Act of God?

Photo by Davide Cantelli on Unsplash

Throughout the ages, God tends to be blamed for a lot of unfortunate events (it isn’t just a late 20th/early 21st Century phenomenon).

In the Scots law of delict (and in the English law of tort), there is a potential defence to an action for negligence known as damnum fatale or an act of God. The essence of this defence so the defender (or respondent) asserts is that s/he could not prevented harm from occurring to the victim because it was a completely unforeseeable event.

When discussing this defence, the standard case in Scotland to which many commentators refer is Caledonian Railway Co v Greenock Corporation (1917). In this case, the House of Lords was far from impressed by the Greenock Corporation’s argument that freakishly heavy rainfall during summer should be treated as an unforeseeable occurrence – in other words, an act of God. The Corporation had diverted the course of a local burn (stream) in order to fill a swimming pool. Heavy rainfall occurred and the water from the pool overflowed and flooded neighbouring property which belong to the Caledonian Railway. The Greenock Corporation was found liable to the Railway for the damage caused. The amount of rainfall might be unusual for other places in Scotland, but certainly not for Greenock. Knowing Greenock well, I can attest to the amount of rain that falls there on a regular basis and I think an argument could easily be made to confer upon it the dubious accolade of the wettest town in Scotland.

The defence of damnum fatale arose recently (and briefly) in a case before Lord Glennie in the Outer House of the Court of Session (see Allen Woodhouse v Lochs and Glens (Transport) Ltd [2019] CSOH 105).

I will say, of course, from the outset that Lord Glennie sensibly rejected any possible part that this defence might have to play in proceedings:

‘But I am left with this concern. My finding on the evidence is that the weather conditions were unpleasant and the wind was strong – but there was nothing exceptional about the conditions, winds of that strength were foreseeable, and extreme turbulence, being a feature of the topography of that area, could also be foreseen. For that reason I would have rejected the defence of damnum fatale, had it been necessary to consider it.’

The facts of the case were as follows:

Mr Woodhouse was a tourist, who was on a 7 day Ceilidh Spring Break, staying at the Loch Awe Hotel. As part of the package, the defenders (Lochs and Glens (Transport)) took the tourist party on day trips using one of its buses. On one of the day trips, Mr Woodhouse and his fellow tourists had stopped near the top of the well known beauty spot, the Rest and Be Thankful. The weather was particularly foul that day and, understandably, most of the tourists did not take the opportunity to leave the bus and go out to the viewpoint.

This part of the excursion was all too brief and the bus driver decided to leave the viewpoint. Shortly after the bus had pulled away, the driver became aware that the passenger door was slightly open and she stopped the bus to close it. When this was done, she started the bus and headed down the Rest and Be Thankful on the Inveraray side. By this point, the force of the wind had increased dramatically and the bus was effectively heading directly into the path of a violent gale. To cut a long story short, the driver took (what she believed were) reasonable precautions and moderated her speed and driving technique. Nevertheless, despite these measures, the bus eventually went off the road due to a combination of unfortunate events i.e. the uneven slope just above Loch Restil; the lack of a safety barrier at the time of the accident; the high winds and the build up of mud on the vehicle’s wheels as it attempted to navigate the grass verge which affected the braking system.

As a result of the bus leaving the road, Mr Woodhouse suffered injuries and he brought an action for compensation (£15,000) against Lochs and Glens (Transport) for the alleged negligence of its employee. Although Mr Woodhouse’s claim was initially lodged in the Sheriff Court, it was later transferred to the Court of Session in recognition of the importance of some of the issues and consequences which it raised (there were 51 other passengers on the bus that day).

Due to the fact that control of the situation was the responsibility of the defenders and its driver, the burden of proof switched to the defenders to demonstrate that they were not liable in negligence to Mr Woodhouse. The merits of his claim would, therefore, stand or fall on the basis of Mr Woodhouse’s reliance on the legal principle known as the facts speak for themselves (res ipsa loquitur).

In dismissing Mr Woodhouse’s claim for damages, Lord Glennie noted that:

‘I am persuaded on the evidence that the defenders have discharged the burden on them of proving that the accident happened without their negligence. The evidence that the coach was well maintained and did not suffer from any relevant pre-existing defect was not challenged; indeed it was a matter of agreement in the Joint Minute lodged in process by the parties. The only challenge, the only suggestion of fault advanced by the pursuer, was in relation to the actions of the driver.’

Critically, his Lordship went on to say that, although the bus driver may have misjudged the actual speed at which she was driving the vehicle, she had not been driving dangerously.

Taken together, all of these factors demonstrated that neither the defenders nor the driver were liable in negligence to Mr Woodhouse.

A link to Lord Glennie’s Opinion can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh105.pdf?

Postscript

On Friday 21 February 2020, two women were injured in a Glasgow street when a shop sign was dislodged in high winds and landed on them. Were the high winds an act of God or did the store fail to safeguard against this type of incident? Read on …

Two women hit by falling M&S sign in Glasgow city centre

The pedestrians are taken to hospital after the sign landed on them outside the store in Argyle Street.

Related Blog articles dealing with defences to actions in delict:

https://seancrossansscotslaw.com/2019/01/26/volenti-non-fit-injuria-or-hell-mend-you/

https://seancrossansscotslaw.com/2019/12/09/howzat-or-volenti-again/

Copyright Seán J Crossan, 23 December 2019 & 21 February 2020

No smoke without fire …

Photo by Patrick Hendry on Unsplash

It would seem that Whirlpool, the domestic appliance manufacturer of Creda, Hotpoint, Indesit and Proline tumble dryers does not have its sorrows to seek as product defects (which could endanger the safety of the public) continue to plague the brand. The appliances have been nicknamed the ‘killer dryers’ because they may represent a fire risk.

Manufacturers of products have a duty of care to ensure that their products are free from defects which could cause damage to property or death or personal injury.

Related Blog article:

Help! The tumble dryer’s on fire!

https://seancrossansscotslaw.com/2019/06/14/help-the-tumble-dryers-on-fire/

Last week, the company admitted that nearly half a million of its appliances could have a serious manufacturing defect which could cause property damage and, more seriously, death or personal injury.

Whirlpool’s (civil) liability to victims is said to be strict in terms of a number of Acts of Parliament:

  • Sale of Goods Act 1979
  • Consumer Protection Act 1987
  • Consumer Rights Act 2015

There is also the issue of possible criminal liability for dangerous and defective products in terms of the Consumer Protection Act 1987.

Potentially, Whirlpool could be liable to a large group of people:

  • Business customers (retailers and traders) who purchased products from Whirlpool directly in terms of the Sale of Goods Act 1979; and
  • The ultimate consumer of the products i.e. any one who does not have a contract of sale with the retailer or manufacturer, but who may suffer property damage, injury or death as a result of exposure to the dangerous product (see Donoghue v Stevenson [1932] UKHL 100) in terms of the Consumer Protection Act 1987.

Those consumers who purchased dangerous item(s) directly from a retailer will, of course, have a contract of sale in terms of the Consumer Rights Act 2015 and they can take legal action against the retailer. The retailer can then pursue a claim against the manufacturer or supplier from whom they obtained the goods.

An excellent link to an article about the problems facing Whirlpool appliances can be found below by clicking on the link to the Which? website:

https://www.which.co.uk/news/2019/12/whirlpool-announces-recall-of-up-to-519000-indesit-and-hotpoint-fire-risk-washing-machines-in-the-uk/?utm_source=whichcouk&utm_medium=email&utm_campaign=whirlpoolrecall171219

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/half-a-million-whirlpool-washing-machines-recalled-over-fire-risk-11889023

Copyright Seán J Crossan, 23 December 2019

Joint and several liability?

Photo by James Day on Unsplash

This week, purely by chance, I seem to be on a bit of a theme: discussing the legal implications of the Glasgow Bin Lorry Accident which occurred on 22 December 2019.

You can read about the events of that unfortunate incident by accessing the link below to my previous Blog:

https://seancrossansscotslaw.com/2019/12/10/post-traumatic-stress-or-psychiatric-injuries/

The previous Blog discussed claims for psychiatric injuries in relation to the tragedy in Glasgow, but another legal action at the Court of Session in Edinburgh, stemming from these events, has just been determined this very week.

The case in question is Glasgow City Council v First Glasgow (No 1) Ltd [2019] CSOH 101.

It will be recalled that it was Harry Clarke, the driver of the bin lorry or refuse collection truck, who had suffered a blackout while driving due to an undisclosed medical condition. He had lost control of the vehicle and this had caused the accident which resulted in the deaths of 6 people and injuries to 15 more in Glasgow City Centre.

Glasgow City Council, Clarke’s employer, was vicariously liable for his negligence. This is now a question of fact. What was in dispute, however, was whether Clarke’s former employer (First Glasgow), a bus company where he was employed as a driver, should also bear liability for his role in the tragedy?

Why – you may well ask?

As Lord Ericht, the trial judge, noted the argument advanced by Glasgow City Council amounted to the following:

The sole ground on which this case is pled is a narrow one. The case is pled solely on the basis of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.’

Section 3 of the above Act addresses a situation where two defenders or more could be held jointly and severally liable for wrongful or negligent acts or omissions.

Glasgow City Council had already paid out substantial damages to the families of the deceased and to those who suffered injury on 22 December 2014 (£860,000 together with expenses of £43,714.40). The Council was now seeking to recover these sums in ‘their entirety’ from Clarke’s former employer.

There two issues in the case were as follows:

1. Whether it is necessary for a claim under the 1940 Act that both the pursuers and defenders be under a duty of care to the injured person; and

2. If the answer to the first issue is yes, did the defenders in this case have a duty of care to the injured person?

Essentially, the Council’s argument rested on First Glasgow’s knowledge of Clarke’s medical condition and the potential dangers that this represented if he continued to drive for a living.

Reference was made by the Council to a previous incident that occurred in April 2010:

On 7 April 2010, Clarke lost consciousness whilst driving a bus when engaged in the course of his employment with the defenders [First Glasgow]. The type of episode from which he suffered was similar to that which was ultimately suffered by him during the events [of 22 December 2014]. The incident was investigated by the defenders and it was known by them that he could present a risk to passengers and others should there be a repetition of the event. In the course of the investigation by the defenders, Clarke changed his story about where and how he had suffered the fainting episode. Any reasonable investigation would have revealed that he was being dishonest to those trying to assess his ability to drive.

In fact, the Council had sought a reference about Clarke from First Glasgow as to his suitability for employment. It was claimed by the Council that the reference request would almost certainly have asked for information about Clarke’s general health and any issues in this regard which would have impaired his ability to carry out driving duties. Unfortunately, the reference was not produced by the Council on the grounds that it had either been lost or misplaced.

The Council pointed out in its submissions to the Court of Session that First Bus should have informed it (as Clarke’s new employer) about the danger he represented if he was given a driving job. Had the full extent of Clarke’s health problems been notified to the Council, he would not have been allowed to continue in his employment as a driver. The Council would have then (possibly) sought to redeploy him in a non-driving role.

In this sense, the Council was attempting to rely upon the principle of foreseeability alone as creating the basis for a duty care owed to it by First Glasgow. Lord Ericht expressly rejected this reasoning by focusing on the tripartite test laid down by Lord Bridge in Caparo Industries PLC v Dickman [1990] UKHL 2 (a judgement of the House of Lords) which emphasised the following factors which need to be present in order to establish a duty of care:

  • foreseeability;
  • proximity; and
  • fairness, justice and reasonableness.

Significantly, Lord Ericht highlighted the fact that First Glasgow had issued the reference about Clarke to Glasgow City Council. It was, therefore, issued for the new employer’s benefit alone. It was not meant to benefit members of the public (a very broad class of people) and, critically, the public was completely unaware of the existence of said reference and could not in any way be said to have relied upon it.

In arriving at his decision, Lord Ericht made the following statement:

In order to succeed in its claim under section 3, the pursuers will have to establish that the defenders were directly liable to the injured party in negligence in respect of a reference given by the defenders to the pursuers. The issue which came before me for debate was whether as a matter of law, in the circumstances of this case, a previous employer who gives a reference to a new employer can be liable in negligence to a third party who is injured by the employee during the course of his new employment.”

His Lordship went on to say:

In my opinion for the 1940 Act to apply both parties must be liable to the injured person. Section 3(2) operates in situations where both A and B are liable to C. It does not operate where only A is liable to C, but B is liable to A.

Reference was also made by Lord Ericht to the decision of the House of Lords in Spring v Guardian Royal Assurance PLC [1994] UKHL 7 where the claimant, an ex-employee of Guardian Royal Assurance, was prevented from gaining new employment in the insurance industry because Guardian Royal provided a prospective employer of the claimant with a negligent employment reference. The reference claimed that the claimant had committed fraud while he had been working for Guardian Royal. This was not true, the claimant had merely been incompetent in carrying out his duties for Guardian Royal.

Held: by the House of Lords that Guardian Royal owed the claimant a duty of care and it was foreseeable that he would suffer harm as a result of the negligent reference. Clearly, the claimant and Guardian Royal had a special relationship – that of employer and employee.

To the disappointment of Glasgow City Council, Lord Ericht chose to distinguish Spring from the present case before him:

The case of Spring v Guardian Assurance established that an employer giving an employment reference owes to the employee who is the subject of the reference a duty of care and would be liable to the employee in negligence if he failed to do so and the employee suffered economic damage. In the present case, the court is being asked to go further and find that there is a duty of care to a third party who is neither the employee nor the recipient of the reference. This is an exercise which must be approached with great care.”

Interestingly, one of the issues raised by Counsel for First Glasgow was that it was under no duty to disclose the incident of 7 April 2010 to the Council (when Clarke fainted while driving) because doctors who had examined him stated that it was extremely unlikely to happen again.

In this respect, First Glasgow did not owe a duty of care to Clarke’s victims. Therefore, the provisions of Section 3 of the Law Reform (Miscellaneous Provisions) Act 1940 did not apply to this situation and the Council’s claim for damages from First Glasgow was dismissed.

A link to Lord Ericht’s Opinion in the Outer House of the Court of Session can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh101.pdf?sfvrsn=0

A link to an article in The Scotsman About the case can be found below:

https://www.scotsman.com/news/glasgow-council-lose-legal-bid-to-avoid-paying-1m-compensation-to-bin-lorry-crash-victims-1-5060212

Copyright Seán J Crossan, 13 December 2019

Post-traumatic stress or psychiatric injuries

Photo by Thư Anh on Unsplash

Author’s note: Ms Weddle appealed to the Sheriff Civil Appeal Court where the original decision of the Sheriff (who ruled against her claim) was upheld. The decision was issued on 7 June 2021 and does not contain any surprises.

A link to the Appeal Court’s decision, Danielle Weddle v Glasgow City Council [2021] SAC (Civ) 17 PIC-PN2982-17, can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021-sac-(civ)-017.pdf?sfvrsn=0

It’s hard to believe that, this month, it will be 5 years since the event infamously dubbed the Glasgow Bin Lorry Crash occurred.

To those readers unfamiliar with the events that happened on 22 December 2014, Harry Clarke, an employee of Glasgow City Council, was responsible for causing the deaths of 6 people and injuring 15 others. Mr Clarke was employed by the City Council as the driver of a bin lorry (garbage truck for our North American readers). He lost control of the vehicle while driving it in Glasgow City Centre. It later emerged that Mr Clarke had a history of illness which caused him to suffer from blackouts. He had not revealed this fact to his employer. Mr Clarke suffered one of those episodes on the day of the accident.

A link to an article which appeared in The Guardian the day after the accident can be found below:

https://www.theguardian.com/uk-news/2014/dec/23/glasgow-bin-lorry-crash-three-victims-family-named

Clearly, the Council was potentially (vicariously) liable for the actions of its employee to the primary victims in delict (tort), but what about bystanders who witnessed the tragic turn of events and who had no personal or family links with the primary victims (the dead and the injured)?

I’ll discuss this incident later in the Blog in relation to a recent decision of the All Scotland Personal Injury Sheriff Court.

The law of delict and PTSD

Scots law (and indeed the English law) recognises two kinds of victim who can develop psychiatric injuries as a result of the defender’s negligence in these types of situation:

  • Primary victims
  • Secondary victims

Primary victims are those individuals who have been directly involved in an accident caused by the defender’s negligence. They may have suffered both physical and psychiatric injuries or their injuries may be limited purely to psychiatric damage.

Secondary victims, on the other hand, are not directly involved in the initial accident that occurred as a result of the defender’s negligence. In fact, they may not have witnessed the occurrence of the accident at all.

This category of victim often appears on the scene during the aftermath of the accident as in Bourhill v Young [1943] AC 92 when the important events had already taken place. Alternatively, secondary victims might be related or connected to the primary victims and as such it would be reasonably foreseeable that they would suffer some sort of distress. Whether or not secondary victims can claim compensation for their psychiatric injuries is, however, not always a straightforward matter.

Primary victims have traditionally had a more straightforward task when it comes to convincing the courts that they should be awarded damages for the psychiatric injuries that they have suffered.

As we shall see, strict rules are now in place that will determine whether a secondary victim should succeed in her claim for damages against the defender.

The obstacles facing secondary victims

The ability of secondary victims to bring successful claims for psychiatric injury has been at the heart of some high profile judicial decisions over the last four decades.

In McLoughlin v O’Brian [1983] 1 AC 410, the pursuer’s husband and three children were all victims of a serious car accident which had been caused as a result of the defender’s negligence. One of the pursuer’s daughters was killed in the accident and the surviving family members were all seriously injured. It is important to realise that the pursuer was not physically present at the scene of the accident and she was not informed about the accident until several hours after it had occurred.

When the pursuer reached the hospital she saw for herself the graphic and serious nature of the injuries that her family had suffered. This all proved too much for the pursuer to deal with and she developed a long-running and serious psychiatric condition which she claimed had been caused by the defender’s negligence.

The difficulty for the pursuer was that she was clearly a secondary victim and the law relating to psychiatric injuries was quite clear – only primary victims could be granted compensation for the psychiatric injuries that they had suffered as a result of the defender’s negligence. The House of Lords, therefore, had to consider the issue of whether the pursuer was someone that the defender could reasonably foresee would suffer harm as a result of his negligence. Furthermore, some of the Law Lords felt reasonable foreseeability of harm was not enough and the strength of the pursuer’s relationship with the primary victims had to be examined.

Held: by the House of Lords that the psychiatric injuries suffered by the pursuer were reasonably foreseeable. The ties of love and affection were clearly a crucial feature of her relationship with the primary victims. She was, therefore, entitled to compensation from the defender.

McLoughlin v O’Brian was not without its critics and it did not entirely settle the question of whether secondary victims were entitled to sue for psychiatric injury. Lord Bridge suggested that reasonable foreseeability of the pursuer suffering harm should be enough to establish liability. Lords Wilberforce and Edmund-Davies felt that reasonable foreseeability was only one part of the story. The strength of the pursuer’s relationship with the primary victims was a very important factor in determining whether any claim for psychiatric injury should be allowed.

The decision of Alcock and Others v Chief Constable of the Yorkshire Police [1992] 1 AC 310 that the approach that Lords Wilberforce and Edmund-Davies had taken in McLoughlin was confirmed as correct. 

Alcock was regarded as a special case because the pursuers represented a group of individuals who had a broad range of relationships with the primary victims. The pursuers included parents, children, siblings, grandparents, in-laws, fiancés and friends. All these individuals were claiming that they had suffered psychiatric shock as a result of the harm that had been suffered by the primary victims to whom they were connected. The House of Lords was left with the task of deciding which of these secondary victims was entitled to claim compensation for psychiatric injuries.

The facts of Alcock and Others v Chief Constable of the Yorkshire Police [1992] are detailed below:

The events surrounding this case relate to the English FA Cup semi-final which was being contested by Liverpool and Nottingham Forest. The match was being played at the neutral venue of Hillsborough (the Sheffield Wednesday ground) and it was a sellout. The game was also being televised live on the BBC – although individuals who were caught up in the crush could not be identified from the live television pictures. The South Yorkshire Police force which was responsible for policing the match was accused of negligence for the way in which it operated its crowd control procedures. The game had to be stopped after six minutes of play because too many fans had been allowed into a section of the terraces and many of these individuals were crushed against the fencing which prevented access to the pitch.

Ninety-five people died as a result of the incident and at least another 400 had to be treated in hospital for the injuries that they received. The police paid compensation to the primary victims of the incident i.e. those had suffered physical and psychiatric injuries as a result of being directly involved in the accident. This compensation payment, however, did not settle the claims of a group of secondary victims, consisting mainly of relatives of the primary victims. These secondary victims, of course, had not been directly caught up in the incident. Many had, admittedly, been present at Hillsborough and had witnessed the terrible scenes from a distance. Others in the group of secondary victims had witnessed the incident on live television, had been told about the incident by third parties or had gone directly to the ground after hearing the information in order to search for family and friends who were missing presumed injured or dead.

The pursuers attempted to rely upon Lord Bridge’s test in McLoughlin v O’Brian that their psychiatric injuries were reasonably foreseeable and, therefore, they could claim compensation. The House of Lords felt that although the secondary victims had suffered as a result of the incident at Hillsborough, stricter rules had to apply to their claims than was the case with the primary victims. The starting point of any secondary victim’s claim for damages the psychiatric injuries must be reasonably foreseeable. This is only the first hurdle placed in the pursuer’s way. There are a further three tests that pursuers must satisfy:

  • Do they belong to a group of individuals that the courts should recognise are capable of suffering psychiatric injury as a result of the defender’s negligence?
  • How close to the accident was the pursuer in terms of time and space?
  • How was the psychiatric injury caused?

In practice, many pursuers (who are classified as secondary victims) will find the above tests very difficult to satisfy in order to succeed in their claims.

Held: by the House of Lords that all the pursuers failed to meet one of the three tests listed above and, therefore, the claims must fail.

Primary or secondary victim?

What happens, however, when the status of the victim is disputed: in other words, do they fall into the category of a primary or secondary victim?

This was precisely the issue with which the All Scotland Personal Injury Sheriff Court in Edinburgh had to grapple.

The case in question is that of Danielle Weddle v Glasgow City Council [2019] SC EDIN 42. Miss Weddle, a student, witnessed the events of the Bin Lorry Accident. She was present in the City’s George Square as Harry Clarke’s vehicle (the bin lorry) lost control colliding into pedestrians and damaging street furniture. Prior to the incident, Weddle had been standing on the pavement looking at her mobile phone. She looked up when she heard the noise of the collision and saw the damage caused.

When she left George Square shortly afterwards, Weddle came across a dead body (an earlier victim of Harry Clarke’s negligence). She thought that the victim’s intestines were hanging out of the abdomen. Needless to say, she was traumatised by this scene.

She tried to telephone her mother, but was unsuccessful at first. She managed to contact her father and told him she had seen a horrible accident.  Mr Weddle then contacted his wife and got her to phone their daughter; which she duly did. Mrs Weddle wanted her daughter to go to hospital. Weddle instead decided to go home by bus. When she got off the bus, she went into a pharmacy in the Cardonald area of Glasgow to seek some help. Mrs Wade, the pharmacist who attended to her, recognised that she was in deep shock. The pharmacist immediately arranged for a GP to come and see Weddle. She was ‘distraught’; given diazepam; and was eventually allowed to go home.

Weddle claimed that as a result of what she had witnessed, she was not able to return to university after the Christmas holidays; she suffered ‘nightmares’ and ‘psychological symptoms such as intrusive thoughts, flashbacks, anxiety and depression’. Her GP subsequently referred her to counselling and she had to take anti-depressants.

To this day, there is no doubt that Weddle has been affected by the events that she witnessed in Glasgow City Centre. She is a victim of post-traumatic stress as a result of what she experienced in Glasgow City Centre on 22 December 2019.

The key question before the All Scotland Personal Injury Sheriff Court was whether Weddle fell into the category of a primary or a secondary victim?

Held: by Sheriff Kenneth J McGowan ‘… that the defender’s employee (Harry Clarke) would not have reasonably foreseen that his driving at the relevant time would have given rise to the risk of physical injury to the pursuer (Weddle); and in any event, that the pursuer did not in fact suffer fear of physical injury to herself at the relevant time; that accordingly, the pursuer does not qualify as a primary victim and she cannot therefore obtain damages for any psychiatric injury suffered by her.

A link to Sheriff McGowan’s decision can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019scedin42.pdf?sfvrsn=0

A link to a report on the BBC website about the outcome of the Weddle case can be found below:

Student refused damages over Glasgow bin lorry crash

The woman suffers from PTSD after witnessing part of the crash which resulted in the death of six people in December 2014.

Copyright Seán J Crossan, 10 December 2019

Howzat! (or Volenti again?)

alessandro-bogliari-oDs_AxeR5g4-unsplash (1)

Photo by Alessandro Bogliari on Unsplash

Volenti non fit injuria (or to one who is willing a wrongful act cannot be done) is one of the most common defences used to defeat a claim for negligence. I very often refer to this defence as hell mend you! You have knowingly and willingly placed yourself in harm’s way and you have no one to blame but yourself for anything bad that happens to you.

I always remember telling my students the cautionary tale of the unfortunate man who was visiting Mexico City Zoo. He accidentally dropped his mobile phone into the Lions’ Den. The beasts appeared to be sleeping, so our foolhardy friend jumped into the Den in an attempt to retrieve said phone. At that point, he received a call on his phone; one of the lions woke up; saw an intruder in its territory …

… I think you can guess the end of the story. Our hapless friend was taken out of the Den barely alive. Volenti non fit injuria anyone?

Recently, a number of stories have appeared in the media which made me think about this defence.

Both stories involve the sport of cricket. In the first incident, a player (Steve Smith) was injured during The Ashes Tournament and, in the second incident, an umpire (referee) died as the result of injuries sustained during a cricket match.

Links to these stories can be found below:

 http://news.sky.com/story/the-ashes-steve-smith-forced-off-field-after-being-struck-by-92mph-delivery-11787547

htthttp://news.sky.com/story/cricket-umpire-hit-by-ball-during-match-dies-in-hospital-11786256

A range of sports (cricket included) involve a certain amount of risk to the participants, referees and, on occasion, the spectators. It has not been unknown for players and referees to be injured because the sport is of the contact variety. Spectators of golf, football and tennis are also not immune from the occasional injury – especially if they are close to the action.

This is where the defence of volenti non fit injuria may be applicable to such situations. The essence of this defence is that the pursuer (or injured party) has, with full knowledge of the facts, voluntarily assumed and accepted the risk of injury and, in this way, has absolved the defender of the consequences of the defender’s breach of duty.

The defender still owes a duty of care but the chain of causation has been broken by the pursuer voluntarily undertaking the risk.

In sporting situations, of course, the participants must stay within the normal, ordinary rules of the game to benefit from this defence. Deliberate acts of aggression or violence or bad temper by a player which cause injury (up to and including death) would almost certainly not be covered by the defence.

In 1995, the British tennis player, Tim Henman (and his doubles partner) were disqualified from Wimbledon after Henman had hit a ball girl (they are still referred to using this description – apparently) with a tennis ball. This occurred in a moment of frustration when Henman hit the ball with his racket. The young woman received a blow to her ear when the ball made contact. In some respects, Henman was lucky to escape with disqualification alone:

The rules precisely state that a player must be in control of his actions on court, and in such cases there is no choice but to default automatically on the basis of unsportsmanlike conduct. The ball-girl, Caroline Hall, has been taken home and will undergo a thorough medical examination. Tim Henman is extremely upset about this freak accident, and although rare, the rules clearly state that default is the only course of action in cases of this nature.

Yes, the injured party may have accepted the risks associated with this type of employment at Wimbledon, but surely not totally reckless actions from a player who should have known and behaved in a better fashion.

A link to this story as reported by The Independent can be found below:

https://www.independent.co.uk/sport/henman-and-bates-are-disqualified-in-doubles-1588962.html

There are several well known cases dealing with the defence of volenti non fit injuria:

ICI v Shatwell [1965] AC 656 the pursuer and his brother were explosives experts who, contrary to instructions issued by their employer, agreed to test their detonators before returning to a safety shelter. There was an explosion and pursuer was injured while his brother was killed.

Held: by the House of Lords that the employer could successfully plead volenti as the pursuer and his brother had agreed to run the risk of injury by not returning to the safety shelter.

Morris v Murray [1991] 2 QB 6 the pursuer and defender had been consuming a large amount of alcohol throughout the course of the day. The defender, a qualified pilot, then made a suggestion to go for a ride in his light aircraft and the pursuer readily assented to this (in fact, he drove them both to the airfield). Both parties got into the plane and the pilot flew it away from the airfield. The plane later crashed, killing the pilot in the process and severely injuring the pursuer. A post mortem later established that the defender had drunk in the region of 17 whiskies. The pursuer raised an action in damages against the defender’s estate.

Held: by the English Court of Appeal that the pursuer’s action should fail because the legal representatives of the defender’s estate successfully pleaded the defence of volenti non fit injuria. Although the pursuer had been drunk, he was not insensible and he knew exactly what he was doing – he had voluntarily accepted the risks of getting into a plane with a drunk pilot. In fact, the pursuer had assisted the pilot to get the plane ready for take-off!

Related Blog article:

Volenti non fit injuria? (or hell mend you!)

https://seancrossansscotslaw.com/2019/01/26/volenti-non-fit-injuria-or-hell-mend-you/

Copyright Seán J Crossan, 9 December 2019

State immunity

Photo by Paulette Wooten on Unsplash

Par in parem non habet imperium

… or, if you prefer, equals should not have jurisdiction over equals.

It’s a legal principle which forms an important foundation of public international law or the relationships between foreign countries.

In the UK, we have the State Immunity Act 1978 which confers immunity from prosecution or civil actions on eligible foreign nationals and emanations (or bodies) of a foreign state.

Practically speaking this means that courts and tribunals sitting in the UK are not permitted to have jurisdiction over eligible foreign nationals e.g. diplomatic staff and eligible bodies controlled by a foreign state. Furthermore, if state immunity applies to a situation, this means that it will be nigh impossible to enforce a court or tribunal order against eligible foreign nationals or bodies.

That said, it is important to realise that the type of state immunity recognised by the Act of 1978 is not, however, an absolute concept. In commercial disputes between foreign states, UK courts and tribunals may have jurisdiction in the matter.

The famous House of Lords’ decision – I Congresso del Partido [1983] AC 244 – is a case in point where Lord Wilberforce was of the view that the Republic of Cuba had been engaged in commercial or private law activities and should not be entitled to rely on the principle of state immunity.

It’s not normally an issue which tends to grab the attention of the public, but add to it a human interest story and you’ve got a totally different perspective.

That said if you work for Transport for London, you’ll be more than aware that state or diplomatic immunity is often used (dubiously it has to be said) by the staff of foreign embassies to avoid paying the City’s congestion charge:

‘Take diplomats who owe congestion charge to international court’

Boris Johnson is urged to act against foreign embassies for £105m unpaid congestion charge.

And yet, you wait years for a media story about state immunity to appear and two come along within as many months of each other.

Harry Dunn

The first story concerned the tragic death of Harry Dunn, a 19 year old motor cyclist, who was killed in a collision with the driver of a car on 27 August 2019.

Deaths on the road are an unhappy and frequent event, but criminal and civil law are usually more than capable of dealing with the consequences of such incidents i.e. punishing the offender and compensating the victims (or their families).

What made Harry Dunn’s death more unusual (from a legal perspective) was the fact that driver – Anne Sacoolas – was claiming diplomatic immunity in order to escape responsibility (both criminal and civil) for the incident.

Ms Sacoolas, as it turns out, is the wife of a United States Air Force (USAF) officer and diplomat stationed at RAF Croughton, Northamptonshire. The accident occurred near to or just outside the air base which hosts USAF personnel.

It was suspected that Ms Sacoolas had caused the accident by driving her vehicle on the wrong side of the road. Subsequently, Ms Sacoolas went back to the United States and has refused to return to the UK to face legal action.

Predictably, her actions caused outrage and the British media gave the story an extremely high profile. The parents of Harry Dunn met with the UK Foreign Secretary and US President Donald Trump to discuss the case.

As of the date of writing, Ms Sacoolas remains in the United States – although she has been interviewed by British Police detectives – but it does not look as if there is going to be happy ending to this story for the Dunn family.

On 5 October 2019, the US State Department, which employs diplomatic staff, confirmed that diplomatic immunity is very rarely withdrawn from individuals.

When your employer is Uncle Sam …

The second story which caught my eye about state immunity involved two employment disputes at RAF Croughton (again) and RAF Lakenheath which are both run by the USAF.

Two female employees (Caroline Wright and Anthea Webster) working at the air bases were unable to proceed with their Employment Tribunal claims because their employer, the United States of America, claimed state immunity.

In other words, British courts and tribunals have no jurisdiction over what goes on at these bases – even if they are located within the territory of the UK. No matter the potential merits of Wright and Webster’s claims, they have been effectively struck out on the principle of state immunity.

A link to the Wright and Webster Employment Tribunal judgement can be found below:

https://assets.publishing.service.gov.uk/media/5dbae021e5274a4a9a464fec/Mrs_A_Webster_and_Miss_C_Wright_-_v_-_United_States_of_America_-_3327693_2017_-_Preliminary_Judgment.pdf

Comclusion

State immunity may, from time to time, stir up public outrage or incomprehension – especially in highly emotive cases like the death of Harry Dunn. That said, it remains too useful a tool for countries in their dealings with other states.

Theoretically, it allows diplomatic staff to go about their business without let or hindrance when working abroad – especially in countries with which their state employer has difficult or hostile relations. Think of American diplomats stationed in Cuba or British diplomats stationed in Iran.

In countries where foreign military forces are stationed, international agreements between the host state and its guests very often operate on the basis of state immunity. This is a price which the host state is prepared to pay and, for any one living in the UK between the 1960s and 1990s, they will recall that this was a feature of the American military presence at many British airforce and naval bases. Even in 2019, ordinary UK citizens may be completely unaware of the exact terms of the agreements between this country and the USA regarding the deployment of American military forces because (theoretically) the provisions of the Official Secrets Act 1989 (as amended) will apply.

It is also a feature of arrangements that Britain has with the Government of the Republic of Cyprus in relation to the British Sovereign military bases of Akrotiri and Dhekelia. So, people in glass houses shouldn’t throw stones …

Links to media stories covering the death of Harry Dunn and the Wright and Webster Employment Tribunal decision can be found below:

Harry Dunn death: Parents call for US driver to be charged

The mother of the 19-year-old killed in a crash says it is “ludicrous” not to charge Anne Sacoolas.

https://news.sky.com/story/us-claims-state-immunity-in-employment-row-with-british-workers-11855956

Postscript

On 20 December 2019, the Crown Prosecution Service announced that Anne Sacoolas was to be charged with causing death by dangerous driving. This has come as an immense relief to Harry Dunn’s family, but it is far from certain that Mrs Sacoolas will ever face trial in a criminal court in England.

She remains in the USA and there is no guarantee that the US Government will agree to extradite her to the UK in terms of the UK/USA Extradition Treaty of 2003.

A link to the Sky News website explaining developments in the case can be found below:

http://news.sky.com/story/harry-dunn-anne-sacoolas-charged-but-theres-no-guarantee-she-will-return-to-uk-11888973

Copyright Seán J Crossan, 7 November & 20 December 2019

The burden of proof

Photo by JJ Jordan on Unsplash

In Chapter 1 of Introductory Scots Law, I discuss the differences between criminal and civil law. A discussion point which often arises in my lectures with students is the difference in the standard of proof in criminal and civil trials.

In a criminal trial, the onus or burden of proof is very much the prosecutor’s responsibility. In other words, the prosecutor must prove beyond reasonable doubt that the accused is guilty.

By complete contrast, in civil litigation, the onus or burden of proof is placed on the shoulders of the pursuer (or the claimant). S/he must show, on the balance of probabilities, that the basis of the claim is stronger or more credible than that of the defender (or respondent).

The criminal standard of proof is of a much higher standard than the civil burden of proof. I think this can be easily justified given the consequences of someone being convicted of a crime: the sanctions are much more serious and potentially longer lasting.

So far so good: most First Year Law students can grasp the distinction between the different standards of proof or evidence.

Difficulties tend to arise when students encounter a situation where the conduct of the behaviour at the centre of a case can have both criminal and civil consequences.

They often ask me why someone (the accused) can be acquitted of a crime, but sued successfully in a subsequent civil action?

I often use driving offences as a means of making a point. Many drivers who are charged with dangerous driving often experience immediate relief when they are acquitted of criminal charges; this sense of relief can be short lived when they are informed that the victim intends to proceed with a personal injury action (which has a very realistic chance of success).

The simple reason for the above situation is the difference in the burden of proof in each trial: the higher burden of proof in a criminal trial and a lower burden of proof in the civil claim.

It’s also important to appreciate that the criminal and civil legal systems operate independently of one another. They have different functions:

Primarily, criminal law seeks to punish offenders who behave in dangerous and irresponsible ways which would threaten the safety and security of the wider community and public.

On the other hand, civil law (concerning the breakdown of relations between private individuals) essentially seeks to provide the victim of a breach of duty with a remedy – usually, but not always, compensation or damages.

In Chapter 1 of Introductory Scots Law, I discussed the example of a successful civil claim for damages by a rape victim (DC v (First) DG and (Second) DR [2017] CSOH 5). Crucially, the criminal case against her alleged attackers had been unsuccessful and both men were acquitted. That was not the end of the matter: the victim pursued both men at the Court of Session and won substantial damages in respect of her injuries.

A link to the judgement can be found below:

https://www.scotcourts.gov.uk/search-judgments/judgment?id=d22e28a7-8980-69d2-b500-ff0000d74aa7

Recently, there have been a number of similar cases where the failure of criminal cases to secure convictions for rape have been no barrier to victims of sexual assault from pursuing civil damages claims in the Scottish courts.

Links to two of these stories reported by the BBC can be found below:

Woman wins £80,000 in damages from man cleared of raping her in St Andrews

The woman has won her civil case against a man who was cleared of raping her after a night out in Fife.

Soldier cleared of rape ordered to pay £100,000 in civil case

Sean Diamond continues to deny the allegation and says he is asking for the decree to be recalled.

Conclusion

There different standards of proof depending on whether the legal action is a criminal prosecution or civil claim.

There is a higher standard of proof required in a criminal prosecution to secure a conviction.

The two legal systems have different objectives and operate independently of one another.

As we have seen in a number of cases, an accused who is acquitted in a criminal trial may experience a very unpleasant shock when the victim communicates an intention to pursue a civil claim for damages – which, in the longer term, may have every chance of success.

It should be emphasised, of course, that those successfully sued for conduct such as rape or sexual assault, but successfully acquitted of all criminal charges, will not have a criminal record. They will bear civil responsibility for the victim’s injuries. It’s by no means a perfect solution (given the lower conviction rates for rape), but does provide victims with some means of legal redress.

Copyright Seán J Crossan, 10 February 2019