A Tort Question regarding Occupiers Act

GavinH

Hi all,

Just a quick question for the folks that know.


Is there a duty of care owed to a passerby? If they get hit by a sign which was placed in an owners garden and got blown off due to high winds? Is the owner free of liability because it was an act of god or because they could not have foreseen the event.

Reference

The Wagonmound (No.1) (1961)

The defendants negligently allowed fuel oil to escape from their ship. It spread a thin film across the waters of the harbour in which the ship was moored. The oil needed to be raised to a very high temperature before it could be ignited. The oil caught fire, probably as a result of sparks from welding igniting waste materials floating on the water, and the Plaintiffs wharf was damaged by the fire.
Held the defendant was not liable for the damage caused by fire, as it was not reasonably foreseeable that a fire would start in such circumstances.

According to the “Egg-shell skull” rule, if the defendant could foresee a particular type of physical injury to the plaintiff, then he or she will be liable for all the injury, even if it turns out that the injuries to the plaintiff were far more than might reasonably be expected in normal circumstances.


Thanks

Gavin

NUTLEY BOY

I would not get tied down to an Occupiers' Liability Act type analysis here nor worry too much about Wagon Mound No. 1 or even Smith -v- Leech Brain [eggshell skull]. The eggshell skull issue is not really relevant to the basic duty of care issue that your hypothetical case poses.

The ordinary rules of negligence would apply.

1. Is there a duty of care owed to the passing public in relation to the sign ? On the "neighbour" principle [DONOGHUE -v- STEVENSON] alone I would answer that in the affirmative and say that a duty of care is owed.

I base this on the conceptual notion that passers by are people who ought reasonably to be in contemplation as being affected by the acts or omissions that are being called in to question in relation to the sign.

2. Has there been breach of that duty of care ? If yes, liability should attach.

Ultimately, this is a judgment that must be made on the peculiar facts of an individual case.

Act of God was sometimes pleaded as a defence in negligence actions. I think a better of view of Act of God is that it is not pleaded now but that liability is simply denied on the basis that there has been no breach of duty on the facts.

FYI here is a link to Donoghue -v- Stevenson. Note the neighbour principle. http://www.bailii.org/uk/cases/UKHL/1932/100.html

GavinH

Thank you. It didn;t seem right to write this off as not being forseeable, So in other words duty of care is owed, but defendant may not be liable if it can't be proved that the duty was breached. i.e. Sign was fastly secured, and came loose by a freak of nature ?

Jarndyce

GavinH wrote: »

Thank you. It didn;t seem right to write this off as not being forseeable, So in other words duty of care is owed, but defendant may not be liable if it can't be proved that the duty was breached. i.e. Sign was fastly secured, and came loose by a freak of nature ?

Note that it may be for the defendant to prove that the duty was not breached i.e. the doctrine of res ipsa loquitur may apply. See Byrne v Boadle (1863).

WildOscar

GavinH wrote: »

According to the “Egg-shell skull” rule, if the defendant could foresee a particular type of physical injury to the plaintiff, then he or she will be liable for all the injury, even if it turns out that the injuries to the plaintiff were far more than might reasonably be expected in normal circumstances.

Does the defendent have to be able to forsee for the "egg shell skull" to apply? For example in the case of a road accident will not the defendent be liable for more if the injured had "egg shell skull" even if the defendent did not forsee this?

Jarndyce

WildOscar wrote: »

Does the defendent have to be able to forsee for the "egg shell skull" to apply? For example in the case of a road accident will not the defendent be liable for more if the injured had "egg shell skull" even if the defendent did not forsee this?

No. An objective test would generally be applied to such a case. In other words, would the average person have been able to foresee damage resulting from a presumably negligent car accident? If the answer is yes, the defendant would quite likely be liable for all the damage that results from his negligent act, a la "egg shell skull" rule.

WildOscar

Jarndyce wrote: »

No. An objective test would generally be applied to such a case. In other words, would the average person have been able to foresee damage resulting from a presumably negligent car accident? If the answer is yes, the defendant would quite likely be liable for all the damage that results from his negligent act, a la "egg shell skull" rule.

i have a book re road accidents and it says you have to take your victim as you find him in relation to "egg shell skull" rule. In an accident how would one know the person they hit had some medical issue that made the impact worse for them

Jarndyce

WildOscar wrote: »

i have a book re road accidents and it says you have to take your victim as you find him in relation to "egg shell skull" rule. In an accident how would one know the person they hit had some medical issue that made the impact worse for them

Well, the injured party would of course have to adduce medical evidence of a pre-existing condition. Such evidence would also need to prove, on the balance of probabilities, that the accident actually caused the exacerbation of that pre-existing condition.

NUTLEY BOY

Foreseability has two characters in negligence and this distinction can confuse.

There is reasonable foreseability in relation to the happening of an event.

For example, it is reasonably forseeable that you will hit a pedestrian if you drive through a pedestrian crossing against a red light and the car on the inside lane has stopped for pedestrians.

The tort of negligence requires you to have regard for reasonable probabilities as distinct from fantastic possibilities.

There is reasonable forseeability in relation to the degree of the defendant's liability.

A defendant is generally liable only for those losses that are reasonably forseeable. A defendant cannot be liable to an infinite variety of people for ever to an unlimited degree. The latter is a very rough paraphrase of Cardozo CJ in Ultrmares -v- Touche - an American case.

There are exceptions to the reasonable forseeability rule in relation to the extent of a defendant's liability. Examples might include ;

1. The eggshell skull case aka taking your victim as you find him.

2. The degree or extent of dependancy in a fatal case.

3. Where the injury caused was not of a type that was forseeable but which is virtually identical to what was forseeable. See Hughes -v- Lord Advocate 1963. A fire was forseeable but not an explosion. The defendants were liable for the consequences of the explosion as it was virtually identical, on the facts, to what was forseeable (fire).

NUTLEY BOY

WildOscar wrote: »

i have a book re road accidents and it says you have to take your victim as you find him in relation to "egg shell skull" rule. In an accident how would one know the person they hit had some medical issue that made the impact worse for them

These victims fall in to two groups.

If you have an existing condition that is quiescent and the accident lights that up the defendant gets hit for the full liability.

If you have an existing and active condition the defendant should only be liable for the additional or supervening injury inflicted.