McLoughlin v O’ Brian

English Tort Law

Mcloughlin v O'Brian
Image: ‘Collage Car Crash’ by Patrick O’Brian

As with Topp v London County Bus (South West) Ltd the principle of proximity proves the distinguishing criteria, however this earlier case pushed further the scope of award for damages with an emerging appreciation for psychiatric nervous shock or trauma.

When the husband and father of four young children is involved in a collision with a commercial articulated vehicle (that had itself just collided with another articulated vehicle) the resulting injuries leave the youngest of the girls dead within minutes and the father seriously injured while lapsing in and out of consciousness. After being notified of the crash almost two hours later, his wife (and mother to the children) is escorted to the nearest hospital where she is confronted with the aftermath of the accident and left in a state of deep shock and profound distress; the effects of which were to be felt for many months afterwards.

Having chosen to pursue a tortious claim through the owners of the commercial vehicles, the original judges found that proximity and foreseeability precluded eligibility for damages and so while admission of the daughter’s manslaughter provided financial remedy the anguish and emotional turmoil of the mother did not.

However upon appeal the scope of award for incidents such as this was for the first time, given consideration enough to result in a new precedent in English tort law and significant allowances for the impact of psychological trauma upon secondary victims previously considered too remote for inclusion.

Key Citations

“Was not the action of the appellant in visiting her family in hospital immediately after she heard of the accident basically indistinguishable from that of a ‘rescuer,’ being intent upon comforting the injured?”

“Every system of law must set some bounds to the consequences for which a wrongdoer must make reparation. If the burden is too great it cannot and will not be met, the law will fall into disrepute, and it will be a disservice to those victims who might reasonably have expected compensation. In any state of society it is ultimately a question of policy to decide the limits of liability.”

“…if the effect on this wife and mother of the results of the negligence is considered to have been reasonably foreseeable, I do not see the justification for not finding the defendants liable in damages therefor.”

“I would suppose that the legal profession well understands that an acute emotional trauma, like a physical trauma, can well cause a psychiatric illness in a wide range of circumstances and in a wide range of individuals whom it would be wrong to regard as having any abnormal psychological make-up.”

Stovin v Wise

English Tort Law

Stovin v Wise
Image: ‘Driving Around Coorg’ by Prashant Prabhu

This appeal case discusses the actions (or inactions) of public bodies when operating under the guidance of statute and a prerequisite (albeit narrow) duty of care towards the general public.

After a number of road traffic accidents had occurred in a well-known intersection the focus of  complaint by drivers at the time centred around a small patch of land on one of the number of corners, which obscured vision and thereby contributed to the now growing number of injurious collisions.

When consideration was taken by the highways agency operating under the local authority to try and remove the affected area, the decision was taken to write to the land owners British Rail and request that either the state body  take steps to remove the blockage or that permission might be granted for the local authority themselves to carry out the work at cost to the state under s.79 of the Highways Act 1980.

Under the power of such statute the local authority were at their own discretion able remove the land at cost to themselves in order to circumvent any undue objections and while acting in the interest of public safety. Unfortunately while the local authority did write to the corresponding public body and a meeting was held to examine how best to proceed, the letter was ignored by the recipients and the sender was later moved to another council department without explaining to anyone that the matter was under review and that further action was needed.

When the claim for negligence and breach of statutory duty was initiated by the victim of the accident, damages were awarded and shared liability placed upon the driver and local authority (in varying degrees) after which an appeal was made by the defendant public body.

During the hearing judge Lord Hoffman’s view of operational policy translated that:

“The distinction between policy and operations is an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not.”

In other words just because the highways agency and local authority were obligated to provide safe roads and road surfaces to the general public, private land that prevented an unobscured field of view did not render those same bodies liable for a duty of care even if they had decided to take steps outside of prescribed statute to remove the obstruction at cost to themselves.

This case ties strongly with the constitutional concept of ‘justiciability’, which is to say that because public bodies are created by statute through the democratic process the court recognises the limitations of their capabilities and subsequently hesitates to challenge them.

Key Citations

” I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, it if can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.”

“…the concept of proximity may be seen as an umbrella, covering a number of disparate circumstances in which the relationship between the parties is so close that it is just and reasonable to permit recovery in tort.”

“…it does seem eminently fair and reasonable that the loss should fall on the highway authority and not the hapless road user. And if the existence of duty of care in all cases, in the shape of a duty to act as a reasonable authority, has a salutary effect on tightening administrative procedures and avoiding another needless road tragedy, this must be in the public interest.”

“…the question of whether anything should be done about the junction was at lal times firmly within the area of the council’s discretion. As they were not under a public law to do the work…”

“In my view the creation of duty of care upon a highway authority, even on grounds of irrationality in failing to exercise a power, would inevitably expose the authority’s budgetary decisions to judicial inquiry.”

“Public law is unable to give effective remedy if a road user is injured as a result of an authority’s breach of it’s public law obligations.”

Smith v Littlewoods Organisation Ltd

English Tort Law

Smith v Littlewoods Organisation Ltd
Image: ‘Naro Cinema’ by Marianne Kuhn

This appeal case explores the subjective reasoning behind duty of care and mindfulness of action when considering those nearby. In 1976 a cinema had been purchased and partially stripped clean of furnishings as part of a renovation project by the new owners Littlewoods Ltd.

During the period between emptying the building and the resultant fire there had been ongoing building works that had been subjected to occasional acts of trespass and minor vandalism by local youths despite typically applied security measures. When those reckless efforts had led to small fires and an eventual complete engulfing of the cinema in flames, it also caused substantial fire damage to two adjacent properties who sought tortious remedy through an assumed duty of care and foresight which the claimants felt could have prevented it. What then transpired was that although the local police force and members of the community were aware of the transgressions leading up to the fire, they failed to notify the owners therefore no additional steps were attend to tighten security and avoid the net result.

When the first hearing ruled against any liability the appeal ended up with a similar outcome as when applying the maxim ‘taking reasonable steps to prevent…’ it is only fair in the event of unreported vandalism that the cinema had already been seen to have taken the expected steps to prevent vandalism or trespass in accordance with societal norms. Likewise the fact that previous attempts to start fires had gone unreported by the victims of such events only seemed to fall under the umbrella of contributory negligence (at the exclusion of the defendants).

Key Citations

“It should have been reasonably foreseeable by Littlewoods if they had known of the activities of young persons observed by certain individuals in the locality. But they did not know of such activities because the individuals connected did not inform either Littlewoods or the police of them, nor did the police themselves observe them.”

“…what the reasonable manis 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 then a mere possibility.”

“…to impose a general duty on occupiers to take reasonable care to prevent others from entering their property would impose an unreasonable burden on ordinary householders and an unreasonable curb upon the ordinary enjoyment of their property.”

“…a general duty on owners or occupiers of property…to take reasonable care to see that it [is] proof against the kind of vandalism which was calculated to affect adjoining property,”

Caparo Industries plc v Dickman

English Tort Law

Caparo Industries plc v Dickman
Image: ‘Takeover Target’ by Denise Finney

When predatory investors choose to act upon the advice or information given outside the remit of those assigned to prescribe it, they do so under risk of their own suffering and within the rules of industry and commerce. On this occasion the cross-appellants argued that their reliance upon the annual statement provided by a company’s accountants led to increased investment despite the fact that the statement turned out to be inaccurate.

When the appellants, a public limited company,  fell victim to poor financial trading their stock market share values began dropping and were in turn bought up in considerable number by the cross-appellants. While buying as outside investors they secured an almost thirty percent share of the failing company, after which they became registered investors and acted quickly to gain a majority controlling hold of the firm. These additional purchases were made after learning from the annual shareholder statement that the company was due a healthy pre-tax profit; however after the purchases had been made it became apparent that the accounts had been poorly prepared and showed instead a considerable loss of profit.

During the appeal it was claimed that the accountants owed a duty of care to the now primary shareholders of the company when drafting the legally required statement and that such care rendered them liable for the losses inherited by the investors. In this instance a duty of care was determinable by the relationship between (or proximity to) both accountants and investors. Citing Hedley the distinction was made between expert advice (albeit subjective) from a banker and an annual submission from a firm of accountants; and despite an implied culpability on the part of the accountants an error was made upon which a negative investment took place. What distinguished the two activities was that the former was expressly undertaken to prevent loss upon lending of monies whereas at no point did the accountants have knowledge of a planned takeover bid, despite suggestions made by the investors during the hearing. This clear divide presents the notion that duty of care is always applicable as the two events are less similar than might first appear, however the accountants were only held liable for the losses made as shareholders and not those of outside investors.

In conclusion if it were reasonable to place conscious liability upon all acts of certain parties it would be impossible to distinguish responsibility from neglect and in this instance there was clear frustration at an unforeseen outcome but one must always be mindful that the very nature of financial investment is itself riddled and prone to loss.

Key Citations

“They owe the duty, of course, to their employer or client; and also I think to any third person to whom they themselves show the accounts, or to whom they know their employer is going to show the accounts, so as to induce him to invest money or take some other action on them. But I do not think the duty can be extended still further so as to include strangers…”

“I do not think that such a relationship should be found to exist unless, at least, the maker of the statement was, or ought to have been, aware that his advice or information would in fact be made available to and be relied upon by a particular person or class of persons for the purposes of a particular transaction or type of transaction.”

“It is never sufficient to ask simply whether A owes B a duty of care. it is always necessary to determine the scope of duty by reference to the kind of damage from which A must take care to save B harmless.”

“As a purchaser of additional shares in reliance on the auditor’s report, he stands in no different position from any other investing member of the public to whom the author owes no duty.”

“I find it difficult to believe, however, that the legislature, in enacting provisions clearly aimed primarily at the protection of the company and its informed control by the body of its proprietors, can have been inspired also by consideration for the public at large and investors in the market in particular.”

“To widen the scope of the duty to include loss cause to an individual by reliance upon  the accounts for a purpose for which they were not supplied and were not intended would be to extend it beyond the limits which are so far deductible from the decisions of this House.”

Donoghue v Stevenson

English Tort Law

Donoghue v Stevenson
Image: ‘Snail on a Hill’ by Henry Colchado

Principles of foreseeability, duty of care, proximity and negligence were front and centre in this appeal case between a paying customer and manufacturer and vendor of beverages. When purchased by a friend from a retail outlet the appellant had partially emptied and consumed the contents of a bottle of ginger beer when the remains of a snail fell into her glass, producing initial shock followed by severe stomach pain.

When pursued for a claim under tort the hearing was struck out following a decision taken in a similar case that had dismissed any award under similar circumstances. Undeterred the claimant appealed and went on to succeed in securing a claim for the above torts and setting a new precedent for what would be construed today as an implied contract based upon an inherent duty of care owed from one person to another. In fact one may go as far as including fiduciary elements inasmuch as when deciding to create a product that is designed to be internally digested the manufacturer does so in the understanding that a paying customer is vulnerable to the actions or inactions within that process, and while a degree of profit is acceptable the undertaking must ideally serve the best interests and welfare of an unwitting recipient in order for the transaction to remain equitable.

The ‘neighbour’ statement used by Lord Atkin was a generic term and one that allowed for an interpretation of conscious liability although such a concept relied upon a proviso that the relationship between the claimant and the defendant be reasonably determinable. By this it is meant that where the manufacturer prepared the ginger beer it was done so with the foresight of mind to the responsibility that safe consumption would be provided for and that any and all suitable measures would be taken to prevent otherwise.

In fact the phrase ‘do unto others as you would have them do unto you’ fits this issue well as it is unacceptable to accommodate flagrant misuse or an inability to consider others safety, comfort and self-respect. Peripheral details that may encumber these cases are decipherable as a matter of course and should therefore not distract from the principle of ‘duty of care’ which also goes some length to explain the overlap between contractual and tortious law.

Key Citations

“Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

“…a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will  result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.”

“I am of the opinion hat the contention of the appellant is sound, and that she has relevantly averred a relationship of duty as between the respondent and herself, as also that her averments of the respondent’s neglect of that duty are relevant.”

“I do not think that any reasonable man  or any twelve reasonable men would hesitate to hold that, if the appellant establishes her allegations, the respondent has exhibited carelessness in the conduct of this business.”