from my revision notes, I take no credit for writing it 'cos I didn't......
It's for the old Dip 1 and 2....
According to Holland and Webb ;
The origins of the Common Law can be traced back to the practice which developed in medieval England, whereby records of arguments used in Royal courts were kept and circulated, at first unofficially, among the judges and practitioners. This practice gradually hardened into an officially sanctioned system of precedent, whereby important cases were recorded and subsequently used as authority for specific rules of law. As a reflection of that original practice, precedent is still only created by the superior courts – the High Court, Court of Appeal and the House of Lords. […] Precedent is, in theory, binding on all inferior courts (and tribunals). These include, chiefly, the Crown Court, magistrate’s courts and county courts.
Decisions made by judges have a certain authority in the legal system. Many precedents are binding, meaning that the principle of law established in a previous decision will be binding in subsequent cases found on similar facts in courts of equal or lower rank. Precedents may be authoritative or persuasive:
Authoritative (or binding) precedents are decisions made by higher courts which bind the lower courts
Persuasive precedents are decisions which are not binding upon a court, but which a judge may take into consideration (e.g. Commonwealth cases, USA cases etc.)
The following features of a decision are important:
Ratio decidendi (reason for the decision) – a statement of law based on an examination of the facts and the legal issues surrounding them. This is arguably the most important part of the judgment and contains the precedent. Students should bear in mind that, while the facts of the case are often quite interesting, it is the ratio decidendi that is of greatest value in your diploma studies. Few (if any) marks will be awarded for a straightforward regurgitation of the facts of a case. Unfortunately, judges are rarely helpful when it comes to saying exactly where in their decision the ratio lies. It is for the student or practitioner to read the decision and determine the ratio for themselves.
Obiter dicta (comments made by the way) – may contain a statement about the law which is not based on the facts of the case under review and which will not therefore be a substantive part of the decision. However, comments made ‘obiter’ are often held to be of persuasive authority.
In the late 1990’s, changes to the Civil Justice System altered much of the terminology commonly used in the courts. For example, the term ‘Claimant’ has replaced ‘Plaintiff.’ Those cases listed in this document, which pre-date the reforms all use the term ‘Plaintiff.’ In civil cases, the party against whom the case in brought is known as ‘the defendant.
CURRENT DIPLOMA SYLLABUS CASE LAWS
1. Armour v Skeen (Procurator Fiscal, Glasgow)  IRLR 310
2. British Railways Board v Herrington  1 All ER 749
3. Corn v Weirs Glass (Hanley) Ltd  2 All ER 300
4. Donoghue v Stevenson  AC 562
5. Edwards v National Coal Board  1 All ER 743 (CA)
6. John Summers & Sons v Frost  AC 740
7. Latimer v AEC Ltd  2 All ER 449
8. Lister v Romford Ice and Cold Storage Co. Ltd  1 All ER 125
9. Marshall v Gotham & Co. Ltd 1954
10. McWilliams v Sir William Arrol & Co Ltd  1 All ER 623
11. Paris v Stepney Borough Council  1 All ER 449
12. R v Associated Octel Co. Ltd  4 All ER 846
13. R v Swan Hunter Shipbuilders Ltd and Another  1 All ER 264
14. Smith v Baker and Sons  AC 325
15. Uddin v Associated Portland Cement Ltd  2 All ER 213
16. Wilsons and Clyde Coal Co. v English  3 All ER 628
...and additionally for Part 2:
1. Cambridge Water Co. V Eastern Counties Leather plc  2 WLR 53
2. Mersey Docks and Harbour Board v Coggins and Griffiths Ltd  2 All ER 345
3. R v British Steel Plc  IRLR 310
4. R v Nelson Group Services (Maintenance) Ltd  4 All ER 420
5. Rylands v Fletcher  73 All ER Reprints No. 1
6. Sutherland v Hatton & Others  EWCA Civ 76
The following non-syllabus case laws may also be useful (the legal concept to which each relates is given in brackets):
1. Adsett v K&L Steelfounders and Engineers Ltd  1 WLR 773 (‘Practicable’ duty)
2. Byrne v Boadle (1863) 2 H &C 722 (‘Res ispa loquitor’)
3. Davie v New Merton Board Mills  AC 604 (Reasonable steps)
4. Hudson v Ridge Manufacturing Co. Ltd  2 QB 348 (Competent co-employees)
5. Imperial Chemical Industries v. Shatwell  AC 656 (Volenti non fit injuria)
6. Kilgollan v William Cooke & Co 1956 (Double-barrelled action)
7. Knowles v Liverpool City Council The Times, 30 June 1992 (CA)(Interpretation of ‘Work equipment’)
8.Morris v Murray  2 QB 6 (Volenti non fit injuria)
9. Rose v. Plenty  1 WLR 141 (Vicarious liability)
10. Ward v Tesco Stores Ltd  1 All ER 219 (Res ispa loquitor)
Case name Legal principle
Armour v Skeen 1977 Personal liability of executives
British Railways Board v Herrington 1972 Common law duty owed to trespassers – reckless disregard for safety. Occupiers Liability Act 1984.
*Byrne v. Boadle 1863 2 H &C 722 ‘Res ispa loquitor.’
Cambridge Water Co. v Eastern Counties Leather 1994 Forseeability of damage is a requirement for strict liability as well as for nuisance.
Corn v Weirs Glass (Hanley) Ltd, 1960 Breach of statutory duty. Guardrails etc for working platforms, gangways, runs and stairs
Donoghue v. Stevenson 1932 The common law duty of care; the ‘neighbour principle’
Edwards v National Coal Board 1949 Reasonably practicable – definition
*Imperial Chemical Industries v. Shatwell 1965 Volenti non fit injuria.
John Summers & Sons Ltd v Frost 1955 The absolute duty; reasonable foreseeability
Latimer v. AEC Ltd 1953 Freak and unexpected hazard; practicability of precautions
Lister v. Romford Ice & Cold Storage Co. Ltd. 1957 Vicarious liability
Marshall v Gotham Co. Ltd 1954 Comparison of ‘practicable’ and ‘reasonably practicable’ precautions
McWilliams (or Cummings) v Sir William Arrol 1962 The breach of statutory duty. No liability if employee refuses to wear safety devices.
Mersey Docks & Harbour Board v. Coggins & Griffiths (Liverpool) Ltd. 194 Master/servant relationship – persons who must be protected.
*Morris v. Murray 1991 Volenti non fit injuria
Paris v Stepney Borough Council 1950 Special duty of care
R v Associated Octel Ltd 1994 Meaning and extent of ‘conduct of undertaking’ as applied to HSW Act s3
R v British Steel Plc 1994 Defence of reasonably practicable; proper delegation; directing mind of the company.
R v Nelson Group Services (Maintenance) Ltd 1999 ‘So far as is reasonably practicable’ as a defence.
R v Swan Hunter Shipbuilders Ltd and Telemeter Installations Ltd, 1982 HSW Act s2.2.c – Provision of information
*Rose v. Plenty 1976 Vicarious liability
Rylands v. Fletcher 1866 Strict liability.
Smith v Baker & Sons 1891 Contributory negligence – knowledge by the plaintiff. Volenti non fit injuria.
Sutherland v Hatton; Barber v Somerset County Council, Jones v Sandwell Metropolitan District Council; Bishop v Baker Refractories Ltd 2002 (Joined cases) Stress; psychiatric illness; duty of care; damages; general principles for psychiatric illness cases.
Uddin v Associated Portland Cement Ltd 1965 Contributory negligence; employee in unauthorised place.
Wilsons & Clyde Coal Co. Ltd v English 1938 Duties of employers at common law; liability of employer for acts of agent.
Armour v Skeen (Procurator Fiscal, Glasgow) 1977
PERSONAL LIABILITY OF EXECUTIVES
A workman fell to his death while repairing a road bridge over the River Clyde. Mr Armour was director of roads for Strathclyde Regional Council and as such the responsibility of supervising the safety of road workers was his. He had not produced a written safety policy for such work, i.e. he had not drawn up a written safe system of work.
Mr Armour’s defence was that he was under no personal duty to carry out the Council’s statutory duties, one of which was as described above. This was rejected on the grounds that s.37 (1) of the 1974 Act imposed the personal duty to carry out the Council’s statutory duty to prepare a written safe system of work. This he had failed to do and was therefore guilty of an offence.
British Railways Board v Herrington 1972
COMMON LAW DUTY OWED TO TRESPASSERS – RECKLESS DISREGARD FOR SAFETY
The plaintiff, a six-year-old boy, trespassed onto a railway line and was electrocuted. The fence alongside the line had been broken down. The defendant knew of this and also knew that children had been seen on the line but took no steps to repair the fence.
The defendant was liable. Although (at that time) there was no general rule that the occupier of property is liable to trespassers, in this case the occupier was guilty of reckless disregard for the safety of the plaintiff. ‘Reckless disregard for safety’ means doing or omitting to do something which one recognises is likely to cause serious injury, but does not care whether it does or not.
Corn v Weirs Glass (Hanley) Ltd, 1960
BREACH OF STATUTORY DUTY. GUARDRAILS ETC FOR WORKING PLATFORMS, GANGWAYS, RUNS AND STAIRS
The stairs in a building that was being erected had no hand- rail. C., who was employed by the defendants as a glazier, was descending the stairs carrying a sheet of glass measuring about 5’ by 2’ft 6”. He was holding the sheet in the crook of his right arm, and was steadying it with his left arm. He over-balanced and fell over the side of the stairs and was injured.
A distinction is to be drawn between a "hand-rail" as prescribed by the Building (Safety, Health and Welfare) Regulations 1948 Reg. 27(1), and "guard-rails" required to be provided by Reg. 27(2). A handrail connotes a rail that can be gripped by the hand. Such a rail need not necessarily act as a physical barrier.
Held, although there was a breach of Reg. 27(1) the defendants were not liable, because C. had failed to prove that his injury was caused by the defendants' breach of statutory duty.
Donoghue v. Stevenson 1932
THE COMMON LAW DUTY OF CARE; THE ‘NEIGHBOUR PRINCIPLE’
Mrs. Donoghue and her friend went to a café where the friend purchased a bottle of ginger beer for Mrs. Donoghue to drink. Mrs. Donoghue had no direct or indirect claim against the manufacturer based on contractual obligations because she did not purchase the product. The ginger beer was contained in an opaque bottle that prevented the contents from being viewed clearly. Mrs. Donoghue consumed some of the product after which the decomposed remains of a snail emerged from the bottle when the remaining ginger beer was poured into her glass. She sought damages against the manufacturer, Stevenson, from the resulting nervous shock and gastro-enteritis, which she claimed was caused through the incident. The trial judge found that the plaintiff could bring an action. The Court of Appeal overturned this decision.
The plaintiff appealed to the House of Lords.
The issue of law before the House of Lords was whether the defendant (Stevenson) owed Mrs. Donoghue a duty of care. The case was never tried on the facts.
Dicta of Lord Atkin: ". The complainant has to show that he has been injured by the breach of duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury". The rule in Heaven v. Pender was "demonstrably too wide." The concept of negligence is based upon "a sentiment of moral wrongdoing (for) which the offender must pay." Not every moral wrong can have a practical effect in law so it must be limited to taking "...reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." A neighbour is a person so closely connected with and directly affected by (proximate to) my act (or omission) that I should have had them in mind when I committed the act (or omission). It would be a grave defect in the law if a consumer could not claim in circumstances such as a manufacturer negligently mixing poison into a drink.
c/f Lord Buckmaster referring to the dicta of Brett MR in Heaven v. Pender and the decision in George v. Skivington (1867) LR5 Ex 1 (which were applied by Lord Atkin): ". It is in my opinion better that they should be buried so securely that their perturbed spirits shall no longer vex the law."
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour/another.
Edwards v National Coal Board 1949
REASONABLY PRACTICABLE – DEFINITION
Mr Edwards was killed when an unsupported section of a travelling road in a mine gave way. Only about half the whole length of the road was shored up. The company argued that the cost of shoring up all roads in every mine was prohibitive when compared to the risk.
The question at issue was not the cost of shoring up all roads in every mine operated by the company. The issue was the cost of making safe the section of road that fell. Some roads are secure and show no signs of failing. Others may already have fallen and have already been repaired. The section in question was already supported by timber along half its length. The cost of making it safe was not great compared to the risk of injury and loss of life.
“Reasonably practicable is a narrower term than ‘Physically possible’ and implies that a computation must be made […] in which the quantum of risk is placed in one scale and the sacrifice involved in the measures necessary for averting the risk (whether in time, trouble or money) is placed in the other and that, if it be shown that there is a great disproportion between them – the risk being insignificant in relation to the sacrifice – the person upon whom the obligation is imposed discharges the onus which is upon him.” Asquith LJ
John Summers & Sons Ltd v Frost 1955
THE ABSOLUTE DUTY; REASONABLE FORSEEABILITY.
S & Sons employed F as a maintenance fitter. F was injured when his thumb came into contact with a revolving grinding wheel. The machine was fitted with an efficient guard, with only a small arc of the grinding wheel exposed. S & Sons were found guilty of a breach of a statutory duty. They appealed.
The House of Lords held that, as the grinding wheel was a dangerous part of machinery, there was an absolute obligation that it should be securely fenced to prevent injury so far as was reasonably foreseeable, regardless of whether the operator using the machine was careless or inattentive. In this case the machine was held not to be ‘securely fenced’ within the meaning of s14 Factories Act 1937 and the company was therefore found to be in breach of its statutory duty even thought the outcome of securely fencing such a machine would render it unusable. It was left up to Parliament to use its powers to make Regulations modifying the statutory duty in special cases.
1. The standard of fencing must be good enough to keep out the careless or inattentive worker as well as the meticulous, careful one. However, an employee’s carelessness can be so great that his actions may amount to contributory negligence.
2. Fencing is only ‘secure’ when it effectively protects the workman from the danger of contact with the exposed parts of the machine. In considering whether secure fencing has been achieved the foreseeable behaviour of persons employed is relevant. Secure fencing is that which removes the possibility of injury to anybody acting in a way in which a human being might reasonably be expected to act in circumstances that might reasonably be expected to occur.
Halsbury’s Laws of England, Volume 20, para 563
Latimer v. AEC Ltd 1953
FREAK AND UNEXPECTED HAZARD; PRACTICABILITY OF PRECAUTIONS.
The plaintiff was employed by the defendant. On the afternoon of the day of the accident, an exceptionally heavy rainstorm had flooded the whole of the defendant's premises. Oil, which normally ran in covered channels in the floor of the building, rose to the surface and when the water drained away, left an oily film on the floor. The defendants took measures to clean away the oil, using all the sawdust available to them. The plaintiff came on duty with the night shift, unaware of the condition of the floor. While endeavouring to place a heavy barrel on a trolley, his foot slipped on the still oily surface, he fell on his back, and the barrel crushed his left ankle. The trial judge found a breach of common law duty. The Court of Appeal reversed this decision.
The reasonable employer had to make a decision whether or not to shut the factory down and totally eliminate the risk. The employer took every step that reasonably could have been taken in the circumstances and in so doing had negated any possible allegation of negligence.
A defendant does not have to totally eliminate the risk but must do as much as the reasonable person would do in the circumstances.
Lister v. Romford Ice & Cold Storage Co. Ltd. 1957
A son backed an ice truck over his father. The father could have sued his son but, instead, decided to sue his son's employer as being vicariously liable. The employer claimed that the father should sue the son. It was claimed (by the insurance company suing in the employer's name) there was an implied term in his employment that the son obey reasonable commands and use reasonable care. A possible breach of contract by the son would produce a circular situation if the employer were able to sue the son for the total amount of damages paid.
The House of Lords by a majority of 3 to 2 decided to accept the circular situation that the son had to pay the same as the employer.
Marshall v Gotham Co. Ltd 1954
COMPARISON OF ‘PRACTICABLE’ AND ‘REASONABLY PRACTICABLE’ PRECAUTIONS
M, an employee of G Co was killed by a roof fall while working in his employer’s gypsum mine. The roof fall had been caused by an unusual geological condition known as a ‘slickenslide’, which was undetectable. M’s wife alleged a breach of statutory duty (under the Metalliferous Mines General Regulations 1938) and claimed compensation from the employer.
The employer was not liable for a breach of statutory duty because M’s death had not been caused by any failure by them to take reasonable steps to secure the roof.
“If a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable. And as men’s lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable.”
Measures may be ‘practicable’ which are not ‘Reasonably practicable.’
Halsbury’s Laws of England, Vol. 20 para 553
McWilliams (or Cummings) v Sir William Arrol 1962
THE BREACH OF STATUTORY DUTY. NO LIABILITY IF EMPLOYEE REFUSES TO WEAR SAFETY DEVICES.
Steel erector fell to death when not wearing safety belt. Safety belt was not provided but even when they had been in the past he had never worn one.
A civil right of action for a Breach of Statutory Duty arises if it is shown that (inter alia) the damage or injury was caused or was materially contributed to by the breach.
Steel erector fell 70’ to his death while erecting a tower crane – a safety belt would have saved him. The employer had normally made safety belts available but, as they were not being used much on this particular site, the belts had been taken away for use elsewhere. Steel erector was experienced and the evidence was that, even if belts had been available, he would not have used one.
Widow sued company for breach of statutory duty.
Before a claim for damages for breach of statutory duty can succeed, the employee must prove that the employer’s action or inaction caused the injury. If the employer can show that the employee brought the injury upon himself by failing to take advantage of the safety measures then no liability will fall upon the employer. In a case where safety measures are not provided or are not available, the employer will still escape liability if it can be shown that the employee would not have used them even if they had been available.
There are four steps to proving causation in a case like this:
1.There existed a duty to supply a safety belt
2.There was a breach of that duty
3.That if there had been a safety belt the employee would have used it
4.That if the employee had used it he would have suffered no injury or a lesser injury than he did.
If one of these links in the chain of causation is broken a claim for damages must fail. Furthermore, there is no rule that employers are under a duty to insist that employees do actually use safety devices.
Paris v Stepney Borough Council 1950
SPECIAL DUTY OF CARE
A one-eyed garage worker became completely blinded after a chip of metal entered his good eye. No protective equipment had been given to Mr. Paris.
After the accident, P successfully claimed damages for his injury but this was overturned on appeal. Mr Paris then appealed to the House of Lords.
The House of Lords held that where an employer is aware that an employee has a disability which, although does not increase the risk of an accident occurring, does increase the risk of serious injury, special precautions should be taken if the employer is to fulfil his duty to take reasonable care of the safety of that employee.
Stepney Borough Council owed a special duty of care to P and had been negligent in failing to supply him with goggles, even though sufficient equipment was not given to other employees.
R v Associated Octel Ltd 1994
MEANING AND EXTENT OF ‘CONDUCT OF UNDERTAKING’ AS APPLIED TO HSW ACT s3
Note: The contractor referred to as ‘R Ltd’ in the following text was Resin Glass Products Ltd. Students should not confuse ‘R Ltd’ (Resin Glass Products Ltd) with ‘R’ (Regina) in the case title.
A Ltd closed down its chemical plant each year for maintenance and repair. R Ltd carried out this work as contractors. An employee of R Ltd was cleaning the inside of a tank when he was badly burned because of an explosion inside the tank. R Ltd was convicted of an offence under s2 of the 1974 Act, and A Ltd of an offence under s3. A Ltd appealed to the Court of Appeal. It was argued on their behalf that s.3 did not involve liability for the actions of independent contractors.
The appeal was dismissed. The question was simply whether the activity in question could be described as being part of the employer’s undertaking. Octel’s undertaking was running a chemical plant and it was part of that conduct of undertaking to have the plant cleaned by contractors. The tank was part of Octel’s plant. The work formed part of a maintenance agreement planned by the firm. The workers, although employed by an independent contractor, were almost permanently integrated into the firm’s larger operations. In these circumstances, a properly instructed jury would have undoubtedly convicted.
R v Swan Hunter Shipbuilders Ltd and Telemeter Installations Ltd, 1982
HSW ACT s2.2.C – PROVISION OF INFORMATION
An oxygen valve in a badly ventilated part of HMS Glasgow, then under construction, had been left open. The result was that the room had then become oxygen enriched. S were the main contractors but several others were involved. An employee of T, working alongside S’ employees was preparing to do some welding. Due to the atmosphere, a very intense fire broke out and eight men were killed.
S knew of the fire risk and had provided information to their employees. However, they failed to distribute this information to other contractors and/or the employees of those other contractors. S was prosecuted and fined £3000, they appealed.
Conviction was upheld. S had a duty to ensure the health and safety of its own employees by the provision of information. If the ignorance of another company’s employees places its own employees at risk then it is the company’s duty, for the protection of its own employees, to inform the employees of another of any special risks within its knowledge.
Smith v Baker & Sons 1891
CONTRIBUTORY NEGLIGENCE: KNOWLEDGE BY THE PLAINTIFF; VOLENTI NON FIT INJURIA
The House of Lords decision in Smith v. Baker & Sons  AC 325 was the first case in which the defence of volenti non fit injuria was limited in employee situations. In that case a worker was injured when a rock fell onto him from an overhead crane.
It is a question of fact in each case whether the knowledge of the plaintiff in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence.
Where a plaintiff relies on the breach of a duty to take care owed by the defendant to him it is a good defence that the plaintiff consented to that breach of duty, or knowing of it, voluntarily incurred the whole risk entailed by it. In order to establish the defence, the defendant must be shown not only to have perceived the existence of danger but also to have appreciated it fully and to have voluntarily accepted the risk.
Uddin v Associated Portland Cement Ltd 1965
CONTRIBUTORY NEGLIGENCE; EMPLOYEE IN UNAUTHORISED PLACE.
U was employed in a cement factory run by APC Ltd. He went to a part of the factory where he was not authorised to be in order to catch a pigeon. U climbed up to a position where there was unfenced machinery. As a result he became entangled with a revolving shaft and lost an arm.
U brought an action for damages against his employer, alleging that the shaft was a dangerous part of machinery that should be fenced in accordance with the requirements of s14 (1) Factories Act 1937.
It made no difference that U was in a part of the factory where he was not supposed to be or that he was doing something that had nothing to do with his work. It was enough that he was an employee that had suffered injury through a breach of statutory duty. It was therefore held that the defendants were in breach of their statutory obligations and that the plaintiff, who at the time of the injury was performing an act wholly outside the scope of his employment, for his own benefit and at a place to which he was not authorised to go, was not totally debarred from recovering damages. Responsibility was therefore apportioned on the basis of 20% to the defendants and 80% to the plaintiff.
Wilsons & Clyde Coal Co. Ltd v English 1938
DUTIES OF EMPLOYERS AT COMMON LAW; LIABILITY OF EMPLOYER FOR ACTS OF AGENT.
E, a miner, was injured at work when he was crushed by haulage plant. He claimed damages from his employer, the mine owner. The employer argued that, at the time of the accident, responsibility for the safety of the mine had been delegated to his agent.
Where an agent is performing the employer’s duty of providing a safe system of work, he is performing the duty of the employer. The employer remains vicariously responsible for the agent’s negligence.
“a duty rests on the employer […] to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or company and whether or not the employer takes any share in the conduct of the operations.”
The employer must:
• Provide a safe place of work with safe means of access and egress
• Provide and maintain safe appliances, equipment and plant for doing the work
• Provide and maintain a safe system for doing the work
• Provide competent co-employees to carry out the work
Cambridge Water Co. v Eastern Counties Leather
FORSEEABILITY OF DAMAGE IS A REQUIREMENT FOR STRICT LIABILITY AS WELL AS FOR NUISANCE
This is the leading modern case on strict liability. A water company claimed in regard to the pollution of a nearby public water supply borehole.
The High Court held that the storage of organochlorines by firms involved in the tanning industry and based at Sawston, an industrial village, was a natural use of land for the purposes of the rule in Rylands v Fletcher. Sawston was properly described as an ‘industrial village,’ said Justice Ian Kennedy and the creation of employment was clearly for the benefit of that community. Storage in that place was therefore a natural use of land. He therefore rejected the water company’s claim. The water company appealed.
Justice Kennedy’s decision was overturned at appeal. It was held that the accidental spillage of chemicals gave rise to strict liability so that E was liable. However, the House of Lords reversed the decision of the Appeal Court and found that E was NOT liable. They based their decision on the need for foreseeability of consequences and not ‘non-natural user.’ In fact, Lord Goff stated that the storage of chemicals in substantial quantities on industrial land “…should be regarded as an almost classic case of non-natural use.” It follows that the element of foresight has been built into Rylands and, since Eastern Counties Leather had not foreseen the consequences of the spillage, they were not liable.
It may therefore be said that strict liability (i.e. non-negligent liability) for the escape from land of things likely to do damage only arises in modern law if the defendant knew or ought reasonably to have foreseen that those things might, if they escaped, cause damage.
The recent House of Lords decision in the Cambridge Water Company case, which at first sight may lead a reader to believe that companies are less likely to be liable for environmental clean up, has a sting in its tail. The issue is now whether or not the type and extent of pollution caused was foreseeable, by the alleged polluter, at the time the alleged polluting activities occurred. It is important therefore that tenants adopt what is current best practice so that they can argue in due course, if pollution does occur, that is was unforeseeable and that civil liability should not arise.
Coggins and Griffiths Vs Mersey harbour Board
MASTER/SERVANT RELATIONSHIP – PERSONS WHO MUST BE PROTECTED
The appellant board owned a number of mobile cranes that were hired out for work loading and handling cargo at the Liverpool docks. Crane drivers were supplied with the cranes. The appellants paid the crane drivers' wages but there was a condition in the hiring contract that "the drivers so provided shall be the servants of the applicants". A port worker in the employ of the respondent stevedoring company was injured by one of the defendant's cranes. He sued both the stevedoring company and the appellants. The trial judge awarded damages against the appellants. An appeal against this decision was dismissed. The Board appealed to the House of Lords.
The appeal was dismissed.
Per Lord Macmillan: "That the crane driver was in general the servant of the appellant board is indisputable. The appellant board engaged him, paid him, prescribed the jobs he should undertake and alone could dismiss him." The person hiring the crane had some control but the real control was with Mersey Docks. The ultimate control is the right to dismiss.
A servant is one who is subject to the orders and control of an employer […] whether or not the persons are running their own business.
R v British Steel Plc 1994
DEFENCE OF REASONABLY PRACTICABLE; PROPER DELEGATION; DIRECTING MIND OF THE COMPANY
In 1990, British Steel decided to move a steel platform by crane. Two workers were provided by sub-contractors to do the repositioning work. British Steel provided all equipment and a British Steel engineer, Mr Crabb, was made responsible for supervision. The platform was cut free without first being suspended from the crane. While one of the workers was underneath the platform, another worker walked on it causing it to collapse, fatally injuring the worker underneath.
British Steel accepted at Sheffield Crown Court that the incident constituted a breach of s. 3(1) of the 1974 Act. However, they stated that the defence of reasonable practicability enabled them to submit a defence on the basis that the directing minds of the company had taken all reasonable care in delegating supervision to Mr Crabb.
The judge ruled that the defence of proper delegation did not arise and British Steel was convicted. British Steel appealed.
The Court of Appeal held that s3 (1) imposes absolute liability subject to ‘reasonably practicable’ measures to avert the risk and the appeal was dismissed.
The case reinforces the concept that corporations cannot avoid liability simply because the act causing the breach was carried out by someone who was not the directing mind of the company. Nor can they avoid responsibility simply by taking reasonable care to delegate responsibility.
R v Nelson Group Services (Maintenance) Ltd 1999
‘SO FAR AS IS REASONABLY PRACTICABLE’ AS A DEFENCE
Although the circumstances where such a defence may be established are likely to be rare, the Court of Appeal in this case stated that an isolated act of negligence by an employee carrying out work on behalf of the company does not stop that employer from establishing a defence that it has done everything that is reasonably practicable.
The court said:
“It is not necessary for the adequate protection of the public that the employer should be held criminally liable even for an isolated act of negligence by an employee performing the work. Such persons are themselves liable to criminal sanctions under the Act and under the Regulations. Moreover it is a sufficient obligation to place on the employer in order to protect the public to require the employer to show that everything reasonably practicable has been done to see that a person doing the work has the appropriate skill and instruction, has had laid down for him safe systems for doing the work, has been subject to adequate supervision and has been provided with safe plant and equipment for the proper performance of the work.
Rylands v. Fletcher (1866)
The defendant occupied land near to where the plaintiff operated a coal mine. The coal seams extended under the defendant's land. These had been previously worked but the tunnels and shafts had been cut off and forgotten about. The defendant obtained approval to construct a reservoir to provide water for his mill. The water from this reservoir permeated the old coal shafts beneath and flooded the plaintiff's mine. The defendant succeeded in the Court of Exchequer. The plaintiff appealed to the Exchequer Chamber.
The issue was whether the law imposed an absolute duty upon an occupier to keep a potentially dangerous substance on his land or whether the occupier need take only reasonable and prudent precautions to do so.
Blackburn J (delivering the judgement of the court): "the person who for his own purpose brings on his lands […] anything likely to do mischief if it escapes, must keep it at his peril and is prima facie answerable for all the damage which is the natural consequence of its escape."
Liability under this rule is strict and it is no defence that the thing escaped without the defendant’s wilful act, default or neglect or even that he had no knowledge of its existence. The only defences available to such an escape would be vis major (act of God) or to show that it was due to some fault of the plaintiff (or a third person). (However, for the modern view, refer to the Cambridge Water case.)
The decision in this landmark case created a new tort. The problem was how to determine and limit the scope of the rule. What is a 'non-natural' user?
Sutherland v Hatton; Barber v Somerset County Council, Jones v Sandwell Metropolitan District Council; Bishop v Baker Refractories Ltd 2002 (Joined cases)
STRESS; PSYCHIATRIC ILLNESS; DUTY OF CARE; DAMAGES; GENERAL PRINCIPLES FOR PSYCHIATRIC ILLNESS CASES
The appeals of four employees were heard together by the Court of Appeal concerning cases where damages had been awarded for stress-induced psychiatric illness. Two main questions were addressed: first, the scope of duty owed by the employer; and second, whether the employer had breached that duty.
After discussion, the Court set out some general principles to apply in such cases. They are (briefly):
•There are no special control mechanisms applying to claims for illness arising from stress. The ordinary principles of employers liability should apply.
•The threshold question is whether this type of harm was reasonably foreseeable
•Foreseeability depends on what an employer knows or ought reasonably to have known about the employee concerned.
•The test is the same whatever the employment
•The employer is generally entitled to take what is told by its employee at face value.
•To trigger a duty to take action, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that it should do something about it.
•The size and scope of the employer’s business, its resources and the demands it faces are relevant in deciding what is reasonable.
•An employer who offers a confidential counselling or treatment service is unlikely to be in breach of its duty.
•If the only reasonable step is to demote or to dismiss the employee, the employer would not be in breach of its duty in allowing a willing employee to continue working.
•The claimant must show that the breach of duty caused or materially contributed to the harm suffered – occupational stress is not enough.
Following these principles, three of the employer’s appeals were allowed. Sandwell MDC’s appeal was dismissed.
Byrne v. Boadle (1863) 2 H &C 722
‘RES ISPA LOQUITOR’
The plaintiff, passing along the highway, came opposite the defendant's shop when a barrel of flour fell from a window and knocked him down. The defendant, who was a flour dealer, argued that the plaintiff must lead evidence as to the facts in order to establish negligence.
Per Pollock CB (Chief Baron): "There are certain cases of which it may be said res ipsa loquitur, and this seems one of them. In some cases the courts have held that the mere facts of the accident having occurred is evidence of negligence, as, for instance, in the case of railway collisions. If an article, calculated to cause damage is put in the wrong place and does mischief, I think that those whose duty it was to put it in the right place are prima facie responsible, and if there is any state of facts to rebut the presumption of negligence, they must prove them."
The mere facts of the accident having occurred can amount to prima facie evidence of negligence.
Imperial Chemical Industries v. Shatwell  AC 656
VOLENTI NON FIT INJURIA
The plaintiff and his brother were both experienced employees at a quarry owned by the defendant company. Part of the brothers' work included wiring up detonators and checking the electrical circuits. There was an old practice where a galvanometer was applied directly to each detonator for testing purposes. This practice was known to be dangerous and was outlawed by statutory regulation. The plaintiff claimed his brother was 50 per cent to blame for the explosion and the employer was vicariously liable. The plaintiff was awarded half of the total amount of damages. The defendant appealed.
The plaintiff and his brother were both experts. They freely and voluntarily assumed the risk involved in using the galvanometer. There was no pressure from any other source. To the contrary, they were specifically warned about complying with the new safety regulations.
The defence of volenti non-fit injuria will apply when there is true and free consent to the risk.
Morris v. Murray  2 WLR 195
VOLENTI NON FIT INJURIA
The plaintiff wanted to fly in the defendant's plane as a passenger. The plaintiff drove the pilot to the airport. Both were drunk. The airport was closed. The plaintiff helped start the plane and put the radio onto the right frequency. The plane took off in the wrong direction and crashed. The plaintiff claimed there was no voluntary assumption of risk because he had no actual knowledge of the nature of the risk.
The court held that the plaintiff must have been aware of the nature of the risk because of his actions leading up to the crash. He freely and voluntarily consented to that risk.
The degree of intoxication will help decide whether or not the plaintiff freely consented to the risk.
Rose v. Plenty  1 WLR 141
A dairy co-operative employed a milkman who allowed a child to accompany him on his round. This was strictly forbidden. The child was injured due to the negligent driving of the milkman. The boy sued both the milkman and the dairy co-operative. The trial judge found that the co-operative was not liable. The plaintiff appealed.
The court held that the milkman was doing an authorised act, delivering milk, in an unauthorised way.
Per Lord Scarman: Determining vicarious liability is a matter of public policy determined by:
1. Did the servant commit a tort on the plaintiff?
2. Whether the employer should shoulder the responsibility.
"if that visitor from Mars is still in court [...] he will return to his planet conscious that one member of the court sees no irreconcilable differences opening up in the common law."
Hope this helps