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Tort XVIII - Causation IV

In McKay v Essex Area Health Authority (1982) the plaintiffs, a mother and her child sued a doctor for not advising the mother to terminate her pregnancy. The mother had contracted rubella or German measles while she was pregnant and the chances were high that the child would be born with serious or severe disabilities but because the mother was not advised accordingly, she continued with the pregnancy. The court held that the doctor was not liable under the circumstances despite the fact that he’d not given the mother suitable medical advice. In today’s dynamic and multi-faceted world, it is possible in many instances to determine whether a child will be born healthy or otherwise and it may be appropriate to place a duty on doctors to inform all prospective mothers of any risks involved with the pregnancy or educate the mothers as to the risks as soon as the facts become available. The decision to terminate the pregnancy or otherwise however should be left entirely in the hand

Tort XVII - Causation III

In Chadwick v British Railways Board (1967), the case concerns the duty of care that is owed to rescue workers and the Lewisham train disaster which left 90 people dead and nearly 200 others injured. On the 4th of December 1957 two trains collided at St. Johns Railway Station just outside Lewisham. The collision derailed one of the trains that subsequently fell on carriages ferrying evening rush hour commuters. The plaintiff a volunteer worked tirelessly as a rescuer to try and safe as many passengers as possible and as a result suffered from shock and anxiety attacks and was forced to seek treatment. An action was brought in court for damages. While the case is more relevant with regards or reference to rescue workers, by applying the normal criteria to establish duty and breach we can come to the conclusion that the defendants owed the plaintiff a duty of care. A duty of care is owed not only to persons who are directly affected by an incident or an accident but als

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 t

Elements in a Contract 35

Just like the words in an enactment or a statute can lead to an ambiguity, similarly words in a contract can also sometimes be a source of confusion. Therefore, the courts have developed certain guidelines in addition to the existing rules of interpretation (see statutory interpretation) to make the law more flexible. In Investors Compensation Scheme Ltd. v West Bromwich Building Society (1998) Lord Hoffman set out five guidelines to aid with the interpretation of contracts. They are as follows: - 1) The terms in a contract should be looked at from the perspective of the reasonable man after taking into account all the background knowledge that was available to the parties at the time of entering into the contract. 2) The background knowledge that is to be taken into account is what is known as the matrix of facts or the factual matrix that was put forward by Lord Wilberforce and it includes anything, as long as the information is available to the parties, which would have affect

Tort 15 - Causation 1

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Once it has been established that the defendant owed the plaintiff a duty of care and once it has been found that the defendant has breached that duty of care either by his actions or by failing to act, the next step in order for a plaintiff to be successful in a claim of negligence is to establish that the defendant’s actions or his omissions (failure to act) had caused the plaintiff to incur some type of property damage, or suffer from some sort of physical injury, psychiatric illness or nervous shock. The question that needs to be asked is - would the plaintiff have incurred any damage to his or her property or would he or she have suffered from any form of physical injury, psychiatric illness or nervous shock “but for” the defendant’s acts or omissions? If the answer is no i.e. the plaintiff would not have incurred any type of property damage or suffered from some form of physical injury, psychiatric illness or nervous shock “but for” the defendant’s actions or inactions (failure

Tort 14 - Breach of Duty of Care 6

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Hall v Simons (2000) concerns the immunity enjoyed by an advocate with regards to legal proceedings. In the past lawyers, solicitors and barristers had enjoyed a certain amount of immunity from being held accountable or liable for acts of negligence during a trial. The court in the case held that the immunity that was once conferred on members of the legal profession with regards to advocacy was no longer valid and that it was in the interest of the public to revoke that immunity. Members of the legal profession are now accountable for their actions in court. The law has to change with the times and in the present climate or environment where most people are aware of their rights and liabilities, it is only fair that lawyers, solicitors and barristers exercise reasonable care when handling cases. In Heywood v Wellers (1976) for example, the plaintiff was repeatedly stalked by a former lover and she approached the defendants, a solicitors’ firm, to take out an injunction against he

Tort 13 - Breach of duty of care 5

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In Wilson v Governors of Sacred Heart RC Primary School, Carlton (1997) a 9-year-old school boy was hit in the eye with a coat by another school boy and the skirmish occurred while the injured boy was running towards the gate after school, eager to be on his way home. The court held that the school had not fallen below the standard of care that was required and while supervision is provided during lunch, it is common not to provide any supervision while the children are about to head for home. To some extent, standard of care is like a common benchmark and as long as the defendant has not fallen below the benchmark that is sometimes dictated by norms and practices or even customs for the matter, it is possible to argue that it is common custom in certain areas or localities to allow children to run towards the gates as soon as the bell that signals the end of school is rung, the defendant will not be liable. Gates v Mckenna (1998) presents an interesting set of facts. The defendant