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Tort XIV - Breach of Duty of Care VI

Updated on August 17, 2017

Hall v Simons (2000) concerns the immunity enjoyed by an advocate with regards to legal proceedings. In the past lawyers, solicitors and barristers had enjoyed a certain amount of immunity from being held accountable or liable for acts of negligence during a trial. The court in the case held that the immunity that was once conferred on members of the legal profession with regards to advocacy was no longer valid and that it was in the interest of the public to revoke that immunity. Members of the legal profession are now accountable for their actions in court.

The law has to change with the times and in the present climate or environment where most people are aware of their rights and liabilities, it is only fair that lawyers, solicitors and barristers exercise reasonable care when handling cases.

In Heywood v Wellers (1976) for example, the plaintiff was repeatedly stalked by a former lover and she approached the defendants, a solicitors’ firm, to take out an injunction against her former lover and stalker. The defendants negligently failed to do so and as a result the harassment continued and the plaintiff suffered much distress. The court held that the plaintiff was entitled to be compensated for the distress that she had suffered and was accordingly awarded damages

The legal profession is like any other profession and when members of other professions are held to be liable for falling below the acceptable standard of care that is imposed on them, why shouldn’t members of the legal profession? Duty of care among other things is also a mechanism to ensure that the services that are rendered comply with acceptable standards.

It is foreseeable, with the advent of technology, that even the flexibility that is presently conferred upon doctors will soon be narrowed and its scope reduced especially when it comes to determining if a person suffers from a specific illness or otherwise and to ensure that the correct medication is prescribed to remedy the illness.

In Richard Vowles v Evans and Welsh Rugby Union Ltd (2003) the plaintiff was injured in a rugby match and was paralyzed as a result of the injuries that he had sustained. The plaintiff sued and the court in line with the decision in Smoldon v Whitworth (1997) held that the plaintiff was entitled to claim.

Referees in rugby matches have a duty towards the players to ensure that the game is played in accordance with the rules regardless of whether it is played at junior level or at adult level or whether it is played at the semi-professional level or at the professional level.

The sport in itself is an inherently dangerous sport and the players depend on the referee to protect their safety by ensuring that the game is played in accordance with the stipulated rules and when referees fail to ensure that the rules are adhered to there is a real likelihood that in would result in some form or injury or other to the player(s).

As for the defense of volenti; referees in a game that has not been conducted in accordance with the rules cannot claim that the player has accepted the risk by participating in the game because the only risk that any player that participates in a rugby game accepts is the risk of playing in a game which is conducted in accordance with the rules where the risk of injury is minimized and not otherwise.

In Simonds v Isle of Wright Council (2003) a 5-year-old was attending his school sports day that was organized in a playing field. After finishing the morning activities, the boy picnicked with his mother and the teachers. Once the picnic was over the mother left him in the care of the teachers and went to do some shopping. The boy made up his mind to jump on one of the swings that were located close to the picnic area, he was the only child to do so, and as a result he fell down when he was clambering off it and broke his arm. His mother sued.

The court held that playing fields were not without hazards and therefore it is fair to assume that parents who allow their children to play on playing fields or parks do so on the understanding that the child may incur some small injury or other while playing. Hence the council that is responsible for maintaining the playing fields cannot be held liable.

The mother’s omission i.e. leaving the child in the care of the teachers once the sports day and the picnic was over had broken the chain of causation and if anything, the teachers were being generous by agreeing to look after the child when it fact it was no longer their duty or responsibility to do so. Hence neither the school nor its teachers could be held liable.

The question that is to be asked is would the boy have incurred the injury “but for” the defendant’s actions. It cannot be said with some certainty that he would.

In Blake v Galloway (2004) a group of boys were out playing and after a short time of being by themselves, for some reason or other, decided to start throwing sticks at each other and engage in a bout of horseplay. The plaintiff, a 15-year-old boy, who refused to take part at first but later changed his mind, threw a stick at the defendant which hit him in the leg. The defendant responded by picking up the stick and throwing it back at the plaintiff. The stick hit the plaintiff in the eye and as a result he sustained a serious injury. The plaintiff sued.

The court held that with regards to horseplay, the court would only arrive at the conclusion that a duty has been breached when the defendant’s act can be defined as reckless or there has been a very high degree of carelessness. Merely throwing the stick back, despite the seriousness of the injury does not amount to recklessness or a very high degree of carelessness. The defendant was thus found to be not liable.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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