Tort XVI - Causation II
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.
Copyright
© 2019 by Dyarne Ward
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