Miss Daborn was driving a left-hand drive Chevrolet ambulance through wartime Bath. The ambulance was completely enclosed at the back, so she could only see behind her in her left-hand windscreen mirror. If a vehicle was close to her, she could not see it at all. There was a large warning notice on the back of the ambulance saying “Caution – Left Hand Drive – No Signals”. Unaware that there was a bus close behind her trying to overtake, she gave a left-hand signal to turn right, turned right and crashed into the bus. She sued the owners of the bus, but it was contended that she was negligent in not taking proper care to ensure there was no vehicle behind her before turning.
HELD: The bus driver was negligent, but the ambulance driver was not. American ambulances were very common at the time and Miss Daborn had taken the correct course and given the correct hand signals for turning right.
“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 the importance of the end to be served by behaving in this way or that. As has often been pointed out, if all the trains in this country were restricted to a speed of 5 miles an hour, 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 relevance of this applied to the present case is this: during the war which was, at the material time, in progress, it was necessary for many highly important operations to be carried out by means of motor vehicles with left-hand drives, no others being available. So far as this was the case, it was impossible for the drivers of such cars to give the warning signals which could otherwise be properly demanded of them. Meanwhile, it was essential that the ambulance service should be maintained. It seems to me, in those circumstances, it would be demanding too high and an unreasonable standard of care from the drivers of such cars to say to them: “Either you must give signals which the structure of your vehicles renders impossible or you must not drive at all.””
per Asquith L.J. at p.336 38.10 Watt v. Hertfordshire County Council [1954] 1 WLR 835
The plaintiff was a fireman. He was called out with his colleagues to an accident where a woman lay trapped beneath an overturned vehicle. A heavy jack was needed to lift the vehicle, but the fire- brigade did not have a suitable vehicle to convey it. The jack was therefore carried in a lorry with the plaintiff and several of his colleagues holding it. The plaintiff was injured when the jack slipped. HELD: A claim in negligence failed. Although such action might normally have been negligent, the risk here was justified by the need to protect life and limb.
38.11 Marshall v. Osmond [1983] 1 QB 1034 (CA)
P.C. Maximilian Needham was driving an unmarked Mini in the early hours of the morning in Brockenhurst. He had been dispatched there because of a spate of car thefts in the area. At 1.10 a.m. he saw a Cortina full of youths go by, and he pursued it. The youths stopped the car on one of the open roads of the New Forest with the intention of escaping. P.C. Needham skidded to a stop and accidentally knocked over one of the youths.
HELD: Needham’s error of judgment in performing the manoeuvre did not amount to negligence. However, the court emphasised that “the duty owed by a police driver to the suspect is...the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in all the circumstances... Of course, one of the circumstances was that the plaintiff bore all the appearance of having been somebody engaged in a criminal activity for which there was a power of arrest.”
per Sir John Donaldson M.R. at p.1038
39
OTHER SITUATIONS OF SOCIAL VALUE
39.1 Other situations are judged as the merits of the case demand. 39.2 British School of Motoring Ltd. v. Simms [1971] 1 All ER 317
During the driving test from Hell, Margaret Simms drove over some give-way lines on Cleveland Road in Bournmouth when there was a car driven by Mr. Fisher coming along the main Windham Road. The examiner used the dual controls to execute an emergency stop, which left Simms’ car in the middle of the road, where Fisher crashed into it. The test car spun round and crashed into Mrs. Drew’s car, which was stopped at the opposite junction.
Mrs. Drew was also taking her test, and the car she was driving was owned by BSM. Inter alia, BSM sued Cyril Cooper (the driving examiner for Mrs. Simms) for failing to supervise or control Simms’ driving and for applying the brakes when it was unsafe to do so.
HELD: Cooper was not liable. It was his duty as an examiner not to interfere with the driving, so he could observe whether mistakes were being made, unless it was essential to avoid danger to the public. Furthermore, he was not liable for applying the brakes, albeit inappropriately, as this was a reasonable reaction in the circumstances.
“It is quite plain that when an examiner is faced with a position of emergency that arrives suddenly, he must take such steps as might appear reasonable to him in the sudden rising of the emergency. If the steps that he takes turn out to be the wrong ones, then the law does not demand that in those circumstances he should be held to be negligent. The expression so often used is ‘an act taken in the agony of the moment’. Where such an act is taken in the agony of the moment and it happens to be the wrong one, that does not mean that he becomes liable for his act. He would become liable if it was rash.” per Talbot J. at p. 320
39.3 Bogle v. McDonald’s Restaurants Ltd. [2002] EWHC 490
Sam Bogle, aged 15 months, was taken by his childminder to McDonald’s at Hinkley Town Centre. Sam went to drink a cup of coffee (!) that had been left on a table with its lid removed and spilled the contents onto himself, sustaining scalding injuries. He sued McDonald’s, inter alia, for serving coffee at a temperature high enough to cause such injuries. The court was not impressed by the claim. “The evidence is that tea or coffee served at a temperature of 65°C will cause a deep thickness burn if it is in contact with the skin for just two seconds. Thus, if McDonald’s were going to avoid the risk of injury by a deep thickness burn they would have had to have served tea and coffee at between 55°C and 60°C. But tea ought to be brewed with boiling water if it is to give its best flavour and coffee ought to be brewed at between 85°C and 95°C. Further, people generally like to allow a hot drink to cool to the temperature they prefer. Accordingly, I have no doubt that tea and coffee served at between 55°C and 60°C would not have been acceptable to McDonald’s customers. Indeed, on the evidence, I find that the public want to be able to buy tea and coffee served hot, that is to say at a temperature of at least 65°C, even though they know that there is a risk of a scalding injury if the drink is spilled.
“Is it right that the law of negligence and occupier’s liability should be responsible for denying to the public a facility they want notwithstanding the known risk? In my opinion, the answer is plainly no. Although McDonald’s owe a duty of care to those who visit their restaurants to guard against injury, that duty is not such that they should have refrained from serving hot drinks at all.”
per Field J.at paras 33 and 34 39.4 Compare this to the US case of Liebeck v. McDonald’s Restaurants in 1994. Stella Liebeck, a 79-
year-old woman, suffered third-degree burns in her pelvic region when she accidentally spilled hot coffee in her lap after purchasing it from a ‘drive-thru’ McDonald’s. Liebeck was hospitalized for eight days while she underwent skin drafting, followed by two years of medical treatment.
Liebeck's attorneys argued that, at 82–88°C, McDonald's coffee was defective, claiming it was too hot and more likely to cause serious injury than coffee served at any other establishment. McDonald’s offered her $800. A jury awarded her $2.86 million. She finally got $640,000.
39.5 Scout Association v. Barnes [2010] EWCA Civ 1476
Mark Barnes, aged 13, was a Boy Scout with the 237th Castle Bromwich Scout Group. He was injured whilst playing a game called "Objects in the Dark" at a scout meeting.
The game was organised by the scout leader. Blocks were placed in the centre of a room whilst players ran around. Half the main lights were turned off and, at any given moment, the remainder of the lights would be turned off and the players would rush to the middle of the room and grab a block: there were not enough blocks for every player. Rounds were played until one boy was left holding a block and declared the winner.
The game was similar to another game which was played with the lights on. In the course of playing the game, Barnes collided with a bench, injuring his head and left shoulder.
The Scout Association contended that there was great social value to the game, and that the risks associated with playing the game in the dark were no different to those that existed when playing with the lights on.
HELD: The Scout Association was liable. The risks associated with playing the same game in a lighted room were increased when the lights were switched off. Whilst everyone accepted that scouting activities were valuable to society and that they often, and properly, carried some elements of risk, that did not render every scouting activity, however risky, acceptable. In the instant case, the Court of Appeal (by a majority) held that the judge rightly concluded that playing in the dark significantly increased those risks and that the only justification was the additional excitement.
Darkness added no other social or educative value. Whether the social benefit of an activity was such that the degree of risk it entailed was acceptable was a question of fact, degree and judgment which had to be decided on an individual basis.
39.6 Humphrey v. Aegis Defence Services Ltd. [2017] 1 WLR 2937 (CA)
Dwayne Humphrey, a former marine, worked for the respondents providing close protection security services in Iraq during post-war reconstruction. Each security escort team consisted of three contractors, most of whom were former servicemen, and one Iraqi interpreter. The work was dangerous due to the risk of armed attacks by insurgents, and teams were expected to maintain a good level of fitness so that they could withdraw under fire in emergency situations. The interpreters had lower fitness levels than the contractors.
The teams were required to undertake simulation exercises to test their fitness. The exercise involved wearing full kit, making simulated contact with an enemy force and withdrawing under fire in pairs while carrying a loaded stretcher. During one such exercise, the interpreter dropped his handle of the stretcher through fatigue, causing injury to Humphrey’s shoulder. He sued his employers for their negligence in exposing him to the danger of being dropped by someone not fully fit to carry a stretcher in these circumstances.
The defendants tested the interpreters' fitness during induction training to ensure that it reached a minimum level. They also encouraged them, by regular tests, to maintain or improve their fitness, and had dismissed some whose fitness had not improved. However, the simulation exercise was itself designed to test physical fitness and it was implicit that some might not pass it.
The judge had found that there was a foreseeable modest risk of harm resulting from the dropping of the stretcher, leading to minor soft tissue injury. However, in those circumstances, given the scarcity of Iraqis willing to act as interpreters, the importance of their role, and of their integration into the contractors' teams, and the modest degree of risk involved, it was impossible to say that the defendants were at fault in failing to take further steps to ensure that the interpreters were fit enough to undertake the simulation exercise
Dismissing the appeal, the Court of Appeal agreed that there had been no breach of duty. It was held that although social utility cannot be a complete answer to a claim in negligence, the importance of the activity in question, the measures required to avoid the risk of harm, and the nature of the foreseeable harm were factors which had to be taken into account when deciding whether a defendant was in breach of a duty of care.
“I am not persuaded that the judge treated social utility as a complete answer to what he would otherwise have accepted as a well-founded claim. Although he referred to the passages in Lord Hoffmann's speech in Tomlinson v. Congleton and Asquith L.J.'s judgment in Daborn v. Bath Tramways , to which I have referred, he appears to have been treating them as no more than authority for the proposition that the importance of the activity in question and the measures required to avoid the risk of harm, as well as the nature of the foreseeable harm, are factors which must be taken into account when deciding whether the defendant is in breach of a duty of care. In my view he was right to do so.” per Moore-Bick, L.J. at para 14
40
GENERAL KNOWLEDGE AT THE TIME OF THE INCIDENT:
The State of the Art Defence
40.1 A defendant is not expected to have known of the potential adverse effects of his or her actions if these were unknown to humankind at the time of the incident.
40.2 Roe v. Minister of Health [1954] 2 QB 66 (CA)
Two patients who had operations on the same day were given nupercaine as a spinal anaesthetic. The nupercaine had been contained in sealed glass ampoules, which had been stored in a solution of phenol. The phenol had contaminated the nupercaine by penetrating invisible cracks in the glass. As a result of being injected with the phenol, the patients became paralysed from the waist down. At the time of the incidents (1947) the possibility of such ‘invisible cracks’ or molecular flaws in the glass was not generally known. It only became common knowledge following a report published in 1951. HELD: There was no negligence on the facts as known at the time.
“He did not know that there could be undetectable cracks, but it was not negligent for him not to know it at that time. We must not look at the 1947 accident with 1954 spectacles... If the hospitals were to continue the practice after this warning, they could not complain if they were found guilty of negligence... Nowadays it would be negligence not to realize the danger, but it was not then.” per Denning L.J. at p.84/86
40.3 Thompson v. Smiths Shiprepairers (North Shields) Ltd. [1984] QB 405
The plaintiffs were labourers in ship-repair yards. They claimed damages against their employers for loss of hearing caused by exposure to excessive noise in the course of their work at the defendants’ yards where the plaintiffs had worked since 1944 or earlier. The defendants knew that the levels of noise could cause hearing loss, but at the time they started work there was a general apathy and a lack of any authoritative official guidance. Efficacious methods of ear protection were not available until the late 1950’s.
In 1963 the Ministry of Labour published ‘Noise and the Worker’ which explained the need for ear- muffs, but these were not provided until 1973. Most of the damage to the plaintiffs’ hearing happened before 1963, but it was accelerated and worsened by the continued exposure thereafter. HELD: The defendants were liable for the injuries caused after 1963 but not those that occurred before, since 1963 marked the dividing line between a reasonable policy of following the general practice in the industry and a failure to take reasonable precautions against the risk of deafness. Mustill J. adopted the principles laid down by Stanwick J. in Stokes v. Guest [1968] 1 WLR 1776 at 1783: “Where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common-sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions.” per Mustill J. at p.415
On April 10th 2000, a spokesman from the GCHQ spy centre confirmed that the members of staff whose hearing was damaged because of inadequate headphones were receiving compensation packages of up to £20,000 each. £500,000 had already been paid to workers at the surveillance site in Cheltenham, who were left with tinnitus and other ear problems.
40.4 Walker v. Wabco Automotive UK Ltd. (1999) (unreported) (CA)
The claimant had a job assembling compressors by means of hand held power tools. In 1990 the Health and Safety Executive issued a pamphlet entitled “Work Related Upper Limb Disorders – A Guide To Prevention” which suggested tentatively that exposure to vibration might cause Carpal Tunnel Syndrome. In 1993 the claimant developed CTS and sued her employers on the basis that, given the publication of the HSE pamphlet, they should have foreseen the risk of such injury. HELD: Her claim failed. The tentative suggestion by the HSE that vibrations might be a factor in CTS, in the absence of any other evidence, did not place a duty on the employers to take preventative measures. On the facts, no other employee had ever suffered CTS in the twenty years of the assembly process operation.
41
THE UNSKILLED DEFENDANT
41.1. Where the defendant holds himself out as having only a limited skill in an area, he must take reasonable care to avoid causing injury, but is not expected to reach the standard of a top professional. On the other hand, if it is a job that cannot safely be done without professional expertise, it might prima facie be negligent for the amateur even to attempt it.
41.2 Thus, where one attempts a job as an amateur, which might otherwise be done by a professional, there appear to be two issues:
i) Is it a job that it is appropriate for an amateur to attempt to do at all? If not, it might be a breach of duty even to attempt it.
iii) If it is a job that an amateur might reasonably attempt, how well must it be done? The