Black Letter Law report: 2018 Carillion collapse

Insight | August 2019

Carillion
‘Le Chantier’ by Maximilien Luce

This is a twenty page report detailing the financial collapse of Carillion plc in 2018, and while this independent report explains much of the background leading up to their downfall, it also includes judicial insight into the rights of those left out of pocket when the hammer finally fell (simply click here to read it).

The tort law section is now finished!

United States Law: A Case Study Collection

Tort Law
‘Anger’ by Alla Dzevaltovska

After working on this final chapter of the book for the past few months, I’m very pleased to announce that it is now finally complete, which has left me feeling a mixture of emotions, particularly as this wonderful and frankly unprecedented project has been the primary focus of my energy since November 2017.

As I have always done with the previous disciplines shown in the forthcoming ‘United States Law’, the final listing is here for you to view, and so I can only hope that you enjoy reading about them as much as I have studying and preparing them for publication.

1. Aetna Health Inc. v. Davila

2. Anderson v. St. Paul & Sault Ste. Marie Railway Co.

3. Beul v. ASSE International Inc.

4. BMW of North America Inc. v. Gore

5. Boim v. Holy Land Foundation for Relief and Development

6. Boomer v. Atlantic Cement Co.

7. Borsheim v. Great Northern Railway Co.

8. Brown v. Kendall

9. Burton v. Cowell Publishing Co.

10. Christensen v. Superior Court

11. Cox Broadcasting Corp. v. Cohn

12. Dillon v. Legg

13. Dillon v. Twin State Gas & Electric Co.

14. Dun & Bradstreet Inc. v. Greenmoss Builders Inc.

15. Earles v. Perkins

16. Escola v. Coca Cola Bottling Co. of Fresno

17. Falcon v. Memorial Hospital

18. Foster v. Preston Mill Co.

19. Garratt v. Dailey

20. Gertz v. Robert Welch Inc.

21. Goldberg v. Florida Power & Light Co.

22. Greenman v. Yuba Power Products Inc.

23. Henningsen v. Bloomfield Motors Inc.

24. Intel Corp. v. Hamidi

25. Jacque v. Steenburg Homes Inc.

26. Katko v. Briney

27. Kline v. 1500 Massachusetts Ave. Apartment Corp.

28. Knight v Jewett

29. MacPherson v Buick Motor Co.

30. Marshall v. Nugent

31. Martin v. Herzog

32. Metro-North Commuter Railroad Co. v. Buckley

33. Mohr v. Williams

34. Nash v. Port Authority of New York and New Jersey

35. New York Times Company v. Sullivan

36. Palsgraf v. Long Island Railroad Co.

37. Philip Morris USA v. Williams

38. Ploof v. Putnam

39. Port Authority of New York and New Jersey v. Arcadian Corp.

40. Riss v. City of New York

41. Robins Dry Dock & Repair Co. v. Flint

42. Rowland v. Christian

43. Scribner v. Summer

44. Sindell v. Abbott Laboratories

45. Sosa v. Alvarez-Machain

46. Soule v. General Motors Corp.

47. Strauss v. Belle Realty Co.

48. Summers v. Tice

49. Tarasoff v. Regents of University of California

50. Tedla v. Ellman

51. The Florida Star v. B.J.F.

52. Time Inc. v. Hill

53. Tunkl v. Regents of University of California

54. Ultramares Corp. v. Touche

55. Vincent v. Lake Erie Transportation Co.

56. Vosburg v. Putney

57. Ybarra v. Spangard

58. Zeran v. America Online Inc.

R v Adomako (1994)

English Criminal Law

R v Adomako
‘The First Operation with Ether’ by Robert Cutler Hinckley

The difference between criminal negligence and manslaughter is discussed in a case that showcased the immense vulnerability with which we place our care, and therefore our lives, in the hands of medical professionals on any given day.

Having been summoned to serve as a locum anaesthetist at Mayday Hospital, London, during a routine eye operation, the appellant was alerted by an alarm on the Dinamap machine, whereupon he immediately administered two intravenous doses of atropine on the assumption that the patient was having what he thought was an ocular cardia reflex, even though the actual cause of the alarm had resulted from a disconnection of the endotracheal tube providing oxygen to the patient, some four and a half minutes earlier.

In fact, it wasn’t until the appellant noticed how the patient had begun to turn blue, that he attempted to perform cardiopulmonary resuscitation (CPR), which proved ultimately futile when the patient then suffered a cardiac arrest and died, all of which resulted in the appellant appearing before the Central Criminal Court on charges of manslaughter, wherein the jury found him guilty.

Having challenged the judgment in the Court of Appeals, the appellant argued that while a failure to notice the disconnection was short of the duty of care prescribed him, his actions following his discovery were reasonable given the circumstances, and that the court ought to have found him culpable only of misdiagnosis and not criminal negligence, or even manslaughter as convicted.

However with consideration of the proportional trial direction, the court explained that when attempting to determine involuntary manslaughter, a jury must first establish (i) the existence of a duty, (ii) a breach of that duty that amounts to a death, and (iii) negligence sufficient enough to warrant a criminal conviction, and so having deliberated upon the facts presented, the court held that:

“It was in our view clearly open to the jury to conclude that the appellant’s failure to perform his essential and in effect sole duty to see that his patient was breathing satisfactorily and to cope with the breathing emergency which should have been obvious to him, justified a verdict of guilty. They were entitled to conclude his failure was more than mere inadvertence and constituted gross negligence of the degree necessary for manslaughter.”

Whereupon the appellant’s case was presented to the House of Lords on the question as to whether in cases of manslaughter the jury ought to be guided by the test first used in R v Lawrence and now commonly applied in motor vehicle related deaths, or by those principles used in the trial court.

Here the House first turned to R v Bateman, in which the Court of Appeal had held that:

“[I]n order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.”

 While the House noted that in Andrews v Director of Public Prosecutions it had similarly held that:

“Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established.”

However in Lawrence the test for recklessness was reliant upon the fact:

(i) “[T]hat the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property…”

And:

(ii) “[T]hat in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it.”

Thus the House held that when ascertaining liability for manslaughter, the courts ought only to rely upon the  Bateman and Andrews tests in order to simplify their application and assist a jury, although should the judge feel so compelled, he might also consider the Lawrence test where wholly applicable, upon which the court dismissed the appeal in full, while holding that:

“To make it obligatory on trial judges to give directions in law which are so elaborate that the ordinary member of the jury will have great difficulty in following them, and even greater difficulty in retaining them in his memory for the purpose of application in the jury room, is no service to the cause of justice.” 

 

Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd (1942)

English Contract Law

Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd
‘Steamship on Seashore’ by Vittorio Avondo

While the doctrine of frustration relies upon the existence of an unforeseen and thus unexpected event, its design is not one that requires any element of blame in order to apply, as was seen in this case between a corporation and shipowner.

In August of 1836 the now appellants contracted to supply one of their steamships to the respondents for the purposes of transportation to a number of international sea ports by way of commercial enterprise. Having been used for the reasons agreed, the ship was later anchored over the Christmas period while awaiting further use until its return in January 1837.

Unfortunately while dockside the ship suffered an enormous explosion that sent the auxiliary boiler over one hundred and sixty four feet from its original position, while the primary boilers were forced backwards by the blast, all of which rendered the vessel inoperable and thereby unable to complete its journey to the respondents.

Having cited frustration of contract, the appellants looked to leave matters as they were, however the respondents argued that the explosion had arisen by way of negligence, and so damages were owed for the loss accrued. 

First heard in the Court of the Kings Bench, the judge held that the appellants were merely unwitting victims of unforeseen circumstances, particularly when a Board of Trade Enquiry had failed to establish any liability in relation to the cause of the explosion, or any possible negligence shown by those working on the ship at the time; and so in closing the court held that:

“It is plain that it has not been established that they were guilty of negligence and there is no finding of any negligence. The worst finding against them is under the one heading of possibility of negligence.”

To which the respondents challenged the finding in the Court of Appeals, who awarded in their favour while holding that:

“A party prima facie guilty of a failure to perform his contract cannot escape under the plea of frustration, unless he proves that the frustration occurred without his default. There is no frustration in the legal sense unless he proves affirmatively that the cause was not brought into operation by his default.”

After being denied leave to appeal, the House of Lords Appeal Committee granted it so that the issue of liability could be afforded examined and conclusive clarification, and so the matter was once again given due discussion.

In the first instance Viscount Simon turned to Taylor v Caldwell in which the court held that: 

“[I]n contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance.”

While Viscount Maugham noted that in Hirji Muji v Cheong Yue Steamship Co Ltd the Privy Council held that:

“[W]hatever the consequences of the frustration may be upon the conduct of the parties, its legal effect does not depend on their intention or their opinions, or even knowledge, as to the event, which has brought this about, but on its occurrence in such circumstances as show it to be inconsistent with further prosecution of the adventure.”

Before illustrating that in Bank Line Ltd v Arthur Capel & Co the House of Lords had held that:

“I think it is now well settled that the principle of frustration of an adventure assumes that the frustration arises without blame or fault on either side. Reliance cannot be placed on a self-induced frustration; indeed, such conduct might give the other party the option to treat the contract as repudiated.”

And so it was that a uniform House held how the appeal court judgment was to be reversed on the very simple yet clear principle that: 

“[W]hen frustration in the legal sense occurs, it does not merely provide one party with a defence in an action brought by the other. It kills the contract itself and discharges both parties automatically.”

Brown v. Kendall (1850)

US Tort Law

Brown v. Kendall
‘Dog Fight’ by Vladimir I

Burden of proof in an action for trespass and assault and battery falls subject to examination when after a fight between two dogs, the plaintiff is left seriously injured and in want of redress.

In 1850, the two parties were caught up in a vicious dog fight involving their respective animals, and while the now deceased defendant took deliberate steps to separate them, the plaintiff was accidentally struck in the eye by the defendant’s walking stick, as he stepped backwards during the melee.

In response, the plaintiff commenced a suit for tortious damages for trespass vi et armis (trespass by force and arms) on the supposition that the injurious blow was a deliberate act, and that the carelessness and neglect of the defendant was the cause, and not the location of the plaintiff when the stick was drawn back.

As was common at the time of litigation, Chapter 93 § 7 of the Massachusetts Revised Statutes allowed clams for assault and battery to stand, despite the death of the accused, and so following his passing, the defendant was represented by his executrix, whereupon the district court judge instructed the jury to decide upon the principle that:

“If the jury believe, that it was the duty of the defendant to interfere, then the burden of proving negligence on the part of the defendant, and ordinary care on the part of the plaintiff, is on the plaintiff. If the jury believe, that the act of interference in the fight was unnecessary, then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of the plaintiff, is on defendant.”

On this occasion, the jury returned a verdict in favour of the plaintiff, while the executrix sought to challenge the finding in the Massachusetts Supreme Court, on the insistence that the injury was accidental and potentially unavoidable on the part of her late husband.

Here, the court relied upon Powers v. Russell, in which Shaw CJ had held that in instances:

“[W]here the party having the burden of proof gives competent and prima facie evidence of a fact, and the adverse party, instead of producing proof which would go to negative the same proposition of fact, proposes to show another and a distinct proposition which avoids the effect of it, there the burden of proof shifts, and rests upon the party proposing to show the latter fact.”

Which indicated that unless the plaintiff could show sound reasoning why the injury arose through negligence, there was insufficient grounds for a jury to decide with confidence, thus the court was now convinced that when choosing to separate the two animals, the deceased was, by virtue of his avoiding potential harm to his dog, acting lawfully and within his rights as an owner, and so while moving backwards with his fullest attentions on the fight, it was held by the court that:

“If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care adapted to the exigency of the case, and therefore such want of due care became part of the plaintiff’s case, and the burden of proof was on the plaintiff to establish it.”

Upon which the previous verdict was dismissed and a new trial ordered on the pretence that unless irrefutable evidence could provide that the defendant had been wilfully negligent in an act of carelessness, there was simply no legal basis for recovery by the plaintiff.

Martin v. Herzog (1917)

US Tort Law

Martin v Herzog
Image: ‘Horse Drawn Cabs at Evening, New York’ by Frederick Childe Hassam

Liability for negligence arising from a breach of statute is unquestionable in terms of culpability, however when both parties have acted beyond their prescribed rights, it becomes a matter of priority in reaching summary judgment.

In dusk of August 21 1915, a husband and wife were entering a stretch of road in a wagon, that whilst doing so on a bend, was unequipped with lights, as required by s.286 of the New York Highway Laws 1909, which explained that:

“Every motor vehicle, operated or driven upon the public highways of this state…shall, during the period from one-half hour after sunset to one-half hour before sunrise, display at least two lighted lamps on the front and on the rear of such vehicle…”

It was at this point that a car driven by the now appellant collided with the wagon, killing the respondent’s husband. Upon litigation, the appellant remarked that he was unable to see the wagon, and thus had been straining to peer into the darkness at the time of the accident. In defence, the respondent argued that the inability to avoid the wagon constituted negligence under s.332(1) of the same Act, and which read:

“Whenever a person operating a motor vehicle shall meet on a public highway any other person riding or driving a horse or horses or other draft animals or any other vehicle, the person so operating such motor vehicle shall seasonably turn the same to the right of the centre of such highways so as to pass without interference.”

In the first instance, the jury upheld the respondent’s contention of negligent driving, while reducing the culpability of the deceased to that of contributory negligence when failing to upholster his vehicle with lights. The matter was then put before the Appellate Division, who reversed the judgment in favour of the appellant.

Challenged again, the New York Supreme Court examined the importance of statute, further noting that while both sections were essentially safeguarding the rights and lives of road users, the failure to install and use lights was by design, tantamount to absolute negligence, as had been found in both Massoth v. D & H Canal Co. and Cordell v. N.Y.C & H.R.R. Co.

It was also held that legislation is not something privy to the whims of a jury, regardless of how trivial such details might appear when taken in context, and that the misdirection of the trial judge was unlawful and in therefore in need of redress. So it was for these reasons, that the appellate court ruling was sustained and damages awarded to the appellant with costs.

Barrett v Ministry of Defence

English Tort Law

Barrett v Ministry of Defence
Image: ‘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.