Ready Mixed Concrete Ltd v Minister of Pensions

[1968] 2 QB 497
Definition of an employee under a ‘contract of service’.

Facts

A driver contracted with a mixed concrete company for the delivery of concrete.  The contract
declared him an “independent contractor” and set out wages and expenses. The driver was to
purchase his own vehicle, yet with a requirement that the vehicle be painted in company
colours. He was to drive the vehicle himself but under compliance with certain company’s rules
including, for example, the manner of vehicle repairs and payments.

Issue

The question arose as to whether the driver was an “employed person” under a contract of
service with the company for the purposes of the National Insurance Act 1965.

Held

Firstly, the Court held that whether a contract creates a ‘master and servant’ relationship
between an employer and employee is determined on the basis of contractual rights and
duties, and that the nomenclature used in the contract is irrelevant. Thus, the fact that the
contract termed the driver to be an “independent contractor” is not material. Secondly, the
Court held that employment under a contract of service exists when: (1) a person agrees to a
perform a service for a company in exchange for remuneration; and (2) a person agrees,
expressly or impliedly, to subject himself to the control of the company to a sufficient degree to
render the company his “master,” including control over the task’s performance, means, time;
and (3) the contractual provisions are consistent with ordinary contracts of service. On the
facts, the Court held that the driver had sufficient freedom in the performance of his
contractual obligations as he was free to decide the vehicle, his own labour, fuel, and other
requirements in the performance of the task. In lieu of these freedoms, he was an independent
contractor and not an employee of the company.
Market Investigations Ltd v Minister of Social Security
[1969] 2 QB 173
Definition of an employee under a ‘contract of service’.

Facts

A woman was engaged by a market research company to act as an interviewer on a part-time

basis. For each particular survey, she would conduct interviews in exchange for payment. She
was required to work for a certain number of days at a time during each occasion, follow a
comprehensive ‘Interviewer’s Guide’ and comply with other contractual terms.

Issue

The question arose as to whether extent and degree of control exercised by the company over
the woman qualified her as an “employed person” under a contract of service for the purposes
of the National Insurance Act 1965.

Held

Firstly, the Court stipulated that employment is determined by the degree and extent of control
that a company exercises over the person’s performance of the task to show ‘a master and
servant’ relationship. Secondly, the Court held that in order to distinguish between a contract
‘of service’ and ‘for services,’ the test to be applied is: whether the person is engaging the
services “as a person in business on his own account.” Considering the surrounding
circumstances and contractual provisions, if the answer to the question is “no,” the person is an
employee under a contract ‘of service.’ On the facts of the case, the Court placed weight on the
way in which the company exercised control over, for example, the technique of interviewing,
subjects of the interviews, content of the interviews, questionnaires, forms and other details
concerning the performance of the task, and the way in which the woman was not conducting
the business on her own account but on behalf of the company. Accordingly, the Court held
that the woman was an employee of the company under a ‘contract of service.’
The respondent, Mrs Cox worked
as catering manager at a prison in
Swansea. She was in charge of all
aspects of catering, including
opera'on of the kitchen and was in
charge of four members of sta(,
and about 20 prisoners who
worked in the kitchen. One of the
prisoners
one day dropped a sack of rice
onto her back. It is accepted that
this
was an act of negligence
The respondent, Mrs Cox worked
as catering manager at a prison in
Swansea. She was in charge of all
aspects of catering, including
opera'on of the kitchen and was in
charge of four members of sta(,
and about 20 prisoners who
worked in the kitchen. One of the
prisoners
one day dropped a sack of rice
onto her back. It is accepted that
this
was an act of negligence
Viasystems v Thermal Transfer

Viasystems (Tyneside) Ltd. v Thermal Transfer (Northern) Ltd & Ors [2005] EWCA Civ 1151 this
was a case heard by the Court of Appeal concerning vicarious liability, and the possibility of
holding more than one employer liable for vicarious liability.

Facts:

The claimant contracted with the first defendant (D1) to install air condition. D1 sub-contracted
with second defendant (D2) to carry out ducting work, D2 then hired D3 to do the fitting. Due to
negligence on the part of D3 damage was done to the property. The court was called upon to
determine whether it is D1 or D2 that is liable for the negligence of D3.

Judgment:

In reaching this decision May LJ held that the court should concentrate on whose responsibility
it was to prevent the breach and not whether there was a transfer of employment, which
would depend on who has the power to give orders and tell D3 how he carries out his work. On
this basis the court found D2 and D3 jointly and vicariously liable for the negligence.
Applying the Civil Liabilities (Contribution) Act 1978 the court held that the respective liability of
D2 and D3 are equal, therefore they are ordered to pay 50% each.

Liability: Armes v Nottinghamshire County Council

[2017] UKSC 60
In determining whether to impose vicarious liability the court has to consider what sort of
relationship has to exist between an individual and a defendant before the defendant can be
made vicariously liable in tort for the conduct of that individual? (The first requirement) A
classic example of a relationship which gives rise to vicarious liability is that of employer and
employee.

The second requirement considers in what manner does the conduct of that individual have to
be related to that relationship, in order for vicarious liability to be imposed on the defendant?
The case of Armes (Appellant) v Nottinghamshire County Council (Respondent) [2017] UKSC
60 concerns the first requirement.

Facts

The facts of Armes were that the appellant was in the care of the respondent local authority
from the ages of seven to eighteen. The local authority placed her into foster care with Mr and
Mrs A between March 1985 and March 1986, and with Mr and Mrs B between October 1987
and February 1988. She was physically and emotionally abused by Mrs A, and sexually abused
by Mr B.

Issues

In relation to liability, there was no case that the local authority had failed to exercise
reasonable care in the selection of the foster parents or in the supervision and monitoring of
the placements.

The claimant’s case was that the local authority was responsible in law for the tortious conduct
of the foster parents, either on the basis of vicarious liability, or on the basis of a non-delegable
duty of care.

It was conceded that, if the relationship between the local authority and the foster parent is
one which can give rise to vicarious liability, then the abuse of the child is a tort for which
vicarious liability is imposed. (ie the second requirement was satisfied)

Her claim under both heads was dismissed by the High Court and the Court of Appeal.

The Supreme Court allowed the appeal by a majority of 4-1. They rejected the argument that
the local authority was liable on the basis of a non-delegable duty but found the local authority
vicariously liable for the abuse committed by the foster parents.

Lord Reed gives the lead judgment, with which Lady Hale, Lord Kerr and Lord Clarke agree. Lord
Hughes gives a dissenting judgment
Mersey Docks & Harbour Board v. Coggins & Griffiths
(Liverpool) Ltd. 1947
  Master/servant relationship – persons who must be protected. Direct control, only if control
over what work and how it is done.

Facts

Coggins and Griffiths hired a crane and driver from the Mersey Docks and Harbour Board. the
driver, Mr Newall, drove the crane negligently and trapped Mr Mcfarlane injuring him. The
contract between the Board and the hirers stated that the driver was to become their
employee for the duration of the hire. The question was whether the Board were liable to Mr
Mcfarlane as Mr Newalls principal employers or whether the hirers now bore responsibility. It
was held as a fact that the hirers had power to control what Mr Newall lifted with the crane but
not how he lifted it.

The Decision

Control over Mr Newall's work had not passed to the hirers. It is not to be held that control had
readily passed. Only if there is control over what work the person does and how he does it will
control be held to pass. The trial judge awarded damages against the appellants. An appeal
against this decision was dismissed. The Board appealed to the House of Lords. The appeal was
dismissed.

Note

Lord Macmillan: "That the crane driver was in general the servant of the appellant board is
indisputable. The appellant board engaged him, paid him, prescribed the jobs he should
undertake and alone could dismiss him." The person hiring the crane had some control but the
real control was with Mersey Docks. The ultimate control is the right to dismiss.
A servant is one who is subject to the orders and control of an employer.... whether or not the
persons are running their own business.

Cox v Ministry of Justice:

Mrs Cox was employed by HM Prison Swansea, supervising both civilian staff and prisoners
working in the prison kitchen. She was accidentally injured by the negligence of a prisoner, who
dropped a sack of rice on her back.

Mrs Cox brought a claim against the Ministry Of Justice (MOJ). The County Court found that the
MOJ was not vicariously liable for the negligence of the prisoner. The decision was reversed by
the Court of Appeal, who found the relationship between the prisoner and the prison service
was akin to that of employer and employee.

The Supreme Court dismissed the subsequent appeal, again holding the MOJ liable. The Court
stated vicarious liability can be established in employment like relationships and not only
employer/employee. The Court will give significant weight to two factual elements: (1) harm is
wrongfully done by a person who carries on activities as an integral part of the business
activities of an organization and for its benefit; and (2) the risk of the wrongful act occurring
was caused by the organization in assigning responsibility to the wrongdoer.

Implications:  These cases are sobering decisions for employers. They illustrate an increasing
willingness by the courts to look beyond the traditional view of employment activities and the
employer-employee relationship.  In particular, all organizations with customer-facing staff
need to assess these staff more carefully to make sure they are sound and reliable. The risk
from an employer’s point of view is that any link to an employee carrying out his activities will
be sufficient to establish that the employer should be held liable.

JGE v Portsmouth Roman Catholic Diocesan Trustees

[2012] EWCA Civ 938, CA
Keywords: employer’s liability — vicarious liability

Summary
The scope of vicarious liability can extend to include liability for the acts of non-employees who
are in relationships so close in character to employment that it is just and equitable to hold the
organisation concerned liable. In such circumstances, determining whether liability exists
involves the consideration of a number of factors, namely:
 the control the organization had over the individual
 the extent to which the individual performed a core function of the organization
  the extent to which the individual was integrated into the organization
 whether the individual was in business on his or her own account.

The Facts
The claimant was 48 years of age. In May 1970, when she was 6 and a half years old, she was
placed in a children's home run by the nuns of a convent and which was subject to the direction
and control of a named defendant to the proceedings, the English Province of Our Lady of
Charity. She remained there for two years before being returned to her mother.
This claim alleged that whilst she was at the home the claimant was beaten by the nun in
charge of the home, a cause of action in respect of which she was seeking damages. Her claim
also alleged that another named defendant, Portsmouth Roman Catholic Diocesan Trust,
operated and/or managed and/or were responsible for a church in its Diocese and that at all
material times Father Wilfred Baldwin was the parish priest at the church and that, accordingly,
Father Baldwin was in the service of the defendants and subject to its direction and control.
It was alleged that Father Baldwin was regularly invited or permitted by the nuns to visit the
children's home and did so in the course of his duties as a priest for the Diocesan Trust. Whilst a
resident at the home the claimant was a parishioner of the church. It was alleged that she was
sexually abused and assaulted by Father Baldwin as well as being raped many times, including
on the day of her first holy communion when Father Baldwin raped the claimant in the robing
room at the church after conducting the service.
The claimant’s case was that the sexual abuse and assaults and rapes perpetrated by Father
Baldwin were committed in the course of, or were closely connected with, his employment or
duties, so that the Diocesan Trust was vicariously liable.

The Decision: High Court

MacDuff J held, as a preliminary issue, that the empowerment and the granting of authority to
Father Baldwin to pursue the activity on behalf of the enterprise were the key factors, so that
whether or not the relationship may be regarded as "akin to employment" the principal
features of the relationship dictate that the defendants should be held vicariously liable for the
actions which they initiated by the appointment and all that went with it.

The Decision: Court of Appeal

Vicarious liability involved the synthesis of two elements, the first stage being the relationship
between the employer and the employee and the second being whether the act was within the
scope of the employment.
In relation to the first stage, it was accepted that a priest was not an employee, but that
vicarious liability could be founded on a relationship other than employment, as the law of
vicarious liability had moved beyond the confines of a contract of service. However, the
relationship between the defendant and the tortfeasor had to be so close to a relationship of
employer and employee that it could fairly be said to be akin to employment. The test was
whether the relationship was so close in character to one of employer and employee that it was
just and equitable to hold the employer vicariously liable.
In such circumstances, determining whether liability existed would involve the consideration of
a number of factors, namely: the control the organisation had over the individual; the extent to
which the individual performed a core function of the organisation; the extent to which the
individual was integrated into the organisation; and whether the individual was in business on
his or her own account.
Applying those tests led to the conclusion that, in this case, the individual was more like an
employee than an independent contractor. The Priest was in a relationship with his Bishop
which was close enough and sufficiently akin to that of employer and employee to make it just
and fair to impose vicarious liability.

Comment
The Court of Appeal suggested that the Roman Catholic Church looked like a business and
operated like a business with the Pope in the head office, with its “regional offices” being its
appointed bishops and with “local branches” being the parishes with their appointed priests.

Jobling v Associated Dairies Ltd [1982] AC 794

Eggshell Skull Rule – Negligence – Law of Tort – Causation – Loss of Earnings

Facts

The complainant was a butcher at Associated Dairies Ltd and he had slipped on the floor and
suffered a slipped disc while at work, due to his employer’s negligence. As a result of his
injuries, he was limited to carrying out light work, which saw his earnings reduced by 50 per
cent of what they were prior to the accident. Four years later and before the trial, Mr Jobling
had been diagnosed with a pre-existing spinal disease, which was not a result of the accident. It
would eventually disable him entirely and he would be unable to work.

Issues
The lower courts applied Baker v Willoughby and the complainant was awarded damages
beyond the diagnosis of the condition. The employer’s appealed against this decision. The issue
was one of causation and whether his pre-existing spinal disease should be taken into account
for assessing work-related damages. The appeal was based on whether Mr Jobling should
receive loss of earnings for the partial incapacity and the future or only for the four years of
work.

Held

It was held that the employer would only be liable for damages and partial loss of earnings for
the four years Mr Jobling was employed. The court was critical and did not follow the decision
in Baker v Willoughby; this was called an exception to the normal test of causation. His pre-
existing spinal condition must be considered and all factors taken into account, in order for the
court not to award excessive compensation. This was a case of the eggshell skull rule and an
example of a ‘vicissitude of life’; it was relevant that the illness would cause full disability.

Dubai Aluminium Co Ltd v Salaam [2002] 3 WLR 1913

A solicitor firm’s vicarious liability for a partner’s dishonest assistance to a client.

Facts

The senior partner of a firm drafted a consultancy agreement and other requisite
documentation for a client’s fraudulent enterprise. A company was induced to pay an amount
of USD 50 Million over time under this fraudulent consultancy agreement. The company sued
the firm claiming that it was vicariously liable for their senior partner’s dishonest assistance to a
client.

Issue
The question arose as to whether the firm could be held vicariously liable for the dishonest
assistance of the partner in breach of fiduciary duty for “wrongful act or omission during the
ordinary course of business of the firm” under Section 10 of the Partnership Act 1980 Act.

Held

For the firm to be vicariously liable for the partner’s actions, the wrongful conduct must have
occurred in the ordinary course of the firm’s business. The House of Lords held that, as a point
of law, whether the conduct of an employee occurs during the “ordinary course of
employment” is to be given an “extended scope” (para. 22) as the underlying legal policy of
vicarious liability recognises the risks borne by business enterprises to third parties, and that
when “those risks ripen into loss, it is just that the business should be responsible for
compensating the person who has been wronged.” (para. 21). Accordingly, the Court held that
the fact that the partner’s conduct was not authorised by his co-partners and the personal
innocence of the co-partners thereto is not relevant to their vicarious liability The partner was
acting in his capacity as an employee of the firm when he aided in drafting the consultancy
agreement and other documentation. Thus, the firm was held vicariously liable for the damages
borne by the partner’s dishonest assistance.

Mattis v Pollock [2003] 1 WLR 2158 is an English tort law case, establishing an

employer's vicarious liability for assault, even where it may be intentional or pre-meditated.
Previously, judges had been unwilling to impose liability where assaults were motivated by
revenge or vengeance;[1] it was established however that following the decision of Lister v
Hesley Hall Ltd,[2] that where an assault is closely linked to the duties of an employee, the
employer should be held vicariously liable.[3]

Facts
Mr Cranston, an employee of Flamingos night club, in London, was employed as a bouncer to
keep order at the club's doors, and to break up scuffles and fights.[4] On 18 July 1998, an
incident occurred involving a customer, Mr Fitzgerald, and Mr Cranston, who threw a friend of
his across a room. It was submitted that Mr Pollock had given Mr Cranston instructions to
"impress upon Mr Fitzgerald that Mr Cranston was prepared to use physical force to ensure
compliance with any instructions that he might give to Mr Fitzgerald or any of his companions".
[5]

Subsequently, on 24 July, Mr Mattis was attending the club with a friend, Mr Cook. Mr Cranston
was instructed that Cook should be barred from the club, and was ejected. A week later, Mr
Mattis attended the club with other friends, at around 11:15pm. Mr Cook turned up with Mr
Fitzgerald, at around 1am, and upon seeing them, Mr Cranston violently assaulted Mr Cook and
one of his friends.[6] Upon witnessing this, Mr Mattis attempted to pull Cranston from Cook,
whereupon several other customers surrounded Cranston, who was forced to flee. Upon
arriving back at the club, he grabbed Mr Mattis, and stabbed him in the back.[7] As a result, Mr
Mattis was rendered paraplegic.

Judgment
The trial judge found the club's owner, Mr Pollock, was not liable for the stabbing of Mr Mattis.
This event was not part of one continuous string of events; as Mr Cranston had fled home,
leaving his duties, he was no longer within the course of his employment.[8] He stated that:

"The lapse of time and intervening events were, in my judgment, of such a nature that it would
not be right to treat the event culminating in the stabbing of Mr Mattis as one incident
commencing in the club."[9] Also according to the Times Law Reports
The doorman was employed by the defendant to keep order and discipline. However, he was
encouraged and expected to perform his duties in an aggressive and intimidatory manner,
which included manhandling customers. That aspect of the evidence was not sufficiently
addressed by the judge.
The reality was the defendant should not have been employing the particular doorman at all,
and certainly should not have been encouraging him to perform his duties as he did [10]
The Court of Appeal rejected this, with Judge LJ stating:
“

The stabbing of Mr Mattis represented the unfortunate, and virtual culmination of the
unpleasant incident which had started within the club, and could not fairly and justly be treated
in isolation from earlier events, or as a separate and distinct incident. Even allowing that
Cranston's behaviour included an important element of personal revenge, approaching the
matter broadly, at the moment when Mr Mattis was stabbed, the responsibility of Mr Pollock
for the actions of his aggressive doorman was not extinguished. Vicarious liability was therefore
established. Accordingly the appeal on this ground must succeed.[11]

Taking note of the recent decisions in Lister v Hesley Hall Ltd and Dubai Aluminium Co Ltd v
Salaam,[12] Judge LJ did not look to establish that the stabbing had occurred in the course of
Cranston's employment, but whether the stabbing was closely connected to his work, and
instruction[3] It was of particular importance that Mr Cranston had been instructed by Mr
Pollock, and was known to be, violent and intimidating toward customers:

Mr Pollock chose to employ Cranston, knowing and approving of his aggressive tendencies,
which he encouraged rather than curbed, and the assault on Mr Mattis represented the
culmination of an incident which began in Mr Pollock's premises and involved his customers, in
which his employee behaved in the violent and aggressive manner which Mr Pollock expected
of him.[13]

Stovin v Wise [1996] UKHL 15

The availability of a private law claim in negligence in respect of a failure of a local authority to
comply with a public law discretion

Facts

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.
Issue

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.

Held

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.

Horsley v. MacLaren, [1972] SCR 441

FACTS:

Same set of facts as Matthews v. Maclaren. Horsley jumped off the boat to save Matthews as
Maclaren’s rescue attempt was failing. While trying to rescue his friend Matthews, Horsley died
as well. The plaintiff’s argument is that since Maclaren’s attempt to rescue Matthews was
negligent, it induced Horsley to jump into the water.

LEGAL ISSUE:

Is a duty of care owed to people who voluntarily try to rescue someone that has been put in a
dangerous situation as a result of negligence?

HELD:
If liability exists it must stem from a finding that the situation of peril brought about by
Matthews falling into the water was thereafter so aggravated by the negligence of MacLaren in
attempting his rescue as to induce Horsley to risk his life by diving in after him

If there was an error in the rescue, it was one of judgment, not negligence and so it ought fairly
to be excused

Judgment for defendant

RATIO:

(From Videan): If a person by his own fault creates a situation of peril, he must answer for it to
any person who attempts to rescue the person who is in danger. He owes a duty to such a
person above all others. The rescuer may act instinctively or out of courage, as long as it is not
reckless. If the rescuer is killed or injured in the attempt, he can recover damages from the one
whose fault has been the cause of it

REASONS FOR JUDGMENT:

Any duty owed to Horsley would have to stem from the fact that a new situation of peril was
created by MacLaren’s negligence which induced Horsley to jump

Although the rescue procedure for Matthews followed by MacLaren was not the most highly
recommended the evidence doesn’t justify the finding that any fault of MacLaren’s induced
Horsley to risk his life by diving as he did

LASKIN J. (Dissent):

o It is an independent duty from the first person in danger

o Not vital to determine if there was a duty to the first person à point is whether
what you did was done negligently and that negligence induced a reasonable
person to put himself in danger
Barrett v Ministry of Defence [1995] 1 WLR 1217;
NEGLIGENCE, DUTY OF CARE, LIABILITY FOR EMPLOYEE’S DEATH,

INJURY CAUSED BY DRUNKENNESS, NAVAL REGULATIONS, SAFETY

Facts

The plaintiff was the widow of the deceased, who was a British naval army serviceman. He died
of asphyxiation on his own vomit after becoming drunk and ending up in coma at a naval base
in Norway. The deceased’s commanding officer was charged with negligence under Art.
1810 Queen’s Regulations for the Royal Navy 1967 which provided that it was the duty of
officers to discourage drunkenness. The widow claimed damages against the defendant – the
Ministry of Defence (MoD), under the Fatal Accidents Act 1976. The Queen’s Bench held that
the defendant had breached its duty to take measures to protect the deceased against his own
weakness as it was foreseeable that he would succumb to intoxication. The damages awarded
were reduced by 1/4 because of the deceased’s contributory negligence. The MoD appealed
the decision to the Court of Appeal.

Issue

Does Art. 1810 Queen’s Regulations for the Royal Navy 1967 impose a duty to ensure the
safety of serviceman in naval bases when off duty?

Held

(1) Art. 1810 Queen’s Regulations for the Royal Navy 1967does not lay down standards or give
guidance on the exercise of reasonable care for the safety of servicemen when off duty. Hence,
it cannot be invoked when deciding whether duty of care was owed and whether the defendant
had breached it.

(2). Until the deceased collapsed, he was responsible for his own condition as it is reasonable to
leave a responsible adult to assume responsibility for his own actions in consuming an alcoholic
drink

(3) However, after the deceased collapsed and was no longer able to assume responsibility and
thus, the defendant had to do this for him, the defendant’s actions fell short of the reasonably
expected standards.

(4) As it was the deceased’s lack of self-control that caused the defendant to have to assume
responsibility, the damages awarded were reduced by 2/3.

Home Office v Dorset Yacht Co Ltd [1970] AC 1004;

[1970] 2 WLR 1140; [1970] 2 All ER 294; [1970] 1 Lloyd’s Rep. 453; (1970) 114 SJ 375

NEGLIGENCE, DUTY OF CARE, BOSTRAL OFFICERS, DUTY OF CARE TO WHOM, PUBLIC POLICY, IMMUNITY FROM ACTION

Facts

Seven boys detained in a bostral – a type of youth detention centre, were working on an island
under the supervision of three officers. The bostral 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.
Issue

(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?

Held

The appeal by the Home Office was dismissed.

(1) The bostral 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 bostral officers.

Carmarthenshire County Council v Lewis [1955] AC

549
The liability of a local authority for road users injured whilst trying to avoid hitting a young child
who had escaped from school

Facts

The claimant in this matter was the wife of a lorry driver killed whilst trying to avoid a child in
the road. The child was at school when his teacher, intending to take him out of school,
prepared him to leave. However, before she was able to take the child, another child fell and
was hurt. Whilst the teacher was attending to the hurt child and was distracted, the other child
wandered out of the school building and through an open gate onto the road. On seeing the
child, the claimant’s husband swerved his lorry in order to avoid hitting the child, crashed into a
telegraph pole and was killed. Negligence was found against the teacher at first instance and
was upheld on appeal. The council appealed to the House of Lords.
Issue

The issue in this context was whether a local authority had a duty of care to road users to the
extent that required it to prevent young children in its care from straying onto the road.

Held

It was held that the duty owed by the teacher was that of a careful parent and, in the
circumstances, the teacher had acted in a manner consistent with this duty. The accident was
not found to be the teacher’s fault. However, the fact that the child was able to leave the
school so easily as soon as the teacher’s back was turned indicated that there was a lack of
proper precautions in place to avoid this happening. In the absence of a proper explanation for
the child’s presence on the road, the council must be held liable for the cause of the crash. The
council had a duty, not only to the child, but also to road users affected by the child’s actions.
The appeal was dismissed. 

RA B ON E A ND A N OTH ER V PEN N IN E CA RE NH S FOUN DATION :

SC 8 F EB 2012

Coram: Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Dyson

Ratio: 

The claimant’s daughter had committed suicide whilst on home leave from a hospital where she
had stayed as a voluntary patient with depression. Her admission had followed a suicide
attempt. The hospital admitted negligence but denied that it owed her a positive obligation to
protect life under Article 2.

Held:

The claimants’ appeal succeeded. The decision to allow Melanie two days home leave was one
that no reasonable psychiatric practitioner would have made, and recourse to the margin of
appreciation was misplaced. The Trust had failed to do all that could reasonably have been
expected to prevent the real and immediate risk of suicide. It had an operational duty under
Article 2 to protect persons from a real and immediate risk of suicide where they were under
the control of the state. She had been admitted because she was a real suicide risk. The Trust
accepted responsibility for her in taking her under control. Although not detained, had she
insisted on leaving the hospital the respondent would have exercised it powers under the 1983
Act to stop her. The difference in these circumstances between detained and voluntary patient
was one of form, and not of substance.
The acceptance of a settlement under the 1934 Act was in no way a settlement of any Human
Rights claim.
Lord Dyson considered the assessment of damages for infringement of human rights, saying
that in the absence of a guideline case in which the range of compensation is specified and the
relevant considerations are articulated, it is necessary for our courts to do their best in the light
of such guidance as can be gleaned from the Strasbourg decisions on the facts of individual
cases.
Lord Brown of Eaton-under-Heywood said that our domestic courts may choose to go further in
the interpretation and application of the ECHR than Strasbourg has done where they reach a
conclusion which flows naturally from Strasbourg’s existing case law.

PH ELPS V HIL LIN GD ON LON D ON BOROUG H COUN CI L;

A N D ERTON V CLWYD COUN TY COUN CIL; GOWER V BROM LEY
LON D ON BOROUG H COUN CI L; JA RV IS V HA MPSH IRE COUN TY
COUN CIL : H L 28 JUL 2000

Coram: Lord Slynn of Hadley Lord Jauncey of Tullichettle Lord Lloyd of Berwick Lord Nicholls of
Birkenhead Lord Clyde Lord Hutton Lord Millett

Ratio: 
The plaintiffs each complained of negligent decisions in his or her education made by the
defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s
claim and in only one had it been allowed to proceed.
Held:
The House unanimously dismissed the local authority’s appeal in that last case but allowed the
plaintiff’s appeal in the other three. A local authority can be liable in negligence for its failures
to provide appropriate special needs educational support to those it had a duty to educate, and
was liable even for the independent acts of its professional agents employed by it for this
purpose. The absence of an express statutory provision for damages was not conclusive,
professionals must acknowledge that their decisions have consequences and that their duties
lie not only toward their employers. Failure to reduce the consequences of conditions such as
dyslexia can constitute a personal injury. A head teacher owes a duty of care to exercise the
reasonable skills of a headmaster in relation to such a child’s educational needs and a special
advisory teacher brought in to advise on the educational needs of a specific pupil, particularly if
he knows that his advice will be communicated to the pupil’s parents, ‘owes a duty to the child
to exercise the skill and care of a reasonable advisory teacher.’ and ‘the professionalism,
dedication and standards of those engaged in the provision of educational services are such
that cases of liability for negligence will be exceptional.’ It was clear in principle that a teacher
or educational psychologist could in principle owe a duty of care to a child as well as an
employing authority. Valid claims in negligence were not to be excluded because claims which
were without foundation or exaggerated might be made. There was no reason to exclude the
claims on grounds of public policy alone.
Statutes: Education Act 1996

G OLD MA N V HA RG RAV E: PC 13 JUN 1966

Coram: Wilberforce, Perason, Morris of Borth-y-Gest, Reid LL

Ratio: 
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The
appellant had the tree cut down, but took no reasonable steps by spraying the fire with water
to prevent the fire from spreading, believing that it would burn itself out. The fire spread to
neighbouring property.

Held:
An occupier of land is under a general duty of care in relation to hazards, whether natural or
man-made, occurring on his land to remove or reduce such hazards to his neighbour. The
existence of the duty is based on the knowledge of the hazard, the ability to foresee the
consequences of not checking or removing it and the ability to abate it by taking reasonable
measures. Risks such as the spread of fire are not ones which, without more, call for the
imposition of any risk based liability; liability if any must be based upon some antecedent
creation of risk or some subsequent fault.
Lord Wilberforce said: ‘the tort of nuisance, uncertain in its boundary, may comprise a wide
variety of situations, in some of which negligence plays no part, in others of which it is decisive’.
And ‘one may say in general terms that the existence of a duty must be based upon a hazard,
ability to foresee the consequences of not checking or not removing it, and the ability to abate
it.’
The occupier here was in breach of his duty of care for failing to extinguish a fire which had
started by natural causes. The defendant was found to be negligent because he chose not to
put the fire out, but to let it burn itself out instead. This erroneous decision allowed a wind to
revive the fire which then spread to the plaintiff’s property.
In the case of fire there was no difference between a fire that started from natural causes and
one that had been started by human agency. Lord Wilberforce said: ‘Their Lordships would first
observe, with regard to the suggested distinction, that it is well designed to introduce confusion
into the law. As regards many hazardous conditions arising on land, it is impossible to
determine how they arose – particularly is this the case as regards fires. If they are caused by
human agency, the agent, unless detected in flagrante delicto, is hardly likely to confess his
fault. And is the occupier, when faced with the initial stages of a fire, to ask himself whether the
fire is accidental or man-made before he can decide upon his duty? Is the neighbour whose
property is damaged bound to prove the human origin of the fire? The proposition involves that
if he cannot do so, however irresponsibly the occupier has acted, he must fail. But the
distinction is not only inconvenient, it lacks, in their Lordships’ view, any logical foundation.
Within the class of situations in which the occupier is himself without responsibility for the
origin of the fire, one may ask in vain what relevant difference there is between a fire caused by
a human agency, such as a trespasser, and one caused by act of God or nature. A difference in
degree – as to the potency of the agency – one can see but none that is in principle relevant to
the occupier’s duty to act. It was suggested as a logical basis for the distinction that in the case
of a hazard originating in an act of man, an occupier who fails to deal with it can be said to be
using his land in a manner detrimental to his neighbour and so to be within the classical field of
responsibility in nuisance, whereas this cannot be said when the hazard originates without
human action so long at least as the occupier merely abstains. The fallacy of this argument is
that, as already explained, the basis of the occupier’s liability lies not in the use of his land: in
the absence of ‘adoption’ there is no such use; but in the neglect of action in the face of
something which may damage his neighbour. To this, the suggested distinction is irrelevant.’
Winterbottom v Wright (1842) 10 M & W 109
The availability of a claim where the claimant is not a party to the contract with the defendant.

Facts

The defendant contracted with the postmaster general to supply a mail coach for the purpose
of carrying the mail along a particular route. A third party also contracted with the postmaster
general to provide horses and a mail coachman to operate the mail coach. The claimant was the
mail coachman contracted by the third party. The claimant was injured as a result of several
latent defects in the coach and attempted to bring an action against the defendant with whom
he had no contractual agreement.

Issues

Whether the defendant owed a duty to any third party who might be injured as a result of the
negligent provision of the coach or indeed any other negligent actions in regard to the contract.

Held
The claimant’s claim failed. It was held that although the defendant contracted to maintain the
mail coach in a safe condition and undoubtedly failed to do so, the duty was owed under the
defendant’s contract with the postmaster general. The defendant owed no duty to the claimant
because the duty could not extend beyond the contractual one. It was considered that to allow
the claimant’s claim to succeed would cause a duty to be held in all circumstances where harm
occurred. There would be no limit to the number of claims that might arise. It was recognised
that leaving the claimant without remedy was harsh, but that this should not influence the
court’s decision.

Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049;

[1989] AC 53; [1988] 2 All ER 238; [1987] UKHL 12; (1988) 152 LG Rev 709; (1988) 85(20) LSG 34; (1988) 138 NLJ Rep. 126; (1988) 132 SJ 700

NEGLIGENCE, DUTY OF CARE, POLICE DUTIES, DUTY TO APPREHEND CRIMINALS, LIABILITY TO PERSONS INJURED AS A RESULT OF CRIME

Facts

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.

Issues (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?

Held 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.

ROBINSON V CHIEF CONSTABLE OF WEST YORKSHIRE POLICE

This landmark judgment has been called “the most important police law case in this
generation”. For years, the police have been afforded an immunity that severely limits the
circumstances in which a duty of care will be imposed on them for the performance of their
core functions of investigating and preventing crime. Robinson significantly shifts the position.
In Robinson, the Supreme Court determined that, like all other bodies (private or public), the
police are subject to a duty of care to avoid causing injury in accordance with the ordinary
principles of the law of negligence.
The Facts
On the day in question, four police officers had coordinated the arrest of a suspected drug
dealer on a busy street in Huddersfield. During the struggle, the suspect and two police officers
had knocked into 76-year-old Mrs Robinson; she fell to the ground and they fell on top of her.
A Recorder who heard the case five years later found the officers were negligent, as they had
foreseen that (i) the suspect would try to resist and that (ii) there was a potential risk of
personal injury to innocent passers, yet the officers proceeded without noticing Mrs Robinson’s
nearby presence.
Despite reaching this conclusion, the Recorder determined that the case of Hill v Chief
Constable of West Yorkshire [1989] imposed an immunity on officers from negligence claims
when acting in the course of their operational duties.
Mrs Robinson then appealed the judgment to the Court of Appeal who went further in favour
of the police and reversed the liability decision, holding that the police owed no duty of care in
this case and that in any event, the court would not have upheld the Recorder’s finding of
negligence.
Hallet LJ who heard the appeal applied Lord Bridge’s test in Caparo Industries Plc v Dickman
[1990] and stated “[t]he court will only impose a duty where it considers it right to do so on the
facts”, a test that Lord Bridge said “applies to all claims in the modern law of negligence” (para
40).
She concluded that “most claims against the police in negligence for their acts and omissions in
the course of investigating and suppressing crime and apprehending offenders will fail the third
stage of the Caparo test” (para 46) and Mrs Robinson’s case was no exception. It was not “fair,
just or reasonable” to impose a duty on the police to an individual. Where the police may owe a
wider duty to the public to investigate and prevent crime, there is no such narrower duty to
prevent harm to members of the public in individual cases.
Mrs Robinson appealed the Court of Appeal’s decision to the Supreme Court.
The Supreme Court Judgment
Lord Reed provided the leading judgment (with Lady Hale and Lord Hodge agreeing). In his
judgment he found that “the proposition that there is a Caparo test which applies to all claims
in the modern law of negligence, and that in consequence the court will only impose a duty of
care where it considers it fair, just and reasonable to do so on the particular facts, is
mistaken.” (Para 21).
Lord Reed said the correct approach when determining whether a duty of care exists is to
instead look to the established authorities and, in novel situations, develop the
law “incrementally and by analogy” with those authorities. He also conferred that it would
be “unnecessary and inappropriate” to reconsider whether the existence of the duty is fair, just
and reasonable when that very consideration had formed part of the basis on which the law
had arrived at the relevant principles in the first place. “Such an approach,” he said, “would be
a recipe for inconsistency and uncertainty” (para 26).
Furthermore, referring to Hill, Lord Reed said that the judgment of Lord Keith, in that case, was
not authority “for the proposition that the police enjoy a general immunity from suit in respect
of anything done by them in the course of investigating or preventing crime” (para. 55). On a
true reading of Lord Keith’s judgment in Hill, Lord Reed said, Lord Keith, spoke of
an “immunity”, meaning the absence of a duty of care, only in relation to the protection of the
public from harm through the performance by the police of their function of investigating a
crime.
Further, whereas Hill concerned a police omission, the present case regarded a positive act by
the officers and under the law of negligence, it was sufficient to place the police under a duty of
care to protect Mrs Robinson from a danger which the police themselves had created. Public
authorities, like private individuals and bodies, generally owe no duty of care towards
individuals to prevent them from being harmed by the conduct of a third party, however, a duty
of care was established in this case because it was as a result of the police’s actions that Mrs
Robinson was injured.
As Lord Reed summarised in paragraph 73;
“[Mrs Robinson’s] complaint is not that the police officers failed to protect her against the risk
of being injured, but that their actions resulted in her being injured. In short, this case is
concerned with a positive act, not an omission.”
The Appeal was therefore allowed.
Both Lord Mance and Lord Hughes agreed with the majority that the present case concerned a
positive act, not an omission and that the finding of the trial judge on negligence should be
restored, however they both expressed reservations about minimizing the relevance of policy
considerations in relation to courts recognising the existence of a duty of care on the police
towards private individuals in the exercise of their public law powers.
In regards to the main issues raised. These can be answered as follows:
Did the police officers owe a duty of care to Mrs Robinson?
The answer was yes, the potential for injury to members of the public was not only reasonably
foreseeable but was actually foreseen by the officers in this case. The officers specifically
coordinated their arrest to deal with the likelihood that the suspect would resist arrest and
attempt to escape. In those circumstances, it was reasonably foreseeable that if the arrest was
attempted when pedestrians were in close proximity, they might knock into and injure them
during a struggle. That reasonably foreseeable risk was sufficient to impose on the officers a
duty towards Mrs Robinson when the arrest was attempted.
If so, was the Court of Appeal entitled to overturn the Recorder’s finding that the officers
failed in that duty?
Whilst the Supreme Court highlighted that the Court of Appeal was correct to emphasise the
importance of not imposing “unrealistically demanding” standards of care on police officers
acting in the course of their operational duties, they made clear that Mrs Robinson’s case was
not one where the standards placed on the police were unrealistically high. In Mrs Robinson’s
case, the officers were aware that there was a significant possibility that the suspect would
attempt to escape and that if he did there would be a risk of harm to members of the public. DS
Willan when giving evidence confirmed that if it had appeared to him that someone was in
harm’s way at that time, he would not have carried out the arrest. This was not a case where
the arrest had to be made at that specific moment. He also said that he simply failed to notice
Mrs Robinson, despite her being in close proximity to the suspect and in full view of the
officers. The Supreme Court confirmed that the Recorder was entitled to find negligence on
that basis alone.
Were Mrs Robinson’s injuries caused by the officers’ breach of their duty of care?
If it was established that the officers breached their duty of care, it would be impossible to
argue that the police were not also responsible for Mrs Robinson injuries.
CommentaryThis judgment comes as a welcome relief to human rights and civil liberties
lawyers, but there remains a long way to go to ensure that the police can properly be held to
account in common law.
Despite the overall finding, the court made abundantly clear that it was not their intention to
undermine the rule in Hill. Therefore, any future claim that is seen to place a standard on police
officers that is “unrealistically demanding”, and that focuses on an omission rather than an act
will likely fail at the first hurdle.
Robinson is a move in the right direction for claimants, but the furthest it goes is to establish
that the police have the same duty of care as other members of the public in limited situations.
The fact that the police cannot be sued in negligence for omissions, even where they have
(unlike members of the public) a legal duty to do precisely the act or acts they have failed to do,
remains deeply concerning. The Supreme Court had the opportunity to address this
in Michael but chose not to, finding that while the police can be sued for a failure to protect a
woman from death (by failing to respond appropriately to a 999 call) under the Human Rights
Act 1998, they cannot be sued for the same failures in negligence.
It is extremely concerning that even with failures as glaring as those in Michael and, more
recently DSD & NBV (concerning gross failures to investigate the rapes and sexual assaults
committed by John Worboys and to protect subsequent victims), our common law still provides
no avenue for redress.

WO OD LA N D V TH E SWIMMING TEACH ERS’ A SSOCI ATION A N D

OTH ERS: QBD 17 OC T 2011
 Decemb er 28, 2018   ad mi n   Off   Neglig en ce , P erso nal Injury , Vi cari ou s Liabi lity ,

References: [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76

Ratio: 
The court was asked as to the vicarious or other liability of a school where a pupil suffered
injury at a swimming lesson with a non-employee during school time, and in particular whether
it had a non-delegable duty to ensure the welfare of children during school time. The pool
supervision wasthrough employees of a company sub-contracting to the local authority
providing the lessons.

Held:
The claim failed. There were fundamental differences between vicarious liability and the finding
of a non-delegable duty. Such duties had been found in a hospital situation, but not otherwise.
Whilst a non-delegable duty on a school might arise in certain circumstances, one did not arise
in this case. ‘To recognise a duty as arguable in the present case would thus be that marked
extension of the common law which policy tends against. Even greater caution should apply to
recognition of new categories of non-delegable duty than does to an expansion of negligence
liability, since to recognise an intermediate category between strict insurance against injury and
negligence itself is to suggest that the scope of the latter, though augmented by the principles
of vicarious liability, is insufficient, even if gently extended, to meet the demands of that which
is fair just and reasonable in the circumstances.’

Jurisdiction: England and Wales

Donoghue v Stevenson [1932]

Facts

 Donoghue’s friend purchased her a bottle of ginger beer

 The bottle contained the decomposing remains of a snail though this was not visible
 As a result of the remain, Donoghue suffered from nervous shock and gastroenteritis
 Donoghue attempted to claim against the manufacturer of the ginger beer (Stevenson)
claimed that he owed her a duty of care

Issue

 Could a manufacturer owe a duty of care to the ultimate consumer of goods?

Decision

 In favour of Donoghue; a duty can be owed to the ultimate consumer

Reasoning

 Lord Atkin’s neighbour principle sums up the reasoning

You must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives
a restricted reply. You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my
neighbour? The answer seems to be – persons who are so closely and directly affected by my
act that I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question.

 Donoghue was in contemplation as the ultimate consumer

SUTRA D H A R V N ATURA L ENV IRON MEN T RESEA RCH COUN CIL :

H L 5 J UL 2006
 

The issues

Arsenic poisoning – Bangladesh – strike out – Summary Judgment.

The facts
The Claimant alleged that he had been poisoned by Arsenic when drinking ground waters near
his home in Bangladesh. The NRC received funds from the Overseas Development Agency. One
of its departments had reported assessing the hydro-chemical charter of the main Aquifer Units
of Central and North Eastern Bangladesh and the possible toxicity of ground water. The
Claimant alleged that the report had been prepared negligently. The Defendant argued that the
Claimant could not show that the NRC owed him a duty of care because there was insufficient
proximity.

The decision
1. This was a novel point in a developing area of law.
2. It was not appropriate to strike out. These cases had to be decided on the facts, which were
found at Trial. Proximity as a concept overlapped with the other concepts of harm and fairness,
which derived from the relationship of the parties.

Application dismissed.

Marc Rich & Co v Bishop Rock Marine Co Ltd

[1996] AC 211
The requirements for the existence of a duty of care

Facts

During a voyage a ship developed a crack in its hull. The ships owners requested its
classification society to inspect the damage. An employee of the classification society
advised that the ship should be put into dry dock in order for repairs to be carried out.
However, after complaints from the ship owner as to the cost of such an action, the
advice was altered and temporary repairs were carried out. Shortly afterwards, the ship
sank and the claimant lost cargo valued at USD 17.6 million. The claimant recovered
USD 17.5 million from the ship owner being the total extent of the liability in relation to
the tonnage of the ship. The claimant sought to recover the difference from the
classification society. The claim succeeded at first instance, but was overturned on
appeal. The Claimant appealed to the House of Lords.
Issue

Whether, on these facts, the elements necessary to impose a duty of care on the
classification society were made out.

Held

It was held that a duty of care did not exist to the claimant by the classification society.
The House of Lords reiterated the three elements necessary for the imposition of a duty
of care set out in Caparo Industries plc v Dickman  [1990] 2 AC 605: proximity of
relationship, foreseeability of damage and it being fair, just and reasonable to impose a
duty. It was held that the first two elements of the test were satisfied on these facts.
However, it was held that it would be unfair, unjust and unreasonable to place a duty of
care on a classification society as against a ship owner, it being the ship owner who
would ordinarily be required to recover in circumstances such as this, because this went
against the internationally recognised contractual structure that existed in this area. It
would also be unfair, unjust and unreasonable to hold the classification society liable as
against the cargo owner because classification societies act for collective welfare and
could not rely on any limitation provisions.

Watson v British Boxing Board of

Control [2001]
Facts

 A boxer was injured in a fight

 Although an ambulance was called, by the time they got there, severe
physical injury had been sustained

Issue

 Did the BBBC have a duty to provide ringside medical assistance

Decision

 Yes, liability found

Reasoning

 Control is assumed, the boxers, although consenting to minor injury,

would expect such a provision to be in place. The BBBC created the rules
and do still have a duty to promote the safety of the boxers

Darnley v. Croydon Health Services NHS Trust 2017

Following a head injury, Mr Darnley (the claimant) attended Mayday Hospital, Croydon A&E
with a friend. The receptionist advised he would have to wait up to four to five hours to be
seen.

Mr Darnley waited 19 minutes before leaving without telling anyone. He was not told he would
have been triaged within ~30 minutes. Had he been told this, the trial judge found he would not
have left A&E.

Deteriorating shortly after arriving home, Mr Darnley tragically suffered permanent and serious
injury, which would have been avoided if he had not left A&E and his treatment delayed as a
result.

In finding for the hospital, the original trial judge and then the Court of Appeal adopted a
number of arguments, including:
 the Trust was not under a duty to provide accurate information about waiting times
 there was no assumption of legal responsibility for the claimant
 the information was provided as a courtesy by non-medical staff
 the claimant was responsible for his injury because he chose to leave the A&E
department, when he had in fact been advised to wait
In overturning the original ruling of the Court of Appeal, the Supreme Court found for the
claimant that:

 As soon as the claimant attended seeking medical attention there was a patient hospital
relationship (an established category of duty of care)
 There was a duty not to provide misleading information which may foreseeably cause
physical injury
 The standard required is that of an averagely competent and well-informed person
performing the function of a receptionist at a department providing emergency medical care
 The hospital had been in breach of its duty of care

Bourhill v Young [1943] AC 92

NEGLIGENCE – PSYCHIATRIC DAMAGE – DUTY OF CARE – PROXIMITY –
REMOTENESS

Facts

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.
Issue

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.

Held

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.

Mulcahy v Ministry of Defence [1996] QB 732;

[1996] 2 WLR 474; [1996] 2 All ER 758; [1996] PIQR P276; (1996) 146 NLJ 334

NEGLIGENCE, DUTY OF CARE, SEVICEMEN, SOLDIER INJURED DURING

SERVICE, BATTLE CONDITIONS, SAFETY AT WORK, PERSONAL INJURY

Facts

The plaintiff was a soldier serving for the British Army in the Gulf War and was part of
the team manning a howitzer. His unit was deployed in Saudi Arabia to fire the howitzer
into Iraq. The soldier was ordered by his commander to fetch some water from in front
of the gun carriage. While he was in front of the gun, the commander negligently fired
it. As a result, the plaintiff was knocked off his feet and his hearing was adversely
affected. The plaintiff brought an action against the Ministry of Defence (MoD) as his
employer for damages for personal injury alleging that the department was vicariously
liable for the gun commander’s negligence or alternatively, the department was in
breach of its duty to provide safety at work by allowing the gun to be fired when the
soldier was not the safety position required by the gun drill. The county court ruled in
favour of the plaintiff. The MoD appealed to the Court of Appeal.

Issue

Do servicemen owe a duty of care to fellow servicemen in battle conditions?

Held

The appeal was allowed and the claim was struck out.

(1) Servicemen owe no duty of care to fellow serviceman in battle conditions since as a
matter of public policy and common sense it would not be fair, just and reasonable to
impose such a duty on soldiers when engaging with the enemy during hostilities.

(2) This is the case even if the sufficient proximity of relationship to establish a duty of
care and the foreseeability of damage are proved.

Smith v Ministry of Defence [2013]

Facts

 Soldiers killed by IED devices were not provided adequate protection

Issue

  Did human rights apply abroad (in Iraq) during active war
Decision

  Yes, claims allowed

Reasoning

 Human rights did apply to soldiers, article 2 was violated

RI CH ARD VO WLES V DAV ID EVAN S, AND TH E WELSH

RUG BY UNIO N LIM ITE D: CA 11 M AR 2003
 

.
Ratio:

The claimant had been injured in a rugby match, and had recovered damages from the referee,
who now appealed.
Held:

The relationship was proximate, and the injury reasonably forseeable, and if the referee failed
to exercise reasonable care, liability could follow. The referee accepted a role of enforcing rules
to minimise danger in a dangerous sport. Here the referee had failed to enforce rules intended
to protect players, and it was a decision taken whilst play was stopped, not running play.

Vowles v Evans [2003]

Facts

 The claimant was confined to a wheelchair after a neck injury while playing rugby

Issue

 Could the referee by liable for the injury

Decision

 Liability allowed

Reasoning

There exited a controlling relationship between the referee and the player, therefore responsibility had
been assumed

Arthur JS Hall v Simons [2000] 3 WLR 543;

PROFESSIONAL NEGLIGENCE, ADVOCACY, IMMUNITY OF SOLICITORS FROM
ACTION, LEGAL PROFESSION, PUBLIC POLICY, ABUSE OF PROCESS

Facts

In the first case, in a protracted dispute for a building, the plaintiff’s solicitors acted for the
opposite side. In the second case, during matrimonial ancillary relief proceedings, the plaintiff’s
solicitors failed to provide her with proper advice on the valuation and division of the proceeds
of a sale and lodged a minute of order which recorded an inaccurate valuation. In the third
case, during matrimonial ancillary relief proceedings, the plaintiff’s solicitors advised her on the
appropriate level of periodical payments and on the possibility of contributions from the
husband’s cohabitee, but on the day of the trial, a different counsel persuaded the plaintiff to
settle at a lower level of relief on the incorrect assumption that the husband’s relationship with
the cohabitee had ended. All plaintiffs lodged negligence claims against their solicitors. In all
cases, the judges at first instance concluded that the solicitors enjoyed immunity from suit and
struck out the claims against them as an abuse of process of the court. The Court of Appeal
reversed this decision. The defendants appealed to the House of Lords.

Issue

Are the solicitors liable in negligence if they mislead their clients and they suffer loss as a result
of this?

Held

The appeals were dismissed.

(1) Reversing Rondel v Worsley [1969] 1 AC 191, in light of the changes in the law of

negligence, the functioning of the legal profession, the administration of justice and public
perceptions, the advocates’ immunity from suit is no longer appropriate.

(2) The liability of advocates for misleading their clients will not diminish the standards of
advocacy as courts are able to judge between errors of judgement, which are inevitable, and
true negligence. Thus, the floodgates for negligence claims against solicitors will not be open.

(3) Negligence claims against solicitors are not an abuse of process of the court as under r. 24.2,
Part 24 Civil Procedure Rules 1998, the court has powers to give a summary judgement if a
claim is unlikely to succeed.

M OY V P ETTM AN SM ITH (A F IRM ) AND ANO TH ER: H L

3 F EB 2005

Ratio: Damages were claimed against a barrister for advice on a settlement given at the door of
the court. After substantial litigation, made considerably more difficult by the negligence of the
solicitors, the barrister had not advised the claimant at the door of the court to accept an offer.
The claimant was not advised as to potential difficulties in having essential evidence admitted,
and the evidence was not admitted, and a much lower sum was received. The court of appeal
had found the advice itself not to be negligent, but that she should have given the client more
detailed advice.
Held: The question whether her advice was negligent has to be judged in the light of the
choices that were available in the light of her assessment. She had to balance the possibility of
her client’s desire to achieve a full settlement against the loss of a chance to sue the solicitors
for negligence. ‘it is the substance of the advice, not the precise wording used to convey it, that
needs to be examined in order to judge whether it was negligent. The significance of Miss
Perry’s failure to tell Mr Moy that the prospects of getting the evidence in were 50/50 has to be
measured against what she did tell him, which was that she was hopeful that the judge would
admit the evidence’. The court of appeal had been wrong to disturb the finding that the
barrister had not been negligent: ‘it was not incumbent upon the appellant to spell out all her
reasoning, so she was not in breach of her duty of care to the claimant in the advice which she
gave. ‘ As to the right of the solictors to appeal: ‘section 1(5) of the 1978 Act should be so
construed as not to bar an appeal in a case such as the present. This could be done in either or
both of two ways. One could construe the word ‘judgment’ as referring to a final judgment
after any appeals have been determined, rather than the judgment at first instance of the trial
judge; or one could confine the operation of the subsection to actions for contribution
subsequently brought, so excluding further proceedings by way of appeal in the original action.
Whichever construction one adopts, I consider that the solicitors’ right of appeal to the Court of
Appeal was not barred by the operation of section 1(5)’

McFarlane v Tayside Health Board

[1999]
Facts

 A doctor performed a sterilisation operation on the father, negligently

such that it reversed and caused the wrongful birth of a healthy child
Issue

 Could the parents make a mother’s claim and a parents’ claim against
the hospital

Decision

 The mother’s claim was allowed, the parents’ claim disallowed

Reasoning

 A court could not issue an adoption or abortion law (the latter not
applicable in this case)
 It is morally unacceptable to allow the claim
 The benefits of a child are incalculable. In truth, a child is a mixed
blessing
 It would be subversive to enjoy the benefits of a child but to transfer the
responsibility to others

Wilsons & Clyde Co Ltd v English [1938] AC 57

Law of Tort – Negligence – Duty of Care – Safe System of Work – Damages – Delegation

Facts

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.

Issues

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.

Held

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.

Walker v Northumberland County Council [1995]

1 All ER 737
Employer’s duty to provide safe system of work; whether duty extends to risk of
psychiatric illness.

Facts
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.

Issues

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.

Held

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.

White and Others v Chief Constable of the South

Yorkshire Police [1999] 2 AC 455
NEGLIGENCE – PSYCHIATRIC DAMAGE – LIABILITY TO RESCUERS – DISTINCTION
BETWEEN PRIMARY AND SECONDARY VICTIMS

Facts
The claimants (C) were all police officers who had been on duty within Hillsborough
Stadium during the eponymous disaster, in which 95 Liverpool FC fans were killed and
many others injured. C brought an action in negligence (and/or breach of statutory
duty) against their employer, the Chief Constable of South Yorkshire Police (D), for the
psychiatric harm they had suffered as a result of witnessing the tragedy first-hand. It was
not disputed that D was negligent or, indeed, that this had caused nervous shock to C.
The Court of Appeal had previously found in favour of C and D appealed to the House
of Lords.

Issues

This case raised two principal questions. Firstly, it fell to be determined whether an
employer owed a duty of care to protect their employees from psychiatric injuries they
may incur in the course of their employment. Secondly, C argued that they fell within
the ambit of ‘primary’ victims, and should thus be permitted to succeed with an ordinary
claim in negligence. The House of Lord were thus called upon to revisit the distinction
between primary and secondary victims set out in Alcock v Chief Constable of South
Yorkshire ([1992] 1 AC 310).

Held

D was under a duty to take reasonable steps to protect his employees from the risk of
physical harm, but there was no extension of this duty to protect C from psychiatric
harm when they were not exposed to any risk of physical injury. Thus, there could be no
duty of care owed to C for purely psychiatric harm, as they were not at any point in any
physical danger. Moreover, a rescuer in relation to whom physical injury was not
reasonably foreseeable could not recover damages for psychiatric injury sustained by
witnessing, or participating in the aftermath of, an accident which had caused death or
injury to others; such rescuers were to be categorised as secondary victims, and so
would have to meet the conditions specified by Lord Oliver in Alcock.

Walker v Northumberland County Council [1995]

1 All ER 737
Employer’s duty to provide safe system of work; whether duty extends to risk of
psychiatric illness.

Facts
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.

Issues

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.

Held

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.

HATTON V. SUTHERLAND (2002) EWCA Civ 76 (2002) PIQR

P241
The key law is that of Hatton v. Sutherland.
The Facts of this Case
The Hatton case involved four employers appealing against the findings of liability for four
employees who had psychiatric illnesses caused by stress at work.
Two of the employees, Mrs Hatton and Mr Barber, were teachers in secondary schools. Mrs Jones
was an administrative assistant in a local authority training centre and Mr Bishop was a raw materials
operative in a factory.
The Court of Appeal allowed the employer’s appeals in three of the cases, Hatton, Barber and
Bishop, in a composite judgment reported as Hatton v. Sutherland 2002 All ER 1.
Essentially, the Court laid down 16 practical propositions to provide guidance as to the principles
applied in occupational stress claims which are laid out below. Mr Barber appealed. The House of
Lords (Lords Bingham, Steyn, Scott, Rodger and Walker) endorsed the principles laid down by the
Court of Appeal in Hatton, describing them as “a valuable contribution to the development of the
law” (Lord Walker).
The Key Law – 16 Practical Propositions
Sixteen propositions to summarise the law on liability for illness induced by occupational stress from
paragraph 43 of the judgment of Hale, LJ:-
1. There are no special control mechanisms applying to claims for psychiatric (or physical)
illness or injury arising from the stress of doing the work the employee is required to do. The
ordinary principles of employer’s liability apply.
2. The threshold question is whether this kind of harm to this particular employee was
reasonably foreseeable: this has two components: (a) an injury to health (as distinct from
occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about
the individual employee. Because of the nature of mental disorder, it is harder to foresee than
physical injury but may be easier to foresee in a known individual than in the population at
large. An employer is usually entitled to assume that the employee can withstand the normal
pressures of the job unless he knows of some particular problem or vulnerability.
4. The test is the same whatever the employment: there are no occupations which should be
regarded as intrinsically dangerous to mental health.
5. Factors likely to be relevant in answering the threshold question include:-
(a) the nature and extent of the work done by the employee. Is the workload much more than is
normal for the particular job? Is the work particularly intellectually or emotionally
demanding for this employee? Are demands
(b) signs from the employee of impending harm to health. Has he a particular problem or
vulnerability? Has he already suffered from illness attributable to stress at work? Have there
recently been frequent or prolonged absences which are uncharacteristic of him? Is there
reason to think that these are attributable to stress at work, for example because of complaints
or warnings from him or others?
6. The employer is generally entitled to take what he is told by his employee at face value,
unless he has good reason to think to the contrary. He does not generally have to make
searching enquiries of the employee or seek permission to make further enquiries of his
medical advisers.
7. To trigger a duty to take steps, the indications of impending harm to health arising from
stress at work must be plain enough for any reasonable employer to realise that he should do
something about it.
8. The employer is only in breach of duty if he has failed to take the steps which are reasonable
in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity
of the harm which may occur, the costs and practicability of preventing it and the
justifications for running the risk.
9. The size and scope of the employer’s operation, its resources and the demands it faces are
relevant in deciding what is reasonable. These include the interests of other employees and
the need to treat them fairly, for example, in any redistribution of duties.
10. An employer can only reasonably be expected to take steps which are likely to do some good:
the Court is likely to need expert advice on this.
11. An employer who offers a confidential advice service, with referral to appropriate
counselling or treatment services, is unlikely to be found in breach of duty.
12. If the only reasonable and effective step would have been to dismiss or demote the employee,
the employer will not be in breach of duty in allowing a willing employee to continue in the
job.
13. In all cases, therefore, it is necessary to identify the steps which the employer both could and
should have taken before finding him in breach of his duty of care.
14. The claimant must show that that breach of duty has caused or materially contributed to the
harm suffered. It is not enough to show that occupational stress has caused the harm.
15. Where the harm suffered has more than one cause, the employer should only pay for that
proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is
truly indivisible. It is for the defendant to raise the question of apportionment.
16. The assessment of damages will take account of any pre-existing disorder or vulnerability
and of the chance that the claimant would have succumbed to a stress-related disorder in any
event.

AB v Tameside & Glossop Health Authority.

The defendants discovered that a health worker who had given treatment to female patients at
two hospitals was HIV positive, and that there was a remote risk of infection. They decided to
inform the patients concerned, and that they should be informed by letter. In this action, a
number of the patients claimed that the defendants were negligent in choosing to inform them
by letter rather than face to face. French J at first instance held that it was negligent to inform
the plaintiffs by letter, in that the defendants should have foreseen that vulnerable individuals
might suffer psychiatric injury going beyond the shock and distress which was natural in the
circumstances. The Court of Appeal allowed the appeal. The defendants‟ duty, once they had
decided to inform patients at all, was to take such steps to inform them as were reasonable,
having regard to the foreseeable risk that some might suffer psychiatric injury, but it was wrong
to hold that they were negligent because they did not select the best method.