Business Law 2 - Tort of Negligence Cases

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Clo0058
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Business Law 2 - Tort of Negligence Cases
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2015-05-05 14:24:20
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  1. Establishing DOC -> legal proximity
    • Donoghue v Stevenson
    • Snail in drink bought by friend at café
  2. Establishing DOC - absence of legal proximity
    • Hill v Chief Constable of West Yorkshire
    • Mother claimed police had negligently failed to apprehend the Yorshire Ripper before her daughter was killed
  3. Breach of duty of care -> reasonable cases
    • Bolton v Stone
    • CLM struck by cricket ball hit out of cricket ground. No breach bc club had done everything a reas club would be expected to do to prevent accidents.




    • Latimer A.E.C.
    • DEF factory flooded. Floor covered in sawdust but not enough to cover everything. CLM, employee, slipped. 
    • Factory had done everything a reasonable factory would be expected to do for employee safefty (risk< closing)
  4. Breach of duty of care -> not reasonable cases
    • Hilder v Associated Portland Cement
    • DEF allowed children to play in the wasteland at front of his factory. CLM drove by on motorbike and was hit and killed by a ball kicked out of there. Widow sues for negligence. Because there was a high likelohood of injury, given the ball regularly ran onto the road, the DEF was liable as he had not taken reas precautions to prevent risks.
  5. Usefulness of defendant's actions important factor to consider when DEF acted in emergency
    • Watt v Hertfordshire County Council
    • CLM was a firefighter called to scene of accident where wman trapped under truck. Necessary equipment not available + time running out so CLM used ordinary engine to lift truck. Slipped. Crushed DEF leg. 
    • -> No breach
  6. Breach of duty of care -> no prevention of desirable social activities
    • COmpensation ACt 2006
    • Cole v Davis Gilbert & the Royal British Legion
    • DEF 1: DG owner of village green, sued for negligence to inspect green for visitory safety. Court held that even if he inspected it daily, the absence of holes could not be ensured. Not Liable.
    • DEF 2: RBL who had erected the maypole for a May Day fete. Although hole had been filled, became exposed two years later. DEF 2 had not duty to ensure hole stayed filled in future.
    • Because MayPole was a desirable event -> not liable.
  7. Breach of duty of care -> not preventing desirable activities (scope)
    • COmpensation Act 2006 SECTION 1
    • Hopps v Mott MacDonald & Ministry of Defence
    • CLM was injured carrying out emergency infrastructure work in Irad.
    • DEF not liable as this would prevent desirable activities from taking place aka the provision of public amenities
  8. Breach of duty of care -> DEFS who are professionals. Establishing the standard of care required.
    • That of the average professional skilled in that partic profession
    • Roe v Ministry of Health
    • Hospital stored drug in same way as all other hospitals, a way considered safe at the time. Hwr, it caused the CLM to become paralyzed. Hospital was not negligent for failing to store drug safely because they had adhered to the norms of the time.
  9. Breach of duty of care -> Professional Negligence Test
    • Bolam v Friern Management Committee 1957
    • As long as the DEF followed treatment which was acceptable to a competent body of professional opinion, it does not matter that nto all docs agree witn the approach. Approach must only be reasonable. 

    • BOLAM TEST
    • Where DEF is exercising a particular skill, he is expected to do so to the standard of a reas. pers in the same level within that field.
  10. Reasonable foreseeable damage suffered by CLM as consequence>Factual causation test
    • Cork v Kirkby Maclean 1952
    • But For Test but for the CLM's breach, would the DEF be harmed?
  11. Reasonable foreseeable damage suffered by CLM as consequence>Factual causation - DMG must be caused by breach
    • Barnett v Chelsea & Kensington Hospital
    • CLM became ill after drinking tea which had been poisoned w/o him knowing. Nurse at hospital telephoned doc and explained symptomes. He advised for the CLM to go home and rest. CLM died during night. Widow sued hospital in negligence for failing to examine and treat CLM. 
    • Hwr, it was the poison, not the negligence which had caused his death. The test results would've come back after his death.
  12. Reasonable foreseeable damage suffered by CLM as consequence>Factual causation - Chain of Causation
    • The Oropesa
    • Oropesa negligently navigated and caused dmg to other ship. Captain of other ship decided to approach O in lifeboat to discuss how to save ship, but strong waves overturned the lifeboat, killing some crew members. Relatives sued but the O defended itself by saying that the chain of causation had been broken by captain's actions.
    • The O was found liable because only unreasonable actions can break the CoC, which was not the case here.
  13. Reasonable foreseeable damage suffered by CLM as consequence>Factual causation - Multiple causes
    • Fairchild v Glenhaven Funeral Services
    • CLMs were employees who contarcted a fatal lug disease as a result of prolonged exposure to asbestos dust. CLMs couldn't prove which employer was responsible so they sued them all. DEFs argued there was no factual causation. Hwr, because the asbestos was the only poss cause of cancer, all employers increased chances of illness, creating factual causation -> Liable.

    • Compensation Act 2006 SECTION 3
    • In mesothelioma cases where it is imposs to id which DEF caused the disease, a CLM can claim full dmgs from any employer who negligently exposed hom to asbestos. That employer in turn can seek a contrib from other employers who were also neglig.
  14. Reasonable foreseeable damage suffered by CLM as consequence>Legal causation - Remoteness of damage test
    • Test of reasonable foreseeability
    • The Wagon Mound
    • DEFS negilg allowed oil to be discharged from their ship into Sydney Harbour. CLMs owned ship-building bus and carried out welding work on harbour edge. Paused activity and asked uni to assess risk of fire, who said no risk of fire. Hwr, CLM building was destroyed in fire after they resumed their business. 
    • DEF not liable bc dmg too remote
  15. Reasonable foreseeable damage suffered by CLM as consequence>Legal causation - Remoteness of damage - dmg too remote
    • Doughty v Turner Manufacturing Co Ltd
    • DEF negligently allowed large sheet of asbestos to fall into cauldron of boiling liquid. 2min later, explosion caused by unknown chem reaction. CLM injured. Sued company clmg they were vicariously liable. Bc chem reaction unknown, explosion unforeseeable -> not liable.
  16. Reasonable foreseeable damage suffered by CLM as consequence>Legal causation - Remoteness of damage - dmg not too remote
    • Corr v IBC Vehicles Ltd
    • Employee who was seriously injured at work due to employer negligence suffered post-traumatic stress and despression as result of injuries, and 6 years later committed suicide. Wife brought claim in neglig against IBC who admitted liab for initial injuries but claimed suicide was not foreseeable. Depression was foreseeable given serious and permanent nature of injuries and foreseeable that severe depression could lead to suicide. No CoC breaking -> liable
  17. Reasonable foreseeable damage suffered by CLM as consequence>Legal causation - Remoteness of damage - Thin skull cases rule
    DEF must take victim as he finds him so that if teh victim suffers unexpected serious dmg by virtue of some particular weakness of his own then the DEF will be liable for that dmg however unforeseeable.
  18. Reasonable foreseeable damage suffered by CLM as consequence>Legal causation - Remoteness of damage - think skull cases
    • Smith v Leech Brain 
    • CLM (employee) splashed on lip by piece of molten metal at work due to neglig of fellow worker. Burn caused cancer and death. Medical exams showed he had been suffering from pre-canceours conditions before the burn and that burn had activated the cancer. Widow sued employer who claimed death unforeseeable/dmg too remote. Think skull cases->liable
  19. Defences to negligence > volenti non fit injuria - not consenting to risk in emergencies
    • Haynes v Harwood 
    • DEF neglig left horse and cart unattended. Horse ran off and CLM (policeman) was injured when he tried to stop the runaway horse. Sued DEF who raised volenti. Because it was a busy area and the horse would have harmed people, the policeman acted on instinct, not analysing risks involved. ->liable
  20. Defences to negligence > volenti non fit injuria - consenting to risk
    • Dann v Hamilton
    • CLM accepted lift home from DEF knowing he had been drinking. DEF neglig caused accident, injuring the CLM. CLM sued, DEF raised volenti.
    • "Had been drinking"-> not sufficient to imply that CLM was consenting to risks. -> liable
    • Other story if DEF had been pissed drunk though.
  21. Defences to negligence > contributory negligence
    • Sayers v Harlow Urban District Council
    • CLM used public toilet which had faulty look. As she couldn't get out, she tried to climb out and injured herself. Sued Council in negligence for failing to maintain toilets properly. They were found liable but her damages were reduced by 20% bc she had contributed to her injuries by foolishly attempting to climb out.
  22. Defences to negligence > contributory negligence in cars
    • Froom v Butcher
    • CLM injured due to negligent driving of DEF. CLM was not wearing a seatbelt at time of accident, which made his injuries worse. Court set guidelines on how to assess dmgs where a CLM is injured in a road accident and is not wearing a seatbelt:
    • - 25% reduction if caused ALL of the injuries
    • - 15% if contributed the injuries
    • - 0% if made no diff
  23. Defences to negligence > contributory negligence > novus actus interveniens
    • Mckew v Holland and Hannen and Cubitts Ltd
    • CLM's leg was injured due to DEF neglig, and would sometimes give way unexpectedly. CLM sued DEF in neglig and while awaiting trial, further injured his leg by carrying son up step of stairs. Asked for compensation for both injuries. Recovered for first but not second, because his beh was so unreasonable that he caused the injury himself -> novus actus interveniens.
  24. TON - Claims in negligence - Econ loss - Negligent Advice causing econ loss - disclaimers
    • Hedley Byrne & Co Ltd v Heller and Partners 1963
    • Heller and Partners were bankers who gave a credit reference for one of their customers (Easipower) to HB, heading the letter with "without responsibility". HB, advertising agents, relied on this advice and agreed to work with Easipower. Hwr, these fell into liquidation before paying the bill and HB brought legal action in the tort of negligence against Heller, claiming negligent advice.
    • Because Heller knew HB would rely on that advice, they owed HB a DOC, and should exercise care. Hwr, bc of the disclaimer, it was unreas for the CLM to rely on the advice and the DEF was found not liable.
  25. TON - Claims in negligence - Econ loss - Negligent Advice causing econ loss - professional capacity/special relationship + test
    Caparo Industries v Dickman

    CLMs owned shares in a company and DEFs were accountants who audited the co's accounts. CLM received copy of accounts, indicating the co was doing very well. Relying on this, CLM made successful takeover bid for Co and later discovered the accounts were inaccurate and overvalued the co. CLM suffered large fin losses and sued DEFS. Bc accounts were to allow shareh to exercise informed ctrl over the co, and not buy more shares, the DEF was found not liable. A duty would only owed if the accounts are knowingly prepared for a specific purpose.

    • The Caparo Test:
    • DOC is owed if
    • 1 - Is the info from the DEF knowingly communicated to the CLM for a specific reason?
    • 2 - Is it reas for the CLM to act on the advice without seeking further independent advice?
    • 3 - Did the CLM act on the advice to his detriment?
    • If all YES -> special relationship -> DOC
  26. TON - Claims in negligence - Econ loss - Negligent Advice causing econ loss - special relationship application
    • Morgan Crucible Co Plc v Hill Samuel Bank
    • CLM, interested in takeover, asked co for some fin info and the Co's accountants (DEF) issues a profit forecast to help the CLMs decide whether to pursue the takeover. Later discovered forecast was inacc. Under the Caparo Test, DEF liable.
  27. TON - Claims in negligence - Econ loss - Negligent Advice causing econ loss - special relationship in cases of non-pros
    • Lennon v Commissioner of the Metropolis
    • CLM was changing jobs and had been entitled to a housing allowance. Wanted to ensure this would continue should he take time off between both jobs. Checked with his company who wrongly advised it would not affect his allowance. Sued Metropolitan Police (vic liab for executive careless advice). Altho the personnel officer was not a professional adviser, she had access to the required knowledge. Liable.
  28. TON - Claims in negligence - Econ loss - Negligent Advice causing PURE econ loss - policy
    • Weller & Co v Foot & Mouth Disease Research Institute
    • The F&MRM negligently allowed a virus to escape which killed most of the cattle nearby. Claims in negligence brought by local farmers had been successful. Local cattle auctioneer who suffered fin loss also sued, but as a matter of public policy, his claim failed.
  29. TON - Claims in negligence - Econ loss - Negligent Advice causing PURE econ loss (2)
    • Spartan Steel & Alloys Ltd V Martin & Co 
    • DEFS negligently cut electric cable carrying power to CLM's factory who was out of supply for 14.4h. They brought a claim for:
    • 1. Damage to metal in the furnace -> ppty loss
    • 2. Loss of profit on the sale of that melt -> consequential econ loss
    • 3. loss of profit on the production of 4 further melts which should have taken place -> pure econ loss
    • CLM recovered ppty and conseq econ loss, but not pure econ loss. 

    • Muirhead v Industrial Tank Specialitiew
    • Fishmonger stored large qutities of lobster in tank bought from DEF1, who knew the purpose. The tank functionned with pumps manufactured by DEF2 and installed by DEF1. Pumps failed and lobsters all died. CLM successf sued DEF2 for BoC but was unable to recover losses as DEF1 went into loquidation. Brought a tort claim in neglig v DEF2, claiming for:
    • 1. Loss of the lobsters -> ppty loss
    • 2. Loss of profit on the sale of teh lobsters -> conseq econ loss
    • 3. Expenditure incurred trying to correct pump faults -> econ loss
    • 4. Cost of the pumps -> econ loss. 
    • Recovered 1+2.
  30. TON - Claims in negligence - Econ loss - Negligent Advice causing pure econ loss - leading case on econ loss caused by negligence
    • Murphy v Brentwood Borough Council 1990
    • CLM bought house from builder, which was built on inadequate foundations, resulting in property damage and the sale of the house at less than its market value. Builder had gone into liquid so CLM sued Council in negligence as their building inspectors had negligently approved the building work. CLM claimed he had relied on these checks when buying house. Hwr, bc all he lost was money (bc he sold the house), the claim failed. The cost of remedying to the defect is pure economic loss and not recoverable -> not liable.
  31. TON - Claims in negligence - Econ loss - Negligent Advice causing econ loss - special cases (2)
    • Ross v Caunters
    • Negligence of solicitor in drafting will caused wife to lose husband's gift. Liable.

    • White v Jones
    • Negligent delay in will drafting by solicitor caused daughters to lose inheritance. Liable.

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