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Tort XVI - Causation II

Updated on August 18, 2017

In McWilliams v Arrol (1962) the plaintiff a steel erector had fallen 70 feet from a lattice tower. He was working without a safety harness and despite statutory requirements that made it mandatory for the plaintiff to be provided with a safety harness, his employers, the defendants failed to do so. The plaintiff’s estate sued the defendants on the grounds that it was their negligence in not complying with their statutory duties that had caused the plaintiff’s death. During the trial the question of whether the plaintiff would have used the safety harness had he been provided with one surfaced and there was nothing to say for certain that he would have.

It was held that the defendants were not liable because it could not be established with certainty that if it wasn’t for the defendants’ omission that death could have or would have been prevented.

In Sayers v Harlow UDC (1958) the plaintiff used one of the public toilets provided by the defendants. When she tried to leave the cubicle, she realized that the door was without a knob or a handle or the knob or the handle had become undone. She tried fidgeting with the door and when that was unsuccessful she tried climbing out the window by standing on a toilet roll holder which gave way and the plaintiff was injured as a result. The plaintiff sued.

The court held that it was reasonable to expect that doors in public toilets would open both ways and the means to open the doors would always be readily available. It was also foreseeable that if someone was trapped in a public toilet they’d try, in some way or other, to get out and the longer a person is stuck or trapped in the toilet the more frantic or desperate he or she would become. The plaintiff was successful and the council was held to be liable.

In Hughes v Lord Advocate (1963) the defendants were working in a manhole. The stopped their work midway when it was time for lunch but prior to leaving they erected a tent above the manhole to either cordon the area off or to act as a barricade that allowed others to see that there was some work being done in the manhole The also left some paraffin lamps close to the tent, to warn other road users.

Two boys aged 8 and 10 came across the tent and the paraffin lamps and as boys often do, went to investigate the matter further and explore the manhole. While they were doing so they accidentally knocked over one of the paraffin lamps that fell into the manhole and a small explosion followed when the fire from the paraffin lamp came in contact with sewage gases and the boys suffered from serious burns. The plaintiffs sued.

Sewage gases include a variety of gases like hydrogen sulfide, ammonia, methane, carbon monoxide, sulfur dioxide and nitrogen oxides. Some of these gases are highly flammable.

The court held that the defendants were liable and if was not for their negligence the boys would not be injured. The council should have take reasonable care to highlight to its workers the dangers of leaving paraffin lamps close to manholes and though the defendants did make some effort to protect members of the public unfortunately in this instance their efforts were not sufficient. Members of the public not only include adults but also children and those who suffer from disabilities.

In Haley v London Electricity Board (1965) the defendants, construction workers, had dug a hole to facilitate the fitting of electric cables. As soon as they’d finished they realized that it was time for lunch and they went off without putting up any notices or erecting a barricade of any sort. They merely left a pick at one end and a shovel at the other end and went on their way. The plaintiff a blind man, who was unable to see either the pick or the shovel or the hole for that matter fell into the hole and lost his hearing as a result. The plaintiff sued.

The court, in line with Hughes v Lord Advocate (1963), held that the defendants had a duty to take reasonable care to ensure that their actions and omissions would not cause any harm or injury to the public and that they had breached that duty by failing to take reasonable care to ensure that the area that they were working on or at was suitably cordoned off before they went for lunch. If it was not possible to cordon the area off or erect suitable barricades, one of them should have at least stayed behind and taken a later lunch to ensure that any unfortunate incidents did not take place.

The council further should have taken reasonable care to highlight suitable safety measures to be deployed under such circumstances and should have insisted that at least one of the workers remained behind and allowed him to take a later lunch.

Applying the “but for” test to decide if they defendants negligence was the sole cause of the plaintiff’s injuries the question that was to be asked is, did the defendants acts or omissions cause the plaintiff to lose his hearing? The answer would invariably be so. The court held that the defendants were liable.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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