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.

Abouzaid v Mothercare Ltd (2000)

English Tort Law

Abouzaid v Mothercare Ltd
‘Twinkling Eye’ by Pavel Guzenko

Manufacturer negligence and the powers of consumer statute are both central to a claim for damages, when a leading retailer is held liable for a loss of earnings through serious physical injury.

In 1990, the respondent’s eye was struck by an elasticated strap forming part of a foot warmer product known as ‘Cosytoes’, which was manufactured under the store’s own brand range. The extent of the damage was unknown at the time, however over the period that followed, the respondent was diagnosed with shallow temporal half-detachment of the retina, which in turn led to virtual blindness and total lack of central vision.

Some ten years later, the respondent sought damages under negligence, and through the powers afforded them under the Consumer Protection Act 1987. In defence, the appellants relied upon the investigative report of a highly qualified consultant engineer, whose notes confirmed:

“I conclude that in 1990 no manufacturer of child care products could reasonably have been expected to have recognised that elastic attachment straps for a cosytoes could pose a hazard to the eyes of children or adults, since the potential risk had not at that time been recognised even by experts in the safety of such childcare products.”

However, the engineer also stressed that:

“I found that for me it was quite easy to fasten the straps correctly from behind the seat unit. Attempting this from the front of the seat was more difficult, because it was not possible to see the fastening. It also required putting my head close to the seat in order for my arms to reach round behind it. I noticed that the elastic did have a tendency to pull the fastener through my fingers, and it could easily have slipped.”

Contrastingly, when transposing the requirements of the 1987 Act, Parliament was obliged to observe the terms of Directive 85/374/EEC in which the preamble outlined:

“Whereas, to protect the physical well-being and property of the consumer, the defectiveness of the product should be determined by reference not to its fitness for use but to the lack of the safety which the public at large is entitled to expect; whereas the safety is assessed by excluding any misuse of the product not reasonable under the circumstances…

[W]hereas a fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof as to the existence of certain exonerating circumstances…”

In the first hearing, the judge found in favour of the respondent on grounds that embraced both manufacturer negligence and the presence of a defect, as described in s.2(1) of the Consumer Protection Act 1987, which reads:

“(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes safety, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.”

Upon appeal, the Court reexamined the previous decision, and revisited the argument that what was evidentially unsafe in 2000 was not deemed harmful in 1990, in light of there being no recorded incidents of that nature upon which to rely at the time. With reference again to the consultant engineer’s notes, the Court emphasised how he had also stated:

“I conclude that I should have to advise anyone manufacturing such a cosytoes today that the product would have a safety defect unless the potential risk of injury (to the eyes of a child in the pushchair or the person fitting it) was either eliminated by design or that consumers were warned of the possible risks and how to avoid them. Such advice to consumers would need to include instructions for fitting the cosytoes that avoided the obvious difficulties that Mr Abouzaid and his mother were having prior to the accident.”

And that despite a lack of recorded industry data with which to determine the safety of the product, there was little to explain how consumer awareness had remained static over the preceding decade, with particular reference drawn again to s.5.1.2 of his report, which itself remarked:

“[T]he level of safety that consumers can reasonably expect is not necessarily a constant, but will rise over time in small steps, if the state of industry knowledge of hazards and their prevention improves.”

It was for these reasons that the Court agreed with the essence of the earlier judge’s findings, and that the level of damages awarded were an accurate representation of the loss suffered through such a simple error in quality control and user protection.

Chan v Zacharia

Australian Equity & Trusts

Chan v Zacharia
Image: ‘Doctor’s Office’ by Norman Rockwell

Matters of contract and the fiduciary elements of a working partnership, become at odds in a case involving opportunism with little regard to the details of the agreement signed when two former business partners acrimoniously part ways.

In 1979, two doctors agreed to set up a joint practice in an enviable part of Adelaide, and upon doing so, drafted a partnership agreement that established express terms around honourable working practices, and an ethical approach to the future of the enterprise. Sadly, as often happens in commercial relationships, the two men found working together intolerable, and so agreed to dissolve the practice.

One of the attractive features of the property was that of its location and the option to renew the lease for another two years, on the proviso that both partners were complicit in its execution. However, at the point of litigation, the appellant had shown clear reluctance to renew the lease, thus leaving the respondent no choice but to circumnavigate the matter as best as possible.

While the two parties had terminated the business, there was still a portion of the existing lease remaining, of which an equal share was held by both men, and yet in a strange turn of events, the landlord agreed to extend the lease to the appellant, and accordingly wrote to confirm this to the respondent. This prompted action by the respondent on grounds that the appellant had breached his fiduciary duty in accepting the new lease while inheriting the value of the interest of the existing lease, and that by doing so, he held the new lease as a constructive trustee on the equitable principle that the lease was an asset of the former partnership and therefore under a right of claim.

This contention was duly supported by the Supreme Court, at which point the appellant sought the wisdom of the High Court. Here, s.38 of the Partnership Act 1891 (SA) noted that:

“After the dissolution of a partnership the authority of each partner to bind the firm, and the other rights and obligations of the partners, continue, notwithstanding the dissolution, so far as may be necessary to wind up the affairs of the partnership, and to complete transactions begun but unfinished at the time of the dissolution, but not otherwise.”

While s.39 also stated how:

“On the dissolution of a partnership every partner is entitled, as against the other partners in the firm, and all persons claiming through them in respect of their interests as partners, to have the property of the partnership applied in payment of the debts and liabilities of the firm, and to have the surplus assets after such payment applied in payment of what may be due to the partners respectively after deducting what may be due from them as partners to the firm; and for that purpose any partner or his or her representatives may on the termination of the partnership apply to the Court to wind up the business and affairs of the firm.”

However, clause 26 of the partnership agreement clearly expressed that any surplus assets remaining after payment of debts, liabilities, expenses and amounts due to the partners, was to be divided equally through the execution of observation of all legal instruments and Acts, and the provisions contained therein.

This was the position adopted in Hugh Stevenson & Sons Ltd v Aktiengesellschaft Fur Cartonnagen-Industrie, where Romer LJ remarked:

“[W]herever the legal estate may be, whether it is in the partners jointly or in one partner or in a stranger it does not matter, the beneficial interest…belongs to the partnership, with an implied trust for sale for the purpose of realising the assets and for the purpose of giving to the two partners their interests when the partnership is wound up and an account taken…”

A fact that was equally present in clause 19 of the partnership agreement, which required each partner to:

“[D]evote his whole time (subject to annual leave) to the medical practice, to act in all things according to the highest standards of professional conduct and be just and faithful to the other partner in all transactions relating to the partnership…”

And so it was for these undeniable reasons, that the Court held (by majority) that when agreeing to and pursuing the opportunity to secure an extension of the lease after refusing to cooperate with his former partner, the appellant did, by virtue of his selfishness, breach what remained of his fiduciary capacity, and in doing so, became a constructive trustee for the value of the lease, and thus owed account to the respondent in kind.

Charrington v Simons & Co Ltd (1971)

English Property Law

Charrington v Simons & Co Ltd
‘In the Orchard’ by James Guthrie

The conveyance of land with restrictive covenants is not uncommon within property law, however when the safeguard designed to protect the needs of the vendor becomes central to his anguish, it becomes clear that the attached principles have become somewhat misused.

In a matter concerning the part-sale of an orchard by a farmer, the respondent entered into the purchase on the understanding that at no point was the road running between the two plots previously owned, to exceed the height beyond that of the section retained, as to do otherwise would impact upon the farmer’s ability to harvest his remaining plot.

After ignoring the covenant, the respondent began resurfacing the road to a height that did in fact exceed the permissions granted, thus prompting the appellant to protest both orally and by letter. When the work continued and his obvious displeasure went unheard, the appellant issued a writ in pursuit of a mandatory injunction, which would result in the removal of all works undertaken at cost to the respondent.

In the first hearing, the judge adopted the unorthodox position of taking two negatives in order to create a positive. This was executed through an injunction, while explaining that:

(i) The respondent was to modify the road so as to benefit the appellant, rather than to remove it outright, after having spent around £1400 on its construction, before paying the appellant £1062 in special damages for the harm caused to date.

(ii) The mandatory injunction was to remain ineffective for a period of three years, while the respondent set about altering the road’s layout, which itself required agreement by the appellant to trespass onto his land in order to carry out the work.

(iii) That consultation between the two parties would continue throughout this period, and that should the appellant refuse to consent to the needs of the respondent, the respondent would be granted sufficient argument so as to discharge the injunction entirely.

Upon immediate appeal, the appellant argued that the judge had erred in law when creating an injunction that rendered the breach of covenant void, that requirement to consent to the work would result in a trespass and that such an impingement and modification would cause the appellant to suffer both personally and financially, as his own orchard would be compromised during the alterations.

With consideration of the judge’s genuine wish to improve upon an already damaging situation, the Court held that when refusing to enforce the injunction with immediate effect, the court had failed to properly address the purpose of both the covenant and the injunction in favour of an outcome serving only the needs of the breaching party.

 

Bray v Ford (1896)

English Equity & Trusts

Bray v Ford
Image: ‘Advocate’ by Honore Daumier

Profiting from a fiduciary position, while not expressly forbidden, is a feature that requires careful consideration by both trustees and beneficiaries, and so in this matter the billing of fees for legal services proved both offensive and damaging for the party accused.

In 1895, the Governor of the Yorkshire College took issue with the vice-chairman after discovering that he had for a period of fourteen years, been providing legal function as a solicitor whilst holding a position based upon a voluntary footing. Incensed at this opportunistic behaviour, the now appellant wrote a lengthy letter to the respondent, accusing him of breaching his fiduciary duty to the institution her served, while stressing that he had:

“[U]sed religious, educational and philanthropic schemes as a hypocritical cover for the purpose of serving his own ends.”

The respondent argued that the terms of the memorandum of association had provided him with rights to both charge and profit from his work, a contention that remained largely unproven at the point of litigation. In the first hearing, the judge underemphasised the importance of the accusation levelled, instead focussing on the libellous tone used in the letter, which at the time, was circulated amongst three hundred other college governors.

Having convinced the jury that the respondent was justified in his collection of payment for legal services, the judge again placed greater weight upon the damaging effects of the written statements, after which the jury returned a verdict in favour of the respondent, and with damages set at a lofty 600l.

Upon appeal, the appellant was left facing a similar outcome after the Court agreed that the libel charges remained as effective as they would have should the respondent have been proved wrong, thus prompting a final plea before the House of Lords.

Here, the roots of the matter were revisited, along with Order XXXIX r.6 of the Rules of the Supreme Court 1883, which explained how:

“[A] new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence,…unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial…”

It was thus uniformly agreed by the House that from the outset, the nature of the action had been grossly overlooked in favour of aspersions, and that the trial judge had clearly failed to acknowledge the gravity of a fiduciary breach, which if proven correct, went some way to justifying the claims made by the appellant at the start. It was for this reason that the House held that there had been a clear miscarriage of justice, and that in failing to recognise this, the Court of Appeal had conversely erred in judgment.

In light of these collective mishaps, the House duly reversed the Court of Appeal’s decision, directed a re-trial under the Supreme Court Rules, and ordered repayment of all courts costs and damages to the appellant.

Black and Morgan v Wilkinson (2013)

English Constitutional Law

Black and Morgan v Wilkinson
‘Breakfast in Bed’ by Mary Cassatt

Discrimination on grounds of sexual orientation and the right to manifest one’s religious beliefs lock horns in a case built around progressive lifestyles and the security of dogma.

Having established herself as the owner operator of a bed and breakfast, the appellant consciously took bookings on principles espoused through Christian teachings, one of which precluded the use of double rooms by those outside wedlock. While considered a practical and measured restriction, the appellant was often found letting out such rooms to unmarried couples, largely due to the difficulty in establishing their marital status at the time of agreement.

However, the footing of this matter rested upon a homosexual couple, who having secured the room via email, and duly paying the required deposit, arrived at the property, before finding themselves denied use of the double room on grounds of their sexual relationship and unmarried status (an impossible task at the time of this hearing).

At the point of litigation, the claimants argued that the appellant had unlawfully discriminated against them under the terms of the Equality Act (Sexual Orientation) Regulations Act 2007 (SI 2007/1263), in particular regulations 3 and 4, which read:

“3.(1) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).

4. (1) It is unlawful for a person (“A”) concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person (“B”) who seeks to obtain or to use those goods, facilities or services”

While the appellant countered that she had refused the claimants use of the room under regulation 6, which reads:

“6.-(1) Regulation 4 does not apply to anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention.”

Further arguing that her business fell outside the scope of a boarding house, as expressed in regulation 4(2)(b) of the same statutory instrument.

During the first hearing, the court refused to uphold her claim and found her liable for sexual discrimination on grounds of sexual orientation, whereupon the defendant argued her case in the Court of Appeal.

Here, the facts were given greater consideration, including various articles of the European Convention on Human Rights (ECHR). With regard to exemption from regulation 4(b), the Court observed that in Otter v Norman the House of Lords had ruled that:

“[T]he provision of breakfast by itself, with the implicit inclusion of the ancillary services involved in preparing it and the provision of crockery and cutlery with which to eat it, amounted to “board” within the meaning of section 7(1) [of the Rent Act 1977].”

However, with careful observation of regulation 6(1), it was noted by the Court that the claimants were anything but members of her family, children, elderly persons of those requiring special degree of care and attention. The appellant also relied upon Preddy v Bull for her contention that her refusal of the respondents occupation was one based upon an objection to sexual behaviour, and not orientation; yet sadly the parties involved were in a civil partnership, which distinguished it from the immediate case.

Turning instead to proportionality for justification, the appellant relied upon arts.8 (Right to respect and private family life) and 9 (Freedom of thought, conscience and religion) of the ECHR for her right to exclusion, while the respondents relied upon arts.8 and 14 (Prohibition of discrimination) to uphold their right to occupation.

It was then noted that while art.9(1) provides for religious manifestation, art.9(2) also provides that restrictions apply when preserving the rights of others, which on this occasion worked against the appellant, as she was by all accounts, running a commercial enterprise, and which under a Government paper titled “Getting Equal: Proposals to outlaw sexual orientation discrimination in the provision of goods and services, Government Response to Consultation” it was outlined on page 13 that:

“The Government contends that where businesses are open to the public on a commercial basis, they have to accept the public as it is constituted.”

While it was also stressed in Eweida and others v United Kingdom that:

“Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief.”

And so despite any freedom to manifest one’s religious beliefs when operating a licensed business to paying customers, indirect discrimination through the application of a policy denying equal rights to those in homosexual relationships amounted to a uniform ruling of direct discrimination on grounds of sexual orientation, while the appeal court held that:

“[D]irect discrimination cannot be justified, whereas indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.”

R v Lawrence (1982)

English Criminal Law

R v Lawrence
‘Ducati Scrambler Cafe Racer’ by Unknown Artist

Reckless driving, while contextually similar to the criminal charge of recklessness, was at the time of this case, still unclear in terms of the mens rea of drivers brought to trial. Unfortunately for the victim’s family, this uncertainty resulted in an acquittal from the offence on grounds of a confused and thereby ineffective, jury.

In 1979, a couple took a visit to their local off-licence in order to purchase some soft drinks for their children. Parking opposite the shop, the mother entered the store, before standing at the kerbside in preparation for crossing back over the road. Moments after blowing her husband a kiss, the victim stepped into the road before being struck by one of two motorcycles, dying instantly, while being carried at speed on the front of the driver’s vehicle.

Upon indictment, the defendant was convicted by a majority jury of reckless driving under s.1 of the Road Traffic Act 1972. There were also questions raised at the time around the exact speed at which the motorcycle was travelling, with opinions ranging from 30 -80mph, resulting in a lengthy trial, and one in which despite an absolute conviction, left the jury seeking clarification as to exactly what reckless driving required, and whether there was a need to appreciate the mindset of the defendant at the time both before, and during, the time of the offence.

Upon appeal, the Court quashed the conviction upon grounds that where uniform agreement could not be found as to how reckless driving existed under the 1972 Act, there could be no established verdict beyond any reasonable doubt. In response, the regional Chief Constable appealed on behalf of the Crown to the House of Lords, while trying to find agreement as to what s.1 of the Road Traffic Act 1972 truly meant.

Referring to the meaning of recklessness as defined by R v Murphy, the courts recognised that:

“A driver is guilty of driving recklessly if he deliberately disregards the obligation to drive with due care and attention or is indifferent as to whether or not he does so and thereby creates a risk of an accident which a driver driving with due care and attention would not create.”

However, in cases such as R v Caldwell, the jury were required to consider not only the actus reus (actions) of the accused, but the mens rea (mindset) prior to the act of arson duly charged. This by convention, had not been something applied during road traffic accidents, therefore the jury in this trial were left confused as to whether an objective evaluation was in itself sufficient, or whether subjective consideration was needed to fully contain the origin of recklessness, as opposed to arguments over which speed the defendant was travelling when the offence occurred.

Though a comprehensive chronology of reckless driving within the road traffic offences, the House held that there needed to be two elements to a conviction of recklessness, namely:

(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.”

Therefore it was left to the jury to determine if, as hypothetical road users themselves, they felt that a defendant did knowingly choose to take charge of a vehicle with the intention to cause harm, as opposed to harm being caused by means beyond their control. This by effect, also rendered the Murphy direction null and void, while paving the way clear for expeditious trials under similar circumstances.