Answer 11

The Development of Judicial Thinking - Proximity/foreseeability of harm The local authority approved building plans for a block of flats and the flats were built later that year. However, by 1970 structural movement had begun to occur in the properties causing cracking to the walls and other damage, causing the properties to become dangerous. The claimant tenants in the flat began proceedings in 1972 in negligence against the council on the basis that the council had failed to properly inspect the building walls properly in order to ensure that the foundations were laid to the correct depth shown in the plans. There were two specific issues. (1) Whether the council owed a duty of care to the claimants in respect of the incorrect depth of the foundations laid by the third-party builder. (2) Whether the claim was statute barred. (1) It was held that the council may be liable in negligence, but in limited circumstances. The relevant legislative provisions with regard to inspection did not place a duty on the council to inspect the walls, but did allow it the power to, if it considered inspection necessary. Therefore, failing to inspect would not render the council liable unless it was considered that it had failed to properly exercise its discretion to inspect and that they had failed to ensure proper compliance with building regulations. If inspections were carried out, the council retained discretion as to the manner of the inspections. If this discretion was not genuinely exercised, the council may be liable in negligence. (2) The claim was not statute barred, the limitation period running from the date at which the dangerous state of the property became apparent.

Answer 12

The Development of Judicial Thinking - Proximity, forseeability of harm, fair just and reasonable. significant legal case that established the tripartite test for determining the duty of care owed in negligence cases. This test departs from previous approaches by starting with the assumption that no duty of care is owed unless specific criteria are met: foreseeability, proximity, and fairness. In Caparo, a firm of accountants was found not to owe a duty of care to shareholders for negligent misstatements in an audit report. The House of Lords held that for a duty of care to exist, there must be proximity, knowledge of the report's audience and purpose, and reliance by the claimant. However, critics argue that Caparo complicates the established "neighbour" principle from Donoghue v Stevenson. Analysis of Caparo reveals that while it introduced a general duty of care test, its application is unclear, especially in cases of physical injury. Some argue that economic loss and personal injury should be treated differently under negligence law. Recent cases, such as Arthur JS Hall & Co. v Simons and Customs & Excise v. Barclays Bank, have shown judges bypassing the tripartite test for a simpler analysis of the best legal result based on the specific circumstances. Additionally, Henderson v Merrett Syndicates Ltd indicated that in some cases, the Caparo test is set aside in favor of other legal principles like the Hedley Byrne principle. The evolving nature of negligence law is highlighted by Coulthard and others v Neville, which suggests that judges increasingly use discretion to achieve the best legal outcome based on case specifics, thus limiting the applicability of Caparo. Overall, while Caparo introduced a significant legal test, its application is subject to judicial discretion and adaptation based on individual case circumstances.

Answer 13

Occupiers Liability an example of difficulties in identifying who had the requisite control over the premises to be deemed an occupier. While attending Celtic Park for the opening ceremony of the European Summer Special Olympic Games, Mr McDyer sustained a disabling hand injury after he was struck by a piece of timber which had fallen from the stadium canopy. It was understood that the timber had been used to attach temporary banners to the canopy. Mr McDyer sued Celtic (as owners and usual occupiers of the stadium) and the organisers of the event under the 1960 Act. However, mid-way through the proof (trial), the case against Celtic was abandoned, as it became clear that they were not an occupier at the material time. The case against the organisers, however, succeeded and Mr McDyer was awarded damages. This case demonstrates that (i) the owner of premises is not always the occupier and (ii) the question of who is an occupier may depend on control of the premises at the material time. It should be noted that there can be more than one occupier at a time.

Answer 14

'The facts speak for themselves' "But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.“ The claimant was a dockworker who was injured when large, heavy bags of sugar fell from the defendant’s crane and hit him. The claimant sued the defendant in the tort of negligence. The High Court held that a finding of liability was possible in this case. The court relied on the doctrine of res ipsa loquitur (literally ‘the thing speaks for itself’). This doctrine holds that if the defendant was in control of a situation, and an accident occurs which would not normally occur in the absence of carelessness of some kind but the cause of the accident is unknown, the burden of proof shifts to the defendant to adduce evidence that he was not negligent. If he cannot, a breach of duty will be made out. If he can, the court must assess this evidence to determine whether it is still reasonable to presume negligence. The court held that this accident was clearly the sort of thing which would not occur if someone had not been negligent. As the defendant was not able to prove that it had not breached its duty to the claimant, it was liable.

Answer 15

Negligence - Res Ipsa Loquitor The claimant was injured when they slipped on spilled yoghurt in the defendant’s store. The defendant adduced evidence that they regularly inspected and cleaned the floors and had policies requiring staff to deal with spillages as soon as they were detected. However, they gave no evidence on when that particular floor had last been inspected or cleaned. The claimant sued the defendant in the tort of negligence. To prove negligence, the claimant must show that the defendant breached their duty of care: that the defendant failed to act as a reasonable person would in their position. Where it is not possible for the claimant to prove what the accident’s cause was, the court will presume breach 1) if the defendant was in control of the situation and 2) the accident was not one which normally occurs without carelessness. This is the doctrine of res ipsa loquitur. The issue was whether these facts satisfied the requirement that the accident be one which does not normally occur without negligence. The Court of Appeal held that this was an appropriate case for res ipsa loquitur. The second requirement is made out whenever an event occurs which is unusual and (in the absence of a contrary explanation) is more likely to be due to negligence than anything else. Here, the area was under the defendant’s control and while it was unknown how long the spill had been there, it was likely that it had been there long enough to be dealt with. As such, this accident was one which would not normally occur without negligence. The burden of proving that it had not been there that long was therefore on the defendant.

Answer 16

Negligence - Legal control over a property Mr Dawson worked as a self employed courier and was delivering a package to Ms Page’s cottage. Building works were taking place at the cottage and the surroundings resembled a building site. After making two unsuccessful visits to the cottage to deliver the package, Mr Dawson left the package under an oil storage tank in the back garden. As he was leaving the cottage he slipped on a wet plank over a trench in the garden and injured his hand. Mr Dawson’s claim for damages failed in the Outer House. After noting 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. The Inner House observed that the fundamental aim of the 1960 Act had been to the restore a broad test of reasonableness in relation to such claims and rejected Mr Dawson’s appeal which was based the argument that Lord Glennie should not have reached the conclusion that a state of affairs which is obvious is not a danger.

Answer 17

Negligence - No liability for the intentional actions of trespassers The defendant purchased a disused cinema with the intention of turning it into a supermarket. Five weeks after the defendant entered the building for the first time, it was set on fire by intruders and destroyed. As a result, the adjacent buildings were also affected and damaged. The cinema building was a target to vandals and children who often played there, but the defendants had had no knowledge of previous attempts to start fire at the cinema buildings. Does the occupier of a property owe a duty of care to the adjoining occupiers in respect of acts of trespass on his property resulting in damage to the adjoining properties? The appeals were dismissed (1) Whether an occupier of a property owe 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. (2) Cases where a duty of care exists are likely to be rare. (3) 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, so the defendants were not under any duty to anticipate the possibility of fire and take measures to prevent the entry of vandals.

Answer 18

Duty of Care - Positive duty on occupiers - Burden of proof is on the pursuer Defences - Volenti non fit injuria The appellant was struck by a train and was very seriously injured. This had taken place whilst the appellant was crossing a railway line between two suburban stations. This route had to be accessed by climbing an embankment and cutting through a gap in a fence. The fence had fallen into disrepair and had not been maintained by the respondent. 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. The trial judge found for the respondents. The decision was subsequently appealed. The court was required to weigh whether a duty was owed by the defendant to the claimant and importantly, whether they had discharged this duty by erecting a fence to prevent the public cutting across the railway line. In compiling their decision, the court would also have to decide as to whether the disrepair of the fence could fall under the defendant’s liability. The appeal was dismissed. 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. There was no duty to maintain the fence in a reasonable state of repair. Moreover, it was deemed that if there had been, the appellant was deemed to have accepted the risks of crossing the train line.

Answer 19

Occupiers Liability - Dangers The father of a seven-year-old boy sued the Glasgow Corporation for damages following the death of his son who died as a result of eating berries from a poisonous plant that was growing in the Botanic Gardens in Glasgow. The gardens were open to the public and managed by the defendant. The father argued that the defendants allowed children to pass through their grounds frequently yet did not take any action to warn or alleviate the danger caused by the poisonous plant to children. The plant was enclosed by a wooden fence which was open to the public and easily accessed by children. The question for the court was whether this raised any grounds of appeal for there to be a trial against the defendants for their liability. It was important for the court to consider in this case whether the defendant was negligent in the death of the claimant. It was particularly important to understand the steps that the defendant had taken to prevent the danger caused by the fact that the poisonous berries in question would be particularly attractive to young children. The court held that the Glasgow Corporation was liable in this instance. They had permitted children to go on to the land and it is understandable that the berries would have appealed to visiting children, thus representing a danger. The defendants were aware of this danger caused by the poisonous berries and did nothing to prevent the damage. On this basis, the action was required to proceed to trial.

Answer 20

Occupiers Liability - Dangers Congleton Borough Council had attempted to turn a disused quarry into a beauty spot and country park by turning the quarry into an artificial lake. The council prohibited swimming, recognising the lake to be dangerous for swimmers and had prominent signs prohibiting swimming, as well as park rangers who sought to prevent swimming. The claimant, ignoring these signs dived in and broke his neck. He sought damages in negligence under the Occupiers Liability Act 1957. The Court of Appeal held that he was a trespasser and so the case fell under the Occupiers Liability Act 1984. Under the provisions of this act, the claimant was awarded damages, but these were reduced by two-thirds under the Law Reform (Contributory Negligence) Act 1945. The council appealed to the House of Lords. Whether the premises created a risk that the claimant should have been able to expect protection from, even as a trespasser under s1(3)(c) Occupiers Liability Act 1984. Whether the Council had taken such steps as were necessary to reduce the risk under s1(4) of the Act. The appeal was allowed. The council had no liability to the claimant. The risk of danger was so obvious that it could be said that no risk arose from the state of the premises under s1(3) Occupiers Liability Act 1984. Instead, the risk arose from the claimant’s own actions who voluntarily engaged in this risk. The respondent was a man of full capacity who voluntarily engaged in an activity which had an inherent risk in it. There was nothing inherent about the state of the premises which rendered them any more dangerous than could be expected, and no question of the council being expected to take any further steps to ensure that trespassers did not use the lake.

Answer 21

Occupiers Liability - Dangers The claimant, Michael Leonard, had been walking on a stretch of the West Highland Way above the east shore of Loch Lomond when he was injured in an accident. He was aged 12 at the time. He had walked ahead of his family and was out of sight when the accident happened. He was found unconscious and injured on a road below the path on which he was last seen walking. He did not remember what had happened and there were no witnesses of the accident. It was claimed that the NPA was in breach of its common law duty of care and its statutory duty of care under the Occupiers’ Liability (Scotland) Act 1960 because there were uneven steps on the path and tripping hazards as a result of which the claimant must have tripped and fallen down the steep slope by the side of the path to the road below. There was no handrail and no barrier to prevent him from falling onto the road. Decision: Lord Uist said that the mechanics of the accident had not been proved. It was up to the claimant to establish the circumstances of the accident on the balance of probabilities, but he had failed to do so in this case. There was no evidence about where any trip or fall had occurred, or even whether it had occurred on the path, or what caused any such trip or fall. There were other possibilities that could account for him being found injured on the road. His claim, therefore, failed on this basis. However, the Judge said that even if the circumstances of the accident had been established, the NPA would not have been in breach of its duty of care because:- the path had been constructed using a method (stone pitching) that was accepted practice for paths in such a location, and it had been constructed to acceptable standards. – previous court decisions had shown that there is no duty to protect against obvious or familiar natural features. The fact that the path was not a natural feature made no difference. It was enough that it had become an obvious part of the landscape and use of the path didn’t involve exposure to any special or unfamiliar hazard. People venturing onto the hill must be taken to have accepted the risk of using the path. – there was no need to provide a handrail or barrier because there was no need to fence off an obvious danger

Answer 22

Defences - Contributory Negligence The pursuer was a 17-year-old woman who fell and seriously injured her arm and jaw when walking along a private roadway at the back of the defender's restaurant at night. The route was intended to provide access for restaurant deliveries. She could have walked along the public pavement which was well lit. Her route was, however, a known shortcut for pedestrians. The pursuer claimed that a combination of the road being uneven and inadequately lit rendered the route dangerous. By contrast, in the present case, the Sheriff was willing to conclude that the most likely cause was the uneven ground. However, the fact that the pursuer had fallen on uneven ground was not sufficient to establish the presence of a danger. Sheriff McGowan referred to Dawson v Page [2012] CSOH 33, which provides that a route is only dangerous if it contains a feature that is unexpected, obscured or otherwise not reasonably anticipated by users. Lighting will only be necessary if use at night is foreseeable. The Sheriff rejected the pursuer's and her mother's evidence that the roadway was "pitch black". He preferred the evidence of two eyewitnesses, who commented that although the path was dark, there was a lamppost at the top of the street providing light; that they were generally aware of the ground beneath them; and that they did not have any problems walking down the roadway themselves. Accordingly, there was no danger on the roadway and there was no duty on the defender to provide additional lighting. Although the pursuer's case failed Sheriff McGowan commented that the time advantage of using the shortcut was "negligible" and the fact that there was an alternative and safer route nearby was important. It was also significant that, on the pursuer's evidence, the route was dark and potential hazards would be obscured. He concluded that had the pursuer established liability, he would have reduced the damages awarded by 70%.

Answer 23

Vicarious Liability - there must be a relationship between the defender and the wrongdoer - the relationship between the defender and the wrongdoer must be connect to their act/omission - 'in the course of employment'. Vicarious liability can arise even in the absence of an employment contract where there is a relationship sufficiently akin to employment Acts of sexual abuse are deemed to have a sufficiently close connection to the relationship of employment where there is a significant creation or enhancement of risk of abuse by the relationship (“close connection” test) A large number of men (C) alleged historical sex abuse at St William, a school for juveniles, by brothers of the Institute of the Brothers of the Christian Schools who were the headmaster and staff (the “Institute”) The Institute did not own the school but their members acted as the headmaster and teachers of the school The members were contractually employed not by the Institute but by St William It had been held that the owner of St William was vicariously liable Was the Institute also vicariously liable for the tortious acts of the brothers? The institute was vicariously liable.

Answer 24

Employers Liability - The Control Test Cox was working in a prison kitchen with a catering assistant and 20 prisoners under her direction. During the course of this work a prisoner fell and dropped a sack of kitchen supplies on her – injuring her. It is accepted that the prisoner was negligent. The question before the Court therefore, was a straightforward one – whether the prison service was vicariously liable for the act of a prisoner in the course of his work in a prison kitchen, where the act was negligent and caused injury to a member of the prison staff. Prisoners are in a relationship akin to employment to the Ministry of Justice when carrying out their duties They are placed by the prison service in a position where there is a risk that they may commit a variety of negligent acts within the field of activities assigned to them T was working under the direction of the prison staff Although the prisoner’s activities have the objective of rehabilitation, it is not the only objective, they also form part of the operation of the prison, and are of direct and immediate benefit to the prison service itself: [34] It does not matter that the activity is not for the purpose of profit: [35] D was vicariously liable

Answer 25

Employers Liability - 'In the Course of Employment' The Kirby v NCB (1958) case involved miners who took a break from work and went to smoke in an unauthorised area. As a result of smoking, there was an explosion and Kirby was injured. It was held that NBC was not vicariously liable in this case because smoking in the mines was expressly forbidden by statute.

Answer 26

Employers Liability - 'In the Course of Employment' The driver of a petrol lorry, while transferring petrol from the lorry to an underground tank in C’s garage, struck a match to light a cigarette and threw it on the floor causing an explosion D was vicariously liable as the driver’s act was done in the course of his employment The act of smoking and throwing the lighted match was part of the act of filling the tank which is within the scope of the driver’s employment The act could not be treated as a separate act from the circumstances, it was a negligent method of conducting his work

Answer 27

Employers Liability - 'Close Connection' - Wrongful behaviour that is closely connected to employment can be counted as within the scope of employment. - Thus, the employer can be vicariously liable. A warden was employed at an annex of a boarding school for boys and responsible for the day-to-day running of the school, discipline of the boys, organisation of their daily activities, as well as supervision and care of the boys after school hours. Between 1979 and 1982, the warden had sexually abused a number of the boys, yet unbeknownst to his employers. The sexual abuse took numerous forms and was usually administered in the context of the warden’s control and discipline at the boarding school. The question arose as to whether the employers of the warden may be held vicariously liable for their employee’s intentional sexual abuse of school boys placed under his care. The House of Lords held that vicarious liability can arise for unauthorised, intentional wrongdoings committed by an employee acting for his own benefit, in so far as there exists a connection between the wrongdoings and the work for which he was employed to render it within the scope of employment. The Court rejected the restrictive view that vicarious liability could only arise when the employee is acting for his employer’s benefit. On the facts of the case, the Court held that there was a sufficient connection between the work that the warden was employed to do and the abuse that he committed to render it within the scope of employment. The abuse was committed at the time, premises and during the course of the warden’s care of the boys. The warden’s function was to care for the boys and the fact that he performed that function in an abusive manner does not sever the connection with his employment for the purposes of vicarious liability. Accordingly, the employers were held liable.

Answer 28

Employers Liability - Vendettas or Frolics L, a British Virgin Islands policeman, 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. L pleaded guilty to the charges of unlawful and malicious wounding and having a firearm with intent to do grievous bodily harm. Hartwell brought civil proceedings against L and the Attorney General of the British Virgin Islands as a representative of its government. The court held in favour of the plaintiff. The Attorney General appealed to the Privy Council submitting that the government owed no duty of care to the plaintiff in respect of the persons to whom the police entrusted firearms as there was no sufficiently proximate relationship between the police and Hartwell. Acting on a personal vendetta makes it difficult to establish vicarious liability When entrusting an officer with a firearm, do the police owe a duty to take reasonable care to see that the officer was a suitable person to be entrusted with a dangerous weapon? The appeal was dismissed. (1) Referring to Home Office v Dorset Yacht Co Ltd [1970] AC 1004, 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. (2) 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. The standard of diligence expected of a reasonable person when entrusting another with a firearm was high. The police are therefore, liable in negligence.

Answer 29

Employers Liability - Vendettas or Frolics A close connection between the employment and the activity can be made through purporting to be acting in the course of employment. The Claimant was waiting in a queue to use a pay telephone in the Central Sorting Office in Kingston when suddenly a policeman intervened announcing himself as “police.” The Claimant refused and was shot in the head by the policeman. When he recovered consciousness in hospital, he found himself arrested by the same policeman for allegedly assaulting a police officer. The charges were later dropped and the policeman dismissed from the force. No criminal charges were brought against him and he later disappeared. The Claimant sued the Attorney General of Jamaica on the grounds that he was vicariously liable for the policeman’s actions. The trial judge concluded that the Attorney General was vicariously liable, but the Court of Appeal set aside this decision. However they expressed concern about the actions of agents of the Jamaican government and referred to a United Nations report on the issue of summary executions and disappearances on the island. The Court of Appeal recommended an ex gratia payment be made, which the Jamaican government duly did. The Claimant appealed to the Privy Council. * The Privy Council quashes the Court of Appeal's decision and restores the trial judge's judgment, finding vicarious liability established based on the constable's actions as a policeman and the risks created by the police authorities. * The Court emphasizes that the policy rationale behind vicarious liability is not based on vague notions of justice but on the risks created by the employer. * The Board concludes that the trial judge was justified in finding vicarious liability and that the Court of Appeal erred in allowing the appeal.

Answer 30

Employer’s Duty of Care to Employees - Employers have a duty to take reasonable steps to ensure safe working conditions. The Supreme Court unanimously allowed Ms Kennedy's appeal upholding the first instance finding that her employer, by failing to provide protective footwear, was liable for injury which she sustained at work

Answer 31

Employer's Duty of Care to Employees - Employers cannot delegate their way out of their duty of care. The defendants had employed the complainant, Mr English. He was working on a repair to an airway on the Mine Jigger Brae, which was used as part of the haulage system. He was going to the bottom of the mine pit when the haulage was started. Although he had tried to evade the danger through a manhole, he was trapped by machinery and it crushed him to death. The defendants and employers, Wilsons & Clyde Co Ltd, tried to claim that it was Mr English’s own negligence that had resulted in his death; he could have taken an alternative route or alerted the employee in charge of the machinery for it to be stopped. It was held that the defendants had delegated the organisation of a safe working system to one of their employees on the site and they had taken all reasonable steps to ensure they entrusted this duty to an experienced employee. Thus, they were held not to be liable for damages. The complainant appealed on the issue of whether employers had a non-delegable duty of care towards the safety of workers. The House of Lords decided that Wilsons & Clyde Co Ltd, as an employer, had a duty of care to ensure a safe system of work and this duty could not be fully delegated to another employee. Thus, the defendants always remain responsible for a safe workplace for their employees and are vicariously liable for any negligence of another. This duty includes three aspects; providing proper materials, employing competent workers and providing valuable supervision. The defendants were liable for damages.

Answer 32

Employers Liability - Safe Equipment No liability for a defective tool that was sourced from reputable manufacturers and suppliers. The House of Lords found the employer not liable when an employee suffered injury at work ashe was using a defective tool provided by the employer. The plaintiff was using a metal tool provided by his employer which, because it had been manufactured at the incorrect temperature, was too hard to be safe to use. When the plaintiff struck his hammer against the tool a piece of metal flew into his left eye and caused blindness in that eye. Because the fault in the tool could not be detected with reasonable inspection and the employer had bought it froma reputable supplier, the employer was not held liable. However, the effect of Davie was subsequently reversed by the Employers’ Liability (Defective Equipment) Act 1969, s 1(1). The position now is that if an employee is injured in the course of his employment by a defect in equipment provided by his employer and he can prove that the defect was caused by the fault of some third party (usually the manufacturer), then the employer will be liable.

Answer 33

Employers Liability - Safe systems and competent employees Employers have a duty to provide and implement a safesystem of working. Safe system - must have a safe system AND insure that it is implemented Concerning this case, there was a bonus scheme that incentivised employees to retrieve items of stock from shelves quickly. It was well known, that although employees were told to use ladders, they would just climbup the shelves to save time. One employee fell and raised an action.The bonus scheme and a lack of ladders meant that the system was unsafe, and the employers knew that most employees did not use the ladders. This was a breach.

Answer 34

Employers Liability - Duty to employ competent individuals

Answer 35

Employers Liability - Psychiatric Injury - Employers have a duty of care to take reasonable steps to avoid injuring employees’ mental health - Employers are entitled to take what an employee says at face value and to assume that they can handle the normal preassures of the job. - The employee must show that there were reasonable steps that the employer did not take.

Answer 36

Employers Liability - Psychiatric Injury - PTSD/ 'nervous shock'

Answer 37

Product Liability - contaminated blood

Answer 38

Product liability - hot drinks

Answer 39

The introduction discusses the landmark case Caparo Industries plc v Dickman, which established the tripartite test for establishing a duty of care. This test, departing from previous precedents such as Donoghue v Stevenson and Anns v Merton London Borough Council, presumes no duty of care unless the criteria of foreseeability, proximity, and fairness are met. However, the Caparo approach has been criticized for complicating the "neighbour" principle and diverging from precedent. The case involved Caparo buying shares in a company based on an audit report, which misrepresented the firm's profits, leading to losses for Caparo. The House of Lords ruled that no duty of care was owed to shareholders, highlighting factors such as proximity and knowledge of reliance on the report. Despite Caparo's significance in establishing a general duty of care, its application remains unclear, especially in cases involving physical injury. Some judges and academics argue for a simpler approach or reliance on existing principles like Donoghue. Recent cases demonstrate a trend towards judges exercising discretion based on the specifics of each case, limiting the application of Caparo and emphasizing pragmatism in legal development.

Answer 40

Product Liability - Tampons

Answer 41

Medical Negligence Lord Clyde (at 206) “To establish liability by a doctor where deviation from normal practice is alleged, three factors require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly ( and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There isclearly a heavy onus on a pursuer to establish these three facts, and without all threehis case will fail.”

Answer 42

Standard of Care in Professional Negligence “...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) No negligence simply where there is a contrary body of opinion. The defendant was the body who employed a doctor who had not given a mentally-ill patient (the claimant) muscle-relaxant drugs nor restrained them prior to giving them electro-convulsive therapy. The claimant suffered injuries during the procedure. The claimant sued the defendant, claiming the doctor was negligent for not restraining them or giving them the drug. Establishing the tort of negligence involves establishing that the defendant breached their duty of care to the claimant. To establish breach, the claimant must establish that the defendant failed to act as a reasonable person would in their position. This standard is higher in the case of professionals: they must act as a reasonable professional would. The issue in this case was how to assess the standard of care imposed on a professional defendant where a substantial portion of professionals opposed a particular practice, while others did not. The High Court held that the doctor had not breached his duty to the patient, and so the defendant was not liable. McNair J set out the test for determining the standard of care owed by medical professionals to their patients (sometimes referred to as the ‘Bolam test’). The professional will not be in breach of their duty of care if they acted in a manner which was in accordance with practices accepted as proper by a responsible body of other medical professionals with expertise in that particular area. If this is established, it does not matter that there are others with expertise who would disagree with the practice. As the methods used in this case were approved of by a responsible portion of the medical profession, there was no breach.

Answer 43

Professional Negligence - Challenges from the Pursuer Perspective

Answer 44

Professional Negligence - Professional negligence cannot be established by preferring one body of opinion over another.

Answer 45

We have established that a professional must adopt a course of conduct which can be endorsed by a responsible body of other professionals (Hunter) – there is no expectation of exceptional skill, only the ordinary skill of an ordinarily competent professional. A qualified medical practitioner was convicted of gross negligence manslaughter arising out of the delivery of a patient in child birth, Ms. Harding. During the delivery of her child, the doctor eventually resorted to an operation which required ‘considerable force.’ The delivered child was dead. During the operation, the doctor accidentally removed a portion of Ms. Harding’s uterus. Initially refusing to do so, the doctor eventually transferred Ms. Harding to an infirmary where she was found unfit to undergo an operation and died two days later. A post mortem examination revealed various internal ruptures and substantial removal of the uterus. The issue concerned the criminal liability of the doctor for the death of Ms. Harding due to the internal ruptures, substantial removal of the uterus, and delay in admitting her to an infirmary. The appeal considered whether the jury’s instructions concerning the level of negligence warranting criminal liability for manslaughter. The Court held that in order to establish criminal liability for manslaughter by negligence, it must be proven that (1) the doctor owed a duty of care to his patient, (2) this duty was not discharged, (3) this failure to discharge his duty caused the death, and, (4) a gross level of negligence to satisfy the mens rea element of the crime. In doing so, the Court distinguished between civil liability warranting compensation pursuant to an assessment of the damage and criminal liability which requires mens rea concerning the degree of negligence. Considering this distinction between negligence giving rise to compensation and negligence constituting a crime, the Court of Appeal found the judge in first instance misdirected the jury and quashed the guilty verdict.

Answer 46

Professional Negligence - Inexperienced professional An infant was delivered prematurely and shortly after was administered oxygen by a junior doctor, accidentally providing too much. The baby was later diagnosed with a retinal condition, which severely limited his sight. Five potential causes or factors were identified to explain the condition, four relating to his premature birth and the fifth being the junior doctor’s actions. Whether the health authority for which the junior doctor worked could be held liable for his actions where it could not be definitively stated what the chief cause of the injury was. Moreover, should a junior doctor be held to the same professional standards as a fully qualified doctor. Further, should the burden of proof regarding the potential relationship between the negligent actions and the injuries fall to the claimant or the defendant. At first instance the Court found the defendant, Essex Area Health Authority, liable for the infant’s injuries, citing McGhee v National Coal Board [1973] 1 WLR 1 as laying down the precedent that where there existed a plurality of possible causes, the burden fell to the defendant to prove that their actions had not been the but for or material cause of the injury. The House of Lords subsequently allowed the defendant’s appeal and overturned the first instance judgment stating that whilst the health authority could be held liable for the junior doctor’s actions as junior doctors owed the same duty of care as a fully qualified doctor, the case of McGhee had been wrongly interpreted at first instance; regardless of the number of potential causes of injury, it always falls to the claimant to establish the likelihood of causation.

Answer 47

Professional Negligence There will be no distinction regarding experience, but there is specificityregarding specialities

Answer 48

Professional Negligence Where there is a contractual relationship, a pursuer may base an action on both the law of delict and breach of contract.

Answer 49

Professional Negligence - Established that a party may be liable for negligent advice, even without a contractual relationship. liability will exist for advice, just as foracts In 1963, the House of Lords established that in certain circumstances, pure economic loss in tort could be recoverable in English law if a duty of care arose in the making of statements. This was exemplified in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd, where a negligent misstatement led to financial loss. The court laid out four conditions for pure economic loss to be recoverable: a fiduciary relationship, voluntary assumption of risk, reliance on advice, and reasonableness of that reliance. Following Hedley Byrne, there were developments in tortious liability, including cases involving defective products and negligent oversight. However, subsequent cases such as Caparo Industries plc v Dickman refined the test for establishing proximity in misstatement cases. Additionally, the case of Henderson v Merrett Syndicates Ltd (No. 1) expanded liability to situations where there was an assumption of responsibility for another's affairs, even without explicit advice being relied upon. Despite limitations set by Caparo, later decisions have extended the duty of care in various contexts, including writing references, advice on pension rights, and expert witnesses. Notably, in 'will cases,' such as White v Jones, solicitors were held liable for economic loss resulting from negligent provision of services, despite potential conflicts of interest. In conclusion, Hedley Byrne created a cause of action for loss based on reliance on statements outside of contract law. However, its application has fluctuated over the years, leading to liability for negligent statements made in a fiduciary capacity and beyond, into the realm of professional services.

Answer 50

Professional Negligence - Need for pursuer to establish they were going to rely on the defender’s statements

Answer 51

Professional Negligence

Answer 52

Professional Negligence Reliance on misstatements, and the assumption of responsibility for the accuracy of a statement on the part of a defender,

Answer 53

Professional Negligence - an expansion of the Hedley Byrne criteria.

Answer 54

Medical Negligence - Breach of the duty of care - novice? Medical Negligence - Where there are many contributing factors, causation will be proven where the breach made a material contribution to the injury OR where it can be shown that the breach amounted to a material increase to the risk of injury An infant was delivered prematurely and shortly after was administered oxygen by a junior doctor, accidentally providing too much. The baby was later diagnosed with a retinal condition, which severely limited his sight. Five potential causes or factors were identified to explain the condition, four relating to his premature birth and the fifth being the junior doctor’s actions. Whether the health authority for which the junior doctor worked could be held liable for his actions where it could not be definitively stated what the chief cause of the injury was. Moreover, should a junior doctor be held to the same professional standards as a fully qualified doctor. Further, should the burden of proof regarding the potential relationship between the negligent actions and the injuries fall to the claimant or the defendant. At first instance the Court found the defendant, Essex Area Health Authority, liable for the infant’s injuries, citing McGhee v National Coal Board [1973] 1 WLR 1 as laying down the precedent that where there existed a plurality of possible causes, the burden fell to the defendant to prove that their actions had not been the but for or material cause of the injury. The House of Lords subsequently allowed the defendant’s appeal and overturned the first instance judgment stating that whilst the health authority could be held liable for the junior doctor’s actions as junior doctors owed the same duty of care as a fully qualified doctor, the case of McGhee had been wrongly interpreted at first instance; regardless of the number of potential causes of injury, it always falls to the claimant to establish the likelihood of causation.

Answer 55

Medical Negligence - The Standard of Care “In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men .....The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.” (per Lord Clyde at 217) “It follows from what I have said that in regard to allegations of deviation from ordinary professional practice....such deviation is not necessarily evidence of negligence........To establish liability by a doctor where deviation from normal practice is alleged, three factors require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly ( and this is of crucial importance)it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on a pursuer to establish these three facts, and without all three his case will fail.” (per Lord Clyde at 217)

Answer 56

Standard of Care “a man need not possess the highest expert skill ... it is sufficient if he exercises the ordinarily skill of an ordinary competent man exercising that particular art... [and acts] in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art... a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.” (McNair J) The defendant was the body who employed a doctor who had not given a mentally-ill patient (the claimant) muscle-relaxant drugs nor restrained them prior to giving them electro-convulsive therapy. The claimant suffered injuries during the procedure. The claimant sued the defendant, claiming the doctor was negligent for not restraining them or giving them the drug. Establishing the tort of negligence involves establishing that the defendant breached their duty of care to the claimant. To establish breach, the claimant must establish that the defendant failed to act as a reasonable person would in their position. This standard is higher in the case of professionals: they must act as a reasonable professional would. The issue in this case was how to assess the standard of care imposed on a professional defendant where a substantial portion of professionals opposed a particular practice, while others did not. The High Court held that the doctor had not breached his duty to the patient, and so the defendant was not liable. McNair J set out the test for determining the standard of care owed by medical professionals to their patients (sometimes referred to as the ‘Bolam test’). The professional will not be in breach of their duty of care if they acted in a manner which was in accordance with practices accepted as proper by a responsible body of other medical professionals with expertise in that particular area. If this is established, it does not matter that there are others with expertise who would disagree with the practice. As the methods used in this case were approved of by a responsible portion of the medical profession, there was no breach.

Answer 57

Medical Negligence - Material Risks “The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should be reasonably aware that the particular patient would be likely to attach significance to it” (para 87)

Answer 58

Medical Negligence Confirms that the Bolam test remains in place where a doctor decides whether to disclose alternative treatments

Answer 59

Medical Negligence - it must be established that it is more than 50% probable that but for the wrongdoing the damage would not have occurred (‘balance of probabilities’)

Answer 60

Medical Negligence - Intervening Acts: Novus Actus Interveniens

Answer 61

Medical Negligence - Damages: reductions for contributory negligence?

Answer 62

Psychiatric Harm Mr Young had been negligently riding his motorcycle and was responsible for a collision with car in which he himself suffered fatal injuries. At the time of the crash, Mrs Bourhill (C) was in the process of leaving a tram about 50 feet away. C heard the crash and, after Mr Young’s body had been removed from the scene, she approached and witnessed the immediate aftermath. C was 8 months pregnant at the time of the incident and later gave birth to a stillborn child. C subsequently brought an action against Mr Young’s estate, claiming she had suffered nervous shock, stress and sustained loss due to the negligence of D. The principal issue on appeal to the House of Lords was whether D owed a duty of care to C. In order for such a duty to be found it had to be said that that C was both sufficiently proximate to the incident itself and, if so, that D ought reasonably to have foreseen that, in driving negligently, he might cause psychiatric damage to a person hearing the crash from C’s position. D was not liable for any psychiatric harm that C might have suffered as a result of the accident. It was not foreseeable that C would suffer psychiatric harm as a result of D negligently causing a loud traffic accident, nor was C sufficiently proximate to the scene of the crash itself. D, therefore, could owe no duty of care to C.

Answer 63

Psychiatric Harm Mr Walker was a social worker employed by the defendant who had a heavy, emotionally demanding caseload and suffered a mental breakdown in 1986. Upon his return to work, he repeatedly requested assistance, but the defendant provided no additional support and he suffered a second breakdown in 1987. He was dismissed due to ill health and brought an action against the defendant for breaching their duty of care to take steps to ensure he had a manageable workload. The defendant employer is under a duty of care to provide a safe system of work to its employees per Wilsons & Clyde Coal Co Ltd v English [1938] AC 57. Mr Walker argued that the duty of care extended to taking reasonable steps to avoid the risk of exposing him to a workload which was detrimental to his mental health. The defendants argued that on policy grounds and due to a general lack of resources within the county council, it was inappropriate for the court to evaluate the reasonableness of their operational allocation of resources. There was no logical reason to exclude the risk of psychiatric injury from an employer’s duty of care. As the first breakdown was not reasonably foreseeable, the defendants were not in breach for failing to take steps to avoid it. The second breakdown, however, was foreseeable, if Mr Walker was not offered additional support. Regard should be had to the resources available to the defendant but it was right and proper for the court to evaluate their conduct, and given the gravity of the illness and the level of risk, the defendants were in breach of duty for failing to take reasonable steps to avoid it.

Answer 64

Psychiatric Injury - 'Nervous shock' as an injury - Distinction between primary and secondary victims. The claimant (C) was a crane operator working for the defendant (D). C was loading cargo from a quay onto a ship when the rope carrying the load snapped. The load fell into the hold of the ship, where C knew other workers were standing. Nobody was injured, though C suffered nervous shock as a result of what seeing what he believed to be the death or serious injury of some of his co-workers. The trauma of the event aggravated C’s pre-existing neurasthenia and, as a result, he could not return to work as a crane operator. C brought an action in negligence against D, seeking damages for psychiatric injury. Whether D owed a duty of care to take reasonable steps in safeguarding their employees from the risk of nervous injury, as well as physical injury. The application for a declaration was dismissed. Parental rights, as such, did not exist, except insofar as necessary to safeguard the best interests of a minor. In some circumstances, a minor would be able to give consent in their own right, without the knowledge or approval of their parents. The test proposed by Lord Scarman posits that a minor will be able to consent to treatment if they demonstrate “sufficient understanding and intelligence to understand fully what is proposed” ([1986] AC 112, 187[D]). The test is now often referred to as ‘Gillick competence’ and is an integral aspect of medical and family law.

Answer 65

Psychiatric Harm - Defining Shock ”It is not enough...for the purposes in each case to show simply that they got a fright and suffered an emotional reaction, if no visible disability or provable illness or injury followed” – Lord Robertson What does this tell us? Harm must be a recognised psychiatric condition

Answer 66

Psychiatric Harm “...a reaction to an immediate and horrifying impact, resulting in some recognisable psychiatric illness. There must be some serious medical disturbances outside the range of normal human experience.” – Lord Keith Psychiatric harm - Primary victims The claimant (C) was involved in a collision with the defendant (D) whilst both were driving. C suffered no physical injuries as a result of the crash but, several hours later, he felt exhausted and the exhaustion had not abated. For a number of years prior to the accident Cc had suffered from chronic fatigue syndrome, the symptoms of which manifested sporadically. C brought an action claiming damages for personal injury caused by the negligence of D, in that, as a result of the collision, his condition had since become both chronic and permanent, making it unlikely that he would be able to pursue full-time employment in the future. D was found liable and the Court of Appeal allowed his appeal on the ground that C’s injury was not reasonably foreseeable and leave was given to remit the case to the House of Lords. The principal issue that the House of Lords were called upon to resolve was whether, in a claim brought in negligence for psychiatric damage caused by D, it was necessary to establish that this particular type of harm was a foreseeable consequence of D’s negligence, or whether it would suffice merely that some form of compensatable harm was foreseeable, such as a physical injury. The House of Lords found in favour of C, albeit by a bare majority (Lords Keith and Jauncey dissenting) and held that, provided it was reasonably foreseeable that C would suffer some physical injury as a result of D’s negligence, it was not necessary that the type of harm caused was itself reasonably foreseeable; C was thus within the ambit of D’s duty of care.

Answer 67

Psychiatric harm - Primary victims

Answer 68

Psychiatric harm - Secondary victims

Answer 69

Psychiatric harm - Secondary victims The husband of the claimant (C) and their children were involved in a road traffic accident at around 4 p.m. with a lorry driven by the first defendant and owned by the second defendant. C, who was home at the time, was informed of the accident at around 6 p.m. by a neighbour, who drove her to hospital to see her family. Upon arrival, she learned that her youngest daughter had been killed and witnessed the nature and extent of the injuries suffered by her husband and other children. C alleged that the impact of what she heard and saw caused her severe shock resulting in psychiatric illness and brought an action in negligence against the defendants. It was argued by counsel for the defence that, in order to recover damages for negligently induced nervous shock, C must demonstrate that he or she is sufficiently proximate to the event in question, in that they must be present at the scene which they allege has caused them to suffer psychiatric damage. The House of Lords were thus called upon to determine the nature and extent of the duty owed by D to persons whom his actions might cause psychiatric damage. In finding for C the House of Lords emphasised that recovery in such cases was not limited to those who were participants in the event, and who feared that they or a close relative would suffer some sort of personal injuries. Citing Chadwick v British Railways Board ([1967] 1 WLR 912) the duty of D was confirmed to extend to those who came upon the ‘immediate aftermath’ of an incident, even if they do not see or hear the incident with their unaided senses.

Answer 70

Psychiatric Harm - Alcock Criteria ““Shock.” in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.” (at401) A joined action was brought by Alcock (C) and several other claimants against the head of the South Yorkshire Police. C and the other claimants all had relatives who were caught up in the Hillsborough Stadium disaster, in which 95 fans of Liverpool FC died in a crush due, it was later established, to the negligence of the police in permitting too many supporters to crowd in one part of the stadium. The disaster was broadcast on live television, where several claimants alleged they had witnessed friends and relatives die. Others were present in the stadium or had heard about the events in other ways. All claimed damages for the psychiatric harm they suffered as a result. The House of Lords were called upon to determine whether, for the purposes of establishing liability in negligence, those who suffer purely psychiatric harm from witnessing an event at which they are not physically present are sufficiently proximate for a duty to be owed, and thus can be said to be reasonably within the contemplation of the tortfeasor. The House of Lords, in finding for D, held that, in cases of purely psychiatric damage caused by negligence, a distinction must be drawn between ‘primary’ and ‘secondary’ victims. A primary victim was one who was present at the event as a participant, and would thus be owed a duty-of-care by D, subject to harm caused being foreseeable, of course. A secondary victim, by contrast, would only succeed if they fell within certain criteria. Such persons must establish: A close tie of love and affection to a primary victim Appreciation of the event with their own unaided senses Proximity to the event or its immediate aftermath The psychiatric harm must be caused by a sufficiently shocking event. Neither C nor the other claimants could meet these conditions, therefore the appeal was dismissed.

Answer 71

Psychiatric Harm - Application of the Alcock criteria Arnott Robertson brought an action against his employers, Forth Road Bridge Joint Board. The case involved personal injuries allegedly sustained by Robertson from witnessing an accident The court ruled in favor of the defenders (Forth Road Bridge Joint Board). Robertson was considered a bystander and not a participant in the accident. The court emphasized the importance of reasonable foreseeability in determining liability for psychiatric injury caused by witnessing harm to another. The employer-employee relationship did not create a special duty of care in this case. Robertson was not entitled to damages for his psychiatric illnesses.

Answer 72

Psychiatric Harm - Application of the Alcock criteria The pursuer, Martha Sarah Young, was a widow whose son was killed in a motorcar accident caused by the defender, Arthur MacVean. The defender admitted liability for the accident. The central issue revolved around the damages to be awarded for the death of the son. The court reaffirmed the position on secondary victims. A psychiatric injury resulting from being told about a death would not succeed. The injury must be caused by what the pursuer directly perceives through their own unaided senses. This case was part of a series of cases known as the Nimrod Cases

Answer 73

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. The court held D liable for intentionally causing emotional harm to W. W suffered nervous shock due to the false representation. Although D did not directly intend the harm, the court considered it foreseeable. Justice Wright stated that such a statement, made suddenly and seriously, would likely cause severe effects on anyone except an exceptionally indifferent person. The court recognized the tort of intentional infliction of mental shock.

Answer 74

Psychiatric Harm - Alcock criteria in healthcare Involved a claim relating to negligent treatment during a child's birth that resulted in the child suffering cerebral palsy (CP). The case also involved psychological injury claims for mother and grandmother.

Answer 75

Psychiatric Harm - Alcock criteria in healthcare

Answer 76

Psychiatric Harm

Answer 77

Psychiatric Harm and Property Damage C engaged British Gas (D) to install a new central heating system in her home but returned to find that her loft had caught fire. The house and its contents suffered extensive damage, which C witnessed first-hand. The property claim against D was settled, as their breach of duty had plainly caused the damage C’s house, however C also sued to recover damages for nervous shock, incurred as a result of witnessing her belongings. This claim as dismissed at first instance and C brought an appeal. This case raised two distinct issues, one factual and one a matter of policy. The factual question concerned whether, for the purposes of imposing a duty of care on D, it was reasonably foreseeable that the loft would catch fire. The second question, and the more important, concerned whether, in principle, damages were recoverable for recognised psychiatric harm where the harm in question was caused purely to property. The Court of Appeal found in favour of C, holding that, as a matter of principle, there was no doctrinal or policy reason to limit the recovery of damages to psychiatric harm arising as a result of damage to property. To limit such cases to personal injury would not be ‘fair or convenient’ ([1988] QB 304, per Bingham LJ), nor was such a limitation justifiable as a matter of policy; the only substantive policy reason to reject liability in such circumstances was the fear of opening the ‘floodgates’ to a raft of unmeritorious claims, which the Court dismissed as unfounded. The case was thus remitted to trial for determination of the foreseeability question.

Answer 78

The Delictual Liability of Public Bodies - Statute and Common Law A public body can, in the right circumstances, be found liable for negligence The House of Lords dealt with various appeals in respect of alleged breaches of statutory duty by local authorities in relation to the care of children. Some of the appeals related to child welfare issues under the provisions of the Children Act 1989, where others related education duties imposed on local education authorities by the Education Acts 1944 and 1981. The facts of the various appeals were not connected, save as in relation to the connection between a private law remedy in negligence and breaches of statutory duty. The issues related to the circumstances where a common law duty of care would be imposed on a local authority for a breach of its statutory duty. (1) A breach of statutory duty does not automatically give rise to a private law cause of action. It will only do so if the statutory duty protects a limited class and if Parliament intended a private law right to arise. (2) If a cause of action can be found, a claimant must show that a duty of care is owed under the ordinary common law principles. (3) If the actions complained of fall within statutory discretion, they are not actionable at common law unless the decision is so unreasonable as to fall outside the proper exercise of the discretion. (4) The duties imposed by Children Act 1989, s 17 are such that it cannot give rise to a common law claim, even if the actions of the local authority are subsequently found to be in breach of statutory duty. (5) The duties under the Children Act 1989 are not amenable to common law claims. (6) Social workers and psychiatrists do not owe a duty of care to individuals, but rather to the local authority. The local authority cannot be vicariously liable for their actions. (7) A duty of care is not imposed on local education authorities with regards to their discretion in addressing special needs. (8) Where a local authority offers psychological advice to the public, it must do so with reasonable care. (9) A headmaster, psychologist or adviser to a local education authority is under a duty of care to parents and children.

Answer 79

“Unless such a duty [of care] would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived” “public bodies do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory powers, they could prevent a person from suffering harm”. per Lord Reed

Answer 80

The Delictual Liability of Public Bodies – Statute and Common Law Presumptions - If the statute includes a penalty for a breach then no common law remedy

Answer 81

The Delictual Liability of Public Bodies – Statute and Common Law If the statute does not provide a method of enforcement then Parliament must have intended that a remedy should be available at common law.

Answer 82

The Delictual Liability of Public Bodies – Statute and Common Law - Art 6 of ECHR In the case of Osman v UK, Mrs. Mulkiye Osman and her son, Ahmet Osman, sought justice for the killing of Mr. Ali Osman, Mrs. Osman's husband, and the injuring of Ahmet by Ahmet's former teacher, Mr. Paul Paget-Lewis. Despite numerous warning signs of Paget-Lewis's disturbing behavior towards Ahmet, including theft, vandalism, and threats, the police did not take adequate action. The European Court of Human Rights (ECHR) analyzed whether there was a violation of articles 2, 6.1, 8, and 13 of the European Convention on Human Rights. Regarding article 2 (right to life), the ECHR concluded that while there were missed opportunities by the police, there was insufficient evidence to establish that the police knew or ought to have known about the real and immediate risk to the Osman family's lives posed by Paget-Lewis. Thus, there was no violation of article 2. Concerning article 8 (right to private life), the ECHR found no breach since the police had questioned Paget-Lewis about the allegations but lacked evidence to implicate him in the attacks on the Osmans' home. Therefore, the police could not be held responsible under article 8. Regarding article 6.1 (right to a fair trial), the ECHR concluded that the application of the exclusionary rule from the Hill case by the Court of Appeal amounted to a disproportionate restriction on the applicants' access to a court. The rule provided blanket immunity to the police, unjustifiably preventing the Osman family from having their case considered on its merits. Thus, there was a violation of article 6.1. Since a violation of article 6 was found, the ECHR did not examine the complaints under article 13 (right to an effective remedy), as article 6 violation already implied a lack of effective remedy. As a remedy, the ECHR awarded £10,000 to each applicant for the loss of the opportunity to have their case considered by a court, along with compensation for their legal costs and expenses incurred in bringing the case to Strasbourg.

Answer 83

The Delictual Liability of Public Bodies – What Does the Court Consider Generally no liability in delict for omissions “it is less of an invasion of an individual’s freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect." The Delictual Liability of Public Bodies - Local/Road Authorities A local authority was aware that a bank of land was obstructing the view at a junction where three accidents had occurred in the previous twelve years. The authority had discussed the matter with the land owners and had agreed to carry out the required work. No action had been taken however by the time that the claimant was seriously injured in an accident. The claimant claimed damages not only from the driver of the other vehicle, but also from the local authority. The issue in this context was whether a local authority could be found to owe a common law duty of care if it had not complied with a public law obligation. The House of Lords allowed the local authority’s appeal. It was acknowledged that the Highways Act 1980, s 79 did allow a local authority the power to remove obstructions. However, the statutory power did not give rise to a common law duty of care. It was considered that even if the work should have been carried out, a public law duty could not give rise to a common law claim for non-performance. If this was the case, an unacceptable burden would be placed on the local authority’s budget in respect of being permitted to exercise its discretion, especially since road users were already required to carry insurance. In other words, it was not fair, just or reasonable to impose a duty in these circumstances.

Answer 84

The Delictual Liability of Public Bodies - Justiciability

Answer 85

The Delictual Liability of Public Bodies - Justiciability

Answer 86

The Delictual Liability of Public Bodies - Justiciability

Answer 87

The Delictual Liability of Public Bodies - Omissions

Answer 88

The Delictual Liability of Public Bodies - Omissions A has assumed responsibility for B / assumed responsibility to protect B from the danger In 1963 the House of Lords established that in limited circumstances – if a duty of care arose in the making of statements – pure economic loss in tort could now be recoverable in English law. Hedley Byrne established that negligent misstatements can lead to claims for economic loss. If a party seeks advice from someone with special skills and trusts them to exercise due care, and if the relying party knows or should know that they are depending on the advisor's judgment, a duty of care may be implied. In the case itself, Hedley Byrne, an advertising agency, relied on a favorable credit reference from their client's bankers, H&P, which contained an exclusion clause. Despite H&P being protected by the disclaimer, the House of Lords ruled that pure economic loss could be recoverable if specific conditions were met. Subsequent to Hedley Byrne, there were developments in tortious liability. The Caparo case refined the test for establishing proximity in misstatement cases. The Henderson case expanded liability to situations where there was an assumption of responsibility for another's affairs, even without explicit advice being relied upon. Despite limitations, such as those set by Caparo, subsequent decisions have further extended the duty of care, including cases involving writing references, advice on pension rights, and expert witnesses. Notably, in 'will cases' like White v Jones, solicitors were held liable for economic loss resulting from negligent provision of services, although this is difficult to reconcile with traditional principles. In conclusion, Hedley Byrne created a cause of action for loss based on reliance on statements outside of contract law. While its application has varied over the years, it has broadened liability for negligent statements made by those in positions of trust and within the realm of professional services.

Answer 89

The Delictual Liability of Public Bodies - Omissions A has done something that prevents C from protecting B from the danger

Answer 90

The Delictual Liability of Public Bodies - Omissions A has a special level of control over the danger (1) Does the Home Office owe duty of care to private persons with respect to persons undergoing sentences of bostral training or the manner in which such persons were controlled while undergoing their sentences? (2) Does public policy require that the supervisors of persons undergoing sentences of bostral training are immune from action and liability for the damages caused by such persons? The appeal by the Home Office was dismissed. Seven boys detained in a borstal – a type of youth detention centre, were working on an island under the supervision of three officers. The borstal boys escaped from the island at night with the plaintiffs’ yacht and damaged it. The plaintiffs brought an action for damages against the Home Office which was in control of the bostrals on grounds that the officers on the island were negligent as they failed to exercise control and supervision over the boys. The Queen’s Bench held that the Home Office owed duty of care to the plaintiffs, which was capable of giving rise to liability in damages. The Court of Appeal dismissed the appeal by the Home Office. (1) The borstal officers owe a duty to take such care as was reasonable in all the circumstances with the view of preventing the persons under their control from causing damage if there is a manifest risk if this duty is neglected. (2) Public policy does not require that there should be immunity from action for borstal officers.

Answer 91

The Delictual Liability of Public Bodies - The Police

Answer 92

The Delictual Liability of Public Bodies - The Police

Answer 93

The Delictual Liability of Public Bodies - The Fire Service (1) Is the fire brigade under a common law duty to answer a call for help or to take care to do so? (2) Does merely attending the scene of a fire give rise to a duty of care on behalf of the fire brigade in respect to the owners or occupiers of premises? (3) Does s. 13 Fire Services Act 1947 confer a right to private action on a member of the public injured by its breach? (4) Is the fire brigade immune from negligence claims when its negligence led to injury? All appeals were dismissed. (1) Following Stovin v Wise [1996] 1 AC 923, the fire brigade’ statutory powers to act cannot be converted into a common law duty to answer a call for assistance or to take care to do so. (2) The fire brigade does not have sufficiently proximate relationship with the owners or occupiers of premises, so it does not come under a duty of care by merely attending and fighting the scene. (3) S. 13 Fire Services Act 1947 does not confer a right to private action on a member of the public affected by its breach. Therefore, the appeals in the second and third cases were dismissed. (4) However, where the fire brigade by their negligence caused the plaintiff’s injury, there is no reason to give them immunity from suit. Thus, the appeal in the first case was dismissed.

Answer 94

The Delictual Liability of Public Bodies - The Fire Service

Answer 95

The Delictual Liability of Public Bodies - The Fire Service

Answer 96

The Delictual Liability of Public Bodies - The Ambulance Service The plaintiff, Kent, was pregnant and had asthma. She was attended by her GP who dialled 999 and requested an ambulance to take the plaintiff to hospital. The ambulance took 38 minutes to arrive. As a result, the plaintiff suffered a respiratory arrest with grave consequences – substantial memory impairment, personality change and miscarriage. Kent brought and action against the London Ambulance Service (LAS) alleging negligence in failing to respond promptly and continuously give her oxygen in the ambulance. LAS was found liable in damages since they owed a duty of care to Kent as an individual patient. LAS appealed to the Court of Appeal on grounds that similar to the police and the fire brigade, they did not owe a common law duty of care to the public at large. (1) Do the ambulance service owe a duty of care to the public at large? (2) Does public policy preclude the existence of duty of care on behalf of the ambulance service to the public at large? The appeal was dismissed. (1) Unlike the police and the fire brigade, the ambulance service is part of the healthcare service where a duty of care to patients normally exists. (2) Public policy grounds do not preclude the existence of duty of care to the patients on behalf of the ambulance service. (3) The ambulance had been called for the patient alone, there were no other circumstances justifying its delay and it was foreseeable that the claimant would suffer further injuries if the arrival of the ambulance was delayed. Therefore, there was no reason why there should be no liability.

Answer 97

The Delictual Liability of Public Bodies - The Ambulance Service

Answer 98

The Delictual Liability of Public Bodies - Local/Road Authorities Liability for Harm Caused by the Criminal Acts of Third Parties - Revision “a duty to warn another person that he is at risk of loss, injury or damage as a result of the criminal act of a third party will arise only where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who is at risk” per Lord Hope

Answer 99

The Delictual Liability of Public Bodies – Specific Cases

Answer 100

The Delictual Liability of Public Bodies – Specific Cases

Answer 101

The Delictual Liability of Public Bodies – Specific Cases

Answer 102

The Delictual Liability of Public Bodies – Specific Cases

Answer 103

Liability for Harm Caused by the Criminal Acts of Third Parties - Revision The plaintiff’s 20-year-old daughter was attacked at night in a city street and died from her injuries. The defendant was a chief constable of the area in which the street was located. The attacker was convicted of the murder of the daughter and had allegedly committed a number of offences of murder against young women in the same area over a period of years prior to the deceased’s murder. The plaintiff claimed damages against the defendant for negligence on grounds that having investigated the previous cases of murder in the area, the police had failed to apprehend the attacker and prevent the murder of her daughter. The Queen’s Bench struck out the writ and statement of claim as disclosing no cause of action. The Court of Appeal dismissed the plaintiff’s appeal. (1) Do the police owe a general duty of care to apprehend an unknown criminal? (2) Do the police owe a duty of care to individual members of the public who suffer injuries as a result of the activity of the criminal? The appeal was dismissed. (1) The police could be liable in tort to persons who are injured as a direct result of their acts and omissions. (2) However, the police do not owe a general duty of care to apprehend an unknown criminal. (3) The police also do not owe a duty of care to individual members of the public who suffer as a result of the criminal’s activity. (4) The only exception to this rule is where the failure to apprehend the criminal creates an exceptional added risk, different from the general risk from criminal activity to the public at large, so as to establish a sufficient proximity of relationship between the police officers and victims of crime. The case was significant in setting the precedent for the general duty of care of the police to prevent crime and accidents. Liability to the Public “It is plain that vital characteristics which were present in the Dorset Yacht case and which led to the imposition of liability are here lacking. Sutcliffe was never in the custody of the police force. Miss Hill was one of a vast number of the female general public who might be at risk from his activities but was at no special distinctive risk in relation to them” per Lord Keith

Answer 104

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

Answer 105

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

Answer 106

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

Answer 107

Liability for Harm Caused by the Criminal Acts of Third Parties – The Police The Human Rights Aspect Know or ought to know of a real and immediate threat to an identified individual by the criminal act of a third party.

Answer 108

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

Answer 109

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

Answer 110

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

Answer 111

Liability for Harm Caused by the Criminal Acts of Third Parties – The Prison Service Seven boys detained in a borstal – a type of youth detention centre, were working on an island under the supervision of three officers. The borstal boys escaped from the island at night with the plaintiffs’ yacht and damaged it. The plaintiffs brought an action for damages against the Home Office which was in control of the bostrals on grounds that the officers on the island were negligent as they failed to exercise control and supervision over the boys. The Queen’s Bench held that the Home Office owed duty of care to the plaintiffs, which was capable of giving rise to liability in damages. The Court of Appeal dismissed the appeal by the Home Office. (1) Does the Home Office owe duty of care to private persons with respect to persons undergoing sentences of bostral training or the manner in which such persons were controlled while undergoing their sentences? (2) Does public policy require that the supervisors of persons undergoing sentences of bostral training are immune from action and liability for the damages caused by such persons? The appeal by the Home Office was dismissed. (1) The borstal officers owe a duty to take such care as was reasonable in all the circumstances with the view of preventing the persons under their control from causing damage if there is a manifest risk if this duty is neglected. (2) Public policy does not require that there should be immunity from action for borstal officers.

Answer 112

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

Answer 113

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

Answer 114

Liability for Harm Caused by the Criminal Acts of Third Parties – Other Situations

Answer 115

Liability for Harm Caused by the Criminal Acts of Third Parties – Other Situations

Answer 116

Breach of Confidence - What is the test

Answer 117

Breach of Confidence – Was the information confidential “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... Thethird... is that... the law’s protection of confidence... may be outweighed by someother countervailing public interest which favours disclosure” per Lord Goff

Answer 118

Breach of Confidence – The Circumstances of Disclosure Impose an Obligation of Confidence “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”

Answer 119

Breach of Confidence – The Circumstances of Disclosure Impose an Obligation of Confidence "English law has adapted the action for breach of confidence to provide a remedy for the unauthorised disclosure of personal information... This development has been mediated by the analogy of the right to privacy conferred by article 8 of the European Convention on Human Rights and has required a balancing of that right against the right to freedom of expression conferred by article 10.” The claimants were strip-searched for drugs on a prison visit. At trial, the judge found trespass against the person in relation to both claimants consisting of wilfully causing a person to do something to himself which infringed his privacy. The defendant appealed against the finding of trespass and was successful in the Court of Appeal. In cases such as Kaye v Robertson [1991] FSR 62, it was well established that there exists no tort of invasion of privacy in English law. An oft-cited stumbling block to the establishment of such a tort was the difficulty in clearly defining the concept of privacy. The claimants submitted that this was a case in which the House should find that the English common law recognises a remedy for an invasion of privacy. The claimants referred to various judgements of the European Court of Human Rights which suggested that English law does not provide a valid remedy in respect of Article 8 of the European Convention on Human Rights. The appeal was dismissed. Lord Hoffmann recognised that the concept of privacy underpins the common law of breach of confidence which was significantly developed in Campbell v MGN Ltd [2003] QB 633 but did not recognise a tort of invasion of privacy. The Court did not consider that there was anything in the jurisprudence of the European Court of Human Rights which required some high-level principle of privacy. Furthermore, this case was decided immediately prior to the Human Rights Act 1998 and the Court noted that the coming into force of that Act weakened the argument that a general tort of invasion of privacy at common law is needed to fill gaps in existing remedies.

Answer 120

Misuse of Private Information The claimants were strip-searched for drugs on a prison visit. At trial, the judge found trespass against the person in relation to both claimants consisting of wilfully causing a person to do something to himself which infringed his privacy. The defendant appealed against the finding of trespass and was successful in the Court of Appeal. In cases such as Kaye v Robertson [1991] FSR 62, it was well established that there exists no tort of invasion of privacy in English law. An oft-cited stumbling block to the establishment of such a tort was the difficulty in clearly defining the concept of privacy. The claimants submitted that this was a case in which the House should find that the English common law recognises a remedy for an invasion of privacy. The claimants referred to various judgements of the European Court of Human Rights which suggested that English law does not provide a valid remedy in respect of Article 8 of the European Convention on Human Rights. The appeal was dismissed. Lord Hoffmann recognised that the concept of privacy underpins the common law of breach of confidence which was significantly developed in Campbell v MGN Ltd [2003] QB 633 but did not recognise a tort of invasion of privacy. The Court did not consider that there was anything in the jurisprudence of the European Court of Human Rights which required some high-level principle of privacy. Furthermore, this case was decided immediately prior to the Human Rights Act 1998 and the Court noted that the coming into force of that Act weakened the argument that a general tort of invasion of privacy at common law is needed to fill gaps in existing remedies.

Answer 121

Misuse of Private Information “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

Answer 122

Misuse of Private Information

Answer 123

Misuse of Private Information - Balancing Art 8 and 10

Answer 124

Misuse of private information - Balancing art 8 and 10

Answer 125

Misuse of private information - Balancing art 8 and 10 "The chilling effect" The Douglases were a celebrity couple who sold exclusive photography rights of their wedding to OK! Magazine. An unauthorised freelance photographer gained access to the wedding and sold pictures to Hello! Magazine, a rival competitor. The Douglases sought an interlocutory injunction restraining publication which was initially granted, but then lifted several days later. OK! Magazine brought their publication forward to compete, incurring expenses. OK! And the Douglases sued for damages. Whether OK! Magazine and the Douglases had a right to commercial confidence over the wedding photos that were published in the public domain. The appeal was allowed on the basis that the Douglases and OK! Magazine were entitled to a commercial confidence over the wedding photos as the photos were not publicly available so were confidential, even though information about the wedding was generally available for people to communicate. There was found to be economic loss that arose from Hello! Magazine’s interference, constituting an intentional act. The photographs had a commercial value and therefore demonstrated the need for confidentiality. The Douglases were entitled to protect the confidentiality that Hello! Magazine and the unauthorised photographer were intent on destroying. Thus, even though OK! published the photographs before Hello!, this did not mean the photos were in the public domain and no longer subject to confidence. Each photograph was intended to convey the visual information of their wedding and that each picture would be treated as a separate piece of information that OK! had an exclusive right to publish. This right was deliberately interfered with. Thus, the Douglases were entitled to damages for breach of confidence and interference by Hello! Magazine.

Answer 126

Misuse of Private Information

Answer 127

Misuse of Private Information

Answer 128

Misuse of Private Information

Answer 129

Misuse of private information - criminal investigation

Answer 130

Misuse of private information - criminal investigation “we understand that the reference to a general rule or a legitimate starting point means that once it is established that the relevant information was that a person, prior to being charged, was under criminal investigation then the correct approach is for a court to start with the proposition that there will be a reasonable expectation of privacy in respect of such information and thereafter consider by reference to all the circumstances of the case whether the reasonable expectation either does not arise at all or was significantly reduced. If the expectation does notarise then the information can be published. If the expectation is reduced it will bearon the weight to be attached to the article 8 rights at stage two”

Answer 131

Defamation The claimant had a housemaid for a limited period of time, who re-entered the service of the defendant. Upon the maid’s arrival, the defendant sent the following telegram to the claimant: “E. has resumed her service with us today. Please send her possessions and the money you borrowed, also her wages to […]”. The claimant sued for libel, arguing that the telegram included defamatory allegations – namely, that they implied financial difficulties on the claimant’s side (e.g. that he was forced to borrow, failed to pay the maid’s wages, etc.). The defendant denied that these words could be capable of constituting defamation in themselves or by innuendo. Lord Atkin established a test in his judgment to decide whether words ‘in their ordinary signification’ were capable of defamatory meaning. Stating that the classic approach whereby the claimant is exposed to hatred, ridicule or contempt might be too narrow, he proposed the following test: “would the words tends to lower the plaintiff in the estimation of right-thinking members of society generally?”. If the words are found to be capable of constituting defamation, then it is for the jury to decide whether they were defamatory in the circumstances of each case. In the present case, the defendant’s words were found not to be reasonably capable of a defamatory meaning – so the claimant’s action was dismissed.

Answer 132

Defamation and Malicious Publication - Give the word "serious" its ordinary meaning

Answer 133

Defamation and Malicious Publication - A question of fact - Facts can be inferred from the circumstances such as the gravity of the statements

Answer 134

Defamation and Malicious Publication - An apology? The defendants published an article which suggested that various landlords made significant profit from renting poor quality social housing on a street which was featured in a television programme called “Benefits Street.” The claimants were a housing association which owned three properties on the street and its chief executive. The claimants complained that although the factual assertions concerning them were true, those assertions, read in context, were defamatory. Section 1(1) Defamation Act 2013 provides that a statement is not defamatory unless its publication has caused or is likely to cause “serious harm” to the reputation of the claimant. The question of whether the claimants had suffered or were likely to suffer such harm was considered by the court as a preliminary issue. The word “serious” in section 1(1) of the Defamation Act 2013 was not defined and it was for the judge in contested claims to determine whether serious, and not merely substantial, harm to the claimant’s reputation had been or was likely to be caused. It was not sufficient to demonstrate serious distress or injury to feeling. In the instant case, the requirement of serious harm in the 2013 Act was not satisfied. The statements in the article did not fall into the category of statement which were so obviously likely to cause serious harm that the likelihood could be inferred from the words used. Although the words used were capable of being defamatory there was no specific evidence that the article had caused serious harm to the claimants’ reputations and none could be inferred. The claim was therefore dismissed.

Answer 135

Defamation and Malicious Publication - Small circulation publication - Position of claimant important

Answer 136

Defamation and Malicious Publication – What Might be Defamatory - Criminality The claimant was tried for murder by gunshot in Scotland for which the jury returned a verdict of “not proven”. The defendants exhibited wax figures of famous/infamous persons and included a model of the claimant with a gun. The model could be viewed at an extra sixpence charge and was displayed along with figures of Emperor Napoleon I and three other persons known to have been involved in murders (including the one the claimant was tried for). This room led to another, the “Chamber of Horrors” where a further model of the claimant’s alleged crime. The claimant sued for libel and asked for an injunction to restrain the defendants from displaying the figure depicting him. The defendants denied the existence of libel and did not attempt to justify their action. The Queen’s Bench Division granted the claimant’s requested injunction, stating that the presence of libel was obvious in this case. However, the further appeal concerned a question of whether the claimant had actually consented to the exhibition he later complained of. The Court of Appeal held that there was some evidence that claimant consented to the exhibition. Thus, the case for libel was not sufficiently clear to justify the grant of an injunction in this case. However, the Court generally stated that there was jurisdiction to issue libel-based injunctions even if the case does not concern trade libels. Libel can be in permanent form even if it is not in writing or print. A statue, caricature, signs or pictures – and thus, a wax figure – may also give rise to libel.

Answer 137

Defamation and Malicious Publication – What Might be Defamatory - Criminality Accidentally identified people as murderers in a paper. Defamatory to allege that someone is a thief/crook/swindler.

Answer 138

Defamation and Malicious Publication – What Might be Defamatory - Immorality or immoral behaviour

Answer 139

Defamation and Malicious Publication – What Might be Defamatory - Financial unsoundness

Answer 140

Defamation and Malicious Publication – What Might be Defamatory - Professional, Vocational or Business Competence

Answer 141

Defamation and Malicious Publication – What Might be Defamatory - Professional, Vocational or Business Competence

Answer 142

Defamation and Malicious Publication - defences - Public intrest The plaintiff was a former Taoiseach (Prime Minister) of Ireland. He began proceedings against a British newspaper publisher in relation to an article which alleged that he had dishonestly mislead parliamentary and cabinet colleagues whilst in office. The defendants pleaded the defence of qualified privilege at common law. The plaintiff was successful at trial. The Court of Appeal held that the publication was not covered by qualified privilege. In the House of Lords, the defendants argued that the common law should recognise a generic qualified privilege covering the publication of political matters affecting UK citizens, except those proven to have been motivated by malice. The House of Lords declined to recognise such a category of general qualified privilege for political information as such a privilege would fail to provide adequate protection for reputation. It was not inappropriate to distinguish political information from other matters of serious public concern. The established common law approach to misstatement of fact remains sound. Under the existing common law rules, qualified privilege may apply to political information where there had been a duty to publish the material to the intended recipience and they had an interest in receiving it. The flexibility of the existing common law allows courts to consider individual cases and give appropriate weight to competing factors including the importance of freedom of expression by the media as a “watchdog” on matters of public interest.

Answer 143

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

Answer 144

Nuisance Hazardous substances.

Answer 145

Nuisance - An accumulation of combustible materials

Answer 146

Nuisance - Main authority The Defendants were engaged in leather tanning at Sawston. During their work, as a result of the process of degreasing pelts, small quantities of a solvent known as Perchloroethene (PCE) was spilt on the floor of the building in which the Defendants carried out their activities. These solvents eventually seeped through the building floor and into the soil, which eventually meant that they contaminated the Claimant’s borehole at Sawston Mill near Cambridge, some 1.3 miles away. The borehole was used to extract and supply water to local residents and consequently this meant that the water available for extraction as contaminated and to such a degree that it could not be safely used by the Claimants. The Claimants brought a claim against the Defendants on the grounds of nuisance, negligence and the rule in Rylands v Fletcher. It was held that the necessity to prove foreseeability of the type of damage suffered and to deal with remoteness of damage more generally applies equally to cases based on negligence, nuisance and the rule in Rylands v Fletcher. It was held further that the damage in this case was too remote as it was not possible for the Defendants to reasonably foresee a spillage which would eventually lead to contamination of a water borehole so far away. The Defendants were therefore not liable for the damage.

Answer 147

Ordinary use was not a defence to a nuisance action The critical question is whether what he was exposed to was plus quam tolerabile ... [in] all the surrounding circumstances’. (p 58)

Answer 148

Nuisance - More than is tolerable

Answer 149

Nuisance - Public Interest Omitting noxious vapours which was killing livestock, the aluminium smelter in question was important for the British economy, it was the only aluminium smelter in that point. Can't expect someone to bear the brunt for the rest of the community. It was deemed an actionable nuisance.

Answer 150

Nuisance - Public interest

Answer 151

Nuisance - Timings and subsequent changes

Answer 152

Relationship between culpa in nuisance and general rules of negligence considered. 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.

Answer 153

Contributory Negligence - Not a 'complete defence' - a partial defence Were the attempts of the plaintiff to climb over the door of the toilet cubicle natural and probable consequences of the negligent act of the defendant? The appeal was allowed. (1) In determining the remoteness of the damage, the court needs to balance the risks taken by the plaintiff against the consequences of the defendants’ breach of duty. (2) The plaintiff did not take a risk that was disproportionate to the necessities of her situation. Therefore, the injury that the plaintiff sustained was not too remote from the negligent act of the local authority. (3) However, on the facts, the plaintiff is guilty of contributory negligence, as having realised that she could not climb over the door, she should have appreciated that she could not rely entirely on the toilet roll holder to support her weight. Hence, she was 25 per cent to blame for the accident.

Answer 154

Contributory Negligence - Not a 'complete defence' - a partial defence

Answer 155

Defences – Volenti Non Fit Injuria “Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree either expressedly or impliedly, to waive any claim for injury that may befall him due to the lack of reasonable care by the defendant, or more accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of him”. central issue was the determination of the duty of care owed by a learner driver to her instructor, particularly in the context of a road traffic accident resulting in injury. The case highlighted three key conclusions: The defense of volenti non fit injuria (consent to the risk of injury) was not applicable in this case. The duty of care owed by a learner driver to the public, including passengers, should be measured against the same standard 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. The case sparked debate, with some arguing that the special relationship between learner and instructor should exempt the learner from the standard duty of care. However, the court held that practical considerations outweighed theoretical analyses of relationships in such cases. Despite the focus on the standard of care owed, the impact of the case primarily lay in its effect on the application of negligence law, particularly in road traffic cases. The decision influenced the limitation of the defense of volenti non fit injuria and the widespread adoption of the defense of contributory negligence. Standard reductions in damages, such as those for failure to wear a seatbelt or knowingly riding with a drunk driver, became common practice following this case. The case of Nettleship v Weston set a precedent that reshaped the legal landscape concerning liability in road traffic accidents, emphasizing the significance of contributory negligence as a defense.

Answer 156

Defences – Volenti Non Fit Injuria After drinking alcohol the whole afternoon, the plaintiff and his friend decided to go on a flight in the friend’s light aircraft. The plaintiff drove a car to the airfield and helped to start and refuel the aircraft which was piloted by the friend. Shortly after the take-off of the aircraft, the aircraft crashed. The pilot was killed and the plaintiff was severely injured. The plaintiff sued the defendant’s personal representatives for negligence. The defendants succeeded in claiming contributory negligence, but failed in claiming the defence of volenti non fit injuria. The defendants appealed to the Court of Appeal. The appeal was allowed. (1) The plaintiff willingly embarked on the flight, knowing that the pilot was so drunk that he was unable to discharge his duty of care. (2) The danger in embarking on the flight was so obvious and the plaintiff was not so drunk as to be incapable of appreciating the nature and the extent of the risk involved. Therefore, the plaintiff had fully accepted the risk of serious injury, which discharges the pilot from liability for negligence in relation to flying the aircraft. (3) The maxim volenti non fit injuria applies as a defence to the plaintiff’s claim.

Answer 157

Defences – Volenti Non Fit Injuria The appellant was struck by a train and was very seriously injured. This had taken place whilst the appellant was crossing a railway line between two suburban stations. This route had to be accessed by climbing an embankment and cutting through a gap in a fence. The fence had fallen into disrepair and had not been maintained by the respondent. 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. The trial judge found for the respondents. The decision was subsequently appealed. The appeal was dismissed. 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. There was no duty to maintain the fence in a reasonable state of repair. Moreover, it was deemed that if there had been, the appellant was deemed to have accepted the risks of crossing the train line.

Answer 158

Defences – Ex turpi causa non oritur actio The plaintiff was the pillion passenger on a motor cycle, involved in a collision with a vehicle driven by the second defendant, which resulted in the death of the motor cycle rider and serious injuries for the plaintiff. The plaintiff and the rider had been drinking before the accident and the plaintiff knew that the rider did not have a motorbike licence and insurance. The plaintiff was also encouraging the rider to drive recklessly. (1) Does the rider of a motor bike owe a duty of care to their passengers when they are equally drunk and reckless? (2) Does s. 148(3) Road Traffic Act 1972 preclude reliance on the defence of illegality? (1) The plaintiff’s action arose directly ex turpi causa (out of his own illegal act) and therefore, he is prevented from recovering compensation from the first defendant. (2) The words “agreement and understanding” in s. 148(3) Road Traffic Act 1972 do not contemplate an illegal agreement to carry out an illegal purpose and therefore, the section does not preclude reliance on a defence of illegality where the parties had expressly or tacitly agreed to engage in a joint illegal venture.

Answer 159

Defences – Ex turpi causa non oritur actio No actions can arise from an illegal act. No damages as they stole car. held, not able to access damages after crashing.

Answer 160

Defences – Damnum Fatale The central issue was whether the hotel proprietors could be held vicariously liable for the loss of the guest’s motor car due to the fire. The action was founded upon the edict naut caupones stabularii (innkeeper’s liability) The court held that the hotel had a duty to discharge the onus laid upon them by the edict. They needed to show not only that they had taken normal precautions against fire, but also that the fire had occurred in a way that excluded any cause implying negligence on their part. The case emphasized that the hotel’s liability extended beyond mere compliance with standard precautions.

Answer 161

Defences – Damnum Fatale Just because something is rare, does not mean it is a case of damnum fatale The case involved the construction of an artificial paddling pool by diverting a stream. Due to an extraordinarily violent rainfall, the pool overflowed, causing damage to the claimants’ property. The central issue was whether the defendants (Greenock Corporation) were liable for the damage caused by the overflow of water from the artificial pool. The court held that the defendants were liable for the damage. The extraordinary rainfall did not absolve them from responsibility. The diversion emphasised that the law firmly held the defendants accountable and should not be undermined or modified by subsequent rulings.

Answer 162

Defences – Necessity To be successful, there must be present what a reasonable person would regard as danger, and any action taken by the defender must be reasonable. The defendant entered the claimant’s land and burned a strip of heather. The purpose of this action was to protect the defendant’s own land. Ultimately, the fire did not spread as feared, but the defendant’s motivation was a genuine perception of danger. The central issue revolved around whether the defendant’s actions constituted trespass. Specifically, the court considered whether the lighting of a fire by a tenant to extinguish a fire on a landlord’s property amounted to trespass. The court held that the defendant’s action was justified. Although the action proved unnecessary (as the fire did not spread), the defendant’s genuine belief in the existence of danger led to the necessity of the act. The court recognized that an interference with another’s property, which would otherwise be a trespass, could be justified if motivated by a real and imminent danger.

Answer 163

Defences – Necessity The defendant’s oil tanker, named Inverpool, ran aground in an estuary due to a combination of weather conditions, carrying a heavy load, and a steering fault. To free the tanker, the master discharged 400 tons of oil. The oil drifted onto the claimant’s land, including a marine lake, which had to be closed for cleaning at substantial cost to the claimant. The defendant was liable in negligence and public nuisance. The discharge of oil did not constitute a private nuisance because it did not involve the use of land by the defendants; it occurred only on a ship at sea. The principle of res ipsa loquitur applied, indicating that the circumstances spoke for themselves regarding the defendant’s liability.

Answer 164

Defences – Res Judicata The central issue was whether the National Coal Board was negligent in maintaining the safety of the mine. The court needed to determine whether the falling roof was a result of the board’s negligence. The court held that the National Coal Board was not negligent. The falling roof was considered an unforeseeable accident rather than a result of negligence. As a result, Mr. Matuszczyk’s claim for damages was dismissed. This decision clarified the standard of negligence in work-related accidents and emphasised the need for foreseeability in establishing liability.

Answer 165

Remedies- Interdict Must be narrowly drawn, clear and precise. Whether the construction noise associated with the Edinburgh Tattoo constituted a nuisance. Whether the interdict granted by the Lord Ordinary was appropriately defined and specific. The reclaiming motion was allowed, and the interdict granted by the Lord Ordinary was recalled and suspended. A new interdict was granted against the second-named defenders in more precise terms to address the specific actings creating the nuisance. The court found that the construction noise was a nuisance as established by the pursuer’s evidence. However, the terms of the original interdict were deemed too broad and imprecise. It was necessary to restrict the interdict to the specific act of the clanging of metal upon metal in the construction of the stands associated with the Edinburgh Tattoo. This amendment ensured that the interdict was related strictly to the facts of the case and specifically targeted the identified nuisance. The court emphasized the importance of tailoring the interdict to address the specific nuisance-causing activities. By limiting the interdict to the metallic construction noise, the court protected the pursuer’s rights without unduly restricting the defenders’ ability to conduct the Edinburgh Tattoo event.

Answer 166

Remedies- Interdict A permanent or interim interdict may be sought. The case involved a dispute related to servitudes. Servitudes are real rights that allow a landlord to enter or make limited use of neighboring land. The servitude in question concerned the right to access landlocked land. The central issue was whether the servitude for access to landlocked property was valid. The court needed to determine whether this servitude was inherent to the ownership of the landlocked property or if it was an implied right of servitude. The court held that the right to access landlocked land is an inherent part of the ownership of that property. Whether the servitude was exercised as an implied right or inherent right mattered, especially in later stages of the case.

Answer 167

Economic Wrongs ‘designed only to enforce standards of civilised behaviour in economic competition between traders or between employers and labour’ per Lord Hope The House of Lords held that: The commissioners could pursue a common law claim for conspiracy against T to recover VAT. It was not essential for the unlawful means conspiracy to give rise to a separate action in tort against one of the conspirators. Criminal conduct engaged in by conspirators, intentionally inflicting harm, could constitute unlawful means for the tort of conspiracy. This decision clarified the law regarding conspiracy and unlawful means, emphasising intentional harm and the role of criminal conduct in the context of VAT losses.

Answer 168

Economic Wrongs 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. The central issue was whether Allen had induced a procurement of contract unlawfully. Specifically, whether Allen’s actions constituted maliciously inducing a breach of contract. The decision was reversed, finding that Allen had not violated any legal rights of Flood and Walter. There was no legal right for Flood and Walter to be employed by the employer. Allen had not carried out an unlawful act or used any unlawful means in procuring the employees’ dismissal. Allen’s conduct, however malicious or bad his motive might be, was not actionable. The employees were not entitled to damages, and no interference requiring remedy was found to exist.

Answer 169

Economic Wrongs - Conspiracy: lawful means The central question before the House of Lords was whether the respondents were involved in an illegal conspiracy against the appellants. Specifically, whether the respondents combined with the motive to injure the trade interests of the appellants, resulting in actual damage. The Lords dismissed the appeal, ruling that the embargo was not tortious in nature. The respondents’ purpose was to protect their own interests, not to harm the appellants. Lord Wright emphasized the distinction between a ‘conspiracy’ to protect one’s own interest and one where conspirators commit acts that are ‘in themselves wrongful.’ In tort, one cannot assume that co-conspirators intend the logical consequences of their actions. As there was no intention to injure the appellants' interest, no tortious conspiracy could be established in this case.

Answer 170

Economic Wrongs - Conspiracy: unlawful means The first issue was whether HMRC could pursue a common law claim for conspiracy against Total to recover lost VAT. The second issue was whether the tort of unlawful means conspiracy required the conduct to give rise to a separate tort action against at least one conspirator. The House of Lords held that HMRC could pursue a common law claim for conspiracy against Total. Criminal conduct engaged in by conspirators to intentionally inflict harm on the claimant could constitute unlawful means. The intentional harm tort and the “unlawful means” variety of conspiracy shared the ingredients of intentionally inflicting harm. The conspiracy tort did not require a separate action in tort against each conspirator. HMRC was entitled to damages

Answer 171

Economic Wrongs - Conspiracy: unlawful means The key issue was whether Lonrho suffered injury due to third-party interference. The court considered whether the injury was actual loss or hypothetical loss. The court held that there was no requirement for the tort of interfering with business to have the defendant’s predominant purpose as injuring Lonrho. It was sufficient to establish that Mohamed Al-Fayed acted to further his own interests. Al-Fayed was proven to have acted fraudulently by interfering with the pending purchase agreement between the company and Lonrho. When fraud is present, there need not be a complete tort against a third party for Lonrho to suffer injury or damage. The limits of the tort were not yet established, and the court refined the law based on the presented facts.

Answer 172

Economic Wrongs The British Motor Trade Association (BMTA), a trade union representing British motor car manufacturers and their accredited distributors, faced a post-war shortage of new motor vehicles available for public release. To address this, the BMTA implemented a scheme requiring every purchaser of a new motor vehicle to execute a deed of covenant. This covenant prohibited the resale of the vehicle within a specified period. The BMTA filed a petition seeking an interdict against Allan Gray, a motor car dealer who was not a BMTA member. The BMTA alleged that Gray had persistently engaged in purchasing and reselling vehicles subject to the covenant. He knowingly bought vehicles from retail purchasers who had executed the covenant and resold them before the specified time limit. The court held that the covenant was not a contract in restraint of trade. Even if it were, the covenant was reasonable between the parties and consistent with public interests. The court allowed the BMTA to proceed with the case and prove damages resulting from Gray’s actions.

Answer 173

Economic Wrongs 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. Invalid Appointment: The defendants, acting as receivers purportedly appointed under an invalid floating charge, took control of OBG Limited’s assets and business. Tort Claims: OBG Limited claimed that this action constituted not only trespass and conversion but also the tort of unlawful interference with contractual relations. Damages Claim: OBG sought damages for the value of its assets, including contractual claims, as of the date of the defendants’ appointment. The House of Lords held that invalidly appointed receivers were not liable to OBG for wrongful interference with contractual relations. Lord Hoffmann emphasized that an agent cannot be sued for interfering with contractual relationships between a principal and another contracting party. The court clarified that chose in action, such as contractual rights, is not susceptible to the tort of conversion. Therefore, the defendants were not liable for the value of OBG’s contractual claims.

Answer 174

Economic Wrongs The central issue was whether Mr. Mackay’s actions constituted the delict of inducing breach of contract. Specifically, whether he induced GDP (through his involvement with the rival business) to breach its contract with the pursuers. The court considered whether Mr. Mackay actively associated with GDP to persuade them to break their contract with the pursuers. The court ruled in favor of Mr. Mackay, stating that the pursuers had not relevantly averred a delictual case of inducing breach of contract. It was insufficient to establish this delict merely based on the foreseeable consequence of GDP’s breach due to Mr. Mackay’s actions. The case emphasised the need for active steps taken by the defender to induce the breach of contract.

Answer 175

Economic Wrongs - Passing off: goodwill The central issue was whether ASI’s use of “ARGOS” took unfair advantage of Argos UK’s trade mark. Specifically, whether ASI’s website targeted UK consumers and caused confusion. The High Court initially ruled in favor of ASI, stating that there was no link between the sign “ARGOS” and Argos UK’s mark. The Court of Appeal upheld the appeal but differed from the High Court judgment: ASI was targeting UK consumers with its website. UK visitors would realize they were in the wrong place due to the website’s content. ASI still obtained an impression fee. Despite meeting the criteria for “targeting” and the “link,” no unfair advantage was taken of Argos UK’s mark. ASI’s use of “ARGOS” did not divert business away from Argos UK. ASI's actions were deemed targeting, no unfair advantage was found. Distinctive character was not compromised.

Answer 176

Economic Wrongs - Passing off: goodwill The claimants argue that the defendants’ use of the word “PRICK” in the context of the cactus shop amounts to passing off. Mr. Martinez is well-known as a tattoo artist, having created iconic tattoos for celebrities like Amy Winehouse. His business operates under the name ‘Prick Tattoos.’ The court dismissed Mr. Martinez’s passing off claim against the cactus shop, ruling that there was no evidence of deception or resulting damage. While Mr. Martinez had goodwill associated with the name ‘Prick’ in the tattooing and piercing context, this goodwill did not extend to cactus sales. Therefore, the defendants were not liable for passing off.

Answer 177

Economic Wrongs - Passing off The Scottish Milk Marketing Board presented a petition seeking sequestration (bankruptcy) of the estates of the firm A. & J. Wood, located at Lees Farm, Coldstream, and of the individual partners of the firm. The petitioners claimed that they were creditors of the firm and the individual partners, owed a sum of £269, 1s. They further asserted that the firm and the partners were notour bankrupt, supported by an extract decree for payment and related execution of charge. The court allowed the petition for sequestration. The expired charge for payment was considered prima facie proof of insolvency. The debtors’ claim that their failure to pay the debt was wilful and not due to lack of means was deemed irrelevant in rebutting this proof.

Answer 178

Economic Wrongs - Passing off Partners Robert Dunlop and John Fisher Dunlop ran a cycle and motor repairing business in Kilmarnock under the name “R. & J. F. Dunlop.” They separated the motor and cycle branches, forming the “Dunlop Motor Company Limited” with a capital of £500. The Dunlop Pneumatic Tyre Company, famous for making “Dunlop” tires for cycles and motors, sought to prevent the Dunlop Motor Company from using the name “Dunlop” for their business. The dispute centered around whether the Dunlop Motor Company’s use of the name “Dunlop” would mislead the public or infringe on the tire company’s rights. The court refused to grant interdict (an injunction). The law does not prevent a merchant or manufacturer from selling goods under their own name unless there is evidence of fraudulent intent or an attempt to pass off their goods as another’s. In this case, there was no evidence that the Dunlop Motor Company’s use of the name “Dunlop” was fraudulent or misleading. Importance of balancing trademark protection with fair competition in business.

Answer 179

Economic Wrongs - Passing off The claimant, Lego System A/S, was the manufacturer of the popular “Lego” toy. The defendant, Lego M Lemelstrich Ltd, manufactured gardening equipment, including sprinklers made from colored plastic. The defendant’s products did not operate in the UK market. The court held that there was no infringement by the defendant under Section 10(1)(a) of the Trade Marks Act (equivalent to Article 5(1)(a) of the Trade Marks Directive). However, the case is notable for its discussion of unfair advantage under Section 10(3) of the Act (similar to Article 5(2) of the Trade Mark Directive). While the defendant’s actions did not directly infringe the claimant’s trademark, the court recognized that the stronger the brand (such as “Lego”), the higher the likelihood of leniency in allowing similar activities in related fields. The case highlights the delicate balance between protecting goodwill and allowing legitimate competition. Underscores the importance of brand reputation and the nuanced considerations in trademark law.

Answer 180

Economic Wrongs - Passing off Topshop sold a fashion t-shirt featuring an image of Rihanna. The image was derived from a photograph taken during a video shoot for her “Talk That Talk” album. Although the photograph was taken by an independent third-party photographer, Topshop obtained a license to use the image. Rihanna alleged that Topshop’s sale of the t-shirt led people to believe she had endorsed it, causing her damage. The central issue was whether Topshop’s actions constituted passing off—whether people would mistakenly associate the t-shirt with Rihanna’s approval. The Court of Appeal upheld the High Court’s finding that Topshop was liable for passing off. While selling a t-shirt with a famous person’s image alone does not necessarily amount to passing off, in this case, the specific circumstances led people to believe Rihanna had approved the t-shirt. The court recognised that Rihannas image was distinctive and that Topshops actions caused her harm.

Answer 181

Bodily Integrity - Assault: force - Direct contact? The defendant threw a small, lit firework called a squib into a busy marketplace with many people and stalls. To avoid damage, two other people threw the squib away. Unfortunately, it landed near the complainant and exploded, causing injury to his face. He later lost the use of one of his eyes. The defendant was charged with assault and trespass. The central issue was whether the injury to the complainant resulted from the defendant’s actions or whether other people broke the chain of causation (novus actus interveniens). The court dismissed the defendant’s appeal. The injury to the complainant was deemed a direct and unlawful act by the defendant, who originally threw and intended to throw the squib. The other people were not considered “free agents”; their actions in throwing the squib away were justifiable and a continuation of the defendant’s original act.

Answer 182

Bodily Integrity - Assault: force - Psychiatric harm The central issue revolved around whether silence could constitute assault and whether psychiatric harm could be considered “actual bodily harm” (ABH) under the Offences Against the Person Act 1861 (OAPA 1861) The defendant consistently made silent phone calls to three separate women over three months. During each call, he did not speak but instead breathed heavily on the line. Lord Steyn emphasised that silence, when intended to cause fear and intimidation, could suffice for assault. Proximity of the defendant to the victims was irrelevant; repeated phone calls of this nature could reasonably cause a victim to apprehend immediate and unlawful violence.

Answer 183

Bodily Integrity - Assault: intention - Need no to be to cause harm Harris forcibly removed from the carriage by the railway company's servants after refusing to pay. Railway company alleged that Harris did not have a return ticket and accused him of attempting to defraud the company. Court found that the railway company wrongfully removed Harris from the train without legal warrant and awarded him damages.

Answer 184

Bodily Integrity - Assault: lawful excuse - Consent? John Flattery, posed as a medical doctor and surgeon. The complainant, a young woman aged 19, consulted Flattery due to an illness, accompanied by her mother. Flattery advised that surgery was necessary. Under the pretense of performing surgery, he engaged in sexual intercourse with the complainant. The crown charged Flattery with rape. 1) Consent obtained through fraud 2) Submission does not equate to consent

Answer 185

Bodily Integrity - Assault: lawful excuse - Consent? The central issue revolved around an assault committed during a professional football match. 1) Assault in public 2) Deterrance: Court emphasised need to deter others from engaging in similar acts. 3) No Intervention in Physical Contact Sports: While the court acknowledged the physical nature of contact sports like professional football, it asserted that certain acts go beyond normal physical contact and constitute assault. 4) Refusal of Appeal Distinction between normal physical contact and deliberate acts of violence, condemning and punishing the latter even within the context of sport.

Answer 186

Bodily Integrity - Wrongful detention Mackenzie, a guest at the Cluny Hill Hydropathic establishment, brought an action against the company seeking £400 in damages. The incident occurred on August 19, 1906, when she was summoned by the company’s manager to his private room. In that room, she was both slandered and assaulted by two fellow guests, Mr. and Mrs. Robertson. Additionally, the manager forcibly detained her against her will for approximately fifteen minutes. Initially, the Lord Ordinary (Salvesen) ruled in favor of the defenders, finding the pursuer’s allegations irrelevant and insufficient to support the conclusions of the summons. It was established that the pursuer had the right to bring a second and separate action for the illegal detention, distinct from the previous action concerning the assault and slander by the Robertsons. The nature of the injury sustained by the pursuer was deemed a question for the jury to determine. This case underscores the importance of allowing claimants to seek redress for each distinct harm suffered, with each ground of action subject to separate evaluation and potential damages by a jury.

Answer 187

Bodily Integrity - Wrongful detention A complaint was made against Claire Powell for allegedly throwing a McFlurry ice cream at James Donaldson. During an interview with Claire Powell, the plaintiff had another officer, PC Steven McIntosh, present for corroboration. Lord Ross held that sufficient averments had been made by the pursuer. Further details about the specific decision or legal principles involved are not provided in the available information. Highlights the importance of balancing police duties (such as conducting interviews) with respecting an individual’s bodily integrity and rights.

Private II Cases Flashcards

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