Tort XXXI - Causation XVII

In AB v Leeds Teaching Hospital NHS Trust (2004) three families brought an action for the removal of tissue and organs from the bodies of their deceased children without first obtaining the consent of the parents against the relevant authority. The tissue and the organs were removed after a post mortem and the parents only became aware of the details many years later. The parents sued.

The court held that the removal of tissue and organs from the bodies of the children without informing the parents first or without obtaining their consent violated the duty health care professionals owed to parents.

In Barber v Somerset County Council (2004) an aging teacher, aged 52 at the time, was employed by a school. The teacher was over burdened by the duties that were given to him and despite repeatedly requesting that the workload be shared, the school did not make the effort to delegate some of the teacher’s duties and as a result the teacher suffered from a breakdown and other related psychosomatic illnesses that were caused by stress and over-exertion. The teacher sued.

Thus far we have looked at the duty that is owed by the school to its student(s). Does the school owe a similar duty to teachers? The answer is yes and the type of duty that we are looking at is the duty that is owed by an employer to an employee in an employer-employee relationship.

An employer owes a duty to ensure that his or her employees do not incur any type of injury while in employment (as we have seen earlier the courts are not concerned with the nature or type of injury - it could either be an illness or a physical injury) see Paris v Stepney (1951) and the employer must take reasonable steps to ensure that the employees do not succumb to an illness or an injury see Smith v Baker (1891) and McWilliams v Arrol (1962).

The school had breached that duty by not listening to the teacher’s concerns and it is fair to say that a reasonable employer would not have failed to act once the matter had been brought to the employer’s attention or would not have acted in the manner in which the school did upon hearing the concerns of the teacher and therefore it can be said with some certainty that the school as the employer had breached its duty to the teacher. It is also fair to say that had it not been for the defendants’ negligence or but for the defendants’ omission, the teacher would not have sustained the illness or injury. The plaintiff was successful and the school was liable.

In Bici v Ministry of Defense (2004) the plaintiff was in a vehicle in Kosovo with other passengers when the defendants, British soldiers serving under the UN on a peacekeeping mission, opened fire killing 2 of the passengers and injuring the plaintiff. The question before the courts was to decide whether the ministry of defense owed the plaintiff a duty of care. The court held that in order to establish whether a duty of care was owed under the circumstances the court had to first determine the nature of the mission.

There is a difference between soldiers on a peacekeeping mission and soldiers on combat duties and soldiers on a peacekeeping mission owed the public at large a duty. It would have been different if the soldiers perceived some sort of a threat or if the plaintiff or someone else in the vehicle had produced a weapon and had pointed it at the soldiers. In this instance however there was no evidence to indicate that the soldiers were under any threat and therefore the soldiers were under the same duty as ordinary citizens. The plaintiff was successful.

In Gorringe v Calderdale Metropolitan Borough Council (2004) the plaintiff drove over a hill too fast and the car she was driving in collided with a bus and as a result she suffered from severe injuries. The plaintiff brought an action against the council for not posting warning signs to caution drivers like the plaintiff against going too fast or to urge the plaintiff to go slower contending that they had breached a statutory duty (a duty imposed by an act of parliament or a statute) by not doing so.

The court in line with the decision in Stovin v Wise (1996) held that the council was not liable. The plaintiff had to exercise the care and caution of an ordinary and competent driver and her failure to do so had caused the accident.

Copyright © 2019 by Dyarne Ward


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