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Tort XXX - Causation XVI
In Donachie v The Chief Constable of the Greater Manchester Police (2004) the plaintiff was an undercover police officer and he was assigned to attach a monitoring device on a car. The car was parked behind a public house and the device failed to transmit any signals the first time it was attached. The plaintiff subsequently had to try 9 times before he could get the device to work properly and each time he tried, the pressure kept mounting and he grew more and more weary, to the extent that he feared increasingly for his life with each step that he took.
As a result of the stress that he was exposed to he developed a stress related illness and later had a stroke due to the illness. The plaintiff sued and he was successful.
The court in line with the decision in Swinney v Chief Constable of Northumbria Police (1996) did not distinguish between an illness and a physical injury. It was sufficient that the defendant owed the plaintiff a duty of care (similar to a duty of care owed in an employer-employee relationship see White v Chief Constable of South Yorkshire (1998)) and that a breach of that duty had led to some type or form of injury.
With regards to the illness, applying the decision in Alcock v Chief Constable of South Yorkshire (1992) the court determined that the plaintiff was a primary victim i.e. someone who fears for his or her own safety and as a result suffers from nervous shock or succumbs to an illness distinct and separate from a physical injury.
With reference to the defective equipment, it is worth asking the question if the police would in turn be able to bring an action against the supplier or the manufacturer for supplying or manufacturing defective equipment?
If an action is to be brought against the supplier the action has be brought in contract and if an action is to be brought against the manufacturer the action has to be brought in tort because there is no contract between the police and the manufacturer. A contract only exists between the police and the supplier. If the manufacturer is also the supplier then the action has to be brought in contract.
Let’s start with the supplier. Section 13 (1) of the Sale of Goods Act 1979 states - “where there is a contract for the sale of goods by description, there is an implied (term) that the goods will correspond with the description” and section 14 (2) of the Sale of Goods Act 1979 states - “where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality”. Therefore given the fact that the monitoring device did not work and most likely did not correspond with its description, i.e. a device that works properly, the police have an action.
The Sale of Goods Act 1979 is further reinforced by the Consumer Rights Act 2015 which implies or incorporates into a contract certain terms like the goods must be fit for its purpose and that the goods must be of merchantable quality. The act applies when – Section 1 (1) “there is an agreement between a trader and a consumer for the trader to supply goods, digital content or services, if the agreement is a contract”.
It might however be easier to go with the requirements in the Sale of Goods Act 1979 because it can’t be said with any degree of certainty that monitoring devices used by the police fall into the category of “consumer goods”. If anything monitoring devices are the exact opposite and should not make their way into the hands of the consumer.
Using the literal rule of interpretation or the strictest or the narrowest rule of interpretation we can safely say that monitoring devices used by the police cannot be classed or classified as “consumer goods” or “goods used by a consumer” or tagged as consumer goods. Therefore it might be more relevant to go with the Sale of Goods Act 1979 as opposed to the Consumer Rights Act 2015.
Now let’s try and determine if the manufacturer can be made liable or accountable. Unless the manufacturer is also the supplier, any action that needs to be brought has to be brought in tort.
Does the manufacturer owe the police a duty? Let’s look at the common law duty. All manufacturers owe a duty to users of the items that they manufacture to ensure that those items do not cause any injury to the user see Donoghue v Stevenson (1932). Hence there is a duty.
The next step is to determine if that duty has been breached and the test that we apply is the reasonable man’s test i.e. would the reasonable man have acted in the way the defendant did or would a reasonable man have failed to act under the circumstances? In this instance we could ask the question would a reasonable manufacturer have sold a defective device or would a reasonable manufacturer have failed to inspect the device prior to selling it? If the answer is no to both questions than there is a breach.
Having determined that there is a duty and that that duty had been breached the next step is to ask the question, if it hadn’t been for the defendants negligence or “but for” the defendants negligence, would the police officer be injured, see Barnett v Chelsea Hospital Management Committee (1969)? If the answer is no then the chances are that the manufacturer was negligent. The final step is to determine proximity.