Tort XXI - Causation VII
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.
Copyright
© 2019 by Dyarne Ward
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