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Tort XXI - Causation VII

Updated on August 21, 2017

In Barrett v Ministry of Defense (1995) the plaintiff’s husband was working in the navy and was stationed in Norway. On the night of the incident he’d been drinking heavily and caught the attention of a senior officer who then instructed a petty officer to make sure he was well and to get him back to his bunk. The petty officer did as he was instructed and checked on him on a few occasions but despite that, he died during the night. His wife, the plaintiff brought an action in court alleging that her husband’s death could have been prevented had it not been for the defendants’ negligence.

The court held that under normal circumstances the navy did not owe her husband a duty of care but the court decided that a duty of care was owed in this instance because a senior officer had taken charge of matters.

If the conduct of the plaintiff’s husband did not come to the attention of the senior officer or if he was drinking around the corner somewhere unknown to anyone, a duty of care wouldn’t have arisen but because a senior officer had assumed the responsibility to ensure that he was well, a duty of care had arisen. The defendants were held to be liable.

Let’s look at another example where this type of duty is imposed. In the case of adopted children there is no duty that is owed by a third party to a child while the child is in an orphanage but the moment the child is adopted, there is a duty imposed on the parents and they have to observe the same rules, norms and standards of any other parent and ensure that the child is fed, is healthy and that the child is not abused or mistreated in anyway.

Capital and Counties plc v Hampshire County Council (1996) gives us another opportunity to examine the duty that is imposed on firemen. A fire broke out in a building and the fire brigade was called in to put out the fire. The defendant a fireman accidentally turned the sprinklers off and as a result the fire spread to the adjoining buildings. Had the sprinklers not been turned off, the adjoining buildings might not have been damaged or the resultant damage might not have been so severe. The owners of the adjoining buildings sued.

It was held that the defendant had breached the duty of care. It could be said with some certainty that but for the defendant’s actions the adjoining buildings would not have been destroyed by the fire. Members of the emergency services or the protective services owe the public a duty of care to comply with the standards that are imposed on them when they signed up.

Without taking into account the fact that the defendant was a fireman, the question that has to be asked is whether a reasonable man would have switched off the sprinklers under the circumstances. The answer would certainly be no. It is not appropriate to impose a standard on members of the emergency services or members of the protective services which is below what is expected of a normal person.

In Stovin v Wise (1996) the defendant was a motorist whose car was involved in an accident with a motorcyclist. The accident occurred when the motorist was turning a curb and as a result the plaintiff, the motorcyclist was injured. The plaintiff sued.

In her defense, the motorist argued that she wasn’t entirely to blame because there was a mound of earth on a piece of land belonging to the local council that hampered her visibility while she was making the turn. The court held that the plaintiff was liable.

There was no liability imposed on the council because the mound of earth was not the cause of the accident and the number of accidents that had occurred in the particular curb over the previous years (12 years) were relatively small which tends to suggest that the mound didn’t obstruct visibility.

In Swinney v Chief Constable of Northumbria Police (1996) the plaintiff was an informant who had given information to the police that revealed the identity of the owner of a vehicle that had been involved in the death of a policeman. The plaintiff had left the information in his car which was subsequently stolen and the information came into the hands of the owner of the vehicle that had been involved in the death of the policeman. The plaintiff was then harassed with death threats and suffered from a psychiatric illness as a result. The plaintiff sued.

The defendants were found to be liable. There were two salient aspects of the case that prompted the court to decide in the plaintiff’s favor. Firstly, in line In Barrett v Ministry of Defense (1995) there was a voluntary undertaking of responsibility by the police in that the information was given on the basis that the plaintiff’s identity would never be revealed, to do otherwise might put the plaintiff’s life in danger.

Secondly public policy dictates that the police take extra care with regards to information given by informants because they are an essential component in the crime solving mechanism.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward


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