Tort XIX - Causation V
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 the 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 is
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 is not illegal
(the 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, then 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.
Copyright
© 2019 by Dyarne Ward
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