Barrett v Ministry of Defence (1994)

English Tort Law

Barrett v Ministry of Defence
‘Fra Balestrand’ by Even Ulving

Self-intoxication when subject to unenforced regulatory powers, while seemingly harmless in the early stages, becomes less a voluntary act than an inevitability when boredom and recklessness result in a fatality. Sadly on this occasion, the celebratory rituals of a naval base exposed a regime based upon irresponsibility rather than organised discipline.

In litigation by writ during early 1990, the widow of a naval airman sought damages for negligence arising from a breach of duty of care through the Fatal Accidents Act 1976 and the Law Reform Miscellaneous Provisions Act 1934, after her late husband was found dead in his bunk.

In late January 1988, the deceased was celebrating his 30th birthday and pending promotion while stationed at the Barduffos Royal Naval Air Station, Norway, a base known for its leniency towards off-duty drinking, despite recognised preventative guidelines and clear definitions as per s.28 of the Naval Discipline Act 1957, which read:

“A person is drunk . . . if owing to the influence of alcohol or any drug, whether alone or in combination with any other circumstances, he is unfit to be entrusted with his duty or with any duty which he might be called upon to perform, or behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service.”

While art.1810 of the Queen’s Regulations for the Royal Navy 1967 also explained how:

“It is the particular duty of all officers, fleet chief petty officers, chief petty officers, petty officers and leading ratings actively to discourage drunkenness, overindulgence in alcohol and drug abuse by naval personnel both on board and ashore. Should a man appear to be suffering from any of these abuses they are immediately to take appropriate action to prevent any likely breaches of discipline, possible injury or fatality, including medical assistance if it is available.”

On the night before his death, the deceased had consumed enough alcohol to lapse into unconsciousness shortly before midnight, after which he was taken to his room and left in the recovery position. It was during the following three hours that he was visited only three times, after which he had vomited and asphyxiated through inhalation of the vomitus. Within the base codes of conduct was guidance for dealing with inebriated servicemen, within which it read:

“(i) Keep the offender out of distance of officers or senior ratings so that he cannot commit himself by striking or by insubordination. Avoid altercation, (ii) Have him examined by the duty M.O. (iii) Should he be in a state of collapse, make sure he does not lie on his back so that he can suffocate if he vomits. See that he is sighted every few minutes.”

In the first hearing, the judge ruled that the appellants had, by virtue of their inability to enforce the regulations and codes of conduct, failed to provide a sufficient duty of care when managing the deceased and awarded damages of around £214,000, with a one-third reduction for the contributory negligence through over-consumption of alcohol.

Presented to the Court of Appeal on grounds of erring in law when comparing the Queen’s Regulations with the Highway Code and thereby over-extending the liability of the Ministry when passing judgment, the Court reexamined the facts, along with the threshold of culpability, whereupon it held that while the appellants had failed to uphold a reasonable standard of care, the choice to drink excessively was undoubtedly the primary cause of death, at which point the Court reversed the proportion of liability in favour of the appellants thus reducing the damages to roughly £71,000.

Barnett v Chelsea and Kensington Management Committee (1969)

English Tort Law

Barnett v Chelsea and Kensington Management Committee
‘Mom’s Poison Bottle’ by Leah Lopez

Professional negligence and the balance of probabilities were, at the time of this hearing, key ingredients to the maxim ‘novus actus interveniens’, which is used to determine whether the actions (or inactions) of a third party can be held liable for the cause of death, even when the primary act or event was of such magnitude that nothing could have reasonably prevented a fatality.

On New Year’s eve of 1965, three college watchmen were self-admitted to the casualty ward of St. Stephen’s Hospital, London, complaining of sickness and associated vomiting. Ironically, one of the men had been admitted only hours earlier, after suffering a blow to the skull by an unknown campus intruder.

Upon their arrival, the duty nurse listened to their complaints, before communicating them by telephone to the medical casualty officer, who was himself at home suffering with a sickness and associated vomiting. Having heard their symptoms, the advice given was that they should return home and wait until feeling better, aside from the victim of the violent attack, who was asked to remain in the ward until his x-ray, which was due later next morning.

Angry that no immediate solutions were offered, the three men left and returned to their place of work. Shortly after arrival at the college, the injured watchman was forced to lay down, where he remained until the college doctor arrived at 1pm on New Year’s day, at which point his condition had significantly deteriorated, and so when arriving at hospital at 2pm he was pronounced dead.

Upon examination, it was revealed that for reasons unknown, the flask of tea shared by the men at 5am that morning, was contaminated with arsenic, which while not enough to kill all three, was present enough to prove fatal to one. It was for this reason that his widow sought damages from the defendants, on grounds that the inability of the hospital staff to both diagnose and treat her late husband, was in fact the primary cause of his death, and that a liability for negligence was clear through an inherent duty of care.

At the trial, the criteria for negligence under a duty of care was first addressed through the words of Denning J in Cassidy v Ministry of Health, when he explained:

“In my opinion authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the self-same duty as the humblest doctor; whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment…and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him.”

While through p.183 of ‘Winfield on Torts’ 7th ed (1963) the court was reminded that:

“Where anyone is engaged in a transaction in which he holds himself out as having professional skill, the law expects him to show the average amount of competence associated with the proper discharge of the duties of that profession, trade or calling, and if he falls short of that and injures someone in consequence, he is not behaving reasonably.”

A principle that was furthered by the witness testimony of Dr. Stanley Lockett, who enthused:

“In my view, the duty of a casualty officer is in general to see and examine all patients who come to the casualty department of the hospital.”

However, upon close analysis of the timeline between the deceased’s complaints and the event of his death, it was confirmed that despite hypothetically following all the procedural requirements when treating patients, the hospital would not have been able to administer the named antidote for arsenic poisoning (B.A.L), or apply an intravenous drip any earlier than around 12pm New Year’s Day, therefore despite the obvious anguish of the claimant and her anger over her husband’s untimely death, the defendants could not be held legally liable for negligence, despite failing under their requisite duty of care.

Topp v London Country Bus (South West) Ltd (1993)

English Tort Law

Topp v London Country Bus (South West) Ltd
‘London Transport Rt’ by Mike Jeffries

Proximity and lack of foreseeability, prevent this tragic claim for damages when a grieving husband argues that the owners of a minibus are liable for the death of his wife.

In 1988, a minibus owned and driven by bus company staff, was left parked and unlocked with the keys in the ignition, in the lay by of a nearby public house. It was considered normal practice for the drivers of these vehicles to leave them there in that state, as literally minutes later, it would typically be collected and driven by a replacement driver.

On this occasion, the replacement driver failed to turn up for work due to illness, which left the bus unlocked and clearly vulnerable to theft. During the time between the driver leaving the minibus and the accident taking place, the original driver had noticed it had not been taken as expected, and promptly notified his employers. At 11.15pm that evening, an unknown person took the minibus, and shortly afterwards ran down and killed the appellant’s wife as she was out cycling. This led to action being taken against the bus company, on grounds of breach of duty of care, negligence and foreseeability.

In the first instance, the court dismissed the claim, whereupon the appellant claimed the judge erred in law on three grounds, namely (i) judging the claim unreasonable, (ii) holding that the facts fell outside the scope of award for duty of care, and (iii) not finding the respondents liable for the victim’s death.

In Smith v Littlewoods Organisation Ltd, it was cited by Goff LJ that:

“[E]ven though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do . . . [that] may be read as expressing the general idea that the voluntary act of another, independent of the defender’s fault, is regarded as a novus actus interveniens which, to use the old metaphor, ‘breaks the chain of causation.’”

While in Denton v United Counties Omnibus Co, the court agreed that although an omnibus belonging to the defendants was stolen from an unsecured storage yard before bring driven into the claimant’s car, there was insufficient proximity between the owners, and the party liable for the accident to warrant any duty of care.

This translated that the thief and alleged joy-rider, was clearly in no position to consider the danger his actions posed, and irrespective of whether his identity could be established, and unfortunate as it was to have had his wife killed for no reason, a claim of negligence could not reasonably stand, on grounds of proximity and lack of foreseeability, thus the Court dismissed the appeal while holding that:

“[T]here was in the circumstances of this case a relationship of proximity between the defendants and Mrs. Topp. But I entirely agree with the judge that no duty of care is shown either in principle or having regard to the authority of this court…”

Chester v Afshar (2004)

English Medical Law

Chester v Afshar
‘No Full Disclosure’ by Robert Burridge

‘But for’ causation and the principles of tort, while reminiscent of criminal procedure, can fall foul to policy loopholes when a duty of care is involved. In this matter, the actions (or inactions) of a neurosurgeon left a patient paralysed and angry after full disclosure had not been established prior to her operation.

After suffering for a number of years with lower back pain, the respondent had reached the point that regular injections were no longer of relief, and had now given serious thought to surgical intervention, despite long standing fears around the field of operative medicine. Having consulted her rheumatologist at length, she was confidently advised to procure the services of a Harley Street practitioner with a solid reputation for the proposed kind of operation.

The recommended procedure involved delicate removal of a number of vertebrae that would by extension, bring an end to her pain, but not without associated risks inherent to the work. Upon her first visit with the appellant, the two individuals took time to discuss the course of action, along with the known side-effects and possible nerve damage. Having consented to undergo the surgery, the respondent was treated a few days following the meeting; after which her recovery was less positive than had been anticipated, and which had in fact left the respondent immobile and diagnosed with cauda equina syndrome.

Having sought damages for what the respondent considered to be negligence through a breach of duty to inform her of the known (and well documented) risks associated with the operation, the first judge found that in order to reach a balanced decision, it was important to address both the breach of duty to fully disclose, and the liability for the subsequent injury arising from the procedure. On this occasion, and relying upon the evidence presented, the court took time to debate the principal function of causation, in which the defendant is not required to establish exemption, but that the claimant must take the necessary steps to demonstrate how their breach caused either injury or loss, and that where adherence to policy and procedure had occurred, the results would have prevented any need for legal remedy.

With judgment found in favour of the respondent in the first hearing, the surgeon moved to appeal, before finding his challenge dismissed for the same reasons. It was then after granting permission to appeal to the House of Lords, that the finer details of causation and right to damages became of greater significance.

While the discussion revolved around similar medical cases applying tortious doctrines of causality, the named risk attached to lumbar stenosis removal ran within a very narrow margin of around one to two percent, and it had been proven as well as agreed, that irrespective of the performing surgeon, the potential for the syndrome remained equally viable. This translated that a lack of absolute disclosure by the appellant, while disconcerting in the immediate sense, could not be held as contributory to the injurious outcome experienced by the respondent.

However, the division between the House was such that enough case material had amassed to instigate a reconsideration of the logic of causality; and that when embracing the autonomous rights of the patient, it was simply unethical to allow minimal disclosure and a weakness of causative proximity to remove access to knowledge, which on this occasion might have led to alternative solutions to pain and discomfort. By then mindfully broadening the duty of care principle, the judges found (by a similarly narrow margin) in favour of the respondent and awarded accordingly, while holding that:

“In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.”

 

R v Stone; R v Dobinson (1976)

English Criminal Law

R v Stone (John Edward)
‘The Earth (Zemliia)’ by Bohdan Pevny

In this landmark criminal law case, the distinction between indifference to, and perception of risk, are carefully weighed, in order to appreciate that when compared for their relevance to recklessness, the outcome remains the same, despite differing routes to dire consequences.

In 1972, an eccentric sibling moved into the home of her older disabled brother after a falling out with her sister. The terms of the living arrangement was that of a landlord and tenant, in so much that rent was paid and each were free to live their lives independently of one another. While the brother lived with his mistress and housekeeper along with his mentally challenged son, the sister occupied the front room of the home and maintained a high degree of privacy, despite openly suffering from anorexia nervosa (although undiagnosed at the time); a condition that precluded regular meals in favour of a low bodyweight, that in many instances was known to result in premature death, or at best, extreme immobility.

After a period of almost nearly three years, the sister’s health deteriorated to a point that she became permanently bedridden and unable to clean or feed herself. Despite repeated express concerns from the mistress to the brother regards his sister’s condition, there were no attempts made by the either party to extend their efforts in seeking medical help beyond that of unsuccessfully trying to locate her doctor. When matters continued with no real intervention, the now seriously ill woman was eventually found dead in her bed, amidst evidence that no care had been taken to tend to her toiletry needs or physical health requirements, prior to her death.

When reported to the police, the two defendants were summoned and convicted of manslaughter upon grounds of a breach of duty of care through recklessness, whereupon the two parties appealed under the presumption of diminished responsibility. When considered under appeal, the judges found that irrespective of whether the couple claimed to have taken limited steps to get the deceased help, there was insufficient evidence to avoid the conviction of recklessness, as (i) there was adequate foresight of the risk posed to the dying woman while under the assumed care of her brother and mistress, and (ii) that the conduct taken to redress such a risk, was made with little regard to the seriousness of her condition.

Ultimately, and when taken in context, the court felt that it mattered not which route had been taken, only that the destination resulted in her death; and that both parties had been made aware of possible options, yet continued to ignore the duty bestowed upon those assigned the care of a vulnerable person, in particular a close relative with a history of self-neglect and malnutrition.

Public Body Duty of Care in Tort

Insight | February 2017

Public Body Duty of Care in Tort
Image: ‘Vicarious Trauma’ by Amy Gaskin

Within the field of tort, there are a number of victims that are recognisable for damages in extenuating scenarios. These include rescuers, involuntary participants, communicators of shocking news, witnesses to self-harm and those held under an assumption of responsibility by the defendant.

There are of course exemptions from such events, in particular public bodies (despite being funded by tax payers money). One argument for such paradoxical exclusion is that making public bodies pay for their mistakes would place a strain upon public services funds, and lead to division of public resources in times of need.

This ironically raises the question of whether liability should exist when the public body has the power to act despite no duty to do so? The House of Lords determined that no duty of care was owed in respect to negligent use of power, unless that action made the claimant’s situation worse than it was before, while jurisprudence around the European Convention of Human Rights (ECHR) and the Human Rights Act 1998 (HRA) altered the previous threshold regards duty of care.

In D v East Berkshire Community NHS Trust and others, ‘defensive practices’ were seen as a consequence of liability on the part of the local authority staff, which would compromise their standard of work, therefore it was subsequently felt that a duty of care was owed to children in extraction cases, but not to all parties.

In the earlier case Osman v Ferguson, and the later Osman v UK, the police were initially offered immunity from a duty of care until the parents of a murdered pupil appealed to the European Court of Human Rights (ECtHR), under the observance that while art.6 of the Human Rights Act 1998 provided public body immunity, it denied the family from receiving a fair trial, while no attempts were made to distinguish Osman from the earlier Hill v Chief Constable of West Yorkshire, despite marked differences.

Of notable interest, is the knowledge that the fire service has no duty of care to respond to an emergency call or to turn up and attempt to fight a fire. It does however, have a positive duty not to make matters worse in the event that they do attend such events, albeit with the caveat that it does not have a duty of care to prevent the fire from spreading. On the upside, at least the ambulance service does owe a duty of care to individual claimants in specific circumstances, while also possessing a duty to respond to emergency calls, although this is only because the domestic courts view the service as an extension of the National Health Service (NHS), which itself owes a duty of care to all of its patients.

Much like the fire service before, the coastguard owes no duty of care to respond to calls from people in trouble at sea, only a duty to not make matters worse when they arrive. While in contrast, the British armed forces are only held to owe a duty of care when the defendant can be said to have assumed responsibility to the client, just as little comfort is taken in the knowledge that there is no duty of care owed to the public under battle conditions, or in times of threat.

Smith v Littlewoods Organisation Ltd (1987)

English Tort Law

Smith v Littlewoods Organisation Ltd
‘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 taken 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 was deemed 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).