FITZPATRICK v STERLING HOUSING ASSOCIATION LTD

In this appeal case, the relationship between a private tenant and potential successor was that of two men; and so upon the death of the elder partner, it was found that despite their twenty-year history and the deeply caring bonds between them, the wording of the Housing Act 1988 prevented the surviving party from inheriting the assured tenancy, and thereby remaining in occupation of the home they had once shared.

Due to the widening of interpretation concerning the proximity required to uphold succession, it  had become possible to appeal against the original judgment; while on this occasion, the appellant relied upon paragraphs 2(1) and 3 of the 1988 Act.

The first of these placed importance on the spousal aspect of relationships (which relied upon the assumption that the two parties were of opposite genders); while the second, extended the right to succeed where those in occupancy at the time of the other’s death, could prove that their living arrangements (over a minimum two-year period) fell under the scope of ‘family’.

The issue presented to the House of Lords was not one of spousal qualification, but rather agreement that despite the non-traditional relationship between the two men, there did exist an intimacy that by all accounts, could be construed as familial.

And so, after deliberate examination of both the statute’s breadth and a widening cultural shift towards the definition of ‘family’, prevailing judicial opinion upheld the appeal and allowed the appellant to enjoy the home shared with his partner in the years before and leading up to his passing, while the court reminded the parties that:

“[T]wo people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”

PROXIMITY

When we discuss legal proximity there is frequently divided opinion as to what is meant and in what context the term can be applied.

By definition, tort cases almost always rely upon proximity when establishing the claimant-defendant relationship, the relative distance between the two parties, and finally any subsequent obligatory considerations shared.

Though for the sake of clarity, let us begin with the Oxford Dictionary definition of proximity:

Noun [mass noun] nearness in space, time or relationship

Origin: Late 15th century from the French ‘proximité and Latin proximatas, proximus (meaning nearest).

While this explanation appears relatively straightforward, the complexities of human interaction often magnify the context of its use, insomuch as subjective opinion will almost always complicate matters, and leave final judgments in degrees of contention.

This is largely due to a collective inability to agree precisely where proximity fits, and how it connects with other strands of legal principle.

Early illustrative proof of the need for exactness would undoubtedly be the speech given by Lord Pearce in Hedley Byrne Co Ltd v Heller and Partners, which reads:

“[P]roximity will not be established unless at least the following conditions are satisfied….the plaintiff must be (i) the person directly intended by the maker of the statement to act upon the statement (ii) in a specific transaction of which the maker knows and (iii) for the purpose for which the statement is made. Exceptionally conditions (i) and (iii) may be relaxed provided the plaintiff is a person of whose actual existence (if not name) the maker knows, to whom he knows the statement will be communicated, and who it is likely with a high degree of certainty will act upon the statement in a specific transaction of which the maker knows.”

Hedley Byrne Co Ltd v Heller and Partners

Or the even earlier words of Lord Atkin’s ‘neighbour’ speech in Donoghue v Stevenson:

“[S]uch close and direct relations that that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.”

Donoghue v Stevenson

While a simpler definition would be that:

“The claimant must be in an established relationship with the defendant and able to prove that any existing duty of care applied to them, whether through action, inaction or words”

Neil Egan-Ronayne (Legal Consultant)

Whichever phrase suits best, the typical contexts for proximity can range from customer and seller to diner and chef; in fact, the list of possible scenarios could quickly prove lengthy, yet despite changes in issue the essence of proximity remains essentially undiluted.

That said, the general context of proximity deviated when through the course of accident and tragedy, the witnesses to those sudden and unforeseen events began to claim that the distress and trauma of such emotionally crippling scenes commanded financial assistance from the courts through damages.

In those instances, the fluid definition of proximity was echoed  by Lord Wilberforce in McLoughlin v O’Brian, who said:

“Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery.”

McLoughlin v O’Brien

Taken further, the emergence of ‘secondarynervous shock forced the principle of proximity into new territory, by allowing those indirectly receiving terrible news to seek a claim for award under the umbrella of proximation (albeit subject to specific criteria), as defined by Lord  Oliver in Alcock v Chief Constable of South Yorkshire Police, who remarked:

“What remains in issue is whether the defendant owed any duty in tort to the plaintiffs to avoid causing the type of injury which each plaintiff complains. In essence this involves answering the twin questions of (a) whether injury of this sort to each particular plaintiff was a foreseeable consequence of the acts or omissions constituting the breach of duty to the primary victim and (b) whether there existed between the defendant and each plaintiff that degree of directness or proximity necessary to establish liability.”

Alcock v Chief Constable of South Yorkshire Police

Here, we see a variance in application of the principle of proximity and one demonstrating a generosity of scope over that regulated within everyday examples of arms-length dealings, and whether this broadening stemmed from the degree of harm or was simply the choice of the courts to extend empathy toward genuine loss, is not easily traceable; however, there are now notable differences.

Contrastingly, in the United States the ‘dangerous proximity test‘ is one used to determine criminal liability at federal and state levels, with the two key principles being that the defendant was dangerously close to completing the crime, or so close as to a result that the danger was great.

The test itself, was first laid down in 1901, and later adopted by a Judge Learned Hand, who said:

“(P)reparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to compete it renders the crime so probable that the act will be a misdemeanour, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.”

Judge Learned Hand

While under the Turkish laws of contract, the ‘principle of proximity‘ comes into effect where non-specification of parties applicable laws during cross-border transactions leaves the courts with the option to default to the nearest jurisdiction, with the effect of establishing implied and express contractual terms, as was explained by Dr. Gülin Güngor in 2008.

So as before, proximity is regularly used to help establish liability, reduce conflict and this time bring levity to matters that might otherwise become bogged down in their own rhetoric.

With this flexible principle proving it an inarguable necessity, it leaves one pondering if proximity is far from a fair weather friend to law and jurisprudence, but rather an overlooked principle deserving to play a broader role in future legal disputes?

McLOUGHLIN v O’ BRIAN

Proximity, foreseeability and nervous shock, are central to a claim for damages when a mother is witness to the fallout of a multiple vehicle collision, which left one of her children dead.

At a time when common law and judicial confidence preferred to abstain from extending the scope of award, the need for extension became overwhelming in the face of such distress and protracted suffering.

In 1973, the appellant’s husband and three children were involved in a traffic accident involving two articulated vehicles central to the cause of the collision.

The outcome left the husband with bruising and shock, the oldest child with severe head injuries, fractures and bruising, the middle child with fractures, bruising and concussion, while the youngest child aged almost three, had died just moments after the crash.

The appellant was informed of the accident roughly an hour after the tragic event, and was immediately taken to see her family at the nearby hospital.

On her arrival, the appellant saw her husband in a state of shock and visible distress; after which, the hospital staff informed her that their youngest child was dead.

She then witnessed her oldest child screaming and shouting while, her middle child was unable to speak and simply clung to the appellant throughout.

Having initiated a claim for damages under severe shock, organic depression and a change of personality, the court dismissed the claim on policy grounds, in that despite admitting liability for the death and injuries of the immediate victims, there was no duty of care when allowing for the foreseeability that the appellant would suffer resulting psychological injuries.

When heard in the Court of Appeal, the Court ruled that although their was a valid argument that the respondents could have foreseen the impact their negligence would have upon a wife and mother, existing policy denied award to those not present at the scene.

Pursued in the House of Lords, the question in need of address was whether if, by refraining from close analysis and challenge of the existing policy on nervous shock, the judiciary had failed to acknowledge the manifestation of psychological trauma within parties beyond the tragedy, and thereby polluted the course of natural justice.

In Benson v Lee, the court had allowed a claim for nervous shock, when a mother  who having been told by a third party, ran outside her home to find her son had been run over; while in Chadwick v British Railways Board,a nearby resident to a train crash was diagnosed with nervous shock, after arriving at the scene and helping rescue the survivors.

On that occasion, the court had treated the matter as one of special duty, given his willingness to attend and assist.

Contrastingly, it was stated by Reid LJ in McKew v Holland & Hannen & Cubitts (Scotland) Ltd that:

“A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee.”

McKew v Holland & Hannen & Cubitts (Scotland) Ltd

Whereas in the American case Wagner v International Railway Co., Cardozo J explained that:

“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.”

Wagner v International Railway Co.

It was this statement that led the House to consider the appellant’s attendance at the hospital as that of a rescuer at a traumatic event, despite the reluctance of the Court of Appeal to widen the scope of award to those elsewhere, as outlined by Griffiths LJ, who stipulated that:

“[T]he closer the relationship the more readily it is foreseeable that they may be so affected, but if we just confine our consideration to parents and children and husbands and wives, it is clear that the potential liability of the tortfeasor is vastly increased if he has to compensate the relatives as well as the immediate victims of his carelessness.”

While the House agreed that overextension of scope ran risk of abuse of the principle, the time had come to move the parameters of the law in line with increased medical insight, along with a recognition that many years earlier, Australia had taken the liberty of embracing the right to such claims under section 4(1) of the New South Wales Law Reform (Miscellaneous Provisions) Act 1994.

An Act which allowed a parent, husband or wife of a killed, injured or severely distressed party, to claim for nervous shock damages regardless of the spatial or temporal relationship to the accident or event involved.

It was for this reason, along with the obvious need to lead the change required, that the House uniformly upheld the appeal, while clearly noting that legislative reform was now long overdue in this particular field and reminding the parties that:

“Space, time, distance, the nature of the injuries sustained, and the relationship of the plaintiff to the immediate victim of the accident, are factors to be weighed, but not legal limitations, when the test of reasonable foreseeability is to be applied.”

STOVIN v WISE

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 section 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, while on this occasion the court reminded the parties that:

“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

Foreseeability, and the duty of care for the criminal acts of third parties, seems somewhat overburdening; and so, in this matter the appellants found themselves central to an argument that required brevity in order to restore the flow of justice.

In 1976, the respondents acquired a derelict cinema as part of their national retail expansion programme, and while awaiting the refurbishment process to begin, the site was occasionally occupied by subcontractors and their employees when fully stripping the building bare ahead of the main construction phase.

Over a period of weeks, the site was also accessed by local youths who, on two occasions, started small fires, before having them extinguished by members of the nearby parish church.

Unfortunately, instead of notifying the police or the appellants, those acts went unreported until a third fire was allowed to get out of control, before causing significant damage to a neighbouring property and the church.

Having commenced litigation against the respondents, the now appellants contended that failure to provide adequate security to the site was a breach of duty owed to prevent both access by the youths, and the damage caused to their properties as a result of the fire.

In the first instance, the court agreed that insufficient safety measures on the part of the respondents had granted reasonable foreseeability that the vandalism might occur; and so, awarded accordingly.

Having been heard in the First Division of the Inner House of the Court of Session, it was agreed by the appellants that the respondents had no knowledge of the first two fires, therefore the decision was reversed.

Presented to the House of Lords, the appellants continued to claim for damages, while the House took time to examine the nature of negligence and duty of care for strangers to property and ensuing criminal acts.

In Dorset Yacht Co Ltd v Home Office, it was remarked by Reid LJ that:

“[W]here 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.”

Dorset Yacht Co Ltd v Home Office

While in Bourhill v Young, it was argued by MacMillan LJ that:

“The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.”

Bourhill v Young

However, it was well illustrated in academic text that:

“[T]he law might acknowledge a general principle that, whenever the harmful conduct of another is reasonably foreseeable, it is our duty to take precautions against it…but, up to now, no legal system has gone so far as this….”

This position was also supported by Sumner LJ in Weld-Blundell v Stephens, who explained that:

“In general…even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do.”

Weld-Blundell v Stephens

By this it was construed by the House that unless there are exceptional circumstances where the property owner (who by virtue of his inaction) created a circumstance in which damage to another property fell under his remit, perhaps by some unique relationship, and that the foreseeability of such damage was little short of certain, there could be no justification for holding that owner to account;

And so, it was that for this reason, the appeal was uniformly dismissed, while the House reminded the parties that:

“[L]iability in negligence for harm caused by the deliberate wrongdoing of others cannot be founded simply upon foreseeability that the pursuer will suffer loss or damage by reason of such wrongdoing. There is no such general principle.”

CAPARO INDUSTRIES PLC v DICKMAN

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, showing 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 Byrne & Co Ltd v Heller and Partners,the distinction was made between expert advice (albeit subjective) from a banker, and an annual submission from a firm of accountants, and that 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 presented the notion that a 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.

The House of Lords concluded that if it were reasonable to place conscious liability upon all acts of certain parties, it would be impossible to distinguish responsibility from neglect; while in this instance, there was clear frustration at an unforeseen outcome, but one requiring mindfulness that the very nature of financial investment is itself prone to loss; hence, the House reminded the parties that:

“To widen the scope of the duty to include loss caused 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

In this case, the principle of negligence beyond the strictness of contractual duty becomes pivotal to a claim for damages, when a consumer becomes victim to sickness through the consumption of a contaminated beverage.

In 1928, two friends entered a café in central Scotland and proceeded to order some ice-cream and ginger beer.

Unknown to the appellant, one of the bottles provided contained the decomposed remains of a snail; which when poured onto the ice-cream, left the appellant in a state of shock and later subjected to gastro-enteritis, having partially drunk the ginger beer beforehand.

This resulted in litigation on grounds concerning the manufacturer’s inability to safely store the bottles prior to their filling, a lack of care when considering the potential for those drinks to be consumed by unwitting customers, failure to implement a suitable quality control/inspection system prior to distribution, and failure to use clear, as opposed to dark opaque bottles, to avoid such events.

Although the common law position was comparable between English and Scottish law, the claim was unique in that it circumvented the contractual obligations often found in negligence claims.

In the first instance, the court had allowed the claim, while the Second Divisional court dismissed it by a majority, before the appellant sought relief in the House of Lords.

Here, a number of recent cases were explored to ascertain the extent of liability in matters where there are no contractual obligations.

Erring on the side of restraint as to how far a claim such as this might extend, comments mades by Parke B in Longmeid v Holliday suggested that:

“It would be going much too far to say, that so much care is required in the ordinary intercourse of life between one individual and another, that, if a machine not in its nature dangerous, . . . . but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or given by one person, even by the person who manufactured it, to another, the former should be answerable to the latter for a subsequent damage accruing by the use of it.”

Longmeid v Holliday

However, in George v Skivington the sale of harmful shampoo, which had been used not by the purchaser but a third party, had allowed claim for negligence caused upon a duty of care by the manufacturer when mixing the ingredients.

Likewise, in Francis v Cockerell, a racecourse spectator injured through the collapse of a viewing stand, was able to recover not from the builder himself, but the agent of the venue.

However, on this occasion the appellant relied upon the words of Lord Brett MR in Heaven v Pender, who clarified that:

“[W]henever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger…”

Heaven v Pender

Therefore, it was argued that regardless of contractual elements, there was by virtue of reasonableness and decency, an inherent encumbrance upon the respondent manufacturer to both evaluate and consider the position of the consumer when preparing and sealing his drinks; and that anything less than that consideration was tantamount to fundamental neglect and tortious liability.

Contrastingly, in Pender Esher LJ had also argued that:

“The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. What duty is there when there is no relation between the parties by contract? A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.”

George v Skivington

While in Bates v Batey & Co Ltd, the manufacturers of ginger beer were not deemed liable for an injury caused to an unsuspecting consumer from a defect unknown, and yet discoverable through reasonable investigation.

And so, having evaluated the reluctance of the courts to extend in some instances, while offering generous judgment in others, it was (albeit by a narrow margin) decided that despite no contractual duties to envisage the effects of a contaminated product upon an innocent purchaser, there was an almost ethical prerequisite to remain diligent in the preparation and storage of such substances.

Hence, despite the Second Division of the Court of Session in Scotland’s refusal to acknowledge the appellant’s rights, the House reversed the finding and restored the order of the first judge, while reminding the parties that:

“[T]he omission to exercise reasonable care in the discovery of a defect in the manufacture of an article where the duty of examination exists is just as negligent as the negligent construction itself.”

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