Duty of care?

Photo by Nina Strehl on Unsplash

I have been thinking about the duty of care today – partly because I’m now teaching the Law of Delict (or Tort) to several groups of students and, partly, because of a story which has just been reported in the British media.

The story in question involved the tragic death of 15 year old Nora Anne Quoirin at a holiday resort in Malaysia in 2019. Nora, who had learning difficulties, wandered away from her parents’ accommodation at the resort and her body was found 10 days later in the jungle.

Nora’s parents are now suing the resort for breach of its duty of care to their daughter. They are alleging that the resort owners were negligent in that they failed to take basic safety measures which contributed to their daughter’s death.

Normally, 15 year olds would be expected to appreciate that certain behaviours or conduct on their part could put themselves in harm’s way, but Nora’s parents are arguing that she was particularly vulnerable because of health issues that she had suffered from early childhood. In other words, Nora may not have appreciated the full extent of the risk that she was undertaking when she left her room on that fateful evening.

A link to the story as reported in The Guardian can be found below:

https://www.theguardian.com/world/2020/jan/21/nora-anne-quoirin-parents-of-irish-girl-found-dead-in-malaysia-sue-resort-owner

Negligence is harm caused unintentionally and is, by far and away, the most likely type of delictual action that the Scottish courts will have to deal with.

Negligence claims arise because the defender owes what is known as a duty of care to the pursuer and, unfortunately, a breach of this duty occurs and, as a result, the defender suffers loss, injury or damage.

The leading case for negligence claims is Donoghue v Stevenson [1932] UKHL 100 – or the snail in the opaque ginger beer bottle as many generations of law students remember it.

Delicts which are committed unintentionally by the defender resulting in loss, injury or damage to the pursuer are the most common type of civil wrong. In these situations, the defender is said to have been negligent or careless. The law, therefore, imposes a duty on each of us not to cause harm to others. Each of us has interests which the law protects, for example, the right to personal security and the right to enjoy a good reputation.

Donoghue v Stevenson [1932] was not the first case of its kind to be brought before the Scottish courts. That particular honour must go to Mullen v A G Barr & Co Ltd [1929] SC 461 where the pursuer attempted to bring a compensation claim in a situation where dead mice were found in ginger beer bottles by the Mullen siblings. Unfortunately, for the Mullen children, the Court of Session dismissed their claim that there was no legal relationship i.e. between them and the ginger beer manufacturer. The importance of the Donoghue decision was that it would overrule the limitations imposed by Mullen and it would establish that a duty of care could arise between the manufacturer (Stevenson) and the ultimate consumer (Mrs Donoghue).

In order to succeed when bringing a negligence claim before the courts, the pursuer must show that the defender owes a duty of care, that the defender was in a position to cause harm and that the defender failed to prevent this foreseeable kind of harm from occurring. Additionally, the pursuer must show that the defender’s breach of duty was the effective (or proximate) cause of the loss or harm suffered by her.

Lord Atkin who gave the leading speech in Donoghue v Stevenson [1932] went to great pains to stress a concept which has since become known as the neighbourhood principle:

The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question, ‘who is my neighbour?’ receives a restricted reply, ‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.

The defender does not owe a duty of care to the whole wide world, but only to those individuals whom the defender, if he were a reasonable person, would realise that his actions might cause them to suffer loss, injury or damage. Basically, the defender should have realised that his actions or failure to act will result in certain negative consequences being suffered by the pursuer.

This was a point forcefully driven home in the famous decision of Bourhill v Young [1943] AC 92, where it was held that a deceased motorcyclist (John Young) owed absolutely no duty of care to a bystander (Mrs Bourhill) who came up Edinburgh’s Colinton Road to view the aftermath of the accident which had been caused by the motorcyclist’s dangerous behaviour. The bystander was not within the contemplation of the motorcyclist. Put simply, she was not someone whom he should have realised might be endangered by his dangerous and negligent actions. In fact, she was in no danger at all from John Young’s actions (until she placed herself in danger by going up the road to gaze upon the aftermath of the accident).

Similarly, this was a point also raised in the more recent case of Weddle v Glasgow City Council [2019] SC EDIN 42 where the pursuer’s claim for damages for psychiatric injuries was dismissed by the All Scotland Sheriff Personal Injury Court. Danielle Weddle was not someone that the driver of the vehicle (which caused death and destruction in Glasgow City Centre in December 2014) should have contemplated might be harmed by his breach of duty i.e. driving the City Council’s bin lorry whilst medically unfit to do so.

Related Blog Article:

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

Conclusion

In Donoghue v Stevenson [1932], Lord Atkin deliberately drew upon the Christian parable of the Good Samaritan when he formulated the neighbourhood principle. For those unfamiliar with the parable, the Jewish man (who had been attacked and robbed by brigands and left for dead on the road to Jericho) was rescued by a Samaritan (an individual who belonged to a group detested by the Jews for their failure to adhere to the more rigorous rules of Judaism). Before the Samaritan came down the road, a Priest and a Levite stumbled upon the aftermath of the robbery, both decided not to intervene and passed by on the other side of the road.

Lord Diplock, sitting in the House of Lords, famously stated in Dorset Yacht Co. Ltd v Home Office [1970] UKHL 2 that despite the questionable morality of their decision not to help the injured man, the Priest and the Levite would have incurred absolutely no civil liability in English law for their actions and, indeed, in Scotland the position would have been exactly the same.

Lord Atkin’s statement is initially misleading in that he deliberately subverted the language of the Christian Gospels by referring to your neighbour. When Jesus Christ was asked the question by the lawyer (in Luke’s Gospel where the Parable of the Good Samaritan is to be found): ‘Lord, who is my neighbour?’ the fairly daunting reply that the lawyer received is that ‘Everyone is your neighbour’.

To lawyers, however, the above question receives a much more restricted answer. The defender does not owe a duty of care to the whole wide world, but only to those individuals whom the defender, if s/he were a reasonable person, would realise that their actions might cause others to suffer loss, injury or damage. Basically, the defender should have realised that their actions or failure to act will result in certain negative consequences being suffered by the victim.

It will be interesting to see how the legal action brought by Nora Quoirin’s parents against the owners of the Malaysian holiday resort progresses.

Copyright Seán J Crossan, 22 January 2020

The plumber’s arm

Photo by pan xiaozhen on Unsplash

The latest Blog title sounds like the name of a quaint English or Scottish public house, but as you might expect it relates to matters legal.

This last week, I have just begun to teach my First Year university students about the law of delict (or tort in other common law jurisdictions) and, as always, I’m looking for relevant cases or stories in the news to illustrate this area.

Obligingly enough, a report of a case came through on Friday 17 January 2020 about a plumber called Darren Conquer who has just been awarded £540,000 in damages by the Outer House of the Court of Session as a result of being the victim of medical negligence (see Darren Conquer v Lothian Health Board [2020] CSOH 8).

As I often say to students the basis of the law of delict is loss or injury wrongfully caused (or as the Romans would have said: damnum injuria datum).

Mr Conquer had injured his arm while playing football and he had, subsequently, undergone medical treatment for this. This is where it gets interesting: the injury had occurred some 16 years ago, but Conquer was not suing the person or persons who had injured him during the football match.

This is, of course, where the issue of volenti non fit injuria arises. When you engage in a physical sport, like football, you must accept the risk of possible injury – on the proviso that all of the players conduct themselves properly and within the rules of the game.

The basis of the pursuer’s claim was that the Health Board, as the employer of the doctors who treated him, was vicariously liable because the injury to the arm been misdiagnosed and, consequently, the proper medical procedures had not been followed. Put simply, the pursuer was arguing that the Health Board was culpable or at fault for his losses.

Had the correct diagnosis been made by the doctors and the correct treatment applied, the pursuer would have made either a full recovery or nearly a full recovery and would have been able to return to his job within 6 months of sustaining the injury. The real issue seems to have centred around the failure by the doctors to carry out surgery on the pursuer at a much earlier and vital stage of his treatment.

In short, the medical negligence was the primary cause (the causa causans) of the pursuer’s losses i.e. his inability to work at his chosen trade of plumber (a skilled trade where he had the potential to make a good living).

The doctors treating Conquer owed a duty of care to him and they had been negligent in the manner of both the diagnosis of the severity of the injury and the treatment which followed (or didn’t follow perhaps more accurately).

A link to the opinion of Lady Carmichael in the Outer House can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csoh8.pdf?sfvrsn=0

More medical negligence

For another recent case on medical negligence, please see the Opinion of Lord Pentland in George Andrews v Greater Glasgow Health Board [2019] CSOH 31.

In the above case, the pursuer, the partner of a woman who died as a result of medical negligence, was successful in his claim for damages.

Lord Pentland noted:

Since I have found that (a) Dr Izzath failed to advise the deceased that she should be admitted; (b) that his failure to give her that advice was negligent; and (c) that the deceased would have accepted the advice had it been given, I need not make any separate finding as to the deceased’s mental state.”

His Lordship went on to observe that:

I would merely reiterate that I am in no doubt that if
Dr Izzath had advised the deceased that she required to be admitted to hospital, she would have accepted his advice
.”

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

https://www.scotcourts.gov.uk/docs/default-source/default-document-library/2019csoh31.pdf?sfvrsn=0

Related Blog Articles:

https://seancrossansscotslaw.com/2019/04/03/where-theres-blame-theres-a-claim/

https://seancrossansscotslaw.com/2019/08/05/an-unfortunate-error/

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

https://seancrossansscotslaw.com/2019/12/13/joint-and-several-liability/

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

https://seancrossansscotslaw.com/2019/02/15/i-wish-i-hadnt-done-that/

https://seancrossansscotslaw.com/2019/11/19/i-wish-i-hadnt-done-that-continued/

https://seancrossansscotslaw.com/2019/02/22/stress-kills/

https://seancrossansscotslaw.com/2019/12/23/act-of-god/

https://seancrossansscotslaw.com/2019/04/19/dont-stop-the-music/

https://seancrossansscotslaw.com/2019/01/25/foreign-objects-or-ive-got-a-bone-to-pick-with-you/

https://seancrossansscotslaw.com/2019/12/30/foreign-objects-or-ive-got-a-bone-to-pick-with-you-part-2/

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

Copyright Seán J Crossan, 20 January 2020

I’m a climate activist, don’t fire me!

Photo by Stock Photography on Unsplash

Today seems to be something of a red letter day for the Blog with regard to the issue of protected philosophical beliefs in terms of the Equality Act 2010.

We have already heard the news that Jordi Casamitjana has won the part of his Employment Tribunal claim that his ethical veganism is a philosophical belief in terms of Sections 4 and 10 of the 2010 Act (see Casamitjana v League Against Cruel Sports [2020]).

It was some interest that another news item popped up today concerning allegations that Amazon stands accused of threatening to dismiss those of its employees who become involved in climate protests. I would hazard a guess that Amazon is making a statement of intent that it may dismiss employees who perhaps break the law when they are involved in climate protests such as those organised by Extinction Rebellion and other similarly minded groups.

Criminal acts by employees committed outside the workplace could be regarded as gross misconduct in terms of Section 98 of the Employment Rights Act 1996. In other words, such behaviour by employees could result in the employer suffering reputational damage and, consequently, any dismissal for misconduct could be potentially fair. That said, employers should always carry out the proper disciplinary procedures when contemplating dismissal as the ultimate sanction for employee misbehaviour.

The real gripe – according to Amazon Employees for Climate Justice – is that the tech company allegedly objects to employees speaking critically about its failure to be more environmentally responsible.

Yet, there are potential dangers here for Amazon in the UK. In Grainger plc v Nicholson (2010) IRLR 4, the Employment Appeal Tribunal established that an employee’s belief in climate change could constitute discrimination on the grounds of a philosophical belief.

So, we could have situation where Amazon employees who are taking part in quite peaceful and lawful climate change protests end up being dismissed. This would open up the possibility that employees of Amazon UK might have the right to bring claims for direct discrimination (Section 13: Equality Act 2010) in respect of their philosophical beliefs (Sections 4 and 10 of the Act).

In the USA, there could be even more serious legal implications – infringing the right to free speech which is protected under the Constitution.

Perhaps Amazon needs to go back to the drawing board …

A link to an article on the BBC News App can be found below:

Amazon ‘threatens to fire’ climate change activists

The company said employees “may receive a notification” from HR if rules were “not being followed”.

Related Blog article:

https://seancrossansscotslaw.com/2019/06/05/im-a-political-activist-dont-sack-me/

Copyright Seán J Crossan, 3 January 2020

Foreign objects or I’ve got a bone to pick with you … (Part 2)

Photo by Owen Beard on Unsplash

One of the first articles which I wrote for this Blog concerned the liability of producers and suppliers for foreign or dangerous objects.

The article had been inspired by an incident at a Primark store where a member of the public had sensationally discovered part of a human finger bone in a pair of socks.

This gave me a very convenient opening to review the area of product liability. The leading case, of course, is Donoghue v Stevenson [1932] AC 562, [1932] SC (HL) 31, [1932] ScLT 317 or the ‘snail in the ginger beer bottle’. This decision of the House of Lords established the foundations of the modern law of negligence – in Scotland and in England.

Mrs Donoghue did not have a contract of sale with Mr Minchella, the seller of the lemonade bottle and, therefore, she could not bring a claim for damages in terms of the (then) Sale of Goods Act 1893. Even today, Mrs Donoghue would not have a remedy against the seller under the Consumer Rights Act 2015.

So, who could Mrs Donoghue bring a claim against? The manufacturer would seem to be the logical response to this question, but this is the application of hindsight in late 2019. Several years before the Donoghue case, a claim against a manufacturer for harm caused by a dangerous product had been comprehensively rejected by the Inner House of the Court of Session (see Mullen v A G Barr & Co Ltd [1929] SC 461). The House of Lords was, therefore, breaking new legal ground when it found in Mrs Donoghue’s favour against Stevenson, the manufacturer of the lemonade bottle. Stevenson owed a duty of care to the ultimate consumer of the product – irrespective of whether this individual had a contract of sale with the company.

Since Donoghue v Stevenson, this area of the law has developed considerably with the UK Parliament passing the Consumer Protection Act 1987. Part 1 of this Act established a regime of strict liability in relation to dangerous products. Previously, the claimant would be required to prove fault on the part of the manufacturer.

Theoretically, it’s now much easier for a consumer to win a claim against a manufacturer (or someone in the chain of supply) if s/he have suffered injury or damage to property as a result of exposure to dangerous products.

Returning to Primark, the company and the Police have conducted an investigation into the incident and they have not been able to establish responsibility, anywhere in the chain of supply, for the bone’s inclusion in the pair of socks.

It looks as if the affair will go down as one of life’s unsolved mysteries.

A link to the latest developments in the Primark case can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.281219/data/9261571/index.html

Related Blog article:

https://seancrossansscotslaw.com/2019/01/25/foreign-objects-or-ive-got-a-bone-to-pick-with-you/

Copyright – Seán J Crossan, 30 December 2019