LAW OF TORTS I
Trinidad & Tobago Hospitality & Tourism Institute
Hospitality Law & Insurance: BC 229 Lecturer: Ms. V.
Maharaj
Topics
Definition of Tort Tort & Crime Tort & Contract Aspects
of Negligence Duty of Care Breach of Duty Likelihood of Harm
Seriousness of Injury Risked The Importance or Utility of
Defendants Activity Cost & Practicability of Measures to Avoid
Harm Intelligence Knowledge Skill Proof of Negligence: Res Ipsa
Loquitur Causation Remoteness of Damage
Definition of TortA tort may be defined broadly as a civil wrong
involving a breach of duty fixed by the law, such duty being owed
to persons generally. The essential aim of the law of torts is to
compensate persons harmed by the wrongful conduct of others. Such
damage may take any of several different forms: such as physical
injury to persons; physical damage to property; injury to
reputation; and damage to economic interests.
Tort & CrimeThe main purpose of the criminal law is to
protect the interest of the public at large by punishing those
found guilty of crimes, and it is those types of conduct which are
most detrimental to society and to the public welfare which are
treated as criminal. A conviction for a crime is obtained by means
of a criminal prosecution. A tort is a purely civil wrong which
gives rise to civil proceedings the purpose of such proceedings
being primarily not to punish wrongdoers for the protection of the
public at large, but to give the individual plaintiff compensation
for the damage which he has suffered as a result of the defendants
wrongful conduct.
Tort & ContractTort and contract are both areas of civil
law. The traditional distinction between tort and contract is that
in tort the duties of the parties are fixed by law, whereas in
contract they are fixed by the parties themselves. One of the most
significant distinctions between tort and contract concerns he aim
of an award of damages. Tort law is designed to protect the status
quo, in that the plaintiffs position should not be made worse by
the defendants acts. Hence the plaintiff should be restored as far
as possible to the position he would have been in had the tort not
been committed. In contract on the other hand, the defendant is
liable to put the plaintiff in the position he would have been in
had the contract been carried out.
Aspects of NegligenceNegligence is the most important and
dynamic of all torts. The tort of negligence may be defined broadly
as the breach of a legal duty to take care which results in damage,
undesired by the plaintiff, to the plaintiff. There are three
elements to the tort:iii. iv. v.
A duty of care owed by the defendant to the plaintiff; Breach of
they duty by the defendant; and Damage to the plaintiff which is
legally deemed to be the consequence of that breach of duty.
Duty of CareThe first question to be determined in any action
for negligence is whether the defendant owed a duty of care to the
plaintiff. In general a duty of care will be owed wherever in the
circumstances it is foreseeable that if the defendant does not
exercise due care, the plaintiff will be harmed.
This forseeability test was laid down in the landmark case of
Donoghue v Stevenson [1932]. A manufacturer of ginger beer put the
ginger beer in an opaque bottle which was stoppered and sealed and
contained the decomposed remains of a snail. When the contents were
drunk by a consumer, Mrs. Donoghue, she suffered illness as a
result of this, and took the manufacturers to court. It was held
that the manufacturers were liable in tort, and they owed a duty to
her as the ultimate consumer, to take care she was not injured by a
negligently manufactured product. A manufacturer of products, which
he sells in such a form that he intends them to reach the ultimate
consumer in the form in which they left him with no reasonable
possibility of intermediate examination, and with the knowledge
that the absence of reasonable care in the preparation of the
products will result in an injury to the consumers life or
property, owes a duty to the consumer to take that reasonable
care.
Duty of CareThis case established the neighbour principle:You
must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who
then in law is my neighbour? The answer seems to be- persons who
are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when
I am directing my mind to the acts or omissions which are called in
question.
Duty of CareThe duty of care principle is set rather broadly and
public policy requires some limits to be set on the range of
liability. Thus a more precise two stage test for the existence of
a duty of care was set out in Anns v Merton London Borough Council
[1977]:In order to establish that a duty of care arises in a
particular situation, the question has to be approached in two
stages. First, one has to ask whether, as between the alleged
wrongdoer and the person who has suffered damage, there is a
sufficient relationship of proximity or neighborhood such that,
carelessness on his part may be likely to cause damage to the
latter. Secondly, if the question is answered affirmatively, it is
necessary o consider whether there ate any considerations which
ought to negative, or reduce or limit the scope of duty to the
class of person to whom it is owed.
Duty of CareAustin v Attorney General [1986] High Court,
Barbados Facts H, a convicted prisoner, escaped from Glendairy
Prison and entered the plaintiffs dwelling house where he attacked
and seriously injured her with a knife. On the day of his escape, H
was one of a number pf prisoners being instructed in woodwork in
the carpenters shop at the prison. Two prison officers were in
supervision. One of these left for a short period, and during his
absence H escaped. The plaintiff alleged that the escape of H was
caused by the negligence of the Superintendent of Prisons whose
duty it was to supervise, control and be responsible for the
conduct of prisoners, and that the defendant was vicariously
responsible for the consequences of such negligence.
Duty of CareAustin v Attorney General [1986] High Court,
Barbados. Held There was no sufficient relationship of proximity
between the Superintendent of Prisons and the plaintiff such as to
give rise to a duty of care towards the plaintiff. The damage
suffered by the plaintiff was too remote
Duty of CareReasoning There can be no doubt that a
Superintendent of Prisons has a common law duty to be careful and
in general must owe a duty of care to members of the public with
whom he is in a sufficient relationship of neighborhood that,
within reasonable contemplation, carelessness on his part is likely
to cause them damage. But it is necessary to consider whether there
are any considerations which would negative or limit that scope of
duty. The risk of sustaining damage from the tortious acts of
criminals is shared by the public at large. It has never been
recognized at common law as giving rise to any cause of action
against anyone but the criminal himself. It would seem arbitrary,
and therefore unjust, to single out for the special privilege of
being able to recover compensation from the authorities responsible
for the prevention of crime a person whose property was damaged buy
the tortious act of a criminal merely because the damage to him
happened to be caused by a criminal who had escaped custody before
completion of his sentence.
Breach of DutyHaving decided that a duty of care was owed to the
plaintiff, the courts next task is to determine whether the
defendant was in breach of such duty. The court considers whether
or not a reasonable man, placed in the defendant's position would
have acted as the defendant did. In deciding what a reasonable man
would have done in the circumstances, and in assessing the standard
of care expected of the defendant, the court may take into account
what may be called the risk factor.
Breach of DutyThe risk factor has four elements:iii. iv. v.
vi.
The likelihood of harm; The seriousness of the injury that is
risked; The importance or utility of the defendants conduct; and
The cost and practicability of measures to avoid the harm.
The Likelihood of Harm The greater the likelihood that the
defendants conduct will cause harm, the greater the amount of
caution required of him. Bolton v Stone [1951] The plaintiff was
struck and injured by a cricket ball as he was walking along a
public road adjacent to a cricket ground. The plaintiff contended
that the defendant, who was in charge of the ground, had been
negligent in failing to take precautions to ensure that cricket
balls did not escape from the ground and injure passers by. Held
Taking into account such factors as the distance of the pitch from
the road, the presence of a seven foot high fence, and the
infrequency with which balls had escaped previously, the likelihood
of harm to passers- by was so slight that the defendant had not
been negligent in allowing cricket to be played without having
taken further precautions such as raising the height of the
fence.
Likelihood of HarmHilder v Associated Portland Cement
Manufacturers Ltd. [1961] The plaintiff whilst riding his
motorcycle along a road, crashed and sustained injuries after being
struck by a football kicked from the defendants adjacent land where
children were in the habit of playing. Held The defendant was
negligent in having prevent footballs from being kicked
circumstances, the likelihood of considerable. failed to take
precautions to onto the road, since, in the injury to passers-by
was
Likelihood of HarmMowser v DeNobriga [1969] High Court, Trinidad
and Tobago
Facts The plaintiff was a spectator at a race meeting. A
riderless horse left the race tract at a point where there was no
outer rail or fence, and struck and injured the plaintiff. She
brought an action in negligence against the defendants, the
organizers of the race meeting. Held The plaintiff was a person to
whom a duty of care was owed. There was a real risk of injury to
spectators in the event of a horse galloping off the track, and the
defendants were negligent in having failed to take sufficient
precautions to protect the plaintiff and other spectators.
Seriousness of Injury RiskedThe gravity of the consequences if
an accident were to occur must also be taken into account. Paris v
Stepney Borough Council [1951] The defendants employed the
plaintiff as a mechanic in their maintenance department. Although
they knew that he had only one good eye, the did not provide him
with goggles for his work. While he was attempting to remove a part
from underneath a vehicle, a piece of metal flew into his good eye
and he was blinded. Held The defendants had been negligent in not
providing the particular workman with goggles, since they must have
been aware of the gravity of the consequences if he were to suffer
an injury to his one good eye.
Seriousness of Injury RiskedRhyna v Transport and Harbours
Department [1985] Guyana Facts The plaintiff was employed by the
defendant as a casual watchman. The plaintiff had lost sight in his
left eye as a result of a previous accident. The plaintiff was
instructed to catch the line from a vessel about to moor at the
wharf, which was contrary to the established system for the mooring
of vessels and took no account of the appellants disability. The
rope struck the appellant in his right eye and he was blinded. Held
The defendant was in breach of its duty as employer to provide a
safe system of work and effective supervision.
Reasoning The plaintiffs peculiar disability enhanced the risk
of injury if the rope was not thrown accurately. This risk was not
so remote or so small as to be unforeseeable, notwithstanding that
an accident of this nature involving personal injury had not
occurred before. The test is- what precautions would the ordinary
reasonable and prudent employer take in the circumstances? The
relevant considerations would include all those facts, including
disability, which would affect the conduct of a reasonable and
prudent employer. The reasonable and prudent employer would not be
influenced merely by the greater or lesser probability of an
accident of this nature occurring, but also by the gravity of the
consequences if it did occur. The normal system, which operated
very safely for a two-eye man, was wholly inadequate. The
defendant's liability in tort arises from his failure to take
reasonable care in regard to the particular employee and all the
circumstances relevant to that employee must be taken into
consideration.
The Importance or Utility of Defendants ActivityThe seriousness
of the risk created by the defendants activity must be weighed
against the importance or utility of such activity, and where the
defendants conduct has great social value, he may be justified to
exposing others to risks which would not otherwise be justifiable.
The purpose to be served, if sufficiently important, justifies the
assumption of abnormal risk. In all cases one must balance the risk
against the end to be achieved, and the commercial end to make a
profit is very different from the human end to save life and
limb.
The Importance or Utility of Defendants ActivityDaborn v Bath
Tramways [1946] In determining whether a party is negligent the
standard of reasonable care is that which is reasonably to be
demanded in the circumstances. A relevant circumstance to take into
account may be he importance of the end to be served by acting in
this way or that. As have been often pointed out, if all the trains
in this country were restricted to a speed of 5 m.p.h., there would
be fewer accidents, but our national life would be intolerably
slowed down. The purpose to be served, if sufficiently important,
justifies the assumption of abnormal risk.
The Importance or Utility of Defendants ActivityByfield v
Attorney General [1980] Jamaica Facts Two constables were chasing
an armed man who was wanted for various offences , including
robbery and firearms offences. The man ran into the yard of the
plaintiffs house from where he fired a shot at the pursuing
constables. The constables returned the fire, but accidentally shot
the plaintiff who was also in the yard but unnoticed by the
constables.
Held The constables were not liable in negligence since they
were acting in the execution of their duty in hot pursuit of a
gunman. They were entitled to defend themselves and were under no
duty to retreat. Reasoning Were the constables negligent having
regard to all the circumstances? In considering this question it is
desirable to refer to the definition of negligence given in the
case of Blyth v Birmingham Waterworks Co.:Negligence is the
omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human
affairs, would do, or do something which a prudent and reasonable
man would not do. These constables were acting in execution of
their duty in hot pursuit to arrest a gunman who was in their view
committing other offences, viz. illegal possession of a firearm and
shooting with intent. They were, at the time they fired their gun,
the target of a gunman about to shoot again. They were entitled to
defend themselves.
Cost & Practicability of Measures to Avoid HarmAnother
relevant consideration is how costly and practicable it would have
been for the defendant to have taken precautions to eliminate or
minimize the risk, for in every case of foreseeable risk, it is a
matter of balancing the risk against the measures necessary to
eliminate it. A reasonable man would only neglect a risk (of small
magnitude) if he had some valid reason for doing so, e.g. it would
involve considerable expense to eliminate the risk.
Latimer v. A.E.C. Ltd.[1952] Facts During an unusually heavy
rainstorm the floors of a factory were flooded and an oily cooling
mixture, which normally was contained in a channel in the floor,
along which it was pumped to machinery, rose and mixed with the
flood waters. Consequently, when the flood subsided, the floors
were slippery. As far as supplies permitted, sawdust was spread on
the floor, but some areas were left untreated. A workman, working
in a gangway which had not been treated with sawdust was attempting
to load a heavy barrel on to a trolley when he slipped and injured
his ankle. In an action against his employers Held The employers
had not been negligent for they had done all that a reasonable
employer could be expected to do, bearing in mind the degree of
risk involved due to the slippery floor.
Latimer v. A.E.C. Ltd.[1952] Reasoning It is always necessary to
consider what measures the defendant ought to have taken, and to
say whether they could reasonably be expected of him. Here the
employers knew that the floor was slippery and that there was some
risk in letting the men work on it; but, still, they could not
reasonably be expected to shut down the whole works and send all
the men home. In every case of foreseeable risk, it is a matter of
balancing the risk against the measures necessary to eliminate it.
In this case, in the circumstances of this torrential flood, it is
quite clear the defendants did everything they could reasonably be
expected to do. It would be quite unreasonable to expect them to
send all the men home.
IntelligenceIn determining whether the defendant in his actions
came up to the standard of a reasonable man, the court will measure
those actions against the conduct expected of a person of normal
intelligence, and the defendant will not be excused for having
acted to the best of his own judgment, if his best is below that to
be expected of a man of ordinary intelligence. It is no defence
that the particular defendant had unusually slow or a
lower-than-average intelligence quotient.
Knowledge2.
A man is expected to have that degree of common sense or
knowledge of everyday things which a normal adult would possess.
"Common knowledge" does not mean that it is universal any more than
"common sense", but all persons living under our system of law must
be taken to have acted in accordance with them. Where the defendant
holds a particular position, he will be expected to show the degree
of knowledge normally expected of a person in that position. With
regard to the facts and circumstances surrounding him, the
defendant is expected to observe what a reasonable man would
notice.
4.
6.
Knowledge
4. A reasonable occupier is expected to employ experts to check
those installations which he cannot, through his lack of technical
knowledge, check himself.
Haseldine v. Daw & Son Ltd [1941] The access to upper floor
flats in a block which was let out in a number of tenancies was by
a hydraulic lift. The landlord made a contract with a firm of
engineers to adjust, clean and lubricate the machinery of the lift
once every month, to repack the glands when needed, and to report
to him if any repairs to the lift were necessary. The lift was
thirty-five years old and to the landlord's knowledge had never
been overhauled. The engineers told the landlord that the rams of
the lift were badly worn and scored and ought to be replaced by new
rams, but they did not consider, and, therefore, did not tell the
owner, that the lift was dangerous to use. An employee of the
engineers repacked one of the glands and he negligently failed to
replace it properly, causing the gland to fracture when the lift
was worked. Next day the plaintiff, who wished to visit one of the
tenants of the flats on business used the lift to reach the
tenant's flat, when, owing to the fracture of the gland, the lift
fell to the bottom of the well and the plaintiff was injured.
KnowledgeHaseldine v. Daw & Son Ltd [1941] Held The only
obligation on the landlord was to take care that the lift was
reasonably safe, and that he had fulfilled that obligation by
employing a competent firm of engineers to make periodical
inspections of the lift, to adjust it and to report on it, and
that, therefore, the landlord was not liable.
Knowledge5. Where the defendant has actual knowledge of
particular circumstances, the standard of care may be increased.
ref. Paris v Stepney Borough Council [1951] 6. A higher standard of
care will be owed towards young children, elderly persons and
pregnant women because of their susceptibility to injury.
KnowledgeGlasgow Corporation v. Taylor [1922] The father of a
boy, aged seven, who died from eating the berries of a poisonous
shrub growing in some public gardens in Glasgow, sued the
Corporation as the proprietors and custodians of the gardens for
damages for the death of his son. The plaintiff claimed that on a
piece of fenced ground in the gardens the defenders grew, among
other specimen plants, a shrub bearing poisonous berries which
presented a tempting appearance to children and this enclosed piece
of ground was open to the public, access being by a gate which
could be easily opened by young children, and was in a part of the
gardens much frequented by children.
KnowledgeGlasgow Corporation v. Taylor [1922] The plaintiff's
son, with some other children, entered the gardens and ate some of
the berries of this poisonous shrub and died; that the defenders
knew that these berries were a deadly poison, but took no
precautions to warn children of the danger of picking the berries
of this shrub or to prevent them from doing so; and that there was
no adequate notice in the gardens warning the public of the
dangerous character of the specimen shrubs growing therein Held A
measure of care appropriate to the inability or disability of those
who are immature or feeble in mind or body is due from others, who
know of or ought to anticipate the presence of such persons within
the scope and hazard of their own operations.
SkillA person who hold himself out as having a particular skill,
either in relation to the public generally or in relation to a
person for whom he is performing a service, will be expected to
show the average amount of competence normally possessed by persons
doing that kind of work, and he will be liable for negligence if he
falls short of that standard. Whiteford v Hunter [1950] The
plaintiff claimed damages resulting from an erroneous diagnosis of
the defendant that he had cancer of the bladder. The argument
mainly around whether the defendant should have used one or other
of two special cystoscopes, neither of which he had and both of
which at the time were difficult to obtain. Held In the
circumstances the defendant was not negligent. A defendant charged
with negligence can clear himself if he shows that he acted in
accordance with general and approved practice.
Proof of NegligenceRes Ipsa Loquitur The burden of proving
negligence always lies on the plaintiff. Where the cause of an
accident is unknown he may be assisted by the doctrine of res ipsa
loquitur (the facts speak for themselves). This principle is
clearly defined in the case of Scott v London and St. Katherine
Docks Co. Ltd. [1865] Where the thing is shown to be under the
management of the defendant or his servants, and the accident is
such as in the ordinary course of things does not happen if those
who have management use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant, that the
accident arose from want of care This shifts the duty to the
defendant to show either that the accident was due to a specific
cause which did not involve negligence on his part or that he used
reasonable care in the matter.
Res Ipsa LoquiturIn order to rely on this doctrine the plaintiff
must establish two things:3.
The thing causing the damage was under the management or control
of the defendant or his servants. The accident was of such a kind
as would not, in the ordinary course of things, have happened
without negligence on the defendants part. Negligence will be
presumed where the common experience of mankind shows that the type
of mishap which occurred would not normally have happened unless
the defendant had been careless.
5.
Barnett v Belize Brewing Co Ltd [1983] Facts The appellant,
Anthony Barnett, said that he purchased a bottle of Belikin stout
from Albert Marsden, the bartender, at a restaurant called Mars
Disco Den, at Belmopan. Belikin stout and beer are manufactured by
the respondent, Belize Brewing Co Ltd (the company) and sold in
brown crown-capped bottles which the appellant said you cannot see
through easily. The bartender, Mr. Marsden, opened the bottle and
handed it to the appellant. He took one sip, then another, and
tasted some slimy stuff in it of which he complained to the
bartender. They both went outside where the appellant poured out
the contents of the bottle and there fell out what he described as
a slimy thing about an inch and a quarter, shaped and coloured
blackish brown like a toad. Mr. Marsden (the bartender) described
it as something kind of greenish, a tadpole, fell out. The
appellant vomited and said he was still upset the next day. Based
on those brief facts the appellant sued the company for damages in
negligence.
Held The doctrine of res ipsa loquitur applied in the
circumstances of the present case. Res ipsa loquitur is a rule of
evidence affecting the onus of proof. A case of negligence had been
established against the company based on the presumption of
negligence raised by the facts of the appellants case. It was then
for the company to rebut the presumption by proving it was not
negligent. The question then arises whether or not the company has
rebutted the presumption of negligence. On the acceptable evidence
led by the company it appears that the presumption of negligence
has not been rebutted, in that the company has not shown that all
reasonable precautions had been taken in 197778 to avoid what
happened to the appellant.
Jamaica Omnibus Services Ltd v Hamilton [1970] Facts The
plaintiff, a child aged nine years, fell through an emergency door
of an omnibus belonging to the defendant company while the bus was
in motion, and was injured. He had joined the bus at Parade,
Kingston, and was seated immediately beside the emergency door in
the middle of the bus on the offside. The bus came to a fare stage
stop at Antrim Road and Oakdene Avenue, where it let off and took
on passengers. It then proceeded along Oakdene Avenue, and as it
took a deep curve to the left, the emergency door flew open and the
plaintiff fell through the open doorway. On a claim for damages for
negligence the plaintiff relied on the doctrine of res ipsa
loquitur.
Jamaica Omnibus Services Ltd v Hamilton [1970] Held The
plaintiff could rely on the assistance of the doctrine of res ipsa
loquitur and negligence might be found as a matter of inference
from the mere fact that the door flew open while the bus was in
motion. The defendant company had then to show either directly or
inferentially that the catches of the door had been released by
some unauthorized person in circumstances which excluded the want
of care in their driver or conductor, and this burden the defendant
company did not discharge.
ReasoningThe defendant must have known that the absence of
reasonable care in the maintenance of the lock-mechanism of the
emergency door so as to keep that mechanism free of defects which
may cause the door to fly open; or in securing the catches of the
door; or in guarding against the irresponsible action of meddlers,
including passengers could result in the release of the catches of
the door whilst the vehicle was in motion. With the consequence of
the door flying open and a passenger in the position of the
plaintiff being precipitated through the door and injured in the
way in which the plaintiff was in fact injured. The defendant
therefore owed a duty to the plaintiff to take that reasonable
care. The critical question arises whether that duty has been
breached. Was the defendant negligent? The plaintiff is in a
position to rely on the assistance of the doctrine res ipsa
loquitur. Negligence may be found as a matter of inference from the
mere fact that the door flew open whilst the vehicle was in motion.
In the result, it is clear that the onus upon the defendant has not
been discharged.
CausationHaving established that the defendant owed a duty of
care to him and the defendant was in breach of that duty, the
plaintiff must then prove that he has suffered damage for which the
defendant is liable in law. There are two aspects to this
requirement:iii.
Causation in fact; and Remoteness of damage in law.
v.
CausationCausation in Fact The first question to be answered is:
Did the defendants breach of duty in fact cause the damage? A
useful test which is often employed is the but-for test: that is to
say, if the damage would not have happened but for the defendants
negligent act, then that act will have caused the damage.
Barnett v. Chelsea & Kensington Hospital Management
Committee [1969] Facts At a hospital casualty department, provided
and run by the defendants, three fellow night-watchmen presented
themselves, complaining to a nurse on duty that they had been
vomiting for three hours after drinking tea. The nurse reported
their complaints by telephone to the duty medical casualty officer,
who instructed her to tell the men to go home to bed and call in
their own doctors. That she did. The men then left, and, about five
hours later, one of them died from poisoning by arsenic which had
been introduced into the tea; he might have died from the poisoning
even if he had been admitted to the hospital wards and treated with
all care five hours before his death. His widow claimed that the
death resulted from the defendants' negligence in not diagnosing or
treating his condition when he presented himself at the casualty
department.
Barnett v. Chelsea & Kensington Hospital Management
Committee [1969] Held Since the defendants provided and ran the
casualty department to which the deceased presented himself
complaining of illness or injury, such a close and direct
relationship existed between them and him that they owed him a duty
to exercise the skill and care to be expected of a nurse and
medical casualty officer acting reasonably. Hence, the medical
casualty officer was negligent in not seeing and not examining the
deceased, in not admitting him to the wards and in not treating him
or causing him to be treated. Nevertheless, in light of the fact
that he must have died of the poisoning even if he had been
admitted to the wards five hours before his death and treated with
all care, the plaintiff had failed to establish that the
defendants' negligence had caused the death; and the claim
failed.
Twins Pharmacy Ltd v Marshall [1979]Facts The plaintiff, then
seven years old, was injured while playing with a bicycle. On the
following day she complained of pain in the left thigh, whereupon
her mother purchased a bottle of Ioderm ointment from the
appellants drug store. Iodex was the ointment desired, but on being
told none was available, she accepted Ioderm as a substitute.
Following on one application of the ointment on the leg, the child
became sick with fever and had to be hospitalized and treated with
antibiotics by a doctor. The plaintiff afterwards developed
necrosis of the skin at the spot where the ointment had been rubbed
by her mother. Chemical analysis revealed that the appellants had
sold Ioderm compound with the label that was appropriate to Ioderm
plain, ie, the label was misleading in that the label for Ioderm
plain was put on a bottle containing Ioderm compound; although the
mother admitted she was not misled since she had not asked for any
one of the two varieties of Ioderm. The plaintiff claimed damages
for personal injuries, consequential loss and expenses caused by
the appellants alleged negligent manufacturing and bottling of a
preparation called Ioderm ointment.
Twins Pharmacy Ltd v Marshall [1979] Held The negligent act of
the defendants in putting the wrong label on the wrong bottle did
not matter in this case because, the childs skin being unbroken,
the ointment had been used in exactly the same circumstances as the
appropriate label would have directed. There was no evidence of
negligence or any negligent compounding of Ioderm compound which
caused the alleged necrosis. A case had not been made out that
Ioderm compound had caused the injury complained of.
Remoteness of DamageThe consequences of an act of carelessness
on the part of the defendant may be far reaching. The concept of
remoteness of damage is one way in which the law sets limits to the
extent of a persons liability for the consequences of his
negligence. The basic rule is that a defendant will be liable only
for those consequences of his negligent act which are not too
remote in law, even tough the act may be said, on an application of
the but-for test, to have caused the damages complained of.
The Wagon Mound [1961]
Facts The defendants chartered an oil-burning vessel, which was
taking in bunkering oil in Sydney Harbour and a large quantity of
the oil was, through the carelessness of their servants, allowed to
spill into the harbour.The escaped furnace oil was carried by wind
and tide beneath a wharf owned by the plaintiffs who were
shipbuilders and ship repairers. The plaintiffs were refitting a
ship, and were using electric and oxyacetylene welding equipment.
Some cotton waste or rag on a piece of debris floating on the oil
underneath the wharf was set on fire by molten metal falling from
the wharf, and the flames from the cotton waste or rag set the
floating oil afire and a conflagration developed which seriously
damaged the wharf and equipment on it. The plaintiffs fled an
action to recover compensation for the damage.
Held It does not seem consonant with current ideas of justice or
morality that for an act of negligence, however slight or venial,
which results in some trivial foreseeable damage the actor should
be liable for all consequences however unforeseeable and however
grave, so long as they can be said to be "direct. The appellants
could not reasonably be expected to have known that the oil would
catch fire, were not liable for the damage to the wharf. But they
were liable for the fouling of the slipways, since that was a
foreseeable consequence of the discharge of oil.