Counting the cost

Photo by Ray Reyes on Unsplash

Recently, one of my students asked how judges determine the level of damages that the victim in a personal injury would receive. Was there a formula or did judges make a subjective decision?

I responded that it was the former answer and that there had to be a level of consistency and transparency displayed by judges when making these types of decisions.

The Damages (Scotland) Act 2011; the latest version of the Ogden Tables; judicial precedent; awards made by civil juries; and other relevant legislation will form a framework in which judges will operate to come to their decision in the matter of compensation.

The Ogden Tables deserve a special mention: these are compiled by actuaries using statistical calculations which assist lawyers and courts throughout the UK to assess the monetary value of personal injury and fatal accident claims.

A link to resources about the background to the Ogden Tables can be found below:

https://www.gov.uk/government/publications/ogden-tables-actuarial-compensation-tables-for-injury-and-death

A case which I mentioned in one of my most recent blogs involved medical negligence. In George Andrews v Greater Glasgow Health Board [2019] CSOH 31, Lord Pentland very helpfully lays out in great detail the levels of compensation awarded to the pursuer and the rationale for these. In that case, the pursuer raised an action because his partner had died as a result of a failure by a junior doctor to admit her to hospital when she was chronically ill and had a history of very serious health issues.

It’s quite instructive to see how a judge arrives at deciding the level of compensation to be awarded to successful pursuers.

In George Andrews v Greater Glasgow Health Board [2019], Lord Pentland awarded a sum of approximately £187,614 to the pursuer. This can be broken down as follows:

In the first instance, £2,922.44 was awarded for the pain and suffering (solatium) caused to the deceased partner of the pursuer due to the failure to admit her to hospital.

Lord Pentland made the following observations:

A number of cases were cited to me; they included: Gallagher v SC Cheadle Hume Limited [2004] CSOH 103, Bellingham v Todd 2011 SLT 1124, McGhee v RJK Building Services Limited 2013 SLT 428 and Manson and others v Henry Robb Limited 2017 SLT 1173. As well as these judicial awards, reference was made to some jury awards. [my emphasis] Having regard to the guidance provided by these cases, to the deceased’s life expectancy of 7.5 years, and to the pursuer’s evidence, I consider that an appropriate figure for damages under section 4(3)(b) of the 2011 Act is £75,000.

Section 4(3)(b) of the Damages (Scotland) Act 2011 provides that the damages payable to the relative of a deceased person (“A”) should be:

b) such sum, if any, as the court thinks just by way of compensation for all or any of the following –


(i) distress and anxiety endured by the relative in contemplation of the suffering of A before A’s death,
(ii) grief and sorrow of the relative caused by A’s death,
(iii) the loss of such non-patrimonial benefit as the relative might have been expected to derive from A’s society and guidance if A had not died.”

Lord Pentland also awarded the pursuer damages for loss of support. In the case under discussion, the pursuer had lost his partner (whom he had lived with for 20 years before her death) as a result of medical negligence.

Section 4(3)(a) of the 2011 Act addresses this issue:

such sum as will compensate for any loss of support which as a result of the act or omission is sustained, or is likely to be sustained, by the relative after the date of A’s death together with any reasonable expenses incurred by the relative in connection with A’s funeral,

This figure took into consideration the following matters:

He has no family or children to console him. The pursuer misses the deceased greatly and has had substantial difficulty in adjusting to her death. He has had to sell the house they lived in and can no longer enjoy Christmas and going on holiday. Subparagraph (iii) covers matters such as the inability to share holidays, to pursue mutual interests and to go out socially together. …

On the basis of a life expectancy of 7.5 years for the deceased, damages for loss of support in terms of section 4(3)(a) of the 2011 Act were agreed in the sum of £65,620, exclusive of interest. I shall allow interest on £55,000 at 4 per cent per annum from 8 January 2013 until the date of decree.

In terms of Section 9 of the Administration of Justice Act 1982 , a successful pursuer can claim for ‘services’. As Lord Pentland identified in his judgement this might a monetary calculation to include the value of the following matters:

“… the deceased [the pursuer’s partner] did all the ironing and the dusting; the parties shared the cooking. It seems reasonable to proceed on the footing that the deceased would have prepared around half of the parties’ evening meals and that she would have spent several hours a week ironing and dusting. On that basis, I shall allow 3 hours per week at £7.00 per hour for the personal services rendered by the deceased to the pursuer at the time of her death. This brings out a multiplicand of £1,092 per year.

It is usual practice for the calculation of the value of services to include the pursuer’s past and future losses.

Interest (usually at the statutory rate of 8%) normally accrues on an award of damages, but parts of the award (as in the present case) may have different rates applied.

A breakdown of Lord Pentland’s calculations in respect of damages plus interest (over and above the element for solatium) can be found below:

Section 4(3)(b) above refers to the Damages (Scotland) Act 2011

A link to Lord Pentland’s Opinion can be found below (paragraphs 170 to 185 of the judgement are particularly relevant):

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

Related Blog articles:

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

https://seancrossansscotslaw.com/2020/01/20/the-plumbers-arm/

Copyright Seán J Crossan, 25 January 2020

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

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

Coffee, Sir?

Photo by Edward Eyer on Unsplash

You get on the plane for a routine flight between Palma de Mallorca to Vienna and, next thing, you’re thinking about instructing lawyers to pursue a personal injury claim on your daughter’s behalf.

Like billions of air travellers before him, HM probably had no idea when asked by the flight attendant whether he wanted a coffee that it would lead to legal action before the Court of Justice of the European Union (CJEU) (see Case C532/18 Niki Luftfahrt).

When we think of accidents involving airlines, we often fear the worst consequences, but what about a coffee cup which spills over and scalds a 6 year old child?

This is precisely what happened on the flight from Palma to Vienna. The coffee had been served to the child’s father (HM) and placed on his folding table. For unknown reasons, the cup tipped over and injury occurred to the child (GN).

The young girl then sought compensation for her injuries from the Austrian airline Niki Luftfahrt GmbH (which had subsequently gone into liquidation), so father took action (on her behalf) against the administrator of the airline (ZU).

The question which then arose was whether such an incident was within the meaning of the definition of ‘accident’ which is to be found within the international agreement known as the Montreal Convention. International Conventions are entered into by States to lay down common legal principles and thus avoid the (serious) problem of competing legal jurisdictions e.g. between France and the United States of America. The Montreal Convention has been incorporated into EU Law since 28 June 2004.

The Supreme Court of Austria referred the matter to the CJEU for clarification under the preliminary ruling procedure in terms of Article 267 of the Treaty on the Functioning of the European Union (TFEU).

The CJEU noted that the liability of airlines for personal injuries under the Montreal Convention is strict (see paragraph 36 of the judgement). The Court made two other observations (at paragraphs 33 and 34 of its judgement):

‘In the present case, it is apparent from the wording of Article 17(1) of the Montreal Convention that, in order to engage the liability of the carrier, the event causing the death or bodily injury of the passenger must be classified as an ‘accident’ and that accident must take place on board the aircraft or in the course of any of the operations of embarking or disembarking. …

Since the concept of ‘accident’ is not defined anywhere in the Montreal Convention, reference must be made to the ordinary meaning of that concept in its context, in the light of the object and purpose of that convention.’

So was the incident which occurred on the flight from Palma to Vienna an ‘accident’ within the meaning of the Convention?

The answer to this question was an emphatic yes from the CJEU. According to the Court, ‘the ordinary meaning given to the concept of ‘accident’ is that of an unforeseen, harmful and involuntary event.’

As the CJEU stated:

‘… the concept of ‘accident’ … covers all situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to a passenger, without it being necessary to examine whether those situations stem from a hazard typically associated with aviation.’

Airlines can always escape liability if they can show that the injury was caused by the acts or omissions of the passenger, but in this case this was not an option.

A link to a press release summarising the details of the Court’s judgement can be found below:

http://curia.europa.eu/juris/document/document.jsf?text=&docid=221796&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=794192

A link to the judgement of the Court can be found below:

http://curia.europa.eu/juris/document/document.jsf?text=&docid=221796&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=794192

Copyright Seán J Crossan, 24 December 2019

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?

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

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