Tort - Case Laws
Tort - Case Laws
Tort - Case Laws
Denning LJ
In this type of case two principles are well settled. The first is that if a
person desires to exempt himself from a liability which the common
law imposes on him, he can only do so by a contract freely and
deliberately entered into by the injured party in words that are clear
beyond the possibility of misunderstanding. The second is: if there are
two possible heads of liability on the part of defendant, one for
negligence, and the other a strict liability, an exemption clause will be
construed, so far as possible, as exempting the defendant only from
his strict liability and not as relieving him from his liability for
negligence.
In the present case there are two possible heads of liability on the
defendants, one for negligence, the other for breach of contract. The
liability for breach of contract is more strict than the liability for
negligence. The defendants may be liable in contract for supplying a
defective machine, even though they were not negligent.
(See Hyman v. Nye.) In these circumstances, the exemption clause
must, I think, be construed as exempting the defendants only from
their liability in contract, and not from their liability for negligence.
Brief Fact Summary. Bird (Defendant) set a spring gun trap in his garden to
protect his property. The spring gun trap injured Holbrook (Plaintiff) innocent
trespasser.
Issue. Is Defendant permitted to set a spring gun trap to protect his property?
* One who sets spring gun trap for the purpose of catching an intruder
without posting a notice is liable for damages. In this case, Defendant
placed the spring gun trap for the purpose of doing injury. Defendant decided
not to give notice of the spring gun trap because if he did, he would not catch
the thief. Defendant intended the gun to be discharged into the victim.
Concurrence. (J. Burrough) Notice of the spring gun trap should have been
given. If the Defendant wanted only to protect his property from thieves, then
he would have set the spring gun trap only at night. Plaintiff was only a
trespasser. If Defendant were present he would not even be allowed to take
Plaintiff into custody. No man can do indirectly that which he is forbidden to do
directly.
Case Overviews
Outline
Ashby v. White (1702) Facts: The defendant, an election official, denied the
plaintiff his legal right to vote. ...
Rylands v. Fletcher, House of Lords, L.R. 3 H.L. 330 (1868).
Case Summary
Facts:
P deliberately diverts water so that it doesn’t go onto neighbour’s property anymore; with
the goal of getting them to buy his land at inflated price.
Ratio:
No one has right to water running to their property. The diversion of water by a neighbour
does not constitute a nuisance.
Holding:
Decision in favour of P, who is not committing a legal wrong.
Smith v Baker [1891] AC 325
The Decision
It was held by the House of Lords, reversing the decision of the Court of
Appeal (Lord Bramwell dissenting), that the mere fact that the plaintiff
undertook and continued in the employment with full knowledge and
understanding of the danger arising from the systematic neglect to give
warning did not preclude him from recovering; that the evidence would
justify a finding that the plaintiff did not voluntarily undertake the risk of
injury; that the maxim "Volenti non fit injuria" did not apply; and that the
action was maintainable.
Note
The House of Lords decision in Smith v. Baker & Sons [1891] was the first
case in which the defence of "Volenti non fit injuria" was limited in
employee situations.
Issue
When someone knowingly puts himself or herself in danger to protect others, is the
negligent party liable for damages suffered in the protection effort?
Reasons
The court holds that in cases such as these, the volenti non fit injuria maxim does not
apply. If someone acts to help those in danger as a result of a person's negligent
actions, that person is liable for damages resulting from their actions as long as they
are reasonable in the circumstances. Taking risk upon yourself is not applicable in
rescue circumstances.
Ratio
The doctrine of the assumption of risk does not apply where the plaintiff has, under
exigency caused by the defendant’s wrongful misconduct, consciously and
deliberately faced a risk, even of death, to rescue another from imminent danger of
personal injury or death, whether the person endangered is owed a duty of care by the
plaintiff or not.
UNFORESEEABLE HARM
Hall v Brooklands Auto Racing Club [1933] 1 KB 205
Certain persons were the owners of a racing track for motor cars. The track was oval in shape and
measured two miles or more in circumference. It contained a long straight stretch known as the
finishing straight, which was over 100 feet wide and was bounded on its outer side by a cement
kerb 6 inches in height, beyond which was a strip of grass 4 feet 5 inches in width enclosed within
an iron railing 4 feet 6 inches high. Spectators were admitted on payment to view the races, and
stands were provided in which they could do this in safety, but many persons preferred to stand
along and outside the railing. Among the competing cars in a long distance race on this track two
cars were running along the finishing straight at a pace of over 100 miles an hour and were
approaching a sharp bend to the left; the car in front and more to the left turned to the right; the
other car did the same, but in so doing touched the off side of the first mentioned car, with the
strange result that the first mentioned car shot into the air over the kerb and the grass margin and
into the railing, killing two spectators and injuring others. The course was opened in 1907. No
accident like this had ever happened before.
In an action by one of the injured spectators against the owners of the racing track the jury found
that the defendants were negligent in that having invited the public to witness a highly dangerous
sport they had failed by notices or otherwise to give warning of, or protection from, the dangers
incident thereto, and to keep spectators at a safe distance from the track. Judgment having been
given for the plaintiff on these findings: -
Held, that it was the duty of the appellant s to see that the course was as free from danger as
reasonable care and skill could make it, but that they were not insurers against accidents which no
reasonable diligence could foresee or against dangers inherent in a sport which any reasonable
spectator can foresee and of which he takes the risk, and consequently that there was no, evidence
to support the verdict of the jury.
Donoghue V Stevenson
Introduction
Donoghue, a Scottish dispute, is a famous case in English law which was instrumental in shaping
the law of tort and the doctrine of negligence in particular.
Facts
On August 26 1928, Mrs Donoghue’s friend bought her a ginger-beer from Wellmeadow Café in
Paisley. She consumed about half of the bottle, which was made of dark opaque glass, when the
remainder of the contents was poured into a tumbler. At this point, the decomposed remains of a
snail floated out causing her alleged shock and severe gastro-enteritis.
Mrs Donoghue was not able to claim through breach of warranty of a contract: she was not party
to any contract. Therefore, she issued proceedings against Stevenson, the manufacture, which
snaked its way up to the House of Lords.
Issues
The question for the HoL was if the manufacturer owed Mrs Donoghue a duty of care in the
absence of contractual relations contrary to established case law. Donoghue was effectively a test
case to determine if she had a cause of action, not if she was owed compensation for any damages
suffered.
The law of negligence at the time was very narrow and was invoked only if there was some
established contractual relationship. An earlier case, involving two children and floating mice,
held that:
Absent a contract, a manufacturer owed no duty of care to a consumer when putting a product on
the market except:
If the manufacturer was aware that the product was dangerous because of a defect and it was
concealed from the consumer (i.e., fraud);
The product was danger per se and failed to warn the consumer of this.
Unlike Mullen, which stopped at the Court of Session, Mrs Donoghue took her case to the HoL.
Decision/Outcome
The HoL found for Mrs Donoghue with the leading judgment delivered by Lord Atkin in a 3-2
majority with Buckmaster L and Tomlin L dissenting. The ratio decidendi of the case is not
straightforward. Indeed, it could be interpreted as narrow as to establish a duty not to sell opaque
bottles of ginger-beer, containing the decomposed remains of a dead snail, to Scottish widows.
Read more broadly, the decision has several components: first, negligence is distinct and separate
in tort; second, there does not need to be a contractual relationship for a duty to be established;
third, manufacturers owe a duty to the consumers who they intend to use their product.
However, the primary outcome of Donoghue, and what it is best known for, is the further
development of the neighbour principle by Lord Atkin, who said:
The rule that you are to love your neighbour becomes in law, 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.
Mrs Donoghue had proved her averments that she had a cause of action in law.
Analysis
Donoghue was not the first case to attempt to sever the dependence of negligence on contract; a
few years previously, Lord Ormidale in Mullen, said, ‘. it would appear to be reasonable and
equitable to hold that, in the circumstances and apart altogether from contract, there exists a
relationship of duty as between the maker and the consumer of the beer.’ Thus, the doctrine is
based in law and morality. The impact of Donoghue on tort law cannot be understated; it was a
watershed moment effectively establishing tort as separate from contract law.
However, it is important to remember that Donoghue was a milestone in a new principle which
needed refining, as Lord Reid said, ‘. the well known passage in Lord Atkin’s speech should, I
think, be regarded as a statement of principle. It is not to be treated as if it were a statutory
definition. It will require qualification in new circumstances.’
The next major development in the ‘neighbour principle’ came from Hedley Byrne v Heller which
concerned economic loss. However, the locus classicus of the ‘neighbour test’ is found in another
economic loss case called Caparo Industries v Dickman:
What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any
situation giving rise to a duty of care are that there should exist between the party owing the duty
and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or
‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and
reasonable that the law should impose a duty of a given scope on the one party for the benefit of
the other.
Thus, boiled down the requirements are: forseeability, proximity, and fairness (policy
considerations). There has been a certain degree of overlap between the requirements with Lord
Hoffman stating that the distinctions between them, ‘. . .somewhat porous but they are probably
none the worse for that.’
Hambrook v Stokes Bros [1925]
Facts
Issue
Decision
Reasoning
People outside the zone of danger could recover for mental injury (we’d
now call these people secondary victims) for fear for her children’s lives
For recovery to succeed, the claimant must have seen the event first hand
first hand, not had the event communicated by others in any way
Bourhill v Young [1943]
Facts
Decision
No recovery
Reasoning
A mother was told that her husband and children had been in a serious
car accident with the defendant’s lorry and went to the hospital straight
away
At the hospital, she saw her family before they had been ‘cleaned up’
One of her sons had been killed on impact
The mother suffered severe mental injury
Issue
Decision
Reasoning
Facts:
People were crammed into a stadium for a soccer game. While in the stadium, 95 people
died and over 400 were injured. Friends and family of people in the stadium (some of
whom were also in the stadium) witness the event live or afterwards. The friends and
family suffered nervous shock and psychiatric illness, and sued the police for negligence.
Issue(s):
Did the police have a duty of care to the secondary victims who suffered nervous shock
from viewing the consequences of police actions?
More specifically: Can the boundaries of a cause of action for negligence be extended in
the following ways:
→ 1. Remove any restrictions on the categories of persons who may sue;
→ 2. Extend the means by which the shock is caused, so that it includes viewing the
simultaneous broadcast on television of the incident which caused the shock;
→ 3. Modifying the present requirement that the aftermath must be immediate.
Ratio:
A person suffering nervous shock must have reasonable proximity to the event that
caused the shock in order to claim for damages.
Analysis:
Class of persons whose claim should be recognized:
→ If duty extends to immediate family, why not other associations?
→ Case by case basis (nature of the negligent act or omission, gravity of the injury)
Proximity of the plaintiff to the accident:
→ Time and space
→ Immediate aftermath: Case by case -- does not include seeing the body at a
mortuary 8 hours later
Holding:
Appeals dismissed. Case by case analysis revealed no proximity and/or no causation.
Page v Smith [1995]
Facts
The claimant’s car was crashed into by the defendant and was damaged
Although the defendant was no physically injured, the accident bought
back from remission the claimant’s Chronic Fatigue Syndrome (CFS)
The claimant could therefore never work again
Issue
Could the claimant recover for such extreme and unforeseeable (by the
defendant) mental injury
Decision
Recovery allowed
Reasoning
Issue
Decision
Reasoning