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Cases - tort - negligence - breach of duty of care

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Cases - tort - negligence - breach of

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Blake v Galloway [2004] CA

Blyth v Birmingham Waterworks (1856)
Bolam v Friern Barnet Hospital Management Committee (1957)
QBD
Bolitho v City & Hackney Health Authority [1997] HL
Bolton v Stone [1951] HL
Carroll v Fearon (1999) CA
Djemal v Bexley Health Authority 1995 QBD
Gates v McKenna (1998) QBD
Hall v Simons (2000) HL
Home Office v Dorset Yacht [1970] HL
Jolley v Sutton LBC (1998) HL
Latimer v AEC Ltd [1953] HL
Mahon v Osborne [1939] CA
Mansfield v Weetabix (1997) CA
Marshall v Osmond [1983] CA
Mullin v Richards (1998) CA
Nettleship v Weston [1971] CA
Newman & others v United Kingdom Medical Research Council
(1996) CA
Paris v Stepney BC [1951] HL
Phillips v William Whiteley Ltd [1938] KBD
Roberts v Ramsbottom [1980] QBD
Roe v Minister of Health [1954] CA
Simonds v Isle of Wight Council (2003) QBD
Thompson v Smith Shiprepairers (North Shields) (1984) QBD
Vaughan v Menlove (1837) Ct CP
Vowles v Evans and Welsh Rugby Union Ltd [2003] CA
Watt v Hertfordshire PP [1954] CA
Wells v Cooper [1958] CA
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Wilson v Governors of Sacred Heart RC Primary School, Carlton

(1997) CA
Wiszniewski v Central Manchester Health Authority (1998) CA

Blake v
Galloway
[2004] CA

[Negligence - duty of care horseplay duty

only breached by recklessness or high degree of
carelessness]
D threw a piece of wood bark at C hitting him in the
eye causing serious injury. They were throwing bark
and twigs at each other during their lunch break. C
and D were members of a jazz quintet (all about 15
years of age). D relied on Cs consent and volenti non
fit injuria as defences (to battery and negligence).
Held: Only recklessness or a very high degree of
carelessness is sufficient to breach the duty of care
owed during horseplay. There is a close analogy
between organised sport and horseplay. The absence
of formal rules in horseplay is not sufficient distinction,
both are consensual, involve physical contact, decision
are made quickly or instinctively. C had consented to
the risk.

Blyth v
Birmingham
Waterworks
(1856) Exch

C lost
[Tort - negligence breach -negligence what it
is factors to consider - standard of
reasonableness]
D water company was not negligent in allowing water to
escape from its pipes.
Baron Alderson:
Negligence is the omission to do
something, which a reasonable man, guided
upon those considerations, which ordinarily
regulate the conduct of human affairs,
would do, or doing something, which a
prudent and reasonable man would not do.
The standard demanded is thus not of
perfection but of reasonableness. It is an
objective standard taking no account of the
defendant's incompetence - he may do the
best he can and still be found negligent

Bolam v Friern
Barnet Hospital
Management
Committee
(1957) QBD

[Tort negligence - breach factors to consider

test of reasonableness - standard of care and skill
expected of D]
D hospital gave electro-convulsive therapy that broke
Ds bones. Some doctors would give relaxant drugs
others would not.
Held: A doctor is not guilty of negligence is he has
acted in accordance with a practice accepted as proper
by a responsible body of medical men skilled in that
particular art.
C lost

Bolitho v City &

[Tort negligence - breach factors to consider

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Hackney Health
Authority
[1997] HL

Whole case here

test of reasonableness - standard of care and skill

expected of D - causation]
C aged 2 suffered serious brain damage following
respiratory failure. Several expert witnesses supported
the doctor, and on that basis, the judge found that the
doctor had not been negligent.
Held: A doctor may be negligent even if there is a body
of medical opinion in his favour: he must also be able to
show that this opinion has a logical basis. Only very
rarely would a judge decide that the opinions of a
number of otherwise competent doctors were not
reasonably held, and this was not such a case.

Bolton v Stone
[1951] HL

C lost
[Tort negligence - breach - factors to consider
degree of risk - practicality and cost of
precautions]
D a cricket club from where a cricket ball was struck
over a 17-feet fence. It hit C who was standing on the
pavement outside her house. The ball must have
travelled about 100 yards, and such a thing had
happened only about six times in thirty years.
Held: the risk was so slight and the expense of
reducing it so great that a reasonable cricket club would
not have taken any further precautions.

Carroll v Fearon
(1999) CA

C lost
^[Tort - negligence - damage causation and
remoteness - type of damage - duty of judge to
identify negligent act - consumer protection]
D negligently manufactured a tyre that disintegrated on
a motorway causing a serious accident. No specific
negligent act or omission on the part of the
manufacturer had been identified.
Held: There was no requirement to specify either the
particular persons responsible for the defect or the
particular negligent act or omission. the tyre
disintegrated because of an identified fault in the
manufacturing process. The manufacturer could not
explain how the defect could have been caused other
than by its negligence,
D lost

Djemal v Bexley
Health Authority
1995 QBD

[Tort - negligence breach factors to consider standard of care - level of skill required]
Standard of skill and care expected in A&E departments.

Gates v
McKenna (1998)
QBD

[Tort - negligence breach factors to consider standard of care - level of skill required]
D a stage hypnotist caused psychiatric damage to
volunteer from audience.
Held: level of precautions expected should be that of a
reasonably careful exponent of stage hypnotism.

Hall v Simons
(2000) HL

^[Tort - negligence duty no duty situations breach - professionals immunity advocates not
a special case]
One of several cases (conjoined cases) on similar

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issues, where claimants had done less well than they

would but for negligence of their legal advisers.
Held: It was no longer in the public interest that
advocates should enjoy immunity from being sued for
negligent acts concerned with the conduct of litigation
whether in civil or criminal proceedings.

Home Office v
Dorset Yacht
[1970] HL

Change of rule on lawyers immunity

[Tort negligence - breach - no policy reason to
allow Crown special immunity]
Ds, borstal officers allowed seven boys to escape from
a training camp in Poole Harbour while they were
asleep. They stole Cs boat and caused damage to other
boats in the harbour.
Held: the Borstal authorities owed a duty of care to the
owners of property near the camp. There were no good
reasons of public policy for allowing the Crown any
special immunity in this respect.
Liability restricted to the property-owners in the
immediate vicinity their loss was foreseeable, and would
not have extended to others further a field.

Jolley v Sutton
LBC (1998) HL

Whole case here

C won.
^[Tort negligence - breach - occupiers liability
foreseeability of type of accident]
D the owners of land where an old boat had been
abandoned for about 2 years. C a 14-year-old boy was
seriously injured when he and a friend tried to repair it;
they had propped it up on a car jack the boat that fell
on him as a result of which he was a paraplegic. C sued
under the Occupiers' Liability Act 1957.

The Court of Appeal wrongly found that the claimant

had been engaged in was an activity very different
from normal play, and that the accident was not,
therefore, reasonably foreseeable.
Held: An accident of the type which had actually
occurred was reasonably foreseeable on the particular
circumstances of this case.

Latimer v AEC
Ltd [1953] HL

C won
[Tort negligence - breach - factors to consider
degree of risk - practicality and cost of
precautions]
D, a factory owner. C slipped on an oily film and injured
his ankle. The sawdust put down to soak up liquid did
not cover the entire floor. The oily film was due to
water from an exceptionally heavy storm.
Held: D had done all that a reasonable person would do
in the circumstances; they could not have eliminated
the risk completely without closing the factory.

Mahon v
Osborne [1939]
CA

C lost
[Tort negligence breach - limits of res ipsa
loquitur]
A patient died shortly after an abdominal operation and
post-mortem examination found a swab in his body.

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Held: Negligence had been established.

Res ipsa loquitur applied only to things within common
experience, and that was not the case with complex
surgical procedures.
Mansfield v
Weetabix
(1997) CA

^[Tort - negligence breach -negligence factors

to consider - special characteristics of D standard of care expected of drivers]
D owners of lorry. Their driver suffered from lack of
glucose to the brain. He was unaware of effect on his
driving, C suffered damage to their shop when lorry left
road on a bend.
Held: The standard of care that driver was obliged to
show was that which is expected of a reasonably
competent driver. The driver did not know and could not
reasonably have known of his illness that was the cause
of the accident. Therefore, he was not at fault. His
actions did not fall below the standard of care required.
C lost

Marshall v
Osmond [1983]
CA

[Tort negligence - duty of care factors risk

involved balance of risk and value of activity police drivers same as public error of judgment
not negligence]
D following C, an escaping criminal crashed the police
car into his, injuring him.
Held; The duty owed by a police driver was the same
as that owed by any other, namely, to exercise such
care and skill as was reasonable in all the
circumstances.
But where those circumstances were that he was driving
alongside another car in order to make an arrest, the
error of judgement he made in the instant case did not
amount to negligence.

Mullin v
Richards (1998)
CA

C lost
^[Tort - negligence breach -negligence what it
is factors to consider - standard of
reasonableness - foreseeability standards
expected special characteristics of D]
D a 15-year-old schoolgirl had a "sword fight" with C
with plastic rulers in their classroom. One of the rulers
snapped and a piece of plastic entered Cs eye, causing
permanent damage.
Held: The neither teacher nor D had been negligent.
There was insufficient evidence that the accident had
been foreseeable in what had been no more than a
childish game.

Nettleship v
Weston [1971]
CA

C lost
[Tort - negligence breach -negligence what it
is factors to consider - standard of
reasonableness - duty owed to others learner
drivers]
D a learner driver went out for her first lesson,

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supervised by a friend C. D crashed the car into a

lamppost, and C was injured.
Held: Even learner drivers are to be judged against the
standard of the reasonably competent driver. The fact
that a particular driver is inexperienced and
incompetent does not excuse his falling short of this
standard.

Newman &
others v United
Kingdom
Medical
Research
Council (1996)
CA

Paris v Stepney
BC [1951] HL

C won damages subject to a deduction for

contributory negligence.
Also here
[Tort negligence factors to consider special
characteristics of D - negligence established when
medical risk recognised]
Between 1959 and 1985, nearly two thousand children
whose growth was stunted were treated with doses of
Human Growth Hormone (HGH) extracted from the
pituitaries of human cadavers. Many of them died of
CJD.
Held: Research Council should have stopped trials and
established whether drug was safe before continuing.
[Tort negligence - breach - factors to consider
degree of risk potential seriousness of injury
special characteristics of V]
D a Local Authority employed C as a garage mechanic.
C had lost the sight of one eye during the war. In order
to loosen a stiff bolt he struck it with a hammer; a piece
of metal flew off and (because he was not wearing
goggles) struck him in his good eye, causing him to
become totally blind.
Held: The probability of such an event was very small,
but its consequences were very serious, his employers,
knowing of his disability, should have taken extra care
to provide goggles for him. The more serious the
possible damage, the greater the precautions that
should be taken.

Phillips v
William
Whiteley Ltd
[1938] KBD

C won
^[Tort negligence - breach - standards of
professionals]
D (a jeweller), employed a man to pierce Cs ears, two
weeks later she developed an infection that caused an
abscess on her neck that required surgical draining.

Held: A jeweller is not bound to take the same

precautions as a surgeon would take, and D had taken
all reasonable precautions. C was unable to prove that
the operation was negligently performed, and that the
abscess which formed in her neck was due to the
negligence.
C lost
Roberts v
Ramsbottom
[1980] QBD

^[Tort - negligence breach -negligence what it

is factors to consider - standard of
reasonableness - foreseeability standards
expected special characteristics of D - drivers]
D suffered a partial stroke while driving, and drove on

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with impaired consciousness and collided with two

parked vehicles.
Held: Since he retained some limited control he was
still liable. Only total unconsciousness or total lack of
control would excuse him. Alternatively, D knew he had
been taken ill and was therefore negligent in not
stopping, even if he did not fully realise he was no
longer fit to drive.

Roe v Minister
of Health
[1954] CA

D lost
^[Tort negligence - breach - special
characteristics of D - foreseeability of harm]
A spinal anaesthetic had become contaminated through
invisible cracks in the glass vial. When used, paralysed
two patients.
Held: The cracks were not foreseeable given the
scientific knowledge of the time, The foreseeability of
harm is clearly a major factor in determining how a
reasonable person would act, and although actual
foresight by D is generally irrelevant, a reasonable
person would not have taken precautions against a risk
of which reasonable people in that profession were not
aware.

Simonds v Isle
of Wight
Council (2003)
QBD

D not liable.
[Tort negligence - breach - not applicable when
child still in care of his mother]
Playing fields could not be made free of all hazards
and because a school had diagnosed a hazard did not
mean it was duty bound to take further steps to make
access or use impossible.
The issue in this case was causation.

A five year old was told him to return to his teachers

after lunch with his mum during a sports day. He went
to play on swings and broke his arm.
Held: The school had been responsible for him all day
and that the mothers acts or omissions had not
broken the chain of causation.
However, this was simply an accident which had not
disclosed any causative fault. The school had had a
good plan for dealing with the swings; no one other
than the claimant had played on them.
Balancing the element of risk, it was not reasonable to
impose a legal duty on a school to immobilise the
swings any more than it would be to rope off a tree on
the field. Playing fields could not be made free of all
hazard.
Furthermore, since the boys mother had not
redelivered him back to the care of the school, there
was no breach of any duty by the school.
School won
Thompson v

[Tort negligence - the standard of

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Smith
Shiprepairers
(North Shields)
(1984) QBD

reasonableness - level of precautions factors to

consider - common practice]
D shipyard owners. C worker who suffered deafness.
Held: Although conditions were common across the
industry they fell below the required standard of care.
D could not evade liability just by proving that all the
other employers were just as bad.
There were some circumstances in which an employer
had a duty to take the initiative to look at the risks and
seek out precautions to protect workers.
However, this approach must still be balanced against
the practicalities. Employers were not expected to have
standards way above the rest of their industry, though
they were expected to keep their knowledge and
practices in the field of safety up to date.

Vaughan v
Menlove (1837)
Ct CP

C won
[Tort negligence - breach of duty of care test
of reasonableness]
D built a haystack. C neighbour occupied cottage near
haystack. D was advised that the haystack was poorly
ventilated and could catch fire, which it did. D who was
insured said he would chance it.
Held: Although D had acted honestly and in accordance
with his best judgment, this was not enough, a
reasonable person would have taken precautions.
C won.

Vowles v Evans
and Welsh
Rugby Union Ltd
[2003] CA

Whole case, here

[Tort negligence duty of care proximity foreseeability - just fair and reasonable - referee
owes duty to players - breach failing to enforce
rules constitutes breach amateur game referees
expected to reach equivalent standard]
DD the referee of a rugby match and the sports
governing body. C injured and confined to a wheel
chair when a scrum (where players bend over and push
each other) collapsed. Cs position was hooker (right in
the middle of the scrum).
Held: A referee and player have sufficient proximity, it
was foreseeable that if the referee did not enforce the
rules there would be injury (that is what the rules are
there to prevent).
It was just, fair and reasonable to impose a duty of
care. There was a structured relationship, the referees
acts or omissions were manifestly capable of causing
physical harm to others, and in such circumstances the
law will normally impose a duty of care.
A referee of a game of rugby football owes a duty of
care to the players. The court did not consider it logical
to draw a distinction between amateur and professional
rugby.
The referee had breached that duty of care, the referee
had been in a position no more than basic skill and
competence at that level of the game (see Bolam).

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Lord Phillips, MR:

Rugby football is an inherently dangerous
sport. Some of the rules are specifically
designed to minimise the inherent dangers.
Players are dependant for their safety on
the due enforcement of the rules. The role
of the referee is to enforce the rules. Where
a referee undertakes to perform that role, it
seems to us manifestly fair, just and
reasonable that the players should be
entitled to rely upon the referee to exercise
reasonable care in so doing. Rarely if ever
does the law absolve from any obligation of
care a person whose acts or omissions are
manifestly capable of causing physical harm
to others in a structured relationship into
which they have entered. Mr Leighton
Williams has failed to persuade us that
there are good reasons for treating rugby
football as an exceptional case. A referee of
a game of rugby football owes a duty of
care to the players.
[Comment] This is the first case involving an amateur
game. The court applied Caparo Plc. v Dickman [1990]
HL and a line of cases where the sport's governing body
has been held responsible for the safety of the players
or participants. For example, the brain damage suffered
by the boxer Michael Watson and his claim for
negligence against the British Board of Boxing Control
had forced the governing body into bankruptcy.

Watt v
Hertfordshire PP
[1954] CA

C won
Also here
[Tort negligence - duty of care factors to
consider risk involved balance of risk and
value of activity]
D, local authority that ran the fire brigade. C a fire
fighter was injured by equipment that slipped on the
back of a lorry. The lorry was used to carry heavy
lifting equipment needed at a serious road accident
where a person was trapped. The lorry, which usually
carried the equipment, was engaged in other work at
the time, and the fire officer ordered the equipment be
loaded into the back of an ordinary lorry.
Held:
Denning, LJ:

" ... in measuring due care one must

balance the risk against the measures
necessary to eliminate the risk. [...] The
saving of life or limb justifies taking
considerable risk ...".
Wells v Cooper
[1958] CA

C lost
^[Tort negligence - breach standard of care
factors to consider special characteristics of D]
D fitted a door handle in his home. C a visitor pulled on
the handle and it came away in his hand, causing the

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visitor to fall down several steps.

Held: D was to be judged against the standards of a
reasonably competent carpenter, but not necessarily
against the standards that would be expected of a
professional carpenter working for reward. This was the
sort of job that a reasonable householder might do for
himself, and that was the appropriate standard.

Wilsher v Essex
Area Health
Authority
[1988] HL

Wilson v
Governors of
Sacred Heart RC
Primary School,
Carlton (1997)
CA

C lost.
[Tort negligence breach professionals junior doctor to reach standard of his post]
D the hospital where C was born prematurely. D
negligently gave C excess oxygen. The catheter was
twice inserted into his vein instead of his artery. He
developed an incurable eye condition.
Held: The CofA held - and not disputed in the HofL that here is no concept of team negligence, each
member is required to observe the standard
demanded. Junior doctor does not owe a lower
standard, he should be of the standard of someone
holding his post
[comment] this may be logically impossible.

C lost, a retrial ordered.

[Tort negligence breach factors to consider common practice]
D a school, C a nine-year-old boy who was hit in the eye
by a coat belonging to another boy. Attendants were
provided to supervise the children during lunch break
but not a going home time.
Held: Most primary schools do not supervise children at
this time and the incident could as easily happened
outside the school gates. The school had not fallen
below the standard of care.

Wiszniewski v
Central
Manchester
Health Authority
(1998) CA

C lost
^[Tort negligence - breach factors to consider
test of reasonableness - standard of care and
skill expected of D - causation]
D heath authority employed midwife who negligently
failed to show cardiograph indicating there were
problems to the doctor. C child who had cerebral palsy
caused by complications at birth.
Held: Adverse inference drawn about Drs conduct he
did not attend trial and did not remember the birth.
Inference was that Dr had no answer to Cs complaint,
which was supported by expert evidence that no
reasonable doctor would have delayed examining the
patient. Bolitho followed.
C won.

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