Case Law

• Kay's Tutor v Ayrshire and Arran Health Board


  Suspected meningitis

  Loss - Child became deaf

  Injuria - Gave her the wrong dose

  Datum - Did the dose make her deaf OR did the meningitis make her deaf?
• McFarlane v Tayside Health Board [2000]


  Failed vasectomy.

  Husband advised his sperm count was null but wife fell pregnant. Should the wife be compensated?

  
  

  the plaintiff wife was entitled to recover for the pain, discomfort and inconvenience of the pregnancy

  
  

  A claim for the costs of caring for a healthy, normal child was a claim for pure economic loss in respect of which it had to be shown that it was fair, just and reasonable to impose liability, and, in the circumstances, the claim did not satisfy the requirement of being fair, just and reasonable
• Bourhill v Young (1943)


  Psychiatric harm must be reasonably foreseeable to a person of normal fortitude. miscarriage after witnessing aftermath of accident

  
  

  The duty to take care is not owed to the world at large, but to those to whom injury may reasonably and probably be anticipated if the duty is not observed." per Lord Macmillan in Bourhill v Young, 1942 SC (HL) 78 at 88
• Muir v Glasgow Corporation


  "Is the harm that has been incurred within the scope of the duty?"

  
  

  Dropped teapot and scolded a girl

  Could a reasonable person foreseen this happening?
• Hill v Chief Constable of West Yorkshire [1989] AC 53


  Duties are owed to identifiable persons or persons within a reasonably well defined class

  
  

  as being reasonably likely to be affected by the defender's conduct
• Bolton v Stone


  If the likelihood of an event is sufficiently low, the social utility sufficiently high, and the cost of prevention sufficiently high it is not a breach of duty to have merely taken steps to significantly lower it, rather than completely obviate it.
• The Wagon Mound No2 [1967]


  Failure to guard against foreseeable, but improbable risks may require justification
• Hughes v Lord Advocate 1963


  Where the type of harm suffered is foreseeable (burns), it does not matter that the precise way it was caused, was unusual (explosion)
• McKillen v Barclay-Curle & Co Ltd 1967 SLT 41 at 42


  "take the victim as he finds him/her"
• Waugh v James K Allen Ltd


  To breach a duty, the conduct must have been voluntary
• Anderson v Imrie (2018)


  There was a foreseeable danger that A would suffer injury on the farm if he was not sufficiently supervised by an adult. The accident happened because he was not properly supervised. Mrs Imrie failed in the duty of care she owed to A under s.2(1) of the 1960 Act.
• Lamond v Glasgow Corporation 1968


  The greater the risk the greater amount of precautions should be taken.
• Paris v Stepney BC 1951


  The magnitude of potential harm was greater for P so more precautions should have been taken.

  
  

  The cost and effort of providing goggles was very small compared to the magnitude of the risk.
• Harris v Perry 2008


  Is there that standard that children should be supervised?

  Held there was no breach of duty - cannot be expected to look after child 100% of the time.
• Brown v Rolls Royce


  Common practice to provide barrier cream

  RR made an 'alternative' provision

  Had RR done what a 'reasonable' employer would have done? - yes.
• McWilliams v Archibald Arrol & Co 1962


  It is not a breach of duty to fail to provide safety precautions if the employee wouldnt use them
• Barnett v Chelsea & Kensington Hospital Management Committee 1969


  He had drunk a cup of tea which had arsenic poisoning, went to casualty, told to go see their doctor, however died before they could reach the doctor.

  
  

  He would've died anyway, arsenic poisoning would've killed him
• McTear v Imperial Tobacco Ltd (2005) 2SC 1


  Was the spouse able to show that her husband would not have died of lung cancer had he not smoked the defender's brand of cigarettes? Would it have mattered what brand of smoke? (part of judgement), they had failed to show he would not have died of lung cancer
• Sayers v Harlow (1958)


  she had entered into public toilet maintained by harlow. The toilet stall broke - she was stuck in the stall. She tried to escape and she fell after trying to balance on the seat and toilet roll holder.

  
  

  Reasonable person would climb out - there had been no novus actua interveniens. However, contributory negligence.
• McKew v Holland & Hannen & Cubitts


  - leg would give way with no warning after injuring it at work.

  - was going down stairs and fell , their legs gave way.

  
  

  They tried to jump the rest of the way. They then injured their good leg. They broke that chain of causation.
• Simmons v British Steel plc


  Liability limited to foreseeable consequences
• Campbell v F&F Moffat 1992 SLT 962


  Remoteness for damage and the criteria required
• Gregg v Scott [2005]


  Traditional 'but for' adopted: Probability was less than 50% of survival in any event. Therefore, on the balance of probabilities the claimant's loss would have occurred, despite the defendant's conduct.
• Scott v St Katherine Docks Co (1856)


  Sugar bags fell from a crane. They didn't know why this happened. Couldn't see fault on defenders side.

  No proof of negligence on occupiers side.
• Ward v Tesco Stores Ltd [1976]


  Yogurt spillage and defenders did not take reasonable care. Staff should have cleared this up immediately.

  Proof of negligence
• Dobson v Asda Stores Ltd [2002]


  (unreported) - customer slipped on cherries. No slip mat. Many customers didn't have this problem and having a strict cleaning routine so the case failed
• Dawson v Page (2013)


  The accident could have been foreseen and the defender did not have to preclude visitors from the whole site.

  
  

  There was an element of risk that the pursuer had to take and had success crossed the planks on two occasions. The reasonable test is interpreted broadly.
• McGuffie v Forth Valley Health Board


  She claimed reparation from her employers on the ground that they were the occupiers and that they had failed to take reasonable care "within a reasonable period" to have the path made safe by salting or gritting.

  
  

  no evidence of a "reasonable period"
• Porter v Strathclyde Regional Council


  children's nursery assistant, who slipped on some food dropped by one of about five young children then feeding themselves.

  
  

  despite carrying a fractious child, she had a duty to take reasonable care to look where she was going
• Taylor v Glasgow Corporation 1922


  They had permitted children to go on to the land and it is understandable that the berries would have appealed to visiting children, thus representing a danger. The defendants were aware of this danger caused by the poisonous berries and did nothing to prevent the damage.
• Tomilson v Congleton 2004


  It would not have been required to take steps to prevent T from diving or to warn him against dangers which were obvious
• McGlone v British Railways Board 1966


  The defenders had taken reasonable care as they put up warnings and surrounded the danger with a barbed wire fence which the boy managed to climb over

  
  

  they had erected a fence which was a obstacle to a 12-year-old boy and the boy had to put some effort in overcoming the obstacle.
• Titchener v British Railways Board


  Walking on railway tracks is consenting to the fact you are likely to get hit and die
• Devlin v Strathclyde Regional Council 1993


  B's action in jumping as he did onto what he knew to be a cover over a skylight was so extreme as to be beyond the scope of reasonable foresight.
• Various Claimants v Barclays Bank


  a doctor that the bank had outsourced for staff medicals was an independent contractor and the bank was not vicariously liable for his wrongdoing.
• Various Claimants v The Institute of the Brothers of Christian Schools [2012] UKSC 56


  It was established that vicarious liability involved two stage test.

  
  

  1.There has to be a relationship between the defender and the wrongdoer. To see if this gives rise to a relationship of vicarious liability.

  
  

  2. There must be a connection that linked the relationship between the defender and the wrongdoer and their act or omissions.
• Kerby v National Coal Board 1958 SC 514


  1.If an employer authorised the particular act then employer will be vicariously liable.

  
  

  2. When an employee is authorised to do work by his employer but does it in a way in which his employer would not have authorised it then the employer is still vicariously liable because it was in the scope of the employees employment

  
  

  3. If an employee is employed only to do a particular type of work and they do something outside the scope of their work then an employer is not vicariously liable.

  • Authority can be expressed or implied
• Century Insurance v Northern Ireland Road Transport Board 1942


  An employee lit cigarette while transferring petrol and an inevitable explosion took place.

  
  

  The House of Lords held that the employee had chosen an unauthorised way of doing his job which was to transfer the petrol but it was still in the scope of his employment and the employer was vicariously liable.
• Rose v Plenty 1975


  A employee failed to follow instructions the employer was held to be vicariously liable as it was in the course of his employment.

  It could not be proven in both cases that the employee was off on a 'frolic of his own.
• Trotman v North Yorkshire County Council


  Sexual misconduct on the part of a teacher was not an authorised mode of carrying out his teaching duties and the local authority was not vicariously liable for the wrongdoing