The Law of Tort

A lady bought a bottle of ginger beer for Donoghue, her friend, in a cafe. The bottle was made of dark glass. She poured some out for her friend who drank it, and she then poured the rest of the ginger beer into her friend's glass. Along with the ginger beer, out came the decomposed remains of a snail. Donoghue suffered gastric illness and nervous shock. Donoghue sued Stevenson, the manufacturer of the bottle of ginger beer.

It was decided (by Lord Atkin in the House of Lords), that because the manufacturer owed a duty of care to anyone who could be affected by their actions (their neighbours), the company did owe a duty of care to Mrs Donoghue and therefore her claim could succeed.

This case established the rule of duty of care as Lord Atkin was effectively saying that, whatever we are doing we must be careful not to harm those around us (our neighbours), who we can reasonably foresee could be affected by whaty we do.

Caparo V. Dickman (1990) has refined the neighbour principle. It requires not only foreseeability, but also that the individuals are reasonably proximate and that it is just, fair and reasonable to impose a duty of care.

Bourhill, a pregnant Scottish fishwife, got off a bus. Young, a motorcyclist, drove negiligently past the bus and collided with a car 15 yards away. Young was killed. Bourhill heard the collision and later saw blood on the road. She suffered nervous shock and subsequently miscarried. Bourhill sued Young's estate for negligence. 

The court decided that Bourhill's claim should fail because she was not owed a duty of care.

In modern terms, a court my well say that she was not immediately proximate to the accident and that it would not be fair to impose a duty of care for the benefit of every pedestrian who witnesses an accident. 

At Hillsborough football ground, 95 spectators lost their lives and over 400 were injured when supporters tried to cram into one end of the stadium. Alcock, in the other end of the stadium, saw the accident in which his brother-in-law was killed. Alcock suffered nervous shock and sued the police wo admitted they had been negligent, but argued that Alcock's injury was not reasonably foreseeable.

The House of Lords, at the same time as this case, considered nine other claims from persons either witnessing or watching television pictures of the accident in which their relatives were either killed or injured. It was decided that it would not be just, fair and reasonable to impose a duty of care on the police in respect of the claimant who was at the other end of the ground and not able to see, in detail, what was happening to his
brother-in-law.

McLoughlin was a wife and mother at home. Two miles aware, her husband and three children were involved in a serious car accident caused by O'Brian. McLoughlin was told about the accident and visited her family in hospital immediately afterwards. She suffered nervous shock and sued O'Brian for negligence. Her claim succeeded because it was foreseeable that she would suffer harm. 

In modern terms, it ould be irrelevant that she was not physically close (though she was in terms of relationship) and it was just, fair and reasonable that she be owed a duty of care.

Paris was a mechanic employed by Stepney BC. Stepney BC knew that Paris had one good eye. Paris was not issued with safety goggles, because other workers did not need them. One day, a piece of metal went into his eye and blinded him. Paris sued Stepney BC for negligence.

It was decided that engineering is clearly a high-risk activity which carries a likelihood of serious injury which could have been easily avoided by supplying Paris with safety goggles. Not surprisingly, the council were found to be in breach of their duty of care and the claim succeeded.

A cricket field was near a public highway. During the previous 35 years about half a dozen cricket balls had ever cleared the field and the fence, and no one had ever been hit before Bolton, who was standing on a road, outside the ground, was struck. She sued the cricket club for negligence.

The court decided that, in the circumstances, this was not a particularly risky activity and it was very unlikely a passer-by would suffer and injury. Also the public benefited from playing and watching the cricket, therefore the club had acted reasonably and were not in breach and therefore the claim failed.

Grant bought some ‘long-johns’ made by AKM who has used a chemical during manufacturing, which had not been removed. Grant contracted dermatitis which spread from the ankles upwards. He sued AKM for negligence.

It was decided that it was very obvious someone had breached a duty of care. Therefore the res ipsa loquitur rule applied, and it was up to AKM to prove that no negligence had occurred, which could not be done on the facts. Therefore the claim succeeded.

A gas explosion killed Pearson’s husband and destroyed her home. The court applied the rule res ipsa loquiter but NWGB showed that severe frost caused the gas leak and there was no reasonable way of which the explosion could have been prevented.

The court decided that this did look like an obvious case of negligence, where the res ipsa loquitur rule would apply, however NWGB was able to prove that the exceptional weather had caused the explosion and therefore the claim failed.

Oil was negligently spilt from a shop and floated across Sydney harbour to a ship repairer where sparks ignited the oil and cause damage to a wharf and a ship. The ship owners were sued for negligence.

It was decided that although the fire was a direct result of spillage, it could not be foreseen that floating oil would normally catch fire in these circumstances. Therefore the ship owners were not liable.

Doughty was injured in an explosion in an iron foundry caused by a careless employee. An explosion had never happened before but on occasion employees had been injured by splashes of hot metal. Doughty sued Turner Manufacturing for negligence.

The court decided that although injury by splashing was foreseeable, injury caused by explosion was not. Therefore the company was not liable.

A bus driver racing to a stop to collect passengers, against company rules, deliberately obstructed the driver of a bus belonging to a rival company, overturning the latter vehicle, injuring Limpus, a passenger. Limpus sued LGO in the tort of negligence.

It was decided that even though the bus driver was ignoring company instructions, he was still driving the bus which was what he was employed to do. Therefore the employer was liable for Limpus's injury.

Sayers got locked in a public toilet owned by Harlow UDC, due to a defective door. She was injured when trying to use the toilet roll holder to climb out. Sayers successfully sued Harlow UDC for negligence.

Her claim succeeded as Harlow UDC had not properly maintained its door, but her damages were reduced by 25% because she contributed to her own downfall by standing on the toilet roll holder. 

ACB, building contractors, left the entrance to a house in a dangerous condition. Riden, a lawful visitor, left the house after dark, fell and suffered injury. Riden sued ACB.

The claim succeeded as Riden’s damage was a direct result of the fault of ACB and not the occupier.

The District Council owned a path which was close to an obviously dangerous cliff, and had not put up a warning notice.

The court decided that a landowner is not required to warn visitors of obvious dangers, therefore Cotton’s claim failed.

Midland kept a turntable on their land near a public road. To the Railway Company’s knowledge, children habitually came onto the land and played with the turntable. Nothing was to step them. A child aged four was injured on the turntable.

The court decided that even though the child was very youn, the railway was an allurement and the children had also acquired a prescriptive right to trespass, effectively making them visitors. The railway company was liable for negligence.

A boy aged five, accompanied by his sister aged seven, fell into a hole and broke his leg. Rochester Corporation was responsible for the hole and way sued on the boys behalf.

It was decided that a landowner is entitled to expect that a young child should be supervised by a competent adult, not a seven year old. Therefore Phipps's claim failed.

Christie, a music teacher, used her home for lessons, musical evenings etc. Davey, her neighbour, was fed up with the noise. He retaliated by knocking on the wall, beating on tin trays, whistling and shrieking. Christie sued Davey in the tort of private nuisance.

The court decided both Christie and Davey were being a nuisance, but because Davey had acted maliciously he was liable.

A golf club had a hole just next to a public road. Golf balls were frequently hit onto the road. One day, Castle, a taxi driver, lost an eye when he was truck by a golf ball. Castle sued the club for public nuisance.

The court decided that the golf balls were a potential danger to all road users (and therefore a public nuisance), but Castle had suffered more than anyone else, therefore he was entitled to damages for public nuisance.

Shorrock let a field on his farm, not knowing that it was to be used for an 'acid house' party attended by 3,000 people. There was massive local disruption. 

Shorrock was prosecuted for public nuisance and found guilty.

PYA operated a quarry at which blasting took place. Stones and splinters were hurled out of the quarry and the dust and vibration caused discomfort to the residents of a nearby housing estate. The Attorney-General sued for an injunction, which was granted to limit the activities of the quarry.

Kilvert manufactured paper boxes in the cellar of a house and leased the floor above to Robinson. Kilvert heated the cellar with hot, dry air. This raised the temperature of Robinson's premises, used for storing very sensitive paper. Because of the heat, Robinson's paper was ruined. Robinson sued Kilvert for private nuisance.

His claim failed as he could not take adavantage of the extra sensistivity of his property.

Because of a dispute over a sign, Emmet deliberately caused a shotgun to be fired neat Hollywood Silver Fox Farm's land. The noise disrupted the breeding of HSFF's silver foxes. HSFF sued for private nuisance.

This claim succeeded, particularly because Emmet had acted maliciously.

Hall had been a candle-maker for three years before Bliss moved next door. Bliss immediately complained about the smell and sued for private nuisance.

Bliss's claim succeeded. It was irrelevant that he had moved to the nuisance.

A bridge company lawfully closed a public footpath over Hammersmith Bridge. Bird, a pedestrian, insisted on used the path. However, he was prevented from going any further by two policemen, who barred his way. Bird was told of an alternative route but he refused to go that way. Bired sued in the tort of false imprisonment.

His claim failed as he was not prevented from using an alternative route and therefore had not been imprisoned, falsely or otherwise.

Tims and her daughter were detained for almost an hour (according to them) by a store detective on suspicion of shoplifting, before a senior manager decided that the police should be called.

It was decided that following a citizen's arrest, the police must be called within a reasonable time. On the facts, the store had not acted unreasonably and therefore Tims' claim failed.

The claimant was brought to his employer's office to be questioned about a theft of some paint. Although the claimant did not know, his exit from the office was blocked by two security guards. When the claimant found out, he brought an action for false imprisonment.

His claim succeeded as his not knowing that he was been detained was irrelevant because trespass is actionable per se.

This case involves a series of silent telephone calls sent by the defendant to three female victims. They suffered mental injury and the defendant was convicted of actual bodily harm.

N.B. This is clearly a criminal case but the same principles would apply to the tory of assault.

Savage placed his hand on his sowrd and said:

 
"If it were not assize time, I would not take such words from thee"
(If the judge weren't in town, I would attack you.)

Turberbille sued Savage for assault, but the claim failed.

By his words, Savage made it clear that he was not going to attack Turberville. 

Nash asked her hairdresser, Sheen, for a perm but a tone rinse was applied instead. The court decided that this did amount to a trespass because the hairdresser acted outside of the permission granted by the customer.

Harrison was crossing the Duke's land on a public footpath. He saw that the Duke and his friends were bird shooting so he started waving his arms around and shouting, hoping to scare the birds away. The Duke orderd Harrison's removal and Harrison was injured by a servant in the process. Harrison sued in the tort of trespass to recover the damages.

The court decided that Harrison became a trespasser when he used the path unlawfully. The Duke was therefore entitled, using reasonable force, to have him removed. Harrison's claim failed.

Harrison was entitled to be on the Duke's footpath, but became a trespasser from the moment he left the path and/or started behaving unreasonably.

A chimney-sweep's boy found a jewel and handed it in to a jeweller. Delamirie, for valuation. Delamirie refused to return it. Amory sued Delamirie in the tory of conversion and the boy's action succeeded.

As the person who found the jewel, he had the right to possession. Only the owner has a better right and the jeweller was not the owner. Therefore, the boy was entitled to the return of the jewel.

A storeowner moved some jewellery to a different shop. From there it was stolen. The owner of the jewellery sued the storeowner for trespass to goods.

It was decided that the storeowner had moved the property without authorisation. Therefore, the owner's action for trespass to goods succeeded.

Hall paid for admission to Brooklands to watch the racing. During the race, a car shot over the barrier after a collision and killed Hall. An accident like this had never happened before. Hall's widow sued the club for negligence.

Her claim failed as not only were there no breach (because the Club had not acted unreasonably), but also Hall had consented to the risk when he paid to go and watch the racing.

Fire broke out on the claimant's land. The gamekeeper from next-door went onto the claimant's land and set fire to a ***** of land to prevent the fire from spreading and harming livestock. The claimant sued for trespass to land.

The claim failed because the gamekeeper had 'trespassed' because of a clearly perceived necessity and therefore his actions were justified.

On a shooting party, the claimant was injured when a pellet from the defendant's gun struck a tree, ricocheted and hit him.

The court decided that there was no liability. This was a genuine accident.

A rainstorm caused the defendant's artificial lake to overflow, damaging the claimant's land.

The court decided that there was no liability for something beyond the defendant's control.

A rescuer, who voluntarily spent some 12 hours helping to deal with the casualties at the wreckage following a particularly harrowing train crash, suffered foreseeable psychiatric injury.

He was awarded general damages of £600 (in addition to £900 for lost wages as special damages) against British Railways, whose negligence had led to the crash.

The facts of this case can be found under public nuisance.

The Attorney-General chose to sue for an injunction, which was granted to limit the activites of the quarry.