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Tort XIX - Causation V

Updated on August 20, 2017

We have previously examined the scope of duty that is owed by the police and rescue workers and the duty that is owed by third parties to them. Are similar rules applicable to other components, arms or branches of the emergency services like the fire brigade?

In Ogwo v Taylor (1987) the defendant negligently set fire to his house while trying to burn off some paint on walls, with a blow torch, beneath the roof of his house and inadvertently set fire to the whole house. The fire brigade was called in and in order to put the fire out the firemen had to make their way to the roof of the house where the heat was most intense and despite the protective gear that the firemen had on, one of the firemen, the plaintiff, suffered serious burns. The plaintiff sued and was successful.

Could the defendant have raised the defense of volenti? While all members of the emergency services agree to accept some risk when they sign up, it is a question of the level of risk that they’d accepted or agreed to accept. In this instance, it would be fair to say that the level of risk that the firemen accepted was only to the extent that the protective gear that they had on allowed them to accept.

And just how effective is the protective gear that some of these men and women have on? Well the protective vests worn by those who belong to the riot squad (riot police) protect them from shots fired from small caliber pistols, stabs with knives, blows and shield them from burns from small fires.

The vests or body armor, as they are sometimes referred to, are designed to protect the wearer from stray bullets, blows, knife attacks and burns. The material is tough and working on the assumption that the protective gear worn by firemen are made from similar material or perform a similar function, we can come to the conclusion that the fire these men were exposed to would have been more lethal than a normal fire and it is possible to argue that while firemen agree to be exposed to the risk of a normal fire they do not agree or consent to accept the risk of being subjected to anything that is higher.

Let’s turn our attentions briefly to Chernobyl, the site of one of the most devastating nuclear disasters of our time. Did the men and women who went in to put out the fire at reactor no. 4 consent or agree to accept the risk that they were subjected to at the time that they signed up? The answer in short is no. While it was something that could happen, in reality it should never happen and as a result these men and women or members of their immediate families who survived them, should be compensated accordingly.

In Smith v Littlewoods Organization Ltd (1987) the defendants owned a disused cinema and unknown to them vandals had broken into the premises on numerous occasions despite the fact that the building was left secure. On their final visit, the vandals set fire to the property and the fire spread to the adjoining buildings. The plaintiffs, owners of the adjoining properties, sued.

The court held that the defendants had taken reasonable care. The defendants or their agents had left the building secure and therefore had not breached their duty. Because the owners did not know about the previous break-ins it was not reasonable to impose an additional duty on them.

Would the situation have been any different if the owners had known of the previous break-ins? It is possible to say that every time the premises was broken into, the defendants or their agents would have to take reasonable steps to ensure that the premises was secure or re-secured but they don’t have to do more than that unless they are compelled to do so by law.

In Kirkham v Chief Constable of the Greater Manchester Police (1990) the plaintiff was the wife of a prisoner. The prisoner was an alcoholic who suffered from prolonged depression with suicidal tendencies and given his condition there was a real likelihood that he would commit suicide.

The police when they apprehended the prisoner were aware of these facts but failed to pass them on to the prison authorities and the defendant while in prison committed suicide. The plaintiff sued and the defendants relied on the defense of volenti and ex turpi causa (a plaintiff would not be able to pursue a legal remedy with regards or reference to his or her own illegal act - where the act is illegal, a legal remedy is not available).

The plaintiff was successful. The defense of volenti was rejected because it was only applicable to those who did not suffer from any type of psychological or mental illness i.e. those who were sound of mind and ex turpi causa only concerned those who had committed an illegal act and suicide was not illegal (Suicide Act 1961 decriminalized the act of suicide in England and Wales).

If the prison authorities had known that the defendant had suicidal tendencies or was likely to commit suicide, they could have taken steps to ensure that it did not happen for example by putting him in a secure cell or by keeping a closer eye on him. Therefore, it is quite possible to say with some certainty that the prisoner would not have committed suicide but for the defendants’ actions or omissions.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward


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