Liability in Negligence II
Cases
O ‘Gorman v Ritz (Clonmel) Ltd
[1947] Ir Jur Rep 35 (HC)
Geoghegan J: I have to deal with this action on the basis that the defendants warranted their premises to be reasonably safe for patrons who paid to see the picture. The defendants are not insurers and it seems to me that the plaintiff seeks a degree of diligence, foresight, and precaution to which an ordinary theatre-goer is not entitled. I am satisfied on the particular facts, that to guard against a remote contingency such as that which led to the injuries here would need precautions of a well-nigh fantastic nature, which could notreasonably be expected in the construction or management of a theatre. The defendants could not foresee that Mrs O’Gorman would get her feet into the position that led to the
injuries from which she suffered. Accordingly, the appeal should be allowed and the action dismissed.
Walsh v. Dublin Corporation
[1998] IEHC 221
SMITH J:
1. The Plaintiff alleges in the Statement of Claim delivered herein that on or about the 4 April 1993 she was present in the premises of the Defendants known as Flat No 41, Basin Street Upper, Dublin 8, when, owing to the negligence and breach of duty and nuisance of the Defendants, their servants or agents, in and about, inter alia, the design and construction of the said premises and in particular the system of doors on the ground floor thereof, the Plaintiff suffered and sustained and continues to suffer and sustain severe personal injuries, loss, damage, inconvenience and expense, the door of the hallway leading back into the back room of the said premises, suddenly and without warning, closed forcefully onto the person of the Plaintiff by reason of the tunnel effect which was created due to the defective design of the said premises and in particular the doors on the ground floor thereof.
The Defendants, in their Defence delivered herein, deny all the allegations made against them and plead contributory negligence on the part of the Plaintiff.
The evidence in this case establishes that on the 4 March, 1993, the Plaintiff Miss Walsh, went with her boyfriend to her boyfriend’s brother’s apartment at No 41 Basin Street Upper, Dublin 8. She had been a visitor to these particular premises on approximately four to five occasions before the 4 April, 1993. This apartment, like the others in the complex, is a small compact apartment on the fourth floor of these premises, which were constructed approximately thirty years ago. On the bottom floor there is an open balcony at the front and the front door. As one enters the front door there is a small hallway, approximately eight feet long by seven feet wide, which contains a staircase to the upper floor. To the left of the hall there is a small kitchen, measuring approximately eight feet by five feet.
At the end of the hallway there is a door, which enters into the living room, and the living room is approximately twelve feet by twelve feet. At the end of the living room, near the wall on the right-hand side, there is a back door going out to another balcony. If all the doors are open at the same time a draught is created, and the middle door, if open, is prone to bang and close without warning. This is a situation that arises in most homes throughout the country and one with which we are all familiar. On the occasion in question the Plaintiff was a guest in the Corporation apartment, the tenant of which was her boyfriend’s brother. An unfortunate set of circumstances arose. The Plaintiff was standing close to the middle door, intending to go towards the front door. She had her right hand on the right frame of the door, with the open door to her left shoulder. At the very moment when she was about to go through the door, her boyfriend and her boyfriend’s brother opened the front and back doors, respectively. According to the Plaintiff there was an unmerciful bang, and the door on her left shot past her face striking her on the face and then caught her right thumb as the door closed. As a result, the top of her right thumb was crushed and she has now lost the terminal 2 cm of her right thumb.
The problem of the inner door slamming occurs whenever the front and back doors are open at the same time. A child belonging to a Mrs Anne Dunphy from Flat 38 Basin Street, injured her fingers in 1992 in a similar accident. She mentioned the matter to the caretaker, but she did not follow this up with a formal complaint to the Corporation. In the last two years or so, these middle doors have been removed and replaced with a fire proof door which has a controlling arm which ensures that the doors are closed at all times.
The allegation made against the Corporation, as landlord of the apartment, is that the design or layout of the apartment was faulty in that it created a wind tunnel effect when all three doors were open at the same time and also that a restraining mechanism should have been attached to the door so that it would have closed gradually at all times. Mr David Semple, Consulting Engineer who gave evidence on behalf of the Plaintiff, stated that the problem of the banging door could have been obviated by:-
1. The insertion of a sliding door;
2. opening a door into the kitchen from the hallway, and;
3. fitting a closing device on the door.
Mr Paul Romeril, Consulting Engineer, who gave evidence on behalf of the Corporation, rejected the suggestions of Mr Semple. He stated that a sliding door was unsatisfactory and would not comply with the fire regulations. He stated that the opening of a door from the hallway into the kitchen and then into the living room was unacceptable, and that the fitting of a closing device on the door was only ever done as a fire precaution and was never done to prevent a door closing because of a draught.
The law is that the Corporation as landlord of the apartment must take all reasonable care for the safety of the tenant and all persons invited onto the premises. It must warrant that the premises are reasonably safe for users but it is certainly not an insurer of the premises.
This case is not unlike the case of O’Gorman v Ritz (Clonmel) Limited [1947] Ir Jur Rep 35 where the Plaintiff, a cinemagoer, was injured when the patron immediately in front of her tipped up her seat and caught the Plaintiff’s outstretched legs. In that case on Appeal to the High Court, the Plaintiff’s claim failed. Geoghegan J, delivering judgement, stated that the Defendant warranted their premises to be reasonably safe for patrons. He stated that the Plaintiff sought a degree of diligence, foresight and precaution to which the ordinary theatregoer is not entitled. The Judge was satisfied that to guard against a remote contingency, such as that which led to the injuries there, would need precautions of a well-nigh fantastic nature which could not reasonably be expected in the construction or management of a theatre.
I am satisfied on the evidence that the Plaintiff has not proved that the Corporation failed in its duty to her to take reasonable care for her safety. I am satisfied that the layout of the small apartment is satisfactory. It is a small and compact apartment and space is at a premium. I am also satisfied that the Corporation was not negligent in failing to have a restraining arm fitted to the middle door to prevent it from banging.
The accident was unfortunate, and was one that could befall any of us at any time whether in our own homes or elsewhere.
The Plaintiff’s claim must in those circumstances be dismissed with costs.
Whooley v. Dublin Corporation
[1961] IR 60
McLoughlin J.
The plaintiff claims damages from the defendant Corporation for injuries received by her by reason of the alleged negligence of the servants of the Corporation in the maintenance of a fire hydrant box in the public footway at Oxford Road, Ranelagh. On the night of the 11th November, 1958, the plaintiff was walking along the footway when her foot went into the uncovered box of a fire hydrant causing her to fall to the ground whereby she was injured. The fire hydrant box is normally covered by a flush-fitting cast iron lid measuring superficially 11 inches by 14 inches by 1/4-inch in depth and weighing about 3 lbs. On this night the lid had been removed and was lying some distance away and the box was full of water; the latter circumstance may have been due to the fact that it was a wet night, which I think was unlikely, or to escape of water from the hydrant caused by a defect in the valve or to unwarranted interference with the valve by some person, which last cause I consider most likely.
It is not contended that the Corporation are not under a duty to maintain these hydrants on the footway and that they must be readily accessible for use by the Corporation fire brigade in case of fire, but reliance is placed by the plaintiff on the evidence of an engineer called on her behalf who stated that the type of hydrant and box in this case was thirty to forty years old, that the lid could be removed by a child inserting a stick or some instrument into a slot provided along one side of the lid for that purpose, and that a more modern type has a heavier, though smaller, lid without a slot but with a hole in the centre for the insertion of a simple type of key. He did not, however, suggest that this more modern type of lid was designed to make, or would make, interference by mischievous persons more difficult.
There was evidence also by a lady that some days previous to the accident water was spurting from a hydrant without a lid in Oxford Road which, I am inclined to believe, was this same hydrant.
For the defendant Corporation there was evidence that for paving purposes the hydrants in Oxford Road, including this particular one, were in use during that period, 21st October to 4th November, after which they were inspected and were left in proper and safe condition. There was also evidence of a turncock who was notified of the accident on the same night, shortly after its happening, and inspected this hydrant box and found nothing wrong with it. How the lid came to be replaced is not known.
Having carefully considered all the circumstances and the authorities quoted to me by counsel I cannot find that the Corporation through its officials maintained this hydrant box in a negligent way so as to cause the plaintiff’s injuries. There is, in my view, no reason for holding that this type of hydrant box is of the kind that is likely to be interfered with by young irresponsible children to the knowledge of the Corporation’s officials or that any such knowledge should be imputed to them. It is my opinion that this hydrant was interfered with by some mischievous person and that no other type of hydrant which could be devised, consistent with its necessary purpose, would be safe from such malicious interference.
Accordingly, this action must be dismissed and the order of the Circuit Judge reversed.
Breslin v. Corcoran
[2003] IESC 23 [2003] 2 ILRM 189, [2003] 2 IR 203
FENNELLY J., [Nem Diss].
1. It is an act of folly to leave one’s motor car in the public street, even for a short time, with the keys in the ignition. There are plenty of ill-intentioned persons around to take advantage. The consequences can be tragic. But what is the liability of the imprudent car owner to a person injured by the bad driving of the thief?
2. The agreed facts of the present case are that first-named defendant left his car outside the Tea Time Express Coffee Shop in Talbot Street in Dublin unlocked and with the keys in the ignition. He dropped into the shop to buy a sandwich. As he came out, he saw an unknown person jump into the car and drive it off at speed. The car turned from Talbot Street into Talbot Lane. The plaintiff was walking across Talbot Lane. The car ran into him and injured him. For simplicity, if not accuracy, I will refer to the person who took the car as “the thief.” He may, of course, have been a joyrider or other temporary taker of the car.
3. The plaintiff brought an action in the High Court against Mr Corcoran, first-named defendant, alleging negligence in leaving the car unattended in the manner described. He joined MIBI, as second defendant, “pursuant to the terms of an agreement dated the 21st day of December 1988 and made between the Minister for the Environment and the Second Named Defendant and in particular Clause 2(2) and 6 thereof.” The plaintiff succeeded before Butler J against MIBI only. The damages were agreed at £65,000. The learned High Court judge apportioned all the liability to the MIBI and gave a decree against it with costs.
4. The MIBI is sued directly in this way, not as representing or standing in for the thief, but because it has agreed to compensate victims of uninsured driving, subject to the terms of the agreement. The real issue before the Court is whether there was any negligence on the part of the first named defendant. If there was, the MIBI has no liability. If not, it is bound by the agreement. The form of the proceedings is unsatisfactory in one respect. The plaintiff had a clear case against whoever was responsible for the driving of the car. There were no pleadings between the defendants. Thus MIBI was left to argue the liability of the first named defendant, in order to escape its own. In particular, the extent, if any to which the regulations, made under the Road Traffic Acts were part of the argument is unclear.
5. Counsel for MIBI argued in the High Court that the first named defendant was negligent. In the circumstances, he said, it was probable that the car was going to be stolen and that it was reasonably foreseeable that the thief would injure someone. The concept of novus actus interveniens was central to the argument as were two cases, one Irish, a Circuit Court decision of McWilliam J (Dockery v O’Brien [1975] ILTR 127, “Dockery”) and one English (Topp v London Country Bus (South West) Limited [1993] 3 All ER 448, “Topp”). Reference was also made to the well-known Supreme Court decision in Conole v Redbank Oyster Company [1976] I.R. 191. Butler J had no doubt that the act of the thief amounted to a novus actus interveniens, which broke the chain of causation. He thought that, to impose any liability on the first named defendant, it would be necessary to have evidence that the car was left in an area where it should be known to the owner that people routinely stole cars for the purpose of driving them around in a reckless and dangerous fashion.
6. MIBI contest these views of learned High Court judge. In particular MIBI says that he was wrong not to find that the “admitted negligence” of the owner of the car was the cause of the plaintiff’s injuries and that the chain of causation.
7. The contending positions may be expressed as follows. The appellant would say that the act of leaving a motor car, unattended and unguarded, for any length of time in a public street with the keys in the ignition is clearly an act of carelessness. There is an obvious and serious risk of the car being taken, whether by way of theft, in order to commit some crime or, merely for joyriding. The culprit must necessarily be a person who does not respect the law and who is likely to be a danger to others whether by reason of general irresponsibility or while trying to get away. The first defendant would say that the taking of the car is a novus actus interveniens. It is an independent, illegal act of a third party. The car owner is not responsible for the manner of driving of the thief. He cannot control it. He should not be treated as if he had authorised the driving of the car. He is not vicariously liable.
Analysis
8. In order to resolve this dispute, it is necessary to consider both the scope of the duty of care in negligence and the cause of the damage. Specifically, does the person injured by a stolen motor car come within the range of persons who can complain? Once more, the case raises the sufficiency of the test of foreseeability and hence the range of damage for which the person performing a careless act is liable.
9. It is particularly helpful that Keane C.J. has, in his recent judgment in Glencar Exploration plc v Mayo County Council [2002] 1 IR 84, reviewed in a considered manner the very vexed question of the proper test for the imposition of a duty of care. In doing so, he went a long way to resolving the apparent divergence which had manifested itself from the mid nineteen eighties between the approaches of our courts and those of other common law jurisdictions, in particular those of England and Wales. The merely persuasive status of the decisions of other common law jurisdictions has not dissuaded our courts from taking its inspiration from contemporaneous new steps in the development of the common law. The decisions of the House of Lords in Donoghue v Stephenson [1932] A.C. 532 and Hedley Byrne v Heller and partners [1964] AC 465 are the best known examples.
10. The famous two stage test enunciated by Lord Wilberforce in what was once regarded as the landmark case of Anns v London Borough of Merton [1978] AC 728 at 751, was, however, open to being read as postulating foreseeability as the single governing test. In truth, it led to much confusion both here and in England. After a period of some doubt both in the English and Commonwealth courts, the House of Lords, taking its lead in part form the High Court of Australia, (Council of the Shire of Sutherland v. Heyman (1985) 157 C.L.R. 424), departed from Anns ( Murphy v Brentwood District Council [1991] A.C. 391). Keane C.J., in Glencar, citing Council of the Shire of Sutherland v. Heyman, referred to the need to maintain the distinction between duties on the moral plane and those whose breach could be invoked in the law of negligence. He went on:
“It is precisely that distinction between the requirements of altruism on the one hand and the law of negligence on the other hand which is in grave danger of being eroded by the approach adopted in Anns v. Merton London Borough [1978] AC 728, as it has subsequently been interpreted by some. There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of “proximity” or “neighbourhood” can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff, as held by Costello J. at first instance in Ward v. McMaster [1985] I.R. 29 by Brennan J . in Sutherland Shire Council v. Heyman [1985] 157 C.L.R. 424 and by the House of Lords in Caparo plc. v. Dickman [1990] 2 AC 605. As Brennan J. pointed out, there is a significant risk that any other approach will result in what he called a ‘massive extension of a prima facie duty of care restrained only by undefinable considerations…'”
11. I consider that this passage represents the most authoritative statement of the general approach to be adopted by our courts when ruling on the existence of a duty of care. It seems to me that, in addition to the elements of foreseeability and proximity, it is natural to have regard to considerations of fairness, justice and reasonableness. Almost anything may be foreseeable. What is reasonably foreseeable is closely linked to the concept of proximity as explained in the cases. The judge of fact will naturally also consider whether it is fair and just to impose the liability. Put otherwise, it is necessary to have regard to all the relevant circumstances.
12. The present case is concerned with a narrower application of the question of to whom a duty of care is owed. It raises the circumstances in which it may be proper to fix a person with liability for an act of carelessness, where a third person’s independent act has intervened between that act and has directly caused the damage. However, the general principles laid down by Keane C.J provide useful guidance.
13. I will refer, firstly, to the cases directly concerned with the taking of unattended motor vehicles.
14. There are two Irish Circuit decisions. The facts of Dockery are similar to the present case. An owner left his car in the street with the keys in the ignition. An intoxicated person took it and crashed into the plaintiff’s parked car. McWilliam J said:
“With regard to a novus actus interveniens, Lord Reid, in the Dorset Yacht Co. case, said that, if what is relied on as a novus actus interveniens is the very thing which is likely to happen, if the want of care which is alleged takes place, the principle involved in the maxim is no defence, and he added that, unfortunately, tortious or criminal action by a third party may be the very kind of thing which is likely to happen as a result of the wrongful or careless act of the defendant…this was the very kind of thing which a reasonable person should have foreseen.”
15. In Cahill v Kenneally (1955-1956) Ir Jur Rep 127), a bus driver had driven some dart players to a competition. The driver allowed some of the players back onto the bus after the event and then left the bus unattended while he went off to look for some of the passengers. In fact, the persons who drove the bus away were themselves, passengers, who started it and crashed into a parked car. According to the very brief note, Judge Patrick Roe ruled: “It was negligence on the part of the driver, when he obviously knows [sic] that the bus, if unattended, should be locked, so that it may be safe, and it was clearly dangerous to allow these men into the bus.”
16. The English courts took a strikingly different approach in Topp. In that case, a bus company had a system of leaving some of their buses parked in the public street with the keys in, to facilitate changeover of drivers. Normally, there would only be an eight-minute interval, but the accident happened on a day when one driver failed to attend for duty. The bus was left for over nine hours. It was driven away and crashed into a cyclist. May J carefully reviewed a number of authorities, not only concerning the misfortunes flowing from the taking of motor vehicles, but touching on the general issue of liability where an intervening person has done the damage. His conclusion, so far as relevant, was as follows:
“…It would not be fair just and reasonable to recognise the duty of care contended for here….
…any affirmative duty to prevent deliberate wrongdoing by third parties, if recognised in English law, is likely to be strictly limited.
It is in my view, clear that the law should not impose such a duty on what may compendiously be called the private motorist. There could be very many different circumstances in which a private car, standing unlocked and with its ignition key in the switch, might be stolen, and then driven negligently so as to cause injury or damage. The motorist may or may not have been careless for his own property, but he should not be held for the wrongdoing of criminal hijackers.
………….
…problems would arise with the length of time during which the vehicle was left unattended and the place where and the circumstances in which this occurs. Is it material or crucial if the vehicle is left outside a public house? And what if the car is left for several weeks in an airport long-term car park?
I do not consider that the likelihood of an unlocked and unattended minibus with its keys in the ignition being both stolen and so negligently driven as to cause injury is sufficiently strong to compel the law to impose a duty of care on the owners of the minibus.”
17. The Court of Appeal approved the decision of May J. Dillon LJ held that the case was ruled by an earlier unreported case of Denton, where a bus had been taken from the private property of the bus company. Neither he nor May J thought that it made any difference whether the vehicle had been left on private property or the public road. Nonetheless, it does not appear that the Court of Appeal entirely closed the door to liability in circumstances of this sort.
18. The Court of Appeal in Topp said that May J had not “laid down too rigid a line..” The judge was deciding the case before him. An appeal court should be slow to interfere with the determination of a trial judge.
19. It is of some importance, however, that May J had referred to the House of Lords decision in Smith v. Littlewoods Organisation Ltd [1987]AC 241. In that case, in turn, the law lords referred to the more celebrated case of Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004. As noted above, McWilliam J has also found that case helpful.
20. In Littlewoods, the defenders had bought a disused cinema in Dunfermline. They left it vacant pending its conversion into a supermarket. It was set on fire by some teenagers. The fire spread to neighbouring buildings, whose owners sued for damages. The claim against the defenders was that they, as owners and occupiers of a disused cinema, owed a duty to the owners of neighbouring property to take reasonable care against vandals gaining entry and setting fire in the old cinema. On the other hand, there was nothing inherently dangerous stored in the premises; the owners were not on notice of any dangerous activity by trespassers, in particular that there had been any attempts to start fires; it was common case that only twenty four hour guard would have been likely to have prevented the fire from taking.
21. It must be said at once that the Littlewoods case and the present one are quite substantially different on their facts. The pursuers’ case implied a heavy duty of care, inspection and supervision of their premise on the defenders, whereas the only complaint against the first named defendant, in this case, is that he failed to take the simple step of locking his car. Moreover, the issue, in Littlewoods, turned largely on the absence of specific knowledge, on the part of the defenders, concerning the activities of trespassers and vandals on their property. In this case, by contrast, the issue is as to the level of knowledge of the nature and extent of risk that should be imputed to the owner of a motor car who fails to take that step.
22. Lord Mackay of Clashfern, firstly, stated succinctly that, since the question was whether there was a duty of care to prevent fire from spreading so as to damage adjoining premises “unless Littlewoods were bound reasonably to anticipate and guard against this danger they had no duty of care, relevant to the case…,” the pursuers could not succeed. He stated, in general terms, that:
“It is plain from the authorities that the fact that the damage, upon which a claim is founded, was caused by a human agent quite independent of the person against whom a claim in negligence is made does not, of itself, preclude success of the claim, since breach of duty on the part of the person against whom the claim is made may also have played a part in causing the damage.”
23. He summarised the legal position, as he saw it, of a defender facing a claim to fix him with liability for damage caused by third parties:
“In summary I conclude that what the reasonable man is bound to foresee in a case involving injury or damage by independent human agency, just as in cases where such agency plays no part, is the probable consequences of his own act or omission, but that, in such a case, a clear basis will be required on which to assert that the injury or damage is more than a mere possibility. To illustrate, it is not necessary to go further than the decision of this House in Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004 where I consider that all the members of the majority found such a possible basis in the facts that the respondent’s yacht was situated very close to the island on which the Borstal boys escaped from their custodians, that the only effective means of avoiding recapture was to escape by the use of some nearby vessel, and that the only means of providing themselves with the means to continue their journey was likely to be theft from such nearby vessels. These considerations so limited the options open to the escaping boys that it became highly probable that the boys would.”
24. The pursuers lost their case essentially because there was no evidence that the defenders had knowledge of the fact that the vandalising trespassers in the disused cinema were in the habit of starting fires. The House of Lords decision turned on the absence of any evidence to bring the activities of these persons within the knowledge or control of the defenders and the fact that the only remedy would have been a twenty-four hour guard.
25. The Littlewoods case provides a useful point of reference for this case. In the first instance, it is interesting that the arguments and the speeches in the House of Lords were concerned principally with the foreseeability test and the issue of novus actus interveniens or the breaking of the chain of causation played little direct part in the reasoning.
26. Having regard to its special facts, it was natural that Dorset Yacht Co. Ltd. v. Home Office should figure largely in the speeches in Littlewoods. The assumed facts ( the case came before the House of Lords as a preliminary issue of law) were that seven Borstal boys, who were working as trainees on an island under the control and supervision of three officers of the Home Office, escaped from the island at night. They boarded, cast adrift and damaged the plaintiffs’ yacht which was moored offshore. The officers were assumed to have gone to bed, in breach of their instructions, leaving the trainees to their own devices. The plaintiffs, owners of the damaged yacht, in their action against the Home Office, alleged negligence consisting in the officers’ failure, knowing, as they did of the boys’ criminal records and records of previous escapes from Borstal institutions, to exercise any effective control or supervision over them and knowing that craft such as the plaintiffs’ yacht were moored offshore.
27. Lord Reid said (page 1028 of the report) that it had never been the law that the intervention of some independent human action “always prevents the ultimate damage from being regarded as having been caused by the original carelessness.” He then asked what was the “dividing line.” He went on: “Is it foreseeability or is it such a degree of probability as warrants the conclusion that the intervening human conduct was the natural and probable cause of what preceded it?” Lord Reid’s considered answer, following a review of the authorities was:
“These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the “very kind of thing” which is likely to happen as a result of the wrongful or careless act of the defendant. And in the present case, on the facts which we must assume at this stage, I think that the taking of a boat by the escaping trainees and their unskillful navigation leading to damage to another vessel were the very kind of thing that these Borstal officers ought to have seen to be likely.”
28. Where Lord Reid spoke of whether the thing to be guarded against, the escape, was “very likely to happen,” Lord Morris of Borth-y-Gest spoke in terms of “a manifest and obvious risk,” and Lord Diplock, though also speaking of likelihood was more concerned to confine the right to recover to persons “who had property situate in the immediate vicinity.” An important element in the assessment by the House of Lords in the Dorset Yacht case of what is reasonably foreseeable is whether the event in question is the “very kind of thing” against which precautions must be taken. The reason is the probability of the thing happening. Lord Reid’s analysis, based as it was, on the insufficiency of mere foreseeability and the need for compliance with the additional test of reasonable probability is the most helpful for the present case.
29. This Court had already adopted that approach in Cunningham v McGrath Bros. [1964] I.R. 209. The defendants had left a ladder in a street leaning against their premises, after the completion of work. An unknown person moved the ladder to another nearby street where it later fell upon and injured the plaintiff. Kingsmill Moore J, in a unanimous judgment responded (at page 214 of the judgment) to an argument based on the breaking of the chain of causation:
“It is not every ‘novus actus’ which breaks the chain of causation. ‘If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence. The whole question is whether or not, to use the words of the leading case, Hadley v. Baxendale (1) the accident can be said to be ‘the natural and probable result’ of the breach of duty. If it is the very thing which ought to be anticipated . . . or one of the things likely to arise as a consequence of his wrongful act, it is no defence; it is only a step in the way of proving that the damage is the result of the wrongful act . . .”
He stated the test as follows (at page 215):
“I am of opinion that the test to be applied is whether the person responsible for creating the nuisance should anticipate as a reasonable and probable consequence that some person in pursuance of his rights would attempt to abate the nuisance and in so doing would create a danger.”
30. From all these cases, I draw the following conclusion. A person is not normally liable, if he has committed an act carelessness, where the damage has been directly caused by the intervening independent act of another person, for whom he is not otherwise vicariously responsible. Such liability may exist, where the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not.
31. Before turning to the scope of the duty of care in the present case, I need to refer to a
matter raised in the submissions of the MIBI, but which was not referred to in the High Court judgment. The Road Traffic (Construction, Use and Equipment of Vehicle) Regulations (S.I. 190) of 1963, Regulation 87 provide, in relevant part:
“87. (1) Where a vehicle as allowed to remain stationary on a public road, the driver shall not, subject to sub-article (2) of this article, leave the vehicle unattended unless—
(a) the engine of the vehicle is not running,
(b) where the engine is contained in a separate portion of the vehicle capable of being closed, such portion is closed, and
(c) where the vehicle is fitted under article 31 of these Regulations with a door or doors capable of being locked or with a device for preventing unauthorised driving, such door, doors or device is or are locked so as to prevent the vehicle being driven, and, where appropriate, the key of the door, doors or device is removed from the vehicle.”
32. No claim based on breach of statutory duty was made against the first named Defendant. This is not to exclude the relevance of the Regulation. In my view, this Court can have regard to it when considering the scope of the duty of care of the first named defendant.
Conclusion
33. The test then is not merely that of reasonable foreseeability. It is, in addition, necessary to ask whether it was probable that the unattended car, if taken, would be driven do carelessly as to cause damage to others. It seems to me beyond argument, and it is not really disputed, that it was reasonably foreseeable that the car would be stolen.
34. It cannot be seriously disputed, that it was reasonably foreseeable as well as likely that the unattended car, with its keys in the ignition, would be stolen. I think it is obvious that to do all these things in a busy city street, without any mitigating circumstances, is an act of gross carelessness.
35. In modern circumstances, it is obvious that failure to exercise proper control and supervision over motor cars involves a serious risk of damage and worse to innocent people. It is equally clear that it was reasonably foreseeable that any goods, which might have been left in the car, would be stolen. Thus, if the motor car owner had been carrying goods commercially and, perhaps even looking after them gratuitously, for others, he would probably have been liable to the owners for their loss; similarly, if he had borrowed or rented the car, in respect of any damage to the vehicle. In each of these cases, it seems to me that the test of proximity would have been satisfied. Theft of the car or its contents could be regarded as “the very thing” against the custodian of the car should guard. They are directly related to the act of theft.
36. The nub of the case is, of course, the possible liability of the first named defendant for injuries caused by the negligent driving of the thief. Even if the owner of the car, or the driver, if not the owner, should be held liable to the owner of contents or of the car itself for damage to either of these items of property, it is not easy to articulate the basis for his automatic liability to the victim of negligent driving of the car.
37. It is the negligent driving, not the taking of the car, which has caused the damage. It would have to be shown that the owner should have foreseen not merely the taking but also the negligent driving. There would have to be some basis in the evidence, such as that suggested by the learned trial judge, for a finding that the car, if stolen, was likely to be driven in such a way as to endanger others. Cars may be stolen for reasons which do not carry such implications. Some of these, though criminal, do not necessarily imply dangerous driving. The line would, on any view, have to be drawn somewhere. If a car were stolen for resale, the owner could scarcely be responsible for the driving of the purchaser, whether that person were honest or not.
38. In my view, there is nothing in the present case to suggest that the first-named defendant should have anticipated as a reasonable probability that the car, if stolen, would be driven so carelessly as to cause injury to another user of the road such as the plaintiff.
39. I would dismiss the appeal.
Begadon v Laois Hunt Club Ltd & anor
[2019] IEHC 343 (17 May 2019)
O’Hanlon J.
Status:
JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 17th day of May, 2019
1. The plaintiff is an experienced horse rider and her date of birth 1st February, 1983. On 8th March, 2014, the plaintiff paid a levy to join a day’s hunting with the Laois Hunt Club Limited and brings her proceedings claiming damages in respect of an incident which occurred on the lands of the second named defendant at Ballygeehan, Ballyacolla in the county of Laois. The said defendant was the owner, occupier and manager of the said lands,
2. The plaintiff had successfully traversed a river on the lands of the second named defendant and this led into a field with a whitethorn tree obstacle, on the other side of which were brambles and a fall-away portion. The plaintiff made the decision to jump this particular obstacle and the horse’s feet got caught in the brambles causing the horse to roll on top of the plaintiff. The plaintiff suffered a severe back injury. Her claim is that this particular obstacle constituted a hazard which was foreseeable, in relation to which she ought to have been advised not to jump that particular obstacle.
3. Her claim is that the defendants did not take any reasonable care for her safety, failed to take any adequate precautions in terms of safety, examination or other measures, caused and/or her permitted on obstruction/danger which they have may or ought to have known the participant would have jumped over and failed to have adequate personnel or procedures in place. A full defence was filed pleading that any act or omission on the part of the defendants, their servants or agents was not sufficiently proximate to the alleged acts or omissions. It is expressly denied that she was required to jump the particular obstacle to enable her to continue with the hunt and that on the contrary, the Field Master of the hunt, having inspected the said obstacle, instructed the field not to jump it and led the hunt away from same. It is alleged that the plaintiff voluntarily assumed the risk of jumping the said obstacle of her own volition and that she deliberately ignored the instruction of the Field Master.
4. A plea of contributory negligence is also made. It is alleged that she jumped of her own volition, she failed to stay behind the Field Master and follow his line and that she disregarded the rest of the field who were led away from the particular obstacle in question, and that she jumped an obstacle which was not part of the hunt route, failing to have regard to her own previous experience, thereby exposing her to a risk of injury of which she knew or ought to have known and that she failed to have any or any due regard for her own safety. It is alleged that she failed to adhere to hunting etiquette and voluntarily assumed the risk.
Evidence of the Plaintiff
5. The plaintiff said that at 2:30pm on the day of the accident, after one and a half hours riding, she was near the back of the hunt and she thought that people were queuing up to jump the particular obstacle. A third party invited her to go first, but after she jumped to the left hand side there was a heap of brambles and her horse went into these going forward, pulling her forward and that the horse came down on top of her. She knew that she was seriously injured as she could only take shallow breaths and she knew that her teeth were damaged. She confirmed that she was wearing every piece of essential safety equipment including gaiters, a helmet and jodhpurs. Despite her requests that she ought not be moved she was physically lifted up and taken across the river and had to walk a quarter of mile before she reached a jeep belonging to a member of her family.
6. The plaintiff agreed that she was an avid hunt follower, and that she had broken in the mare she was riding and that she was an experienced rider but she thought that this particular obstacle looked like the route she was to follow and there was no one there to tell her that this was not the case.
7. The plaintiff agreed that the Field Master goes out front wearing a red coat, followed by the rest of the hunt and she further agreed that one does not pass him and that where he goes, the riders follow. The distinction between show jumping and cross country riding was discussed with her where one could walk the course in advance but it was put to her that fox hunting was unpredictable. The plaintiff believed that a person ought to be told about a danger and she accepted that her obligation was to keep up with the hunt insofar as she could.
8. The plaintiff’s evidence was that she did not hang back in the hunt and she believed that her mare listened to her and that she was cantering into the jump, counting her rhythm into it and she was going to take a direct line into it. She believed that often red tape would be used and that there is a certain amount of predictability in this day and age. She said she did make an informed decision as whether to jump or not and she confirmed her life work as a pony club instructor teaching children and getting them ready for tests in terms of hunt etiquette. She said she was counting down her strides as she approached this jump and that she was well over it but then saw the brambles. She confirmed that she believed she ought not to have been moved in the manner applied and that an ambulance could have accessed the locus of the accident where she was.
Evidence of Commandant Derek Connell
9. The witness confirmed that he has been an ex-Irish Army horse coach and national showjumper, and he was aware that the plaintiff was an experienced rider. He did indicate that the plaintiff’s mare had not done a huge amount of hunting and he said that a horse could have done ten years of hunting, twenty times a season and could still be an unsuitable horse and confirmed further that there was a certain amount of unpredictability in hunting.
10. This witness stressed that they were a group of people at the particular obstacle and that the Field Master ought to have filtered the message back not to jump the particular obstacle in question. He said there would no obligation to have a tape at the site. He said that possibly there could have been a red flag put at the site to warn people. He noted that the Field Master ought to or could have told one of his subordinates to stay at that point to stop people jumping that obstacle and he said that to go around that obstacle was unsafe. His view was that the helpers at the hunt ought to have indicated that the riders ought not jump the particular obstacle, that there was an obvious danger and that it was not suitable. This etiquette ought to have dictated that this would have happened.
11. This witness accepted that one could have five or six ambulance cases in any one season and that most riders were not entering competitions and most horses were not hunting. He further indicated that there were few show jumpers who do hunt and that hunting is a different discipline and that there is an assumption that one would have a safe landing. This witness said that it was strange given the hazard that there had not been communication and that there was a relatively small time gap to assess the situation and he was surprised word did not filter back.
The Defence Case
12. Mr. David Lawlor gave evidence that he had 60 years hunting experience with the Laois Hunt and that he was Field Master of that hunt for last 25 years. He noted that the huntsman was paid, everyone else was voluntary and that there would normally be six to seven serious falls in a season.
13. This witness described the procedure involved for him in getting permission from surrounding farmers to traverse their lands in the days coming up to the hunt and that this would involve between 30 to 35 farms in the vicinity and that such hunting takes place twice a week in the season. He described the normal situation as having two whips in front helping with the hounds and that it was the Field Master’s job to keep order and to make sure that as guests of the particular farmer whose lands they traverse that the riders do not abuse the situation. He explained that in fox hunting, the only given route is to the first “draw” and if there is no fox there, one proceeds to the second “draw”. His view was that the unpredictability of fox hunting was the big attraction and that he had been out 30 days this season on his own hunter and that the particular mare which the plaintiff was riding was a novice, although it had hunted on one occasion prior to that day. This witness said no one uses red flags in fox hunting and that it goes against the nature of such hunting.
14. This witness gave evidence that on the day, there was no fox found at the first draw and he, therefore, took the field to the left and that there was a flood plain to the back and that he crossed the river and saw the bushes, 50 to 60 metres away when he came out of the river and that there was a pile of debris in it which had been taken out of the river and he could see wire and what he thought were the remains of a gate so he passed back the message that it was dangerous and unsafe.
15. This witness considered that this was a very obvious danger and that he himself was on an excellent horse and that he deemed the jump not safe. He gave evidence that he told a few people behind not to jump that obstacle and if a person then did so it was entirely at their own risk if they broke every bone in their body. A quarter of a mile down the river he was going on to the field and he saw two to three people around the particular obstacle and two horses run out of it i.e. they did not take that fence and he saw the plaintiff’s horse fall from far away.
16. This witness’s view was that there was no necessity to go near that particular obstacle, that it was 50 to 80 yards from where they came out of the river and that it was important theoretically for people to jump what they have to jump and when it was put to him that he knew that it was dangerous he said there were plenty of other things later that day which were dangerous to jump. He said that he himself would have checked and double checked and that the horse was on a first day’s outing and that the plaintiff was a novice.
17. He personally informed people of a danger, he knew that he was not in a position during a fox hunt to inform everyone personally and that there would be nobody walking around. He said he never had to warn people to jump before, it was very rare. This witness did agree that it was unsafe to jump the particular obstacle in question.
Evidence of Mr. Christopher Ryan
18. Mr. Christopher Ryan said that he was an eighth generation huntsman and a horse rider with ten to fifteen years’ experience and was a Senior Master of the Scarteen Hounds. This witness made the point that a horse can weigh up to half a ton and that a mistake could be a very bad one with the rider in primary control and that one has to look to the person in front in order to safeguard the horse and oneself. He described it as quite natural for a young horse to jump to the left as happened at the site of this incident but he stressed that it was the rider who was in primary control and he said with regard to the issue of whether the plaintiff was schooling her horse, he said that would not be allowed and that if a person did that they would not be allowed to hunt there again.
19. This witness felt that it was the duty of the rider to know what was on the other side of a jump and he said that a hunt ride is not a prepared track where every jump is flagged and that the hunting field by its nature is not prepared in that manner and that he never heard of a hunt taking responsibility for what happens. He further added that the rider is responsible for their horse and assumes responsibility and that she did not look at what was on the other side and that the horse has to learn to think for himself.
20. This witness believed that the Field Master, on this occasion, in informing those of his followers not to jump that fence, did everything one could reasonably expect. He noted that the stragglers were out of earshot of the field marshal and that it was very evident that no horse had jumped the particular jump and that people have to take responsibility for their own actions. He said that the whole idea was that riders watch the Field Master and take their lead from him. This witness indicated that it was not part of the culture of fox hunting to flag jumps to be avoided in his 27 years’ experience of hunting. His view was that the plaintiff had paid €25 to be entitled to hunt and everything was prepared for her and that that money goes towards upkeep and costs.
Evidence of Ms. Suzanne Macken, B.A.
21. This witness prepared an expert report and knew that the plaintiff was a good rider, had her British Horse Society Exams and had looked at the fence with five paces to jump and that every fence ought to have been checked by the rider. She noted that the horse was young and that with such a horse there was a risk that it would go to the side and that if she herself had seen the back of the hedge, she would not have jumped the particular obstacle. Her view was that the plaintiff needed a good line to the fence and would have needed a good right side to stop the risk of the horse turning towards the left and also she ought to have checked by walking around the fence first and that one ought not to jump unnecessarily.
22. This witness took the view that the plaintiff had missed the fact that there were no tracks around the particular obstacle and that this ought to have been a sign to the plaintiff that the hunt was not taking that path.
23. This witness took the view that when one was out hunting, one is supposed to keep up with the Field Master and that it is not good to have stragglers hanging around at the back of the hunt and that that is an impossible situation. She said that word does not always filter back in a hunt and that when one goes hunting, one exercises free will that from the hunt’s perspective, no other action could have been taken.
The Plaintiff’s Injuries
24. After a considerable period of time awaiting surgery, the plaintiff was transferred from Tullamore General Hospital to the care of Mr. Devitt, Consultant Orthopaedic Surgeon in Galway when he diagnosed unstable fractures in T6 and T7 vertebrae and she underwent open reduction and internal fixation of the fracture with instrumentation from T4 – T9. The plaintiff had to have two teeth crowned as a result of the injuries. No spinal cord injury was suffered by her and normal neurology was noted.
25. In all, the plaintiff spent three weeks in hospital, she had six sessions of physiotherapy, ten GP visits and six specialist visits and had to remain off work for a one year period. Her GP notes that there is ongoing back discomfort for between three to five years post injury. The plaintiff has normal spine alignment with a scar of 20 cm at the injury site, and some tenderness over the rod to the left. It is unlikely that an operation will be carried out to remove the rods on medical advice. There are no neurological deficits in her lower limbs.
The Law
26. In relation to the second named defendant, the general rule in terms of fox hunting is that the members of the field waive all claims against landowners for injuries to themselves or their mounts. The argument is made that the plaintiff in paying the cap fee, therefore, opts to follow the rules of hunting etiquette. Given her experience, it is accepted that her expertise in preparing others for tests in hunting etiquette, the plaintiff was therefore aware of the rules and accepted them.
27. In looking at the duty of care of the second named defendant towards the plaintiff, the test is one of reasonable care. Reference is made to Peart J. in Vega and Cullen [2005] IEHC 362, “there is no meaningful distinction between the common law duty of care and the statutory duty of care under the Occupiers’ Liability Act 1995”.
28. Under s. 3 of Occupiers Liability Act 2005:
“(1) An occupier of premises owes a duty of care (‘the common duty of care’) towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.
(2) In this section ‘the common duty of care’ means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
29. In Heaves v. Westmeath County Council 20 ILT (ns) 235 (2001), where the Occupiers’ Liability Act 1995 came into play regarding an incident on the grounds of a large house and in this case, it was found that the duty of care found under s. 3(1) of the Act was to take “reasonable care and no more”.
30. In the instant case, given the nature of the hunt, in that it follows a fox’s scent and that the fox could go anywhere on the land or property it is not, therefore, foreseeable that a safe route or safety audit could take place in advance of a person taking such a route. Therefore, on the balance of probabilities, the second named defendant could not be deemed not to have taken reasonable care regarding his property. His only involvement was that he was contacted by the Master of the Hunt in advance and gave permission for the hunt to cross his land. He can have no liability in the matter.
The law
31. In the English decision of Caldwell v. Maguire and Fitzgerald [2001] EWCA 1054 Holland J. sets out in relation to the issues of liability concerning jockeys, a test to assist with the determination of both liability and the duty of care and found that each contestant in a lawful sporting contest (and in particular a race) owes a duty of care to each and all other contestants.
32. Secondly, Holland J. found that that duty is to exercise in the course of the contest all care that is objectively reasonable in the prevailing circumstances for the avoidance of infliction of injury to such fellow contestants.
33. The Learned Judge also found that the prevailing circumstances are all such properly attendant upon the contest and include its object, the demands inevitably made upon its contestants, its inherent dangers (if any), its rules, conventions and customs and the standards, skills and judgment reasonable to be expected of a contestant. His view that this must include the rules of racing and the standards, skills and judgment of a professional jockey, i.e. all as expected by fellow contestants.
34. Fourthly, he found that given the nature of such prevailing circumstances, the threshold for liability is in practice inevitably high; the proof of a breach of duty will not flow from proof of no more than an error of judgment or from mere proof of a momentary lapse in skill and thus care (respectively, when subject to the stress of a race). Such are no more than incidents inherent in the nature of the sport.
35. Fifthly, in practice, it may therefore be difficult to prove any such breach of duty, absent proof of conduct that in point of fact amounts to reckless disregard for the fellow competitor’s safety. The Learned Judge emphasised the distinction between the expression of legal principle and the practicalities of the evidential burden.
Findings of Fact and General Issues on Liability
36. The main contention of the plaintiff was that she ought to have been advised not to take the particular jump in question and that insufficient effort was made in terms of passing back the information to her that the Field Master had indicated to members of the hunt not to take the said jump. The question in this case is the extent of a duty of care towards an individual such as the plaintiff and whether such duty exists as a legally recognised obligation requiring the defendant to conform to a certain behaviour for others against reasonable risks.
37. The court has considered Roote v. Sheldon [1967] 116 CLR at 383, decided by the Australian Supreme Court examining the duty of care in relation to a water sports incident. The plaintiff in that case believed he ought to have been cautioned in relation to a boat nearby and on the basis that the boat allegedly had not been adequately controlled. Barwick C.J. found that these two grounds were not inherent risks but at p. 384 of his judgment, he indicated:
“By engaging in a sport or pastime, the participants may be held to have accepted risks which are inherent in that sport or pastime…the tribunal of fact can make its own assessment of what the accepted risks are; but this does not eliminate all duty of care of the one participant to the other.”
38. In the instant case, falling due to the nature of the sport must be considered to be an inherent risk. The plaintiff was aware of the nature of the sport and the fact that the hunt was taking place on unpredictable terrain on a working farm where the fox is unpredictable and can go anywhere and where the evidence was that the expanse of between 30 and 35 acres was in play in terms of the terrain which might or might not be covered. The argument therefore is that there was an inherent risk which the plaintiff assumed.
39. With reference to Condon v. Basi [1985] 1 WLR 866, Donaldson M.R. summarised reference to Roote v. Sheldon:
“…you are under a duty to take all reasonable care taking into account of the circumstances in which you are placed;
Which in a game of football are quite different from those which affect you when you are going for a walk in the countryside.”
40. This Court finds that the Master of the Hunt the Field Master on the day in question was an experienced Master having been in that position since 1992. He was chairperson of the Irish Masters of the Foxhound Association and since he found no way of seeing the landing site he turned away from the particular obstacle and instructed the field. It seems to this Court therefore that the rules and etiquette of fox hunting were followed by him. It appears to this Court that the warning was properly communicated to a reasonable standard, that it was obviously given to a considerable number of people and only three of the rider group of 40 to 50 riders, including the plaintiff, attempted to jump the particular obstacle. Furthermore two riders turned away from the obstacle without taking that particular jump.
41. It seems to this Court that there was an obligation on all members of the hunt to follow the Field Master, to keep reasonably close to him and not to lag behind at the back of the hunt and to ensure they were appraised of any directions he gave. I find as a fact that the Field Master gave the warning to those behind him in the field whom he advised to pass the word on, and that in so doing he was following the established practice of fox hunting and that he did so in a manner that was entirely reasonable.
42. The plaintiff makes the complaint that those who came to give immediate assistance did not follow her request that she not be moved and the plaintiff complained as to the manner in which she was moved causing her to be assisted back over the river and to have to walk for a considerable distance, and being linked by two people where she was brought to a yard for her boyfriend to collect her by car. Although her evidence was that an ambulance could have reached on the particular piece of terrain in question and while I don’t doubt the veracity of that, there was no evidence whatsoever adduced to suggest that this manner of moving her in anyway caused injury to her or made worse the injuries she had received.
43. This Court accepts the evidence of the Field Master of the Hunt and that of Ms. Suzanne Macken, in particular in terms of the rules and etiquette of hunting and in terms of the valid criticism made of the plaintiff and her approach to this hunt.
44. The plaintiff voluntarily assumed the risk of a mare which had only hunted once before, even though the plaintiff was an accomplished horse person she was an inexperienced hunter on an inexperienced horse taking part in an entirely unpredictable sport with the fox at its centre.
45. She did not have due regard for her own safety. She was obliged to keep up with the hunt and with the Field Master and not lag behind. She ought not to have jumped unnecessarily the dangerous jump in relation to which a warning had been given. The expanse of acreage involved and nature of fox hunting mean that the type of precautions which might be used in other forms of horse-riding could not reasonably be expected as the standard of fox hunting, given the nature of this sport.
Conclusion on Liability
46. There is no doubt but that the plaintiff suffered a serious injury in this accident. However, given that the Court has found against the Plaintiff on Liability the Court confines itself to that issue. It seems to this Court however that reasonable care was taken by both defendants in relation to the outing in question. Crucially, the rules and procedures of the sport were followed and the master did fulfil his obligations in relation to the jump, the defendant having the final decision to make as to whether she ought to jump or not the particular jump in question. It seems to this Court that the first named defendant in particular exercised all care objectively or subjectively reasonable in the circumstances of this particular case and while the second named defendant was joined in the proceedings his consent was obtained prior to this hunt to traverse his lands and there is no negligence found against him in all the circumstances. It is quite clear that although the Field Master sent back word not to jump the particular jump in question word does not always get back to all the participants and that one hunts of one’s free will. It is noted also that the particular horse the plaintiff was using on the day in question had done one-day cross country hunting prior to that and it was assumed that she would not hunt on that horse given that it was its first day of an actual hunt. From the perspective of the hunt no other action could have been taken.
47. Taking into account the evidence given of the high level of unpredictability which was described as a feature of foxhunting, in the nature of the sport, and forming a big attraction to this sport, and that the use of red flags was not seen as a feature of the sport. Thus, the high bar required to prove negligence or reasonable foreseeability has not been reached. The court hereby dismisses the plaintiff’s claim.
Carolan v The Board of Management of St Ciaran’s National School
[2006] IEHC 416 (06 July 2006)
MR. JUSTICE FEENEY: This is a claim brought by the
plaintiff for damages for
personal injury arising from an accident that occurred to the
plaintiff at the defendant’s school on 13 May 1997. The
plaintiff was on that date some five weeks short of her 13th
birthday and was in sixth class. She had started in that
school at the beginning of fifth class and was nearing the
end of her second full year as a student of that school.
During both her years in the school, the plaintiff’s teacher
was Mr. John Walsh. Mr. Walsh was an experienced teacher,
having graduated from St. Patrick’s in Drumcondra in 1974,
and by the time of the accident had been continuously working
as a primary school teacher for over 20 years, and by the
time he came to give evidence for some 32 years.
The system as St. Ciaran’s was that one teacher taught all
subjects to a particular class. Mr. Walsh was Aoife
Carrollan’s teacher and he covered everything in the
curriculum including physical education. At the time of the
accident Mr. Walsh was taking a PE class which was due to
last for about one hour starting at 1:30 p.m. and ending
shortly before the end of the school day at 2:40 p.m. The
accident occurred during a game of “dodgeball” which was part
of the PE class. The form of “dodgeball” being used was a
particular variation used in the school. During the course
of the game, which had been going on for some time, the
plaintiff had to run or traverse the width of the room and
had to avoid being hit by any of three sponge balls being
thrown by three classmates.
They, the classmates, were standing to the side as the
plaintiff crossed the floor and the plaintiff had to avoid
being hit by dodging, weaving, stopping and running. The
object of the game was to avoid being hit and to cross the
room. If a pupil was hit that pupil was out, and went to sit
on a bench. The plaintiff was the last successful pupil,
that is un-hit, whilst crossing the room, and had to make one
more successful crossing to finish the game. The plaintiff
had made some three or four crossings without being hit to be
the last pupil in the game.
In making the final crossing the plaintiff avoided the first
ball and in trying to avoid either the second or the third,
the plaintiff is uncertain in her evidence as to which, she
was ducking or weaving and came to a stop and in moving off
again to try and reach the far side, she stumbled or tripped
over her own legs and fell to the ground on her left arm.
That fall caused a severe injury to the left arm and she had
a fracture of both her ulna and radius. The injury was so
severe as to require open reduction and internal fixation and
thereafter a further operation to remove the metal plate.
The plaintiff has been left with two extensive scars on
either side of her forearm, one of approximately eight inches
in the length and the other of approximately six inches.
The above factual description of the accident is not disputed
and is accepted as an accurate description of how the
accident occurred. There are a small number of factual
matters in dispute; there is no issue as at suitability of
the premises or in particular as to the suitability of the
floor surface and this was expressly acknowledged in the
opening of the plaintiff’s case. It was also acknowledged
that there was no issue in relation to supervision.
The facts that are in issue are whether the plaintiff had
ever previously been involved in a game of “dodgeball” and
secondly, whether the game was being used as a warm up at the
start of the class period rather than towards the end of the
period following an independent warm up. The evidence
concerning whether or not the plaintiff had taken part in the
this “dodgeball” game on a previous occasion or not is
somewhat uncertain. The plaintiff believes it was her first
experience of the game. The teacher, Mr. Walsh, indicated
that had the game was a regular feature of a PE class and
that the plaintiff, in all probability, would have
participated on a number of occasions during her time with
him in fifth and sixth classes.
The plaintiff had certain absences during fifth class due to
ill health but had been a regular attender during sixth
class. On balance I would favour the evidence which suggests
that the plaintiff would have participated in this type of
game on other occasions. It is unlikely that she would have
missed all the occasions during fifth and sixth class when it
was played. However this finding is not of particular
significance as it is apparent that the variation of
“dodgeball” used in the school had simple and straightforward
rules of a basic kind and by the time of the accident the
plaintiff would have been aware of the format of the game or
activity.
Also there is no case made to suggest that a lack of
understanding of the format caused the accident. It is the
format itself rather than a knowledge of same which is
criticised by the plaintiff. The issue of the use of the
game or activity as a warm up is by and large academic. It
is extensively questioned as a suitable warm up exercise in
the report of the plaintiff’s Physical Education expert, Ms.
Judith Wooton. However, the balance of evidence tends to
support the view that there was an independent warm up of the
type approved by Ms. Wooton. The plaintiff and her classmate
do not recall one on that day, but the evidence of Mr. Walsh
indicates that there was an independent warm up. The Court
prefers that evidence and the lack of recall on the part of
the plaintiff and her classmate can be explained by the
passage of time.
The Court accepts that it is likely that the accident
happened towards the end of the PE class as suggested by
Mr. Walsh, rather than early on as contended for by the
plaintiff. The teacher’s evidence that the Head Master was
sent for after the accident and that when he arrived, the
class time was nearly over. And that evidence is strongly
supportive of the accident happening near 2:30 p.m. after the
majority of the class time had passed. The Court favors the
evidence that there was an independent warm up. Even if
there was not, the activity involved in the class up to the
time of the accident or even the limited activity involved in
the particular “dodgeball” game would have been sufficient
for a warm up. Also the type of injury and accident do not
relate to the existence or non-existence of a warm up.
The real criticism put forward on behalf of the plaintiff was
that the variation of “dodgeball” used in the school or its
particular format was unsafe and should have been identified
as such. And it was unsafe because the throwers threw from a
right angle position or sideways-on to the direction that the
plaintiff was required to run. It is suggested that by
having the three throwers sideways-on to the direction the
plaintiff was travelling, that this caused a so called
conflict in the focus of attention. By having a conflict of
attention between the travelling forward and the looking
sideways to see the balls approaching, together with the
added likelihood of the participant moving or jerking her or
his head together with the pressure to succeed, resulted in a
situation where there was a clear risk of a participant
losing balance and tripping or falling. This contention was
support bid the evidence of Ms. Wooton. The Court does not
have regard to the engineer’s view on the appropriateness of
the activity as it considers his expertise to be of marginal,
if any, relevance to such matters.
The defendant’s case is that this was a simple straight
forward game or activity, suitable for 12 year old with no
significant risk of injury over and above the risk inherent
in physical activity, where a trip or fall can occur. And
that the format was safe and shown to be safe by 20 years of
use and there being only one accident, that is the accident
the subject matter of this case. This view was supported by
the evidence of Dr. Joseph Lennon.
The Court has considered both experts’ evidence and the
evidence as to fact, and is of the clear view that the more
rational and credible evidence of expert opinion is that of the
defendants. The experts evidence called by the defendant is
in the Court’s view compelling in support of an absence of
negligence on the part of the defendant. This is not a case
of defective premises or equipment or lack of supervision,
but rather a claim that a particular activity or game was
unsuitable, likely to cause injury or as stated by the
plaintiff’s counsel, inherently dangerous and ill-considered
as being suitable for 12 year-olds. The Court is of the view
that this contention is based upon a contrived examination
and analysis of the game or activity.
The criticism from the plaintiff’s expert lacks reality and
disregards many activities and games requiring a conflict of
focus; it disregards the simple and straight forward nature
of the activity or game compared to other more complicated
games suitable for and played by 12 years old, such as
football or basketball, and it also disregards 20 years of
safe use of the game.
The Court is satisfied that the facts of this case show that
the plaintiff dodged and weaved to avoid a ball she saw
approaching and came to a stop. That appears to be common
case, and when taking off again she tripped herself. That
unfortunate event is a type of risk or event inherent in
physical activity and it is the Court’s view that the school
did not impose an unsuitable or unsafe activity but rather
insured that an activity suitably and reasonably safe was
being followed. The Court is of the view that such activity
properly formed part of a PE class.
The Court found Dr. Lennon’s evidence and opinion credible,
practical, and based on true experience. It accepts the
evidence from him that this was a simple, safe game suitable
for the premises and pupils. As he said, “the game of the
simplest and safest form”. The Court is satisfied that the
theory of risk emanating from dual focus is unreal and
contrived. What happened here was an accident which can
arise during any physical activity. All physical activity
carries some risk; the Court is satisfied that the chosen
activity did not unreasonably or unsafely create a risk and
that the game was properly chosen for use and appropriately
considered by the teachers, both as to use and format. There
is, as Dr. Lennon says, a risk of falling in any moving game.
The risk is incidental, not inherent. And the Court is the
of the view that it certainly cannot be categorised as this
game being inherently dangerous. Physical activity is both
an appropriate and vital part of the school curriculum and
the activity chosen here was a simple and straight forward
game that could be safely played. The Court is fully
satisfied that there was no negligence or lack of care on the
part of the defendant and therefore dismisses the plaintiff’s
claim.
the judgment was then concluded
UK Cases
Glasgow Corporation v Muir
House of Lords [1943] 2 All ER 44
LORD MACMILLAN: . . .
My Lords, the degree of care for the safety of others which the law requires human beings to observe in the conduct of their affairs varies according to the circumstances. There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved. Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in the ordinary routine of daily life. It is no doubt true that in every act which an individual performs there is present a potentiality of injury to others. All things are possible and, indeed, it has become proverbial that the unexpected always happens. But while the precept alterum non laedere requires us to abstain from intentionally injuring others, it does not impose liability for every injury which our conduct may occasion. In Scotland, at any rate, it has never been a maxim of the law that a man acts at his peril. Legal liability is limited to those consequences of our acts which a reasonable man of ordinary intelligence and experience so acting would have in contemplation . . .
The standard of foresight of the reasonable man is in one sense an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Some persons are by nature unduly timorous and imagine every path beset with lions; others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from over-apprehension and from over-confidence. But there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left to the judge to decide what in the circumstances of the particular case the reasonable man would have had in contemplation and what accordingly the party sought to be made liable ought to have foreseen. Here there is room for diversity of view, as, indeed, is well illustrated in the present case. What to one judge may seem far-fetched may seem to another both natural and probable.
. . . The question, as I see it, is whether Mrs Alexander, when she was
asked to allow a tea urn to be brought into the premises under her charge, ought to have had in mind that it would require to be carried through a narrow passage in which there were a number of children and that there would be a risk of the contents of the urn being spilt and scalding some of the children. If as a reasonable person she ought to have had these considerations in mind, was it her duty to require that she should be informed of the arrival of the urn and, before allowing it to be carried through the narrow passage, to clear all the children out of it, in case they might be splashed with scalding water?
The urn was an ordinary medium-sized cylindrical vessel of about 15 ins. diameter and about 16 ins. in height, made of light sheet metal with a fitting lid, which was closed. It had a handle at each side. Its capacity was about 9
gallons, but it was only a third or a half full It was not in itself an inherently dangerous thing and could be carried quite safely and easily by two persons exercising ordinary care. A caterer, called as a witness on behalf of the pursuers, who had large experience of the use of such urns, said that he had never had a mishap with an urn while it was being carried. The urn was in charge of two responsible persons, McDonald, the church officer, and the lad Taylor, who carried it between them. When they entered the passage-way they called out to the children there congregated to keep out of the way and the children drew back to let them pass. Taylor who held the front handle had safely passed the children when, for some unexplained reason, McDonald loosened hold of the other handle, the urn tilted over and some of its contents were spilt, scalding several of the children who were standing by. The urn was not upset but came to the ground on its base.
In my opinion, Mrs Alexander had no reason to anticipate that such an event would happen as a consequence of granting permission for a tea urn to be carried through the passage-way where the children were congregated, and consequently there was no duty incumbent on her to take precautions against the occurrence of such an event. I think that she was entitled to assume that the urn would be in charge of responsible persons (as it was) who would have regard for the safety of the children in the passage (as they did have regard) and that the urn would be carried with ordinary care, in which case its transit would occasion no danger to bystanders. The pursuers have left quite unexplained the actual cause of the accident. The immediate cause was not the carrying of the urn through the passage, but McDonald’s losing grip of his handle. How he came to do so is entirely a matter of speculation. He may
have stumbled or he may have suffered a temporary muscular failure. We do not know and the pursuers have not chosen to enlighten us by calling McDonald as a witness. Yet it is argued that Mrs Alexander ought to have foreseen the possibility, nay, the reasonable probability of an occurrence the nature of which is unascertained. Suppose that McDonald let go his handle through carelessness. Was Mrs Alexander bound to foresee this as reasonably probable and to take precautions against the possible consequences? I do not think so. The only ground on which the view of the majority of the judges of the first division can be justified is that Mrs Alexander ought to have foreseen that some accidental injury might happen to the children in the passage if she allowed an urn containing hot tea to be carried through the passage and ought, therefore, to have cleared out the children entirely during its transit, which Lord Moncrieff describes as ‘the only effective step’. With all respect I think that this would impose upon Mrs Alexander a degree of care higher than the law exacts. . . . As, in my opinion, no negligence has been established I agree with what I understand to be the view of all your Lordships that the appeal should be allowed and the judgment of the Lord Ordinary restored.
Bolton v Stone
House of Lords [1951] 1 All ER 1078
LORD OAKSEY:
Cricket has been played for about ninety years on the ground in question and no ball has been proved to have struck anyone on the highways near the ground until the respondent was struck, nor has there been any complaint to the appellants. In such circumstances was it the duty of the appellants, who are the committee of the club, to take some special precautions other than those they did take to prevent such an accident as happened? The standard of care in the law of negligence is the standard of an ordinarily careful man, but, in my opinion, an ordinarily careful man does not take precautions against every foreseeable risk. He can, of course, foresee the possibility of many risks, but life would be almost impossible if he were to attempt to take precautions against every risk which he can foresee. He takes precautions against risks which are reasonably likely to happen. Many foreseeable risks are extremely unlikely to happen and cannot be guarded against except by almost complete isolation. The ordinarily prudent owner of a dog does not keep his dog always on a lead on a country highway for fear it may cause injury to a passing motor cyclist, nor does the ordinarily prudent pedestrian avoid the use of the highway for fear of skidding motor cars. It may very well be that after this accident the ordinarily prudent committee man of a similar cricket ground would take some further precaution, but that is not to say that he would have taken a similar precaution before the accident . . .
LORD REID:
respondent might possibly occur during one of the appellants’ cricket matches. Balls had been driven into the public road from time to time, and it was obvious that if a person happened to be where a ball fell that person would receive injuries which might or might not be serious. On the other hand, it was plain that the chance of that happening was small. The exact number of times a ball has been driven into the road is not known, but it is not proved that this has happened more than about six times in about thirty years. If I assume that it has happened on the average once in three seasons I shall be doing no injustice to the respondent’s case. Then there has to be considered the chance of a person being hit by a ball falling in the road. The road appears to be an ordinary side road giving access to a number of private houses, and there is no evidence to suggest that the traffic on this road is other than what one might expect on such a road. On the whole of that part of the road where a ball could fall there would often be nobody and seldom any great number of people. It follows that the chances of a person ever being struck even in a long period of years was very small.
This case, therefore, raises sharply the question what is the nature and extent of the duty of a person who promotes on his land operations which may cause damage to persons on an adjoining highway. Is it that he must not carry out or permit an operation which he knows or ought to know clearly can cause such damage, however improbable that result may be, or is it that he is only bound to take into account the possibility of such damage if such damage is a likely or probable consequence of what he does or permits, or if the risk of damage is such that a reasonable man, careful of the safety of his neighbour, would regard that risk as material? I do not know of any case where this question has had to be decided or even where it has been fully discussed. Of course there are many cases in which somewhat similar questions have arisen, but, generally speaking, if injury to another person from the defendants’ acts is reasonably foreseeable the chance that injury will result is substantial and it does not matter in which way the duty is stated. In such cases I do not think that much assistance is to be got from analysing the language which a judge has used. More assistance is to be got from cases where judges have clearly chosen their language with care in setting out a principle, but even so, statements of the law must be read in light of the facts of the particular case. Nevertheless, making all allowances for this, I do find at least a tendency to base duty rather on the likelihood of damage to others than on its foreseeability alone . . . I think that reasonable men do, in fact,
take into account the degree of risk and do not act on a bare possibility as they would if the risk were more substantial . . .
Counsel for the respondent in the present case had to put his case so high as to say that, at least as soon as one ball had been driven into the road in the ordinary course of a match, the appellants could and should have realised that that might happen again, and that, if it did, someone might be injured, and that that was enough to put on the appellants a duty to take steps to prevent such an occurrence. If the true test is foreseeability alone I think that must be so. Once a ball has been driven on to a road without there being anything extraordinary to account for the fact, there is clearly a risk that another will follow and if it does there is clearly a chance, small though it may be, that somebody may be injured. On the theory that it is foreseeability alone that matters it would be irrelevant to consider how often a ball might be expected to land in the road and it would not matter whether the road was the busiest street or the quietest country lane. The only difference between these cases is in the degree of risk. It would take a good deal to make me believe that the law has departed too far from the standards which guide ordinary careful people in ordinary life. In the crowded conditions of modern life even the most careful person cannot avoid creating some risks and accepting others. What a man must not do, and what I think a careful man tries not to do, is to create a risk which is substantial. Of course, there are numerous cases where special circumstances require that a higher standard shall be observed and where that is recognised by the law, but I do not think that this case comes within any such special category . . . In my judgment, the test to be applied here is whether the risk of damage to a person on the road was so small that a reasonable man in the position of the appellants, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent the danger. In considering the matter I think that it would be right to take into account, not only how remote is the chance that a person might be struck, but also how serious the consequences are likely to be if a person is struck, but I do not think that it would be right to take into account the difficulty of remedial measures. If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all. I think that this is in substance the test which Oliver J applied in this case. He considered whether the appellants’ ground was large enough to be safe for all practical purposes and held that it was. This is a question, not of law, but of fact and degree. It is not an easy question, and it is one on which opinions
may well differ. I can only say that, having given the whole matter repeated and anxious consideration, I find myself unable to decide this question in favour of the respondent. I think, however, that this case is not far from the borderline. If this appeal is allowed, that does not, in my judgment, mean that in every case where cricket has been played on a ground for a number of years without accident or complaint those who organise matches there are safe to go on in reliance on past immunity. I would have reached a different conclusion if I had thought that the risk here had been other than extremely small because I do not think that a reasonable man, considering the matter from the point of view of safety, would or should disregard any risk unless it is extremely small.
This case was also argued as a case of nuisance, but counsel for the respondent admitted that he could not succeed on that ground if the case on negligence failed. I, therefore, find it unnecessary to deal with the question of nuisance and I reserve my opinion as to what constitutes nuisance in cases of this character. In my judgment, the appeal should be allowed.
The Wagon Mound (No 2), Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd
Judicial Committee of the Privy Council [1966] UKPC 10, [1966] 2 All ER 709
LORD REID: . . .
This is an appeal from a judgment of Walsh J,2 dated 10 October 1963, in the Supreme Court of New South Wales (Commercial Causes) by which he awarded to the respondents sums of £80,000 and £1,000 in respect of damage from fire sustained by their vessels, Corrimal and Audrey D, on 1 November 1951. These vessels were then at Sheerlegs Wharf, Morts Bay, in Sydney Harbour undergoing repairs. The appellant was charterer by demise of a vessel, the Wagon Mound, which in the early hours of 30 October 1951, had been taking in bunkering oil from Caltex Wharf not far from Sheerlegs Wharf. By reason of carelessness of the Wagon Mound engineers a large quantity of this oil overflowed from the Wagon Mound on to the surface of the water. Some hours later much of the oil had drifted to and accumulated round Sheerlegs Wharf and the respondents’ vessels. About 2 p.m. on 1 November this oil was set alight: the fire spread rapidly and caused extensive damage to the wharf and to the respondents’ vessels.
An action was raised against the present appellant by the owners of Sheerlegs Wharf on the ground of negligence. On appeal to the Board it was held that the plaintiffs were not entitled to recover on the ground that it was not foreseeable that such oil on the surface of the water could be set alight
(Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd).3 Their lordships will refer to this case as the Wagon Mound (No. 1). The issue of
nuisance was also raised but their lordships did not deal with it: they remitted this issue to the Supreme Court and their lordships now understand that the matter was not pursued there in that case.
In the present case the respondents sue alternatively in nuisance and in
negligence. Walsh J4 had found in their favour in nuisance but against them in negligence. Before their lordships the appellant appeals against his decision on nuisance and the respondents appeal against his decision on negligence. Their lordships are indebted to that learned judge for the full and
careful survey of the evidence which is set out in his judgment.5 Few of his findings of fact have been attacked, and their lordships do not find it necessary to set out or deal with the evidence at any length; but it is desirable to give some explanation of how the fire started before setting out the learned judge’s findings.
In the course of repairing the respondents’ vessels the Morts Dock Co, the owners of Sheerlegs Wharf, were carrying out oxy-acetylene welding and cutting. This work was apt to cause pieces or drops of hot metal to fly off and fall in the sea. So when their manager arrived on the morning of 30 October and saw the thick scum of oil round the Wharf, he was apprehensive of fire danger and he stopped the work while he took advice. He consulted the manager of Caltex Wharf and, after some further consultation, he was assured that he was safe to proceed: so he did so, and the repair work was carried on normally until the fire broke out on 1 November. Oil of this character with a flash point of 170°F is extremely difficult to ignite in the open; but we now know that that is not impossible. There is no certainty about how this oil was set alight, but the most probable explanation, accepted by Walsh J, is that there was floating in the oil-covered water some object supporting a piece of inflammable material, and that a hot piece of metal fell on it when it burned for a sufficient time to ignite the surrounding oil.
The findings of the learned trial judge are as follows:6
`(i) Reasonable people in the position of the officers of the Wagon
Mound would regard furnace oil as very difficult to ignite on water. `OD Their personal experience would probably have been that this had
very rarely happened.
`OH) If they had given attention to the risk of fire from the spillage, they would have regarded it as a possibility, but one which could become an actuality only in very exceptional circumstances.
`(iv) They would have considered the chances of the required exceptional circumstances happening whilst the oil remained spread on the harbour waters, as being remote.
`(v) I find that the occurrence of damage to property as a result of the spillage, was not reasonably foreseeable by those for whose acts would be responsible.
`(vi) I find that the spillage of oil was brought about by the careless conduct of persons for whose acts [the appellant] would be responsible.
`(vii) I find that the spillage of oil was a cause of damage to the property of each of .
`(viii)Having regard to those findings, and because of finding (v), I hold that the claim of each of …. framed in negligence fails.’ .
It is now necessary to turn to the respondents’ submission that the trial judge was wrong in holding that damage from fire was not reasonably foreseeable.
In Wagon Mound (No. 1)7 the finding on which the Board proceeded was that of the trial judge:
`. . . did not know and could not reasonably be expected to have known that oil was capable of being set afire when spread on water.’
In the present case the evidence led was substantially different from the
evidence led in Wagon Mound (No. 1)8 and the findings of Walsh J9 are significantly different. That is not due to there having been any failure by the
plaintiffs in Wagon Mound (No. 1)8 in preparing and presenting their case. The plaintiffs there were no doubt embarrassed by a difficulty which does not affect the present plaintiffs. The outbreak of the fire was consequent on the
act of the manager of the plaintiffs in Wagon Mound (No. 1)8 in resuming oxy-acetylene welding and cutting while the wharf was surrounded by this oil. So if the plaintiffs in the former case had set out to prove that it was foreseeable by the engineers of the Wagon Mound that this oil could be set alight, they might have had difficulty in parrying the reply that then this must also have been foreseeable by their manager. Then there would have been contributory negligence and at that time contributory negligence was a complete defence in New South Wales.
The crucial finding of Walsh J1° in this case is in finding (v): that the
damage was ‘not reasonably foreseeable by those for whose acts the defendant would be responsible.’ That is not a primary finding of fact but an inference from the other findings, and it is clear from the learned judge’s judgment that in drawing this inference he was to a large extent influenced by his view of the law. The vital parts of the findings of fact which have already been set out in full are (i) that the officers of the Wagon Mound ‘would regard furnace oil as very difficult to ignite on water’—not that they would regard this as impossible: (ii) that their experience would probably have been `that this had very rarely happened’—not that they would never have heard of a case where it had happened, and
(iii) that they would have regarded it as a ‘possibility, but one which could become an actuality only in very exceptional circumstances’—not, as in
Wagon Mound (No. 1),8 that they could not reasonably be expected to have known that this oil was capable of being set afire when spread on water. The question which must now be determined is whether these differences between the findings in the two cases do or do not lead to different results in law.
In Wagon Mound (No. 1)8 the Board were not concerned with degrees of foreseeability because the finding was that the fire was not foreseeable at all.
So Viscount Simondsil had no cause to amplify the statement that the `essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen’. Here the findings show, however, that some risk of fire would have been present to the mind of a reasonable man in the shoes of the ship’s chief engineer. So the first question must be what is the precise meaning to be attached in this context to the words ‘foreseeable’ and ‘reasonably foreseeable’.
Before Bolton v Stone12 the cases had fallen into two classes: (i) those where, before the event, the risk of its happening would have been regarded as unreal either because the event would have been thought to be physically impossible or because the possibility of its happening would have been regarded as so fantastic or far-fetched that no reasonable man would have paid any attention to it—`a mere possibility which would never occur to the mind of a reasonable man’ (per Lord Dunedin in Fardon v Harcourt
Rivington13)—or (ii) those where there was a real and substantial risk or chance that something like the event which happens might occur and then the reasonable man would have taken the steps necessary to eliminate the risk.
Bolton v Stone14 posed a new problem. There a member of a visiting team
drove a cricket ball out of the ground on to an unfrequented adjacent public road and it struck and severely injured a lady who happened to be standing in the road. That it might happen that a ball would be driven on to this road could not have been said to be a fantastic or far-fetched possibility: according to the evidence it had happened about six times in twenty-eight years. Moreover it could not have been said to be a far-fetched or fantastic possibility that such a ball would strike someone in the road: people did pass along the road from time to time. So it could not have been said that, on any ordinary meaning of the words, the fact that a ball might strike a person in the road was not foreseeable or reasonably foreseeable. It was plainly foreseeable; but the chance of its happening in the foreseeable future was infinitesimal. A mathematician given the data could have worked out that it was only likely to happen once in so many thousand years. The House of Lords held that the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it and taking no steps to eliminate it.
It does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so: e.g. that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity there can be
little doubt but that Bolton v Stone14 would have been decided differently. In
their lordships’ judgment Bolton v Stone14 did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.
In the present case there was no justification whatever for discharging the oil into Sydney Harbour. Not only was it an offence to do so, but also it involved considerable loss financially. If the ship’s engineer had thought about the matter there could have been no question of balancing the advantages and disadvantages. From every point of view it was both his duty and his interest to stop the discharge immediately.
It follows that in their lordships’ view the only question is whether a reasonable man having the knowledge and experience to be expected of the chief engineer of the Wagon Mound would have known that there was a real risk of the oil on the water catching fire in some way: if it did, serious damage to ships or other property was not only foreseeable but very likely. Their lordships do not dissent from the view of the trial judge that the
possibilities of damage15 ‘must be significant enough in a practical sense to require a reasonable man to guard against them’, but they think that he may
have misdirected himself in saying16
`there does seem to be a real practical difficulty, assuming that some risk of fire damage was foreseeable, but not a high one, in making a factual judgment as to whether this risk was sufficient to attract liability if damage should occur.’
In this difficult chapter of the law decisions are not infrequently taken to apply to circumstances far removed from the facts which give rise to them, and it would seem that here too much reliance has been placed on some
observations in Bolton v Stonel7 and similar observations in other cases.
In their lordships’ view a properly qualified and alert chief engineer would have realised there was a real risk here, and they do not understand Walsh J to deny that; but he appears to have held that, if a real risk can properly be described as remote, it must then be held to be not reasonably foreseeable. That is a possible interpretation of some of the authorities; but this is still an open question and on principle their lordships cannot accept this view. If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage and required no expense.
In the present case the evidence shows that the discharge of so much oil on to the water must have taken a considerable time, and a vigilant ship’s engineer would have noticed the discharge at an early stage. The findings show that he ought to have known that it is possible to ignite this kind of oil on water, and that the ship’s engineer probably ought to have known that this had in fact happened before. The most that can be said to justify inaction is that he would have known that this could only happen in very exceptional
circumstances; but that does not mean that a reasonable man would dismiss such risk from his mind and do nothing when it was so easy to prevent it. If it is clear that the reasonable man would have realised or foreseen and prevented the risk, then it must follow that the appellants are liable in damages. The learned judge found this a difficult case: he said that this matter
is18 ‘one on which different minds would come to different conclusions’. Taking a rather different view of the law from that of the learned judge, their lordships must hold that the respondents are entitled to succeed on this issue
Whippey v Jones Court of Appeal
[2009] EWCA Civ 452
AIKENS LJ:
13 In this case, Mr Whippey clearly owed a duty of care to Mr Jones with regard to the way Mr Whippey handled Hector in the public park in Leeds that afternoon and the judge so found. It is also clear from the judge’s findings that the encounter between Hector and Mr Jones directly caused the injuries that Mr Jones suffered and, obviously, those injuries were not too remote to be recoverable as a matter of law. So the only issue on which there can be argument is whether the judge was correct to conclude that Mr Whippey’s conduct in handling Hector that day fell below the standard to be expected of a reasonable handler of Hector in the circumstances of that afternoon.
14 The effect of the judgment is that the judge found that Mr Whippey had failed to take sufficient care to ensure that there were no other people about before he let Hector off the lead. He found that, as a result, in the circumstances existing that afternoon, Mr Whippey had, on that one occasion, fallen below the standard to be expected of a reasonable handler of Hector.
15 The only one part of the judgment that can be attacked in this court is, I think, the statement of law in the first sentence of para 17 of the judgment. The judge there set out the test for the standard of care to be expected of a reasonable “carer” of a dog with the characteristics of Hector in the circumstances in which Mr Whippey found himself that afternoon. The judge said: “. . . the responsible carer must ensure, and take reasonable care to ensure, that a dog does not put people in a position where they might reasonably foreseeably suffer some sort of injury.”
16 Did the judge there correctly state the legal test? The question of
whether a person has acted negligently is not answered simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and then testing it against an objective standard of “reasonable behaviour”. Before holding that a person’s standard of care has fallen below the objective standard expected and so finding that he acted negligently, the court must be satisfied that a reasonable person in the position of the Defendant (ie the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the Defendant) to anticipate it.
17 This is clear from classic statements of the law on the standard of care that is expected of people in circumstances where they owe a duty of care to
others. In Donoghue v Stevenson19 Lord Atkin stated . . . the standard of care that a person must adopt is: “. . . to take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour”. I would emphasise the word “likely”. In Bolton v Stone2° (the case of the cricket ball that was hit out of the ground and injured a passer by), Lord Porter elaborated Lord Atkin’s statement by saying . . . :
“. . . it is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must be also such as a reasonable man would contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it”.
In the same case, Lord Normand referred to statements of various of their
Lordships in Glasgow Corporation v Muir21 concerning the proper test to define the standard of care that must be adopted by the reasonable man. Lord Normand agreed with a statement of Lord Clauson in the Glasgow Corporation case . . . that the test is whether the person owing the duty of care “had in contemplation that, unless some further precautions were taken, such an unfortunate occurrence as that which in fact took place might well be expected”.
18 In my judgment, the test that the judge applied in the first sentence of para 17 of his judgment does not accurately reflect those statements of the law. The judge did not place sufficient emphasis on the need to establish that there was such a probability of physical injury occurring to another park user,
such as Mr Jones, by Hector making physical contact with him as he did, that Mr Whippey, acting as a reasonable dog handler in the circumstances, ought to have anticipated that when deciding to let Hector off the lead.
19 In my opinion, had the judge posed the correct question, he could only have concluded, on the facts found and on the unchallenged evidence of Mr Whippey, that a reasonable man in Mr Whippey’s position would not anticipate that physical injury to another adult park user such as Mr Jones would be caused by Hector physically contacting him. As already noted, the judge had found expressly that Hector had no tendency to jump up at other people; at the most he stopped and barked at people some five or ten feet away. There was no reason why Mr Whippey, as a reasonable dog handler in the park, should therefore have anticipated that if Hector was let off the lead when some other adult was about, physical harm to that adult would result from Hector bounding up to him and contacting him.
Philips v William Whiteley Ltd
King’s Bench Division [1938] 1 All ER 566
GODDARD J:
In this case, the first thing that I have to consider is the standard of care demanded from Mr Couzens—or, I should say, from Whiteleys, because Whiteleys were the people who undertook to do the piercing. It is not easy in any case to lay down a particular canon or standard by which the care can be judged, but, while it is admitted here, and admitted on all hands, that Mr Couzens did not use the same precautions of procuring an aseptic condition of his instruments as a doctor or a surgeon would use, I do not think that he could be called upon to use that degree of care. Whiteleys have to see that whoever they employ for the operation uses the standard of care and skill that may be expected from a jeweller, and, of course, if the operation is negligently performed—if, for instance, a wholly unsuitable instrument were used, so that the ear was badly torn, or something of that sort happened—undoubtedly they would be liable. So, too, if they did not take that degree of
care to see that the instruments were clean which one would expect a person of the training and the standing of a jeweller to use. To say, however, that a jeweller warrants or undertakes that he will use instruments which have the degree of surgical cleanliness that a surgeon brings about when he is going to perform a serious operation, or indeed any operation, is, I think, putting the matter too high. The doctors all seem to agree in this case that, if a lady went to a surgeon for the piercing of her ears, he would render his instruments sterile. After all, however, aseptic surgery is a thing of very modern growth. As anybody who has read the life of Lord Lister or the history of medicine in the last fifty or sixty years knows, it is not so many years ago that the best surgeon in the land knew nothing about even antiseptic surgery. Then antiseptic surgery was introduced, and that was followed by aseptic surgery. I do not think that a jeweller holds himself out as a surgeon or professes that he is going to conduct the operation of piercing a lady’s ears by means of aseptic surgery, about which it is not to be supposed that he knows anything.
If a person wants to ensure that the operation of piercing her ears is going to be carried out with that proportion of skill and so forth that a Fellow of the Royal College of Surgeons would use, she must go to a surgeon. If she goes to a jeweller, she must expect that he will carry it out in the way that one would expect a jeweller to carry it out. One would expect that he would wash his instruments. One would expect that he would take some means of disinfecting his instrument, just in the same way as one knows that the ordinary layman, when he is going to use a needle to prick a blister or prick a little gathering on a finger, generally takes the precaution to put the needle in a flame, as I think Mr Couzens did. I accept the evidence of Mr Couzens as to what he says he did on this occasion—how he put his instrument in a flame before he left his shop, and how he washed his hands, and so forth. I think that he did. I see no reason to suppose that he is not telling me the absolute truth when he says what he did, and, as Dr Pritchard, who holds the very high qualification of a Fellow of the Royal College of Physicians, said, for all practical purposes that is enough. That is to say, for the ordinary every-day matters that would be regarded as enough. It is not a degree of surgical cleanliness, which is a very different thing from ordinary cleanliness. It is not the cleanliness which a doctor would insist upon, because, as I say, Mr Couzens is not a doctor. He was known not to be a doctor. One does not go to a jeweller to get one’s ears attended to if one requires to have a doctor in attendance to do it. If one wants a doctor in attendance, one goes to his
consulting room or one has him come to see one. I do not see any ground here for holding that Mr Couzens was negligent in the way in which he performed this operation. It might be better, and I think that it probably would, if he boiled his instrument beforehand at his place, or if he took a spirit lamp with him and boiled his instrument at the time, but in view of the medical evidence, the evidence of Dr Pritchard, which I accept, I see no ground for holding that Mr Couzens departed from the standard of care which you would expect that a man of his position and his training, being what he held himself out to be, was required to possess. Therefore, the charge of negligence fails.
Even if I am wrong in that, and even if another court were to take the view that a person who undertakes to pierce an ear is bound, although he holds himself out to be no more than a jeweller, to take all the precautions that a trained surgeon would take, I am quite unable, on the evidence, to find that the abscess from which Mrs Philips suffered was due to any action of Mr Couzens.
Nettleship v Weston
Court of Appeal [1971] 3 All ER 581
MEGAW LJ: . . .
The important question of principle which arises is whether, because of Mr Nettleship’s knowledge that Mrs Weston was not an experienced driver, the standard of care which was owed to him by her was lower than would otherwise have been the case.
In Insurance Comr v Joyce,22 Dixon J stated persuasively the view that there is, or may be, a ‘particular relation’ between the driver of a vehicle and his passenger resulting in a variation of the standard of duty owed by the
driver . . . He summarised the same principle in these words:23
`It appears to me that the circumstances in which the defendant accepts the plaintiff as a passenger and in which the plaintiff accepts the accommodation in the conveyance should determine the measure of duty
Theoretically, the principle as thus expounded is attractive. But, with very great respect, I venture to think that the theoretical attraction should yield to practical considerations.
As I see it, if this doctrine of varying standards were to be accepted as part of the law on these facts, it could not logically be confined to the duty of care owed by learner-drivers. There is no reason, in logic, why it should not operate in a much wider sphere. The disadvantages of the resulting unpredictability, uncertainty and, indeed, impossibility of arriving at fair and consistent decisions outweigh the advantages. The certainty of a general standard is preferable to the vagaries of a fluctuating standard.
As a first example of what is involved, consider the converse case: the standard of care (including skill) owed not by the driver to the passenger, but by the passenger-instructor to the learner-driver. Surely the same principle of varying standards, if it is a good principle, must be available also to the passenger, if he is sued by the driver for alleged breach of the duty of care in supervising the learner-driver. On this doctrine, the standard of care, or skill, owed by the instructor, vis-à-vis the driver, may vary according to the knowledge which the learner-driver had, at some moment of time, as to the skill and experience of the particular instructor. Indeed, if logic is to prevail, it would not necessarily be the knowledge of the driver which would be the criterion. It would be the expectation which the driver reasonably entertained
of the instructor’s skill and experience, if that reasonable expectation were greater than the actuality. Thus, if the learner-driver knew that the instructor had never tried his hand previously even at amateur instructing, or if, as may be the present case, the driver knew that the instructor’s experience was confined to two cases of amateur instructing some years previously, there would, under this doctrine, surely be a lower standard than if the driver knew or reasonably supposed that the instructor was a professional or that he had had substantial experience in the recent past. But what that standard would be, and how it would or should be assessed, I know not. For one has thus cut oneself adrift from the standard of the competent and experienced instructor, which up to now the law has required without regard to the particular personal skill, experience, physical characteristics or temperament of the individual instructor, and without regard to a third party’s knowledge or assessment of those qualities or characteristics.
Again, when one considers the requisite standard of care of the learner-driver, if this doctrine were to apply, would not logic irresistibly demand that there should be something more than a mere, single, conventional, standard applicable to anyone who falls into the category of learner-driver, i.e. of anyone who has not yet qualified for (or perhaps obtained) a full licence? That standard itself would necessarily vary over a wide range, not merely with the actual progress of the learner, but also with the passenger’s knowledge of that progress; or, rather, if the passenger has in fact over-estimated the driver’s progress, it would vary with the passenger’s reasonable assessment of that progress at the relevant time. The relevant time would not necessarily be the moment of the accident.
The question, what is the relevant time? would itself have to be resolved by reference to some principle. The instructor’s reasonable assessment of the skill and competence of the driver (and also the driver’s assessment of the instructor’s skill and competence) might alter drastically between the start of the first lesson and the start of a later lesson, or even in the course of one particular spell of driving. I suppose the principle would have to be that the relevant time is the last moment when the plaintiff (whether instructor or driver) could reasonably have refused to continue as passenger or driver in the light of his then knowledge. That factor in itself would introduce yet another element of difficulty, uncertainty and, I believe, serious anomaly. I for my part, with all respect, do not think that our legal process could successfully or satisfactorily cope with the task of fairly assessing, or
applying to the facts of a particular case, such varying standards, depending on such complex and elusive factors, including the assessment by the court, not merely of a particular person’s actual skill or experience, but also of another person’s knowledge or assessment of that skill or experience at a particular moment of time.
Again, if the principle of varying standards is to be accepted, why should it operate, in the field of driving motor vehicles, only up to the stage of the driver qualifying for a full licence? And why should it be limited to the quality of inexperience? If the passenger knows that his driver suffers from some relevant defect, physical or temperamental, which could reasonably be expected to affect the quality of his driving, why should not the same doctrine of varying standards apply? Dixon J thought it should apply. Logically there can be no distinction. If the passenger knows that his driver, though holding a full driving licence, is blind in one eye or has the habit of taking corners too fast, and if an accident happens which is attributable wholly or partly to that physical or that temperamental defect, why should not some lower standard apply vis-à-vis the fully informed passenger, if standards are to vary? Why should the doctrine, if it be part of the law, be limited to cases involving the driving of motor cars? Suppose that to the knowledge of the patient a young surgeon, whom the patient has chosen to operate on him, has only just qualified. If the operation goes wrong because of the surgeon’s inexperience, is there a defence on the basis that the standard of skill and care was lower than the standard of a competent and experienced surgeon? Does the young, newly-qualified, solicitor owe a lower standard of skill and care, when the client chooses to instruct him with knowledge of his inexperience?
True, these last two examples may fall within the sphere of contract; and a contract may have express terms which deal with the question, or it may have implied terms. But in relationships such as are involved in this case, I see no good reason why a different term should be implied where there is a contract from the term which the law should attach where there is, or may be, no contract. Of course, there may be a difference—not because of any technical distinction between cases which fall within the law of tort and those which fall within the law of contract—but because the very factor or factors which create the contractual relationship may be relevant on the question of the implication of terms . . .
In my judgment, in cases such as the present it is preferable that there
should be a reasonably certain and reasonably ascertainable standard of care, even if on occasion that may appear to work hardly against an inexperienced driver, or his insurers. The standard of care required by the law is the standard of the competent and experienced driver; and this is so, as defining the driver’s duty towards a passenger who knows of his experience, as much as towards a member of the public outside the car; and as much in civil as in criminal proceedings.
It is not a valid argument against such a principle that it attributes tortious liability to one who may not be morally blameworthy. For tortious liability has in many cases ceased to be based on moral blameworthiness. For example, there is no doubt whatever that if Mrs Weston had knocked down a pedestrian on the pavement when the accident occurred, she would have been liable to the pedestrian. Yet so far as any moral blame is concerned, no different considerations would apply in respect of the pedestrian from those which apply in respect of Mr Nettleship.
Mullins v Richards
Court of Appeal [1998] 1 All ER 920
HUTCHISON LJ…… On 29 February 1988 at Perry Beeches Secondary School in Birmingham two 15-year-old schoolgirls, Teresa Jane Mullin and Heidi Richards, who were friends and were sitting side by side at their desk, were engaged in playing around, hitting each other’s white plastic 30 cm rulers as though in a play sword fight, when one or other of the rulers snapped and a fragment of plastic entered Teresa’s right eye with the very unhappy result that she lost all useful sight in that eye, something that must be a source, I am sure, of great distress to her and her family.
Teresa brought proceedings against Heidi and the Birmingham City Council, who were the education authority, alleging negligence . . . My summary reflects the learned judge’s unchallenged findings of fact as well as the case pleaded by Heidi in her defence. The judge dismissed the claim against the authority, holding that the mathematics teacher, Miss Osborne, whose class was coming to an end when the mishap occurred, had not been guilty of negligence and the plaintiff does not appeal against that decision . . . However, the judge . . . concluded that …….had been guilty of negligence, that Teresa’s injury was the foreseeable result and that, accordingly, her claim against Heidi succeeded subject to a reduction of 50% for contributory negligence.
From that decision Heidi now appeals to this court . . .
So far as negligence is concerned, the relevant principles are well settled and I do not understand there to be any real difference between the views of counsel for the parties to this appeal. I would summarise the principles that govern liability in negligence in a case such as the present as follows. In order to succeed the plaintiff must show that the defendant did an act which it was reasonably foreseeable would cause injury to the plaintiff, that the relationship between the plaintiff and the defendant was such as to give rise to a duty of care, and that the act was one which caused injury to the plaintiff. In the present case, as it seems to me, no difficulty arose as to the second and third requirements because Teresa and Heidi were plainly in a sufficiently proximate relationship to give rise to a duty of care and the causation of the injury is not an issue. The argument centres on foreseeability. The test of
foreseeability is an objective one; but the fact that the first defendant was at the time a 15-year-old schoolgirl is not irrelevant. The question for the judge is not whether the actions of the defendant were such as an ordinarily prudent and reasonable adult in the defendant’s situation would have realised gave rise to a risk of injury, it is whether an ordinarily prudent and reasonable 15¬year-old schoolgirl in the defendant’s situation would have realised as much. In that connection both counsel referred us to, and relied upon, the Australian decision in McHale v Watson (1966) 115 CLR 199 esp at 213-214 in the judgment of Kitto J. I cite a portion of the passage I have referred to, all of which was cited to us by Mr Lee on behalf of the appellant, and which Mr Stephens has adopted as epitomising the correct approach:
`The standard of care being objective, it is no answer for him [a child], any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow-witted, quick-tempered, absent-minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard.’
Mr Stephens also cited to us a passage in the judgment of Owen J (at 234):
`. . . the standard by which his conduct is to be measured is not that to be expected of a reasonable adult but that reasonably to be expected of a child of the same age, intelligence and experience.’
I venture to question the word ‘intelligence’ in that sentence, but I understand Owen J to be making the same point essentially as was made by Kitto J. It is perhaps also material to have in mind the words of Salmon LJ in Gough v Thorne [1966] 3 All ER 398 at 400, [1966] 1 WLR 1387 at 1391, which is cited also by Mr Stephens, where he said:
`The question as to whether the plaintiff can be said to have been guilty of contributory negligence depends on whether any ordinary child of 131/2 can be expected to have done any more than this child did. I say “any ordinary child”. I do not mean a paragon of prudence, nor do I mean a scatter-brained child; but the ordinary girl of 131/2.’
I need say no more about that principle as to the way in which age affects the
assessment of negligence because counsel are agreed upon it and, despite the fact that we have been told that there has been a good deal of controversy in other jurisdictions and that there is no direct authority in this jurisdiction, the approach in McHale v Watson seems to me to have the advantage of obvious, indeed irrefutable, logic . . .
Applying those principles to the facts of the present case the central question to which this appeal gives rise is whether on the facts found by the judge and in the light of the evidence before him he was entitled to conclude that an ordinary, reasonable 15-year-old schoolgirl in the first defendant’s position would have appreciated that by participating to the extent that she did in a play fight, involving the use of plastic rulers as though they were swords, gave rise to a risk of injury to the plaintiff of the same general kind as she sustained. In that connection I emphasise that a mere possibility is not enough as passages in the well-known case of Bolton v Stone [1951] 1 All ER
1078, [1951] AC 850, to which Mr Lee24 helpfully referred us, make clear . . . at 1080, 1081 [1951] AC 850 at 857
Haley v London Electricity Board
House of Lords [1964] 3 All ER 185
LORD REID:
The trial judge held that what the respondents’ men did gave adequate warning to ordinary people with good sight, and I am not disposed to disagree with that . . .
On the other hand, if it was the duty of the respondents to have in mind the needs of blind or infirm pedestrians, I think that what they did was quite insufficient. Indeed the evidence shows that an obstacle attached to a heavy weight and only nine inches above the ground may well escape detection by a blind man’s stick and is for him a trap rather than a warning. So the question for your lordships’ decision is the nature and extend of the duty owed to pedestrians by persons who carry out operations on a city pavement. The respondents argue that they were only bound to have in mind or to safeguard ordinary able-bodied people and were under no obligation to give particular consideration to the blind or infirm. If that is right, it means that a blind or infirm person, who goes out alone goes at his peril. He may meet obstacles which are a danger to him, but not to those with good sight, because no one is under any obligation to remove or protect them; and if such an obstacle causes him injury he must suffer the damage in silence.
I could understand the respondents’ contention if it was based on an argument that it was not reasonably foreseeable that a blind person might pass along that pavement on that day; or that, although foreseeable, the chance of a blind man coming there was so small and the difficulty of affording protection to him so great that it would have been in the circumstances unreasonable to afford that protection. Those are well recognised grounds of defence; but in my judgment neither is open to the respondents in this case.
In deciding what is reasonably foreseeable one must have regard to common knowledge. We are all accustomed to meeting blind people walking alone with their white sticks on city pavements. No doubt there are many places open to the public where for one reason or another one would be surprised to see a blind person walking alone, but a city pavement is not one
of them; and a residential street cannot be different from any other. The blind people whom we meet must live somewhere, and most of them probably left their homes unaccompanied. It may seem surprising that blind people can avoid ordinary obstacles so well as they do, but we must take account of the facts. There is evidence in this case about the number of blind people in London and it appears from government publications that the proportion in the whole country is near one in five hundred. By no means all are sufficiently skilled or confident to venture out alone, but the number who habitually do so must be very large. I find it quite impossible to say that it is not reasonably foreseeable that a blind person may pass along a particular pavement on a particular day.
No question can arise in this case of any great difficulty in affording adequate protection for the blind. In considering what is adequate protection against one must have regard to common knowledge. One is entitled to expect of a blind person a high degree of skill and care because none but the most foolhardy would venture to go out alone without having that skill and exercising that care. We know that in fact blind people do safely avoid all ordinary obstacles on pavements; there can be no question of padding lamp
posts as was suggested in one case.25 A moment’s reflection, however, shows that a low obstacle in an unusual place is a grave danger: on the other hand it is clear from the evidence in this case and also I think from common knowledge that quite a light fence some two feet high is an adequate warning. There would have been no difficulty in providing such a fence here. The evidence is that the Post Office always provide one, and that the respondents have similar fences which are often used. Indeed the evidence suggests that the only reason why there was no fence here was that the accident occurred before the necessary fences had arrived. So, if the respondents are to succeed, it can only be on the ground that there was no duty to do more than safeguard ordinary able-bodied people . . .
I can see no justification for laying down any hard and fast rule limiting the classes of persons for whom those interfering with a pavement must make provision. It is said that it is impossible to tell what precautions will be adequate to protect all kinds of infirm pedestrians or that taking such precautions would be unreasonably difficult or expensive. I think that such fears are exaggerated, and it is worth recollecting that when the courts sought to lay down specific rules as to the duties of occupiers the law became so unsatisfactory that Parliament had to step in and pass the Occupiers Liability
Act 1957. It appears to me that the ordinary principles of the common law must apply in streets as well as elsewhere, and that fundamentally they depend on what a reasonable man, careful of his neighbour’s safety, would do having the knowledge which a reasonable man in the position of the defendant must be deemed to have. I agree with the statement of law at the
end of the speech of Lord Sumner in Glasgow Corpn v Taylor26—
`a measure of care appropriate to the inability or disability of those who are immature or feeble in mind or body is due from others who know of, or ought to anticipate, the presence of such persons within the scope and hazard of their own operations.’
I would therefore allow this appeal. The assessment of damages has been deferred and the case must be remitted for such assessment.
LORD MORTON OF HENRYTON: . . .
There is no dispute as to the facts, and only two questions arise for decision —first, what is the duty owed by those who engage on operations on the pavement of a highway and, secondly, was that duty discharged in the present case.
My lords, I would answer the first question as follows. It is their duty to take reasonable care not to act in a way likely to endanger other persons who may reasonably be expected to walk along the pavement. That duty is owed to blind persons if the operators foresee or ought to have foreseen that blind persons may walk along the pavement and is in no way different from the duty owed to persons with sight, though the carrying out of the duty may involve extra precautions in the case of blind pedestrians. I think that everyone living in greater London must have seen blind persons walking slowly along on the pavement and waving a white stick in front of them, so as to touch any obstruction which may be in their way, and I think that the respondents’ workmen ought to have foreseen that a blind person might well come along the pavement in question.
I have not found it easy to answer the second question, but I have come to the conclusion that the workmen failed adequately to discharge the duty which I have stated, though I would accept the finding of the learned trial judge that ‘what the .. did was adequate to give reasonable and proper warning to normal pedestrians’ ..
I would allow the appeal. Counsel for the respondents submitted that a
decision against them would have very far-reaching consequences and would make it necessary for persons working in any public place to take elaborate and extreme precautions to prevent blind persons from suffering injury. My lords, I do not think that the consequences would be so serious as counsel suggests, bearing in mind, first, that there are many places to which one would not reasonably expect a blind person to go unaccompanied and, secondly, that workmen are entitled to assume that such a person will take responsible care to protect himself, for example by using a stick in order to ascertain if there is anything in his way and by stopping if his stick touches any object.
Paris v Stepney Borough Council
House of Lords [1951] 1 All ER 42
LORD SIMONDS:
My Lords, this is an appeal from an order of the Court of Appea1 setting aside a judgment of Lynskey J, in favour of the appellant for £5,250 damages and costs. On 13 May 1942, the appellant entered the service of the respondents as a garage hand in their cleansing department. He was then for all practical purposes blind in his left eye, having suffered serious injury in May 1941, as the result of enemy action, but this fact was not known to the respondents at that time. On or about 19 July 1946, he was medically examined with a view to his becoming a member of the permanent staff and joining the superannuation scheme, and on 22 July 1946, the medical officer reported to a Mr Boden, the respondents’ public cleansing officer, that the appellant was not fit on account of his disablement to join the superannuation scheme. On 16 May 1947, he was given two weeks’ notice expiring on 30 May 1947, to terminate his employment. I will assume that at this date the respondents had notice of his physical disability, including the blindness of his left eye. On 28 May 1947, the accident occurred which gave rise to the present action. The appellant was engaged in dismantling the chassis of a gulley cleaner, a type of vehicle generally used by local authorities for the cleansing and flushing of street gulleys. The vehicle had been raised about four and a half feet from the garage floor by means of a ramp. The appellant had to remove a U-bolt holding the springs of an axle, and, to release it, he hit the U-bolt with a steel hammer. As the result of his doing so a piece of metal flew off and entered his right eye with the disastrous consequence that he lost the sight of it altogether. On 8 August 1947, he commenced his action against the respondents claiming damages for their negligence and breach of statutory duty. The respondents put in a defence denying negligence and raising an alternative plea of contributory negligence which has not been pursued. Nor has the appellant pursued his claim for breach of statutory duty. The single question is whether the appellant proved the negligence of the respondents, a question answered in the affirmative by Lynskey J, in the negative by the Court of Appeal.
What, then, was the negligence alleged by the appellant and denied by the respondents? It was that it was the duty of the respondents to supply the appellant with suitable goggles for the protection of his eyes while he was engaged in such work and to require him to use them . . . I will say at once that I do not dissent from the view that an employer owes a particular duty to each of his employees. His liability in tort arises from his failure to take
reasonable care in regard to the particular employee and it is clear that, if so, all the circumstances relevant to that employee must be taken into consideration. I see no valid reason for excluding as irrelevant the gravity of the damage which the employee will suffer if an accident occurs, and with great respect to the judgments of the Court of Appeal I cannot accept the view, neatly summarised by Asquith LJ ([1949] 2 All ER 845), that the greater risk of injury is, but the risk of greater injury is not, a relevant circumstance. I find no authority for such a proposition nor does it appear to me to be founded on any logical principle . . .
LORD MORTON OF HENRYTON: . . .
My Lords, it cannot be doubted that there are occupations in which the possibility of an accident occurring to any workman is extremely remote, while there are other occupations in which there is constant risk of accident to the workmen. Similarly, there are occupations in which, if an accident occurs, it is likely to be of a trivial nature, while there are other occupations in which, if an accident occurs, the result to the workman may well be fatal. Whether one is considering the likelihood of an accident occurring, or the gravity of the consequences if an accident happens, there is in each case a gradually ascending scale between the two extremes which I have already mentioned. In considering generally the precautions which an employer ought to take for the protection of his workmen it must, in my view, be right to take into account both elements, the likelihood of an accident happening and the gravity of the consequences. I take as an example two occupations in which the risk of an accident taking place is exactly equal. If an accident does occur in the one occupation, the consequences to the workman will be comparatively trivial; if an accident occurs in the other occupation the consequences to the workman will be death or mutilation. Can it be said that the precautions which it is the duty of an employer to take for the safety of his workmen are exactly the same in each of these occupations? My Lords, that is not my view. I think that the more serious the damage which will happen if an accident occurs, the more thorough are the precautions which an employer must take. If I am right as to this general principle, I think it follows logically that if A and B, who are engaged on the same work, run precisely the same risk of an accident happening, but if the results of an accident will be more serious to A than to B, precautions which are adequate in the case of B may not be adequate in the case of A, and it is a duty of the
employer to take such additional precautions for the safety of A as may be reasonable. The duty to take reasonable precautions against injury is one which is owed by the employer to every individual workman.
In the present case it is submitted by counsel for the appellant that, although the appellant ran no greater risk of injury than the other workmen engaged in the maintenance work, he ran a risk of greater injury. Counsel points out that an accident to one eye might transform the appellant into a blind man, and this event in fact happened. A similar accident to one of his comrades would transform that comrade into a one-eyed man, a serious consequence indeed, but not so serious as the results have been to the appellant. My Lords, the Court of Appeal thought that the one-eyed condition of the appellant, known to his employers, was wholly irrelevant in determining the question whether the employer did or did not take reasonable precautions to avoid an accident of this kind. I do not agree. Applying the general principle which I have endeavoured to state, I agree with your Lordships and with Lynskey J, that the condition of the appellant was a relevant fact to be taken into account ..
Hatton v Sutherland
Court of Appeal [2002] EWCA Civ 76, [2002] 2 All
ER 1
HALE LJ:
33 It is essential, therefore, once the risk of harm to health from stresses in the workplace is foreseeable, to consider whether and in what respect the employer has broken that duty. There may be a temptation, having concluded that some harm was foreseeable and that harm of that kind has taken place, to go on to conclude that the employer was in breach of his duty of care in failing to prevent that harm (and that that breach of duty caused the harm). But in every case it is necessary to consider what the employer not only could but should have done. We are not here concerned with such comparatively simple things as gloves, goggles, earmuffs or non-slip flooring. Many steps might be suggested: giving the employee a sabbatical; transferring him to other work; redistributing the work; giving him some extra help for a while; arranging treatment or counselling; providing buddying or mentoring schemes to encourage confidence; and much more. But in all of these suggestions it will be necessary to consider how reasonable it is to expect the employer to do this, either in general or in particular: the size and scope of its operation will be relevant to this, as will its resources, whether in the public or private sector, and the other demands placed upon it. Among those other demands are the interests of other employees in the workplace. It may not be reasonable to expect the employer to rearrange the work for the sake of one employee in a way which prejudices the others. As we have already said, an employer who tries to balance all these interests by offering confidential help to employees who fear that they may be suffering harmful levels of stress is unlikely to be found in breach of duty: except where he has been placing
totally unreasonable demands upon an individual in circumstances where the risk of harm was clear.
34 Moreover, the employer can only reasonably be expected to take steps which are likely to do some good. This is a matter on which the court is likely to require expert evidence. In many of these cases it will be very hard to know what would have done some let alone enough good. In some cases the only effective way of safeguarding the employee would be to dismiss or demote him. There may be no other work at the same level of pay which it is reasonable to expect the employer to offer him. In principle the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employer’s own good…
Daborn v Bath Tramways Motor Co Ltd and T.Smithey
Court of Appeal [1946] 2 All ER 333
Latimer v AEC Ltd
House of Lords [1953] 2 All ER 449
ASQUITH LJ:
In determining whether a party is negligent, the standard of reasonable care is that which is reasonably to be demanded in the circumstances. A relevant circumstance to take into account may be the importance of the end to be served by behaving in this way or in that. As has often been pointed out, if all the trains in this country were restricted to a speed of 5 miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk. The relevance of this applied to the present case is this: during the war which was, at the material time, in progress, it was necessary for many highly important operations to be carried out by means of motor vehicles with left-hand drives, no others being available. So far as this was the case, it was impossible for the drivers of such cars to give the warning signals which could otherwise be properly demanded of them. Meanwhile, it was essential that the ambulance service should be maintained. It seems to me, in those circumstances, it would be demanding too high and an unreasonable standard of care from the drivers of such cars to say to them: `Either you must give signals which the structure of your vehicle renders impossible or you must not drive at all.’ It was urged by counsel for the defendants that these alternatives were not exhaustive, since the driver of such a car should, before executing a turn, stop his car, move to the right-hand seat and look backwards to see if another car was attempting to overtake him and then start up again. Counsel for the plaintiff has satisfied me that such a procedure, besides involving possible delay, might be wholly ineffective. I think the plaintiff did all that in the circumstances she could reasonably be required to do if you include in those circumstances, as I think you should: (i) the necessity in time of national emergency of employing all transport resources which were available, and (ii) the inherent limitations and incapacities of this particular form of transport. In considering whether reasonable care has been observed, one must balance the risk against the consequences of not assuming that risk, and in the present instance this calculation seems to me to work out in favour of the plaintiff. I agree . . . that this appeal should be dismissed.
LORD TUCKER: . . .
In the present case, the respondents were faced with an unprecedented situation following a phenomenal rain storm. They set forty men to work on cleaning up the factory when the flood subsided and used all the available supply of sawdust, which was approximately three tons. The judge has found that they took every step which could reasonably have been taken to deal with the conditions which prevailed before the night shift came on duty, and he has negatived every specific allegation of negligence as pleaded, but he has held the respondents liable because they did not close down the factory, or the part of the factory where the accident occurred, before the commencement of the night shift. I do not question that such a drastic step may be required on the part of a reasonably prudent employer if the peril to his employees is sufficiently grave, and to this extent it must always be a question of degree, but, in my view, there was no evidence in the present case which could justify a finding of negligence for failure on the part of the respondents to take this step. This question was never canvassed in evidence, nor was sufficient evidence given as to the condition of the factory as a whole to enable a satisfactory conclusion to be reached. The learned judge seems to have accepted the reasoning of counsel for the appellant to the effect that the
floor was slippery, that slipperiness is a potential danger, that the respondents must be taken to have been aware of this, that in the circumstances nothing could have been done to remedy the slipperiness, that the respondents allowed work to proceed, that an accident due to slipperiness occurred, and that the respondents are, therefore, liable.
This is not the correct approach. The problem is perfectly simple. The only question was: Has it been proved that the floor was so slippery that, remedial steps not being possible, a reasonably prudent employer would have closed down the factory rather than allow his employees to run the risks involved in continuing work? The learned judge does not seem to me to have posed this question to himself, nor was there sufficient evidence before him to have justified an affirmative answer. The absence of any evidence that anyone in the factory during the afternoon or night shift, other than the appellant, slipped, or experienced any difficulty, or that any complaint was made by or on behalf of the workers, all points to the conclusion that the danger was, in fact, not such as to impose on a reasonable employer the obligation placed on the respondents by the trial judge. I agree that the appeal be dismissed.
Bolitho v City and Hackney Health Authority
House of Lords [1997] 4 All ER 771
LORD BROWNE-WILKINSON: . . .
The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill or competence is the direction to the jury given by McNair J in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 at 122, [1957] 1 WLR 583 at 587:
`I myself would prefer to put it this way: a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.’
the extent that, in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. In Bolam’s case [1957] 2 All ER 118 at 122, [1957] 1 WLR 583 at 587 McNair J stated that the defendant had to have acted in accordance with the practice accepted as proper by a ‘responsible body of medical men’ (my emphasis). Later he referred to ‘a standard of practice recognised as proper by a competent reasonable body of opinion’ (see [1957] 2 All ER 118 and 122, [1957] 1 WLR 583 at 588; my emphasis). Again, in Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635 at 639, Lord Scarman refers to a ‘respectable’ body of professional opinion. The use of these adjectives—responsible, reasonable and respectable—all show that the court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.
There are decisions which demonstrate that the judge is entitled to approach expert professional opinion on this basis. For example, in Hucks v Cole (1968) (1993) 4 Med LR 393, a doctor failed to treat with penicillin a patient who was suffering from septic places on her skin though he knew them to contain organisms capable of leading to puerperal fever. A number of distinguished doctors gave evidence that they would not, in the circumstances, have treated with penicillin. The Court of Appeal found the defendant to have been negligent. Sachs LJ said (at 397):
`When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risks, the court must anxiously examine that lacuna—particularly if the risks can be easily and inexpensively avoided. If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In such a case the practice will no doubt
thereafter be altered to the benefit of patients. On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not, as Mr Webster readily conceded, conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas . . .’
Again, in Edward Wong Finance Co Ltd v Johnson Stokes & Master (a firm) [1984] AC 296, [1984] 2 WLR 1, the defendant’s solicitors had conducted the completion of a mortgage transaction in ‘Hong Kong style’ rather than in the old-fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the borrowers subsequently to hand over the executed documents. This practice opened the gateway through which a dishonest solicitor for the borrower absconded with the loan money without providing the security documents for such loan. The Privy Council held that even though completion in Hong Kong style was almost universally adopted in Hong Kong and was therefore in accordance with a body of professional opinion there, the defendant’s solicitors were liable for negligence because there was an obvious risk which could have been guarded against. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible.
These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied on is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
I emphasise that, in my view, it will very seldom be right for a judge to
reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As . . . Lord Scarman makes clear it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant’s conduct falls to be assessed.
Montgomery v Lanarkshire Health Board
Supreme Court [2015] UKSC 11, [2015] 2 All ER 1031
LORD KERR and LORD REED …
43 At the other end of the spectrum was the speech of Lord Scarman, who took as his starting point ‘the patient’s right to make his own decision, which may be seen as a basic human right protected by the common law’ (p 882). From that starting point, he inferred:
`If, therefore, the failure to warn a patient of the risks inherent in the operation which is recommended does constitute a failure to respect the
patient’s right to make his own decision, I can see no reason in principle why, if the risk materialises and injury or damage is caused, the law should not recognise and enforce a right in the patient to compensation by way of damages.’ (pp 884-885)
44 In other words, if (1) the patient suffers damage, (2) as a result of an undisclosed risk, (3) which would have been disclosed by a doctor exercising reasonable care to respect her patient’s right to decide whether to incur the risk, and (4) the patient would have avoided the injury if the risk had been disclosed, then the patient will in principle have a cause of action based on negligence.
45 Lord Scarman pointed out that the decision whether to consent to the treatment proposed did not depend solely on medical considerations:
`The doctor’s concern is with health and the relief of pain. These are the medical objectives. But a patient may well have in mind circumstances, objectives, and values which he may reasonably not make known to the doctor but which may lead him to a different decision from that suggested by a purely medical opinion.’ (pp 885-886)
46 This is an important point. The relative importance attached by patients to quality as against length of life, or to physical appearance or bodily integrity as against the relief of pain, will vary from one patient to another. Countless other examples could be given of the ways in which the views or circumstances of an individual patient may affect their attitude towards a proposed form of treatment and the reasonable alternatives. The doctor cannot form an objective, ‘medical’ view of these matters, and is therefore not in a position to take the ‘right’ decision as a matter of clinical judgment.
47 In Lord Scarman’s view, if one considered the scope of the doctor’s duty by beginning with the right of the patient to make her own decision whether she would or would not undergo the treatment proposed, it followed that the doctor was under a duty to inform the patient of the material risks inherent in the treatment. A risk was material, for these purposes, if a reasonably prudent patient in the situation of the patient would think it significant. The doctor could however avoid liability for injury resulting from the occurrence of an undisclosed risk if she could show that she reasonably believed that communication to the patient of the existence of the risk would be detrimental to the health (including the mental health) of her patient.
48 It followed from that approach that medical evidence would normally be
required in order to establish the magnitude of a risk and the seriousness of the possible injury if it should occur. Medical evidence would also be necessary to assist the court to decide whether a doctor who withheld information because of a concern about its effect upon the patient’s health was justified in that assessment. The determination of the scope of the doctor’s duty, and the question whether she had acted in breach of her duty, were however ultimately legal rather than medical in character.
49 Lord Scarman summarised his conclusions as follows (pp 889-890):
`To the extent that I have indicated I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing: and especially so, if the treatment be surgery. The critical limitation is that the duty is confined to material risk. The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient’s position would be likely to attach significance to the risk. Even if the risk be material, the doctor will not be liable if upon a reasonable assessment of his patient’s condition he takes the view that a warning would be detrimental to his patient’s health.’
….
57 It would . . . be wrong to regard Sidaway as an unqualified endorsement of the application of the Bolam test to the giving of advice about treatment. Only Lord Diplock adopted that position. On his approach, the only situation, other than one covered by the Bolam test, in which a doctor would be under a duty to provide information to a patient would be in response to questioning by the patient.
58 The significance attached in Sidaway to a patient’s failure to question the doctor is however profoundly unsatisfactory. In the first place, as Sedley LJ commented in Wyatt v Curtis [2003] EWCA Civ 1779, there is something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about. It is indeed a reversal of logic: the more a patient knows about the risks she faces, the easier it is for her to ask specific questions about those risks, so as to impose on her doctor a duty to provide information; but it is those who lack such knowledge, and who are in consequence unable to pose such questions and instead express their anxiety in more general terms, who are in the greatest need of information. Ironically,
the ignorance which such patients seek to have dispelled disqualifies them from obtaining the information they desire. Secondly, this approach leads to the drawing of excessively fine distinctions between questioning, on the one hand, and expressions of concern falling short of questioning, on the other hand: a problem illustrated by the present case. Thirdly, an approach which requires the patient to question the doctor disregards the social and psychological realities of the relationship between a patient and her doctor, whether in the time-pressured setting of a GP’s surgery, or in the setting of a hospital. Few patients do not feel intimidated or inhibited to some degree.
59 There is also a logical difficulty inherent in this exception to the Bolam test, as the High Court of Australia pointed out in Rogers v Whitaker (1992) 175 CLR 479, 486-487. Why should the patient’s asking a question make any difference in negligence, if medical opinion determines whether the duty of care requires that the risk should be disclosed? The patient’s desire for the information, even if made known to the doctor, does not alter medical opinion. The exception, in other words, is logically destructive of the supposed rule. Medical opinion might of course accept that the information should be disclosed in response to questioning, but there would then be no exception to the Bolam test.
60 Lord Bridge’s other qualification of the Bolam test achieves an uneasy compromise, describing the issue as one to be decided ‘primarily’ by applying the Bolam test, but allowing the judge to decide ‘that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it’, the reasonably prudent medical man being ‘a doctor, recognising and respecting his patient’s right of decision’.
61 Superficially, this resembles the qualification of the Bolam test subsequently stated by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1998] AC 232, 243: that notwithstanding the views of medical experts, the court may conclude that their opinion is incapable of withstanding logical analysis. Lord Browne-Wilkinson however expressly confined his observations to cases of diagnosis and treatment, as distinct from disclosure of risk. In cases of the former kind, the court is concerned with matters of medical skill and judgment, and does not usually find a doctor guilty of negligence if she has followed a practice accepted as proper by a responsible body of doctors skilled in the relevant field. That is however subject to Lord Browne-Wilkinson’s qualification where the court is
satisfied that the professional practice in question does not meet a reasonable standard of care. In cases concerned with advice, on the other hand, the application of the Bolam test is predicated on the view that the advice to be given to the patient is an aspect of treatment, falling within the scope of clinical judgment. The ‘informed choice’ qualification rests on a fundamentally different premise: it is predicated on the view that the patient is entitled to be told of risks where that is necessary for her to make an informed decision whether to incur them.
62 The inherent instability of Lord Bridge’s qualification of the Bolam test has been reflected in a tendency among some judges to construe it restrictively, as in the present case, by focusing on the particular words used by Lord Bridge when describing the kind of case he had in mind Ca substantial risk of grave adverse consequences’), and even on the particular example he gave (which involved a 10% risk of a stroke), rather than on the principle which the example was intended to illustrate…
Conclusions on the duty of disclosure
74 The Hippocratic Corpus advises physicians to reveal nothing to the patient of her present or future condition, ‘for many patients through this cause have taken a turn for the worse’ (Decorum, XVI). Around two millennia later, in Sidaway’s case Lord Templeman said that ‘the provision of too much information may prejudice the attainment of the objective of restoring the patient’s health’ (p 904); and similar observations were made by Lord Diplock and Lord Bridge. On that view, if the optimisation of the patient’s health is treated as an overriding objective, then it is unsurprising that the disclosure of information to a patient should be regarded as an aspect of medical care, and that the extent to which disclosure is appropriate should therefore be treated as a matter of clinical judgment, the appropriate standards being set by the medical profession.
75 Since Sidaway, however, it has become increasingly clear that the paradigm of the doctor— patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. One development which is particularly significant in the present context is that patients are now widely
regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services. In addition, a wider range of healthcare professionals now provide treatment and advice of one kind or another to members of the public, either as individuals, or as members of a team drawn from different professional backgrounds (with the consequence that, although this judgment is concerned particularly with doctors, it is also relevant, mutatis mutandis, to other healthcare providers). The treatment which they can offer is now understood to depend not only upon their clinical judgment, but upon bureaucratic decisions as to such matters as resource allocation, cost-containment and hospital administration: decisions which are taken by non-medical professionals. Such decisions are generally understood within a framework of institutional rather than personal responsibilities, and are in principle susceptible to challenge under public law rather than, or in addition to, the law of delict or tort.
76 Other changes in society, and in the provision of healthcare services, should also be borne in mind. One which is particularly relevant in the present context is that it has become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available is of variable quality, reliable sources of information can readily be found), patient support groups, and leaflets issued by healthcare institutions. The labelling of pharmaceutical products and the provision of information sheets is a further example, which is of particular significance because it is required by laws premised on the ability of the citizen to comprehend the information provided. It would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors. The idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalisation, as Lord Diplock implicitly acknowledged by making an exception for highly educated men of experience. To make it the default assumption on which the law is to be based is now manifestly untenable.
77 These developments in society are reflected in professional practice ….
80 In addition to these developments in society and in medical practice, there have also been developments in the law. Under the stimulus of the Human Rights Act 1998, the courts have become increasingly conscious of the extent to which the common law reflects fundamental values. As Lord Scarman pointed out in Sidaway’s case, these include the value of self-determination (see, for example, S (An Infant) v S [1972] AC 24, 43 per Lord Reid; McColl v Strathclyde Regional Council 1983 SC 225, 241; Airedale NHS Trust v Bland [1993] AC 789, 864 per Lord Goff of Chieveley). As well as underlying aspects of the common law, that value also underlies the right to respect for private life protected by article 8 of the European Convention on Human Rights. The resulting duty to involve the patient in decisions relating to her treatment has been recognised in judgments of the European Court of Human Rights, such as Glass v United Kingdom (2004) EHRR 341 and Tysiac v Poland (2007) 45 EHRR 947, as well as in a number of decisions of courts in the United Kingdom. The same value is also reflected more specifically in other international instruments: see, in particular, article 5 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, concluded by the member states of the Council of Europe, other states and the European Community at Oviedo on 4 April 1997.
81 The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.
82 In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it is
also the counterpart of the patient’s entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctor’s role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.
83 The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The doctor’s advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient’s entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person’s rights rests with the courts, not with the medical professions.
84 Furthermore, because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to this question is liable to result in the sanctioning of differences in practice which are attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients.
85 A person can of course decide that she does not wish to be informed of risks of injury (just as a person may choose to ignore the information leaflet enclosed with her medicine); and a doctor is not obliged to discuss the risks inherent in treatment with a person who makes it clear that she would prefer not to discuss the matter. Deciding whether a person is so disinclined may involve the doctor making a judgment; but it is not a judgment which is dependent on medical expertise. It is also true that the doctor must necessarily make a judgment as to how best to explain the risks to the patient, and that providing an effective explanation may require skill. But the skill and judgment required are not of the kind with which the Bolam test is concerned; and the need for that kind of skill and judgment does not entail that the question whether to explain the risks at all is normally a matter for
the judgment of the doctor. That is not to say that the doctor is required to make disclosures to her patient if, in the reasonable exercise of medical judgment, she considers that it would be detrimental to the health of her patient to do so; but the ‘therapeutic exception’, as it has been called, cannot provide the basis of the general rule.
86 It follows that the analysis of the law by the majority in Sidaway is unsatisfactory, in so far as it treated the doctor’s duty to advise her patient of the risks of proposed treatment as falling within the scope of the Bolam test, subject to two qualifications of that general principle, neither of which is fundamentally consistent with that test. It is unsurprising that courts have found difficulty in the subsequent application of Sidaway, and that the courts in England and Wales have in reality departed from it; a position which was effectively endorsed, particularly by Lord Steyn, in Chester v Afshar. There is no reason to perpetuate the application of the Bolam test in this context any longer.
87 The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce, subject to the refinement made by the High Court of Australia in Rogers v Whitaker . . . An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.
88 The doctor is however entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient’s health. The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision. It is unnecessary for the purposes of this case to consider in detail the scope of those exceptions.
89 Three further points should be made. First, it follows from this approach
that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.
90 Secondly, the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.
91 Thirdly, it is important that the therapeutic exception should not be abused. It is a limited exception to the general principle that the patient should make the decision whether to undergo a proposed course of treatment: it is not intended to subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests.
92 There are, of course, arguments which can be advanced against this approach: for example, that some patients would rather trust their doctors than be informed of all the ways in which their treatment might go wrong; that it is impossible to discuss the risks associated with a medical procedure within the time typically available for a healthcare consultation; that the requirements imposed are liable to result in defensive practices and an increase in litigation; and that the outcome of such litigation may be less predictable.
93 The first of these points has been addressed in para 85 above. In relation to the second, the guidance issued by the General Medical Council has long required a broadly similar approach. It is nevertheless necessary to impose legal obligations, so that even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires. This may not be welcomed by some
healthcare providers; but the reasoning of the House of Lords in Donoghue v Stevenson [1932] AC 562 was no doubt received in a similar way by the manufacturers of bottled drinks. The approach which we have described has long been operated in other jurisdictions, where healthcare practice presumably adjusted to its requirements. In relation to the third point, in so far as the law contributes to the incidence of litigation, an approach which results in patients being aware that the outcome of treatment is uncertain and potentially dangerous, and in their taking responsibility for the ultimate choice to undergo that treatment, may be less likely to encourage recriminations and litigation, in the event of an adverse outcome, than an approach which requires patients to rely on their doctors to determine whether a risk inherent in a particular form of treatment should be incurred. In relation to the fourth point, we would accept that a departure from the Bolam test will reduce the predictability of the outcome of litigation, given the difficulty of overcoming that test in contested proceedings. It appears to us however that a degree of unpredictability can be tolerated as the consequence of protecting patients from exposure to risks of injury which they would otherwise have chosen to avoid. The more fundamental response to such points, however, is that respect for the dignity of patients requires no less.
The disclosure of risks in the present case
94 Approaching the present case on this basis, there can be no doubt that it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section. The Court of Session focused upon the consequent risk that the baby might suffer a grave injury, a risk which was relatively small. The risk of shoulder dystocia, on the other hand, was substantial: on the evidence, around 9-10%. Applying the approach which we have described, the exercise of reasonable care undoubtedly required that it should be disclosed. Quite apart from the risk of injury to the baby (a risk of about 1 in 500 of a brachial plexus injury, and a much smaller risk of a more severe injury, such as cerebral palsy, or death), it is apparent from the evidence . . . that shoulder dystocia is itself a major obstetric emergency, requiring procedures which may be traumatic for the mother, and involving significant risks to her health. No woman would, for example, be likely to face the possibility of a fourth
degree tear, a Zavanelli manoeuvre or a symphysiotomy with equanimity. The contrast of the risk involved in an elective caesarean section, for the mother extremely small and for the baby virtually non-existent, is stark and illustrates clearly the need for Mrs Montgomery to be advised of the possibility, because of her particular circumstances, of shoulder dystocia. This conclusion is reinforced by Dr McLellan’s own evidence . . . that she was aware that the risk of shoulder dystocia was likely to affect the decision of a patient in Mrs Montgomery’s position, and that Mrs Montgomery herself was anxious about her ability to deliver the baby vaginally.
95 There is no question in this case of Dr McLellan’s being entitled to withhold information about the risk because its disclosure would be harmful to her patient’s health. Although her evidence indicates that it was her policy to withhold information about the risk of shoulder dystocia from her patients because they would otherwise request caesarean sections, the ‘therapeutic exception’ is not intended to enable doctors to prevent their patients from taking an informed decision. Rather, it is the doctor’s responsibility to explain to her patient why she considers that one of the available treatment options is medically preferable to the others, having taken care to ensure that her patient is aware of the considerations for and against each of them.
Vernon -v- Colgan
[2009] IEHC 86 (20 February 2009)
Judgment of Miss Justice Laffoy delivered on the 20th day of February, 2009.
Liability is not in issue in these personal injuries proceedings which arise out of a road traffic accident which occurred on 12th August, 2003. On that occasion, the plaintiff was driving his employer’s van while out on a work call when the defendant’s vehicle, while overtaking another vehicle, came around a bend on the incorrect side of the road and collided head-on with the plaintiff.
The plaintiff, whose date of birth is 15th February, 1954, suffered some physical injuries as a result of the collision but the long-term sequelae are of a psychiatric and psychological nature.
The only evidence of the plaintiff’s physical injuries before the Court are the reports of Dr. Dominick Cooke, Consultant Physician and Rheumatologist, dated 16th October, 2003 and Dr. Edel Twomey of the Abbey Medical Centre, the plaintiff’s general practitioner, dated 21st January, 2004, and the plaintiff’s testimony.
Following the accident the plaintiff was taken by ambulance to University College Hospital, Galway. He was treated for a head injury and detained for observation for three days and subsequently discharged. Dr. Cooke described his physical injuries as extensive bruising, an abrasion on his scalp, bruising across his chest, where he was restrained by the seat belt, and generally stiff and sore all over.
The plaintiff was re-admitted to University College Hospital on 26th August, 2003 and detained for a further nine days for further investigation. Both Dr. Cooke and Dr. Twomey in their respective reports refer to the prognosis as being “very guarded”, but that opinion clearly relates to the post-traumatic stress disorder which was diagnosed early on during the plaintiff’s treatment in University College Hospital. On the evidence, the plaintiff appears to have received no medical treatment for his physical injuries after January 2004, although his own evidence was that he received physiotherapy for eighteen months. Therefore, I conclude that, as described by his psychiatrist, Dr. Hugh Nalty, who first saw the plaintiff on 5th September, 2003, his head and neck injuries were “superficial”. I am satisfied that the plaintiff’s physical injuries cleared up within a short time after the accident and that he is physically fit and has been for the bulk of the period since the accident.
In relation to the plaintiff’s psychiatric and psychological injuries, two reports of Dr. Nalty were admitted in evidence, the earlier dated 23rd January, 2004 and the later, dated 12th February, 2009, which coincided with the hearing of the assessment of the damages to which the plaintiff is entitled at the High Court sittings in Galway. The Court has also had the benefit of four psychological reports from Ms. Deirdre O’Donnell, Senior Clinical Psychologist with Clare Mental Health Service which is operated by the HSE, who has been treating the plaintiff since he was referred to her by Dr. Nalty in September, 2003.
Dr. Nalty, in his first report stated that the plaintiff had serious psychological symptoms following the accident. He became depressed, anxious, agitated and emotionally labile. He exhibited increased arousal, suffered from flashbacks and he appeared frightened and suspicious when re-living the event. Irritability and insomnia were also present. Dr. Nalty stated that the plaintiff had no previous history of psychological problems, but major life events occurred in 2003 prior to the accident which left him vulnerable, in that he lost his job, his home was seriously damaged by fire and his father died in April of that year. Dr. Nalty diagnosed the plaintiff as suffering from post-traumatic stress disorder precipitated by the collision. He referred the plaintiff to Ms. O’Donnell for psychological assessment and treatment. He also prescribed medication, including an antidepressant, Lustral, and an anxiolytic, Xanax. Dr. Nalty also reported that the plaintiff was removed from his home situation and placed in a psychiatric hostel in Ennistymon. The plaintiff was in the hostel, Prague House, which I understand is operated by the HSE, for four months from September to December 2003. While there, he attended a day centre in Ennistymon for support. Ms. O’Donnell referred to the plaintiff’s placement in Prague House as being unusual, which I have no doubt points to the severity of his condition. On the plaintiff’s own evidence I am satisfied that his stay in Prague House was a very distressful experience.
In concluding his first report dated 23rd January, 2004, Dr. Nalty stated that the plaintiff had gradually improved on the treatment but he still had some psychological problems. He anticipated that the plaintiff would continue attending the psychological and out-patients services of Clare Mental Health Service, as post-traumatic stress disorder could be very slow to respond to treatment and might be subject to relapse.
As I understand the position, Dr. Nalty’s primary involvement with the plaintiff thereafter was primarily concerned with prescribing medication for the plaintiff. The plaintiff has remained on Lustral and Xanax to date and, in fact, the prescribed dosage of both medications has increased. Ms. O’Donnell’s evidence was that an attempt to reduce the dosage of Xanax in April/May 2008 had adverse consequences. Her evidence was that if the plaintiff was off the medication he would not be capable of functioning.
In his final report, Dr. Nalty highlighted the changes which the post-traumatic stress disorder have wrought in the plaintiff’s life: his admission to Prague House and his attendance at the day centre; the fact that he lost his job; the fact that he is unable to drive, which was an essential element of the job he had prior to the accident; the fact that he was unable to get a mortgage to build a new house as he had planned before the accident; the fact that his symptoms prevented him from working except to a limited extent and he is currently unemployed; the fact that his relationship with his partner broke up and they are separated for three years; and problems with his children for which the plaintiff feels responsible.. Dr. Nalty concluded his final report by stating that, at the moment, some symptoms still remain, e.g. panic attacks, startled response and depression accompanied by low self esteem. He commented that the plaintiff had been suicidal in the past and he suffers from insomnia. He has constant nightmares, but not as bad as they were. The plaintiff continues under Dr. Nalty’s care.
The plaintiff has had very frequent and intense treatment from Ms. O’Donnell since she first saw him on 23rd September, 2003. Between that date and 26th January, 2006 she saw him on 47 occasions. Thereafter up to the present time she has seen him on average once a fortnight. She described the sessions, which last for one hour, as intense. Initially her attempts to engage the plaintiff in therapy were difficult because he arrived in a distressed state and it could take ten to fifteen minutes to calm him down.
The plaintiff’s progress over the five and a half years during which he has been receiving treatment from Ms. O’Donnell can be traced as follows:-
(1) Her initial assessment of the plaintiff was on 23rd September, 2003. His scores on the Beck Depression Inventory (B.D.I.) placed him in the severely depressed range of functioning. His score on the General Health Questionnaire (G.H.Q.), which measures current levels of emotional distress, placed him in the severe range of emotional distress. His scores on the Impact of Event Scale (I.E.S.), which measures current levels of emotional distress in relation to past trauma, indicated strong avoidance behaviour and intrusive thoughts in relation to the accident on 12th August, 2003. Ms. O’Donnell’s diagnosis was that the plaintiff was suffering from post-traumatic stress disorder. At that stage, due to the severity of his presenting problems, the plaintiff was seen on a weekly basis for Cognitive Behavioural Therapy and Eye-Movement Desensitization and Reprocessing. In all he had nineteen sessions up to 8th April, 2004.
(2) The plaintiff was re-assessed on 8th April, 2004. His scores on the B.T.I. placed him in moderately depressed range of clinical depression, indicating a slight improvement in his overall effect from September. On the G.H.Q., his scores placed him in the borderline range of emotional distress and indicated a significant improvement. His scores on the I.E.S. showed only a minor improvement. At that stage Ms. O’Donnell categorised the plaintiff’s post-traumatic stress disorder as moderately severe.
(3) Over the succeeding 22 months, the plaintiff was seen by Ms. O’Donnell on 27 occasions. On assessment on 26th January, 2006 his scores on the B.D.I. were in the moderately depressed range, but indicated an improvement on the scores obtained in 2004. His scores on the G.H.Q. indicated a significant improvement on previous scores obtained in April 2004 and were in the normal range of functioning. His scores on the I.E.S. remained elevated but were less intense than they had been in 2004. In summarising the plaintiff’s condition at that stage, Ms. O’Donnell stated that he was making slow, but steady, progress in his recovery. He was exhibiting fewer negative symptoms of post-traumatic stress disorder and was more positive in his outlook towards the future. She identified the only remaining negative issues in relation to his condition as hypersensitivity to noise and his specific anxiety towards car travel. At that stage she envisaged that overall he would make good recovery from his condition.
(4) Ms. O’Donnell next reported on the plaintiff on 28th September, 2007. In the interim he had attended for psychological intervention on an ongoing basis. At that stage Ms. O’Donnell’s assessment was that there was no evidence of depression and the plaintiff’s anxiety levels were improved. However, she noted that he still remained on both antidepressant and anxiolytic medication and would remain on such medication for the foreseeable future. His feelings in relation to the accident were still negative, although she noted that his confidence had been boosted because of his occupational activities, to which I will return later.
(5) Ms. O’Donnell next reported on the plaintiff on 25th August, 2008 in what she optimistically described as her final report. At that stage, the plaintiff’s case was due for hearing during the October 2008 sessions in Galway. However, it was not heard. In August 2008 Ms. O’Donnell assessed the plaintiff on the B.D.I., on which his scores placed him in the moderate range of clinical depression, and on the I.E.S., on which his scores remained elevated.
Ms. O’Donnell’s opinion at that stage was that the plaintiff’s self esteem had improved somewhat due to occupational opportunities. However, against previous expectations and prognosis, there had been no observable improvement in his hypervigilance to noise, or in his attitude to car travel. Given that he had five years of therapy, she considered this to be a very disappointing outcome. Her opinion was that he was suffering from chronic post-traumatic stress disorder and his overall prognosis is poor.
(6) Ms. O’Donnell’s final communication to the plaintiff’s solicitors was a letter dated 20th January, 2009, in anticipation of the hearing of the plaintiff’s case in February 2009. In that letter she stated that the plaintiff’s psychological status remained unchanged and that he was unlikely to improve for the foreseeable future.
Ms. O’Donnell’s evidence was that she hopes to continue to resume the plaintiff’s therapy at the conclusion of these proceedings. In relation to his hypersensitivity to noise and to sudden movement, she proposes to try some different techniques. In relation to the plaintiff’s inability to drive, her evidence was that while she has succeeded in desensitizing him to the extent that he will sit behind the driving wheel in a car, driving on the main road is not possible because of fear of oncoming traffic. In general, in relation to the plaintiff’s ability to work in the future, Ms. O’Donnell’s evidence was that full-time employment was not a viable option. He is only capable of part-time employment in a sheltered environment where noise is controlled and there is little intrusion from other people. In relation to his complaints of fatigue, which he experienced while in part-time work, she ascribed that to the fact that he is taking Xanax.
The defendant did not adduce any evidence and, in particular, the defendant did not adduce any expert evidence on the plaintiff’s psychiatric condition and prognosis, although, at the behest of the defendant he was seen on two occasions by a Consultant Psychiatrist, Dr. Mary McInerney.
During the course of the hearing there were two unusual outbursts by the plaintiff in Court which it is necessary to comment on. There was an outburst from the plaintiff shortly before the lunch adjournment on 12th February, 2009 while he was being cross-examined by counsel for the defendant. There was nothing provocative about the cross-examination, which was being conducted in a restrained and proper manner. Ms. O’Donnell, who observed the outburst, put it down to the fact that, at that stage, the plaintiff had been in the witness box for two hours and was overwhelmed by questions and was exhausted. Ms. O’Donnell was not present for the more extreme outburst on the following day which occurred while the plaintiff was sitting at the back of the Court while Mr. Peter Byrne, Actuary, was giving evidence, after a previous noisy walkout. After a break of over one hour, the Court was informed that the plaintiff was happy for the case to go ahead without him being in Court. As I understand the position, no question has ever been raised by his treating practitioners or anybody else that the plaintiff does not have capacity to give instructions in relation to the conduct of this case or the management of his affairs generally. However, because of those episodes, I am taking more care in this judgment to outline the basis of my decision than I would normally consider necessary.
I have already set out Ms. O’Donnell’s evidence as to the plaintiff’s ability to work in the future. Evidence as to his qualifications, his work record and his employment prospects in the future was given by Michael J. Bruen, Occupational Assessor.
The plaintiff, who is English, lived in England until 1995. He obtained a Diploma in Speech and Drama in 1976, which qualified him to teach speech and drama. He worked in community theatre on and off until 1984, when he decided on a career change. He then took up employment as a trainee electrician. In 1987 he got City and Guilds Certificates in Electrical Engineering and Installation. Thereafter, until 1995, he worked as an electrician in England, first on a self employed basis and later as an employee of a local authority providing electrical maintenance and repair services to elderly and disabled tenants of the local authority.
The plaintiff came to reside in Ireland in 1995 with his partner, who is Irish, and his two children who are now aged 18 and 16. Until 1999 the family lived in the Dublin area and the plaintiff was involved in electrical maintenance work on a self employed basis. The family moved to County Clare in 1999. Until 2002 the plaintiff continued to work on a self employed basis but had difficulty in making a living. In fact, in the tax years from 1997/1998 to 2002 the plaintiff, who was self assessed for tax purposes, made nil declarations in each year.
In 2002 the plaintiff took up employment with the Lynch Hotel Group as an assistant to the regular maintenance operator. He was employed in Haydens Hotel, Ballinasloe, for nineteen weeks from October 2002 to February 2003, during which his gross earnings for tax purposes were €12,619.00. He had a further four week period of employment at the West County Hotel, Ennis, during April and May 2003, during which his gross earnings were €2,646.00. In both instances, the plaintiff had been employed because refurbishment works were being carried out in the hotel in question. He was laid off in each case after the refurbishment work had completed. The plaintiff was then unemployed until he took up employment with Michael Murray, trading as Elektro Spares and Service Centre, Galway. That business is involved in the maintenance and repair of domestic appliances, white goods, manufactured by major electrical manufacturers such as Electrolux. The plaintiff was employed as the maintenance engineer on a three to six months’ probationary period. He had been employed for about five weeks when the accident occurred. After the accident his employment was terminated. His former employer, Mr. Murray, testified. His evidence was that he could not remember any problem in relation to the plaintiff which would suggest that he would not complete his probationary period.
Unlike many businesses, Mr. Murray’s business is thriving due to the economic downturn, because customers are more inclined to repair an appliance rather than replace it.
Since the accident the plaintiff has made genuine efforts to rehabilitate himself. He has attended various courses sponsored by FAS and other organisations. In 2004 he achieved an E.C.D.L. certificate in computer applications. He has also attended courses in disability awareness and training. Since the accident the plaintiff has had some gainful employment. Between April 2006 and July 2007 he worked in a toy shop, World of Wonder, in Ennis, assembling children’s bicycles, swings and suchlike. This employment was under a supported employment programme for disabled persons for sixteen hours per week at minimum rates. Thereafter, from October 2007 to December 2008 he worked in drama workshops under the aegis of various charitable and public organisations such as The Brothers of Charity Services, Clare Education Centre and Enable Ireland. That work has, unfortunately, come to an end because public funding has been cut. In the five and a half years since the accident, the plaintiff’s total earnings have been €21,927.00.
Mr. Bruen’s evidence was that the plaintiff, who is now 54 years of age, is restricted occupationally. He did not see him as being able to resume his pre-accident employment, because of his psychiatric and psychological symptoms and his lack of capacity to drive, to deal with customer complaints and demands and to work under pressure. His opinion was that the plaintiff could probably engage in work activity of a physically and psychologically undemanding nature in a noise free environment for a period of up to sixteen hours per week. He put the plaintiff’s earning capacity for the foreseeable future at between €173.00 and €193.00 per week gross. Understandably, he was not optimistic of the plaintiff getting regular work in the area of “process drama” because of current economic conditions and, in any event, he did not think that such work would be available on a full-time basis.
Special damages, apart from loss of earnings, have been agreed at €3,771.00.
The difficult aspect of this assessment is measuring the compensation to which the plaintiff is entitled for loss of earnings, because of his poor earnings record in the eight years leading up to the accident and the fact that he had been in employment for Mr. Murray for only a few weeks at the time of the accident. The computation of the loss of earnings to date and Mr. Byrne’s actuarial calculations of loss of earnings into the future have been based on the assumption that the plaintiff’s current earnings would be in the region of €35,500.00 gross per annum, equivalent to €580.00 per week net, based on the current average earnings of a service engineer derived both from basic pay and productivity bonus, and that he would have been, and would continue to be, in permanent employment at that level of remuneration.
The crucial questions on the assessment of the loss of earnings are, first, what the plaintiff’s earnings would have been if he had not suffered the injuries he sustained in the accident and, secondly, what is his capacity to work and earn in his post accident state.
Having regard to the psychiatric and psychological evidence, I am satisfied the plaintiff suffered a very severe life changing injury, which has resulted in the loss of his partnership of twenty years and the break-up of his family, and has affected his capacity to earn. In my view, on the basis of the “eggshell skull” principle that injury is wholly compensatable by the defendant. Since the accident the plaintiff has done as much as could reasonably be expected to earn a living. As regards to the future, Ms. O’Donnell acknowledged that there should be some improvement in his condition when his financial position improves and these proceedings and the associated stress are behind him. However, Ms. O’Donnell’s assessment that his condition is chronic and that his overall prognosis is poor and her opinion as to his capacity to earn a living in the future have not been contradicted. My assessment is based on her evidence.
On the basis of his pre-accident history, I think it improbable that, had he not been involved in the accident, the plaintiff would have remained in employment earning wages at the level which underlie Mr. Byrne’s calculations (€580.00 per week net currently) continuously from the date of the accident to date and continuously into the future until, say, retirement at age 65. That is the crucial factor in the assessment of loss of earnings. Apart from his personal circumstances, the Court is required to take into account in assessing his loss of earnings the type of contingencies recognised by the Supreme Court in Reddy v. Bates [1983] I.R. 141, for example, ill-health, economic downturn resulting in redundancy, unemployment and suchlike. The fact that, for the moment, the domestic appliance maintenance sector may be recession proof does not carry much weight against those factors.
As is frequently stated, assessment of damages in personal injuries actions is not an exact science. The Court’s function is to reach a fair and reasonable overall assessment. In relation to loss of earnings to date, I think the appropriate figure is €70,000. In relation to future loss of earnings, I consider the figure should be €120,000. In relation to general damages, in my view, the appropriate figure is €175,000 made up of €100,000 for pain and suffering to date and €75,000 for pain and suffering in the future.
Accordingly there will be an award in the sum of €368,771.