Tort 7 - Duty of Care 6

In Topp v London Country Bus (1993) the driver of a bus who worked for a bus company, at the end of his shift left his bus in the yard with the doors unlocked and the keys in the ignition. The bus was subsequently stolen by thieves who in their haste to make a speedy getaway ran over a lady on a bicycle who died as a result. The plaintiff, her husband brought an action against the bus company (vicarious liability – employers are liable for the wrongful actions of their employees during the course of employment) for negligence.

The question we have to ask is ought the defendant to have had the plaintiff’s wife in contemplation when he left the keys in the ignition? It is foreseeable that the bus might be stolen as a result of the driver’s negligence but to say that the driver would have foreseen that the bus might have been stolen and a lady would have been run over while the thieves were stealing the bus and that the victim would have died as a result of the injuries sustained is not something that is reasonable.

Leaving the keys in the ignition is not uncommon and most people at some time or other would have left their keys in their car ignitions and would have forgotten about it only to realize their mistake the next morning. If the car remains where they’d left it they’d consider themselves lucky and otherwise they’ll put it down to a stroke of bad luck. Should they be liable if the car that is stolen is then involved in a fatal accident? The answer would most likely be no. Hence should the bus driver be any different? It was held that the bus company did not owe the plaintiff a duty of care.

In Smoldon v Whitworth (1997) the first case of its kind against a referee, the plaintiff was an under-19 rugby player. He was aged 17 at the time and he suffered serious injuries as a result of the referee’s failure to ensure that the rules and guidelines that regulated an under-19 rugby match were observed. The plaintiff sued. The defendant argued that he should only be liable if he had shown wonton and callous disregard for the plaintiff’s safety. The court found in favor of the plaintiff in that the referee was under a duty to ensure that the game was played in accordance with the rules and that he had breached his duty by failing to do so. The standard that was imposed was to ensure that the normal rules that governed the match were observed and not wanton or callous disregard.

It was further held that the defendant was not volenti i.e. he had accepted the risk by participating in the game. The plaintiff had only accepted the risk of participating in a game that was played in accordance with the rules of the game and not the risk of the defendant’s negligence.

In Sullivan v Moody (2001) a father (plaintiff) was investigated for child abuse by a medical practitioner and a social worker (defendants) and the plaintiff claimed that he had no prior dealings with either of the defendants and as a result of the assertions made by the defendants, he had suffered from a psychological illness. The father sued for negligence.

Child abuse can result not only from physical acts but it could also result from a failure to act (omission). Investigators are empowered by statute to act and most child abuse matters are dealt with confidentially. The authorities are well within their rights to conduct an investigation if they feel that the situation warrants it.

Medical practitioners are under a duty to report any cases of abuse or suspected child abuse that they might come across in the course of their profession and it is not a matter of whether they want to or otherwise. The law and the guidelines of the various bodies that govern the code of conduct for medical practitioners compels them to do so. Therefore, it is not practical to impose any form of liability on a medical practitioner for acting in the way and manner that he or she did because the code of conduct of the regulating body that govern medical practitioners compel them to act in the manner that they do.

Secondly the plaintiff should not feel threatened, intimidated or ashamed if such an investigation were to be conducted because it is done with the utmost discretion and unless the plaintiff has made it public knowledge himself, it would not have come to light unless proven. At the end of the day if the plaintiff had done nothing wrong, he has nothing to be worried about. The defendants were held to be not liable; they were just doing what they were required to do by law.

Copyright © 2019 by Dyarne Ward and Kathiresan Ramachanderam