In the last few months, I’ve discussed two medical negligence cases involving the NHS in Scotland. Since last week, I now have a hat trick with the decision of Lady Wise (sitting in the Court of Session) in respect of Derek Hamilton v Lanarkshire Health Board  CSOH 24.
The facts of the case are pretty straightforward:
In 2013, Mr Hamilton had been playing with his grandson when he swallowed his dental plate. Now, it may seem facetious of me to say this, but Mr Hamilton’s grievance was not directed at his grandson’s high jinks. The issue was with what happened next. He attended the local NHS hospital for treatment and he was informed that he would have to undergo surgery to have the plate removed.
Mr Hamilton duly underwent an operation where Martin Downey, an experienced surgeon, removed said plate via the patient’s oesophagus. Unfortunately, while doing so the surgeon’s actions caused a tear or a perforation in the oesophagus and Mr Hamilton’s condition worsened rapidly. Consequently, the patient spent a total of 45 days in hospital as a result of complications arising from the botched procedure.
Mr Hamilton alleged that Martin Downey, had breached his duty of care to him and that he had carried out a procedure which “all general surgeons know is a catastrophe to be avoided.”
In finding Martin Downey liable for negligence, Lady Wise bluntly observed that:
“Mr Downey departed from usual and normal practice … and acted in a manner that no ordinarily competent general surgeon with colorectal speciality exercising ordinary skill and care would have done.“
Her Ladyship went on to state that:
“I have found that, but for the taking of that easily avoidable risk, the patient’s oesophagus would have remained intact as it was the act of removing the plate that caused the perforation. The pursuer [Mr Hamilton] has therefore established both breach of duty and causation.”
Mr Hamilton will receive £195,000 (plus interest) in compensation from Lanarkshire Health Board in settlement of his claim for personal injury.
A link to Lady Wise’s decision in the matter can be found below:
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:
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  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  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 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  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 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  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.
In Donoghue v Stevenson , 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  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.
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  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:
For another recent case on medical negligence, please see the Opinion of Lord Pentland in George Andrews v Greater Glasgow Health Board  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:
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  AC 562,  SC (HL) 31,  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  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:
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:
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.
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 UKHL100) 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:
You go in to hospital for a cystoscopy (a medical procedure involving the bladder) but you end up being circumcised. It sounds like a very, very bad joke, but sadly all too true as a recent report on Sky News confirms.
Medical negligence? Almost certainly. The victim receives £20,000 in compensation from the hospital in question.
This story has provided an opportunity to review the law on medical negligence.
Doctors and other medical practitioners are deemed to possess special skill, knowledge or expertise. When carrying out medical services, they owe a duty of care (see Donoghue v Stevenson  SC (HL) 31) to their patients.
In cases of alleged medical negligence, the courts will judge a doctor according to the standard that is expected of a member of that profession, for example, a supposedly competent physician.
That said, however, in the area of medical negligence, particularly, the courts have accepted that members of the profession may have different opinions about how best to treat patients. One doctor may apply a particular procedure in order to treat a patient, whereas another doctor may rely on a completely different course of treatment. Both approaches to patient treatment are perfectly valid – so long as they are based on sound scientific and empirical evidence.
In Bolam v Friern Barnet Hospital Management Committee  1 WLR 582, the House of Lords decided to give doctors and by extension other professions a certain amount of leeway to determine their own professional rules. A doctor would not be negligent if he used a medical procedure which was accepted as being a proper procedure by a responsible body of doctors who are skilled in a particular field of medicine.
The rule in Bolam was slightly finessed by a later decision of the House of Lords in Bolitho v City & Hackney Health Authority  3 WLR 1151. Lord Wilberforce stated the Bolam test was still the correct one to apply. However, doctors could not expect to escape liability for negligence by pointing out that their decision was backed by accepted medical procedures. A court would have to be certain that these procedures and the opinions of medical experts were reasonable. However, the fact that many medical experts backed a particular procedure would often be taken to mean that the doctor had behaved reasonably by relying on the procedure in the question. Only rarely would a court be entitled to reject the views of a body of medical experts.
In Hunter v Hanley 1955 SC 200, one of the most famous medical negligence cases, the Inner House of the Court of Session had to consider whether a doctor had fallen below the requisite standard of care and was, therefore, liable for the injuries suffered by the pursuer (the claimant).
In that case, Lord President Clyde established the following test for medical negligence claims:
The pursuer must show that there is a usual and normal [medical] practice;
The pursuer must show that the defender failed to follow or adopt this practice; and
The pursuer (most importantly) must show that the course of action taken by the doctor is not one which a professional person of ordinary skill would have followed if s/he had been acting with ordinary care.
When deciding whether a doctor has failed to meet the necessary standard of care, it is important not to use hindsight. Doctors can only be judged according to the knowledge that they actually possessed or could have gained access to at the time when the pursuer suffered loss or injury.
In Roe v Ministry of Health  2 QB 66, the English Court of Appeal decided that the pursuer’s personal injury claim should fail. Lord Denning famously stated that ‘we must not look at the 1947accident with 1954 spectacles’. This statement of Lord Denning could be also expressed in the following terms: hindsight is a wonderful thing.
Sometimes, of course, a doctor’s conduct may fall well below the accepted standard of the profession, but they will still manage to escape liability to a patient. This usually arises when they doctor can show that the negligence was not the primary cause (causa causans) of the injury, but rather merely a factor in the background of events (causa sine qua non).
In two well known cases – Barnet v Chelsea and Kensington Hospital Management Committee  1QB 248 and Kay’s Tutor v Ayrshire and Arran Health Board 1987 1 SLT 577, doctors who were accused of medical negligence were able to prove that their breach of the duty of care to the patients in question was not the primary cause of harm or injury and they were, therefore, able to escape liability.
That said the case reported by Sky News would appear to fall into that special category of res ipsa loquitur or the facts speak for themselves (see Cassidyv Ministry of Health  2 KB 343). In other words, the inference of medical negligence is so overwhelming that there really cannot be a a credible, alternative explanation for the injuries suffered by the patient in this rather bizarre case.
A link to the story on Sky News can be found below:
In Chapter 3 of Introductory Scots Law, I discuss the defences available to parties who have been accused of causing loss or injury by reason of them committing a negligent act.
One of the best known defences to an action for negligence is volenti non fit injuria. I often like to say to my students that, colloquially, this translates as the hell mend you defence! The pursuer has knowingly embarked on a reckless and dangerous course of action and has accepted the consequences of the risk. S/he has only himself to blame for the losses or injuries caused. For the defender in a civil action, volenti is a complete defence – unlike the concept of contributory negligence which is said to be a partial defence.
The case law relating to this defence is well established and it’s probably worth mentioning some of the judgements where volenti has featured prominently:
ICI v Shatwell  AC 656 two brothers were blown up while testing detonators before they had taken refuge in a safety shelter. The Shatwell brothers had acted in complete defiance of their employer’s instructions. The employer was able to rely on the defence of volenti and the claim for negligence was dismissed.
McGlone v British Railways Board (1966) SC (HL) 1 – a 12 year old boy injured while climbing an electricity transformer on the defender’s property should have had the foresight and the presence of mind to know that he was engaging in a highly dangerous activity. The boy’s claim for damages was dismissed.
Titchener v British Railways Board (1984) SLT 192, SC (HL) 34 – a 15 year old girl who was struck by a train while trespassing on the defender’s property could not rely on the defender’s negligence. She was old enough to know better i.e. she knew that the railway was a dangerous place. As in the previous two decisions, the girl’s claim for damages was dismissed.
A recent case before the Sheriff Court’s All Scotland Personal Injury Court and the subsequent appeal to the Sheriff Appeal Court in Edinburgh illustrates whether it will be permitted to advance volenti as a legitimate defence to a breach of a duty of care.
Raybould v T N Gilmartin (Contractors) Ltd  SAC (CIV) 31
Diane Raybould, a 59 year old woman with mobility problems, sustained injuries at her home in West Forth Street, Anstruther on 3 February 2015 while attempting to gain access to the property. The front door of the property led directly on to the pavement which, at the time of the accident, had been dug up by T N Gilmartin (the contractor). Fife Council had engaged the contractor to install street lighting. Mrs Raybould had been attempting to access her property via the front entrance. She was aware of the existence of the pavement works and there were barriers around the excavations. There were, however, no planks or boards laid down by the contractors to afford easier access to the property. In short: “The area was a mess.” The contractor argued that by attempting to navigate such an obviously dangerous obstruction, Mrs Raybould had voluntarily assumed the risk of harm or injury to herself. In other words, the contractor should have benefit from the defence of volenti non fit injuria.
The Hearing before the All Scotland Sheriff Personal Injury Court
At the Hearing in the Sheriff Court, Mrs Raybould’s claim for damages against the contractor was dismissed.
The Sheriff emphasised a number of issues which had clearly formed the basis of the judgement against Mrs Raybould:
She was perfectly aware that there was no board or plank lying across the pavement excavations to assist her to access her home relatively safely;
2. She could not plausibly claim that she was unaware of the dangers of attempting to access her property via the front door;
3. She admitted that she felt a strong sense of apprehension or anxiety about any attempt to navigate the obstacles at her front door;
4. She had mobility problems and had to use a walking stick; and
5. She knew that pavement barriers had been placed by the contractors to deter people from using the footpath outside her home.
The Sheriff also found it compelling that Mrs Raybould could have chosen to enter her home via the property’s back door. In fact, there was no pressure of time on her to choose the front door and she never said that she was unable to use the back door to the property.
The Sheriff was strongly of the opinion that Mrs Raybould had been unable to demonstrate that the contractor’s acts or omissions had caused her to fall and sustain injury. Therefore, any alleged breach of the duty of care on the part contractor could not be said to be the proximate cause of the accident. If anything, the proximate cause of Mrs Raybould’s injuries was her decision to attempt a dangerous crossing of the pavement to gain access to her front door.
Interestingly, the Sheriff also entertained the possibility that, if the defence of volenti could not be relied upon by the contractor, the partial defence of contributory negligence would be appropriate in that Mrs Raybould would be 80% liable for her injuries.
(We shall return to the issue of contributory negligence later in this Blog when we discuss the findings of the Sheriff Appeal Court).
Taking all these factors into consideration, the Sheriff concluded that the contractor should be allowed to rely on the defence of volenti non fit injuria. Consequently, Mrs Raybould’s action for damages was dismissed and she was ordered to pay the costs of the contractor.
Mrs Raybould was, however, permitted to appeal to the Sheriff Appeal Court in Edinburgh on a point of law.
Sheriff Principal Stephen QC gave the opinion of the court which overturned the Sheriff’s original decision in favour of T N Gilmartin. In no way could it be said that Mrs Raybould had waived or released T N Gilmartin from its duty of care to her. The contractor was, therefore, liable in damages to Mrs Raybould. That said, however, it was clear that Mrs Raybould had contributed equally to the negligence by the contractor and, consequently, any damages payable should be reduced by 50% as per the Law Reform (Contributory Negligence) Act 1945.
The Sheriff had correctly stated that Mrs Raybould’s conduct was in some way to blame for her injuries, but he had also failed to assess the blameworthiness of the contractor (as per the guidelines laid down in the UK Supreme Court’s decision in Jackson v Murray  UKSC 5). In Jackson, the UK Supreme Court stressed the importance of assessing the blameworthiness of all the relevant parties in situations where contributory negligence applied.
Sheriff Principal Stephen QC made the following remarks:
“Volenti, in effect, amounts to a waiver by the pursuer of the defenders’ liability to her in damages. There must be proof that the pursuer knew of the risk (sciens) and also that she accepted the risk or voluntarily assumed the risk (volens). In this case there is no suggestion that the pursuer either implicitly or explicitly gave any such waiver or that the circumstances would allow the court to infer that the pursuer has impliedly consented to take the risk. It is accepted on behalf of the defenders that the pursuer was not asked about “waiver” or whether she was prepared to absolve the contractors of any liability they may have towards her.”
The learned judge went on to observe that:
“It is a common place activity and foreseeable that a householder such as the pursuer [Mrs Raybould] would seek to enter her home by the front door. The pursuer asked for assistance before proceeding. She used her stick to assist her by providing another point of contact with the ground. … The sheriff’s conclusion that volenti applies permeates his reasoning. However, we have found that volenti does not and cannot apply to the facts of this case.”
Interestingly, Sheriff Principal Stephen QC observed that the contractor had not actually advocated the defence of volenti in its pleadings before the Sheriff at the original hearing. In point of fact, it was the Sheriff who took it upon himself to introduce the defence of volenti! This was clearly an example of the Sheriff “innovating”.
At both the original trial and the appeal hearing, Thomson* and Stewart* were quoted with approval in relation to volenti. These authorities had made the point that volenti had a “very restricted application” and could provide a complete defence to a breach of a duty of care. In circumstances, where the defence of volenti is applicable, the pursuer must actually be aware of the risk and consent to the consequences of the defender’s breach of duty.
*(Thomson on Delict (Chapter 8); and Stewart: Reparation: Liability for Delict (Chapter 30)).
The Sheriff should not have entertained the issue of volenti in the first place. As Sheriff Principal Stephen QC stated: ” volenti does not and cannot apply to the facts of this case.”
The correct approach to take was that of contributory negligence.
A link to the opinion of the Sheriff Appeal Court can be found below:
Traditionally, vicarious liability in employment law was primarily an issue for parties who had entered a contract of service. For many years, it was the general legal position that an independent contractor i.e. someone engaged under a contract for services who had committed a wrongful act or omission which harmed a third party was personally liable for the consequences of their behaviour. The person hiring the contractor would normally escape any such liability. Vicarious liability, however, is an area of the law which continues to develop – as we are about to see.
Worryingly, for organisations which use independent contractors (people working under a contract for services), an English Court of Appeal decision may mean that they could be liable for delicts and other wrongful acts/omissions e.g. assaults which were carried out by non-employees.
The English Court of Appeal has clearly come to its decision based on the logic of recent decisions of the UK Supreme Court: namely, Mohamud v WM Morrison Supermarkets  (which is discussed in Chapter 6 of Introductory Scots Law). It would seem likely, therefore, that the Scottish courts will follow this decision remains to be seen, but it is not a development which organisations are likely to welcome. A summary of the decision can be seen below:
Barclays Bank PLC v Various Claimants  EWCA Civ 1670
Barclays Bank hired a doctor, Gordon Bates, to carry out medical examinations of members of its staff and applicants for employment at the Bank. These examinations were carried out by Bates at his consulting room located at his private address. The doctor was accused of sexually assaulting 126 people during examinations carried out between 1968 and 1984. These incidents did not come to light until much later. By this time, the doctor had died and there was no question of his professional indemnity insurance or his estate paying out compensation to his victims. Barclays Bank stated that the doctor was not an employee – he was an independent medical practitioner paid by the Bank to carry out a service as and when required. Barclays Bank argued that on these grounds they should not be held liable for the doctor’s wrongful actions. In fact, the victims themselves did not claim that Bates was an employee of Barclays, but significantly they did argue that its relationship with the doctor was “akin to employment” and that the delictual act was sufficiently closely connected to the employment or quasi-employment. Bates was under the control of Barclays Bank; by using the services of Bates, the Bank had created the risk of the victims being exposed to his wrongful acts; The medical examinations were carried out on behalf of the Bank; and the Bank had the resources to compensate the victims who now had no practical means of obtaining damages from Bates.
The case was first heard in the English High Court. The High Court decided that Barclays should be held liable for the doctor’s actions. They were benefiting from the service that he was providing and they had the financial resources to compensate the victims (this for organisations using independent contractors will be the really controversial and worrying part of the judgement).
Barclays appealed to the English Court of Appeal, but the decision of the High Court was upheld. At paragraph 41 of the judgement, Lord Justice Irwin stated:
“The law of vicarious liability has been developed – has been “on the move” – in recent times, most notably in the five critical decisions of: E v English Province of Our Lady of Charity; the Catholic Child Welfare Society; Cox v Ministry of Justice; Mohamud v WM Morrison Supermarkets; and Armes v Nottinghamshire County Council.”
Significantly, Lord Justice Irwin goes on to say (at paragraph 45):
“Moreover, it seems clear to me that, adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established. Changes in the structures of employment, and of contracts for the provisions of services, are widespread. Operations intrinsic to a business enterprise are routinely performed by independent contractors, over long periods, accompanied by precise obligations and high levels of control. Such patterns are evident in widely different fields of enterprise, from construction, to manufacture, to the services sector.”
What are the consequences of the Barclays judgement? The logical conclusion is that any organisation engaging workers or independent contractors under a contract for services will have to be aware of this decision and its implications because it expands the area of vicarious liability considerably. If the English Court of Appeal’s decision is upheld and then followed in Scotland, it will be true to say that vicarious liability is no longer an exclusive feature of the contract of employment (contract of service). Essentially, it will be very difficult for a an organisation to mount a competent defence that it should not incur liability merely because the wrongful act or omission was committed by an independent contractor for services.
A link to the English Court of Appeal’s decision can be found below: