McDermid v Nash Dredging and Reclamation Company Ltd [1987]

Case name & citation: McDermid v Nash Dredging and Reclamation Company Ltd [1987] AC 906

Court and jurisdiction: House of Lords, England & Wales

Year of the case: 1987

The learned judge: Lord Brandon

Area of law: Employer’s liability

What is the case about?

This is a UK tort law case where it was decided that an employer was not permitted to delegate its duty to take reasonable care to devise a safe system of work and to see that it was operated. The Court emphasized the duty that an employer has towards his workers in terms of ensuring their safety.

Facts of the case (McDermid v Nash Dredging and Reclamation Co Ltd)

The plaintiff was employed as a deckhand by the defendants. He was assigned to work on a rig that was owned by a Dutch company and under the direction of a Dutch Captain who was employed by that Dutch company. Obviously, the plaintiff was not aware that he was no longer working on one of his employer’s boats with one of “their” captains. The plaintiff sustained severe injuries when, due to the Dutch captain’s carelessness, a rope that the plaintiff was untying as the rig moved off wrapped itself around his legs.

The plaintiff, thus, brought an action for damages for personal injuries against the employer.

Issue

Were the defendant employers liable for the plaintiff’s injury?

Contentions of the defendants

The employers denied responsibility on the grounds that they were not vicariously liable for the conduct & negligence of someone else’s employee. The captain was employed by the Dutch company. From the facts of the case, it may be noted that the defendant employers were a subsidiary of the Dutch company (which was believed to be the third-party tugboat owner).

Judgment of the Court in McDermid v Nash Dredging and Reclamation Co Ltd

The House of Lords determined that the defendant employers were responsible for the plaintiff’s injuries on the basis that the evidence demonstrated that the plaintiff was injured as a result of there being no safe system of work in operation. His employers did not fulfill their duty to devise and operate such a system, which was incumbent upon them.

The court summed up the essential characteristics of the employer’s non-delegable duty in the following way:

“… if it is not performed, it is no defense for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation, the employer is liable for the non-performance of the duty.”

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Hickman v Kent or Romney Marsh Sheep-Breeders’ Association [1915]

Case name & citation: Hickman v Kent or Romney Marsh Sheep-Breeders’ Association [1915] 1 Ch 881

Court and jurisdiction: High Court, England and Wales

The learned judge: Astbury J

Area of law: Constitution of a company; Articles of Association

What is the case about?

Hickman v Kent or Romney Marsh Sheep-Breeders’ Association [1915] is a UK company law case that concerns whether a company’s articles bind a member by its terms.

Facts of the case (Hickman v Kent)

Mr. Hickman was a member of the Romney Marsh Sheep-Breeders’ Association.

A provision was contained in the articles of the company stating that any disagreements between the company and its members were to be initially submitted to arbitration.

Mr. Hickman brought a complaint over the refusal to register his sheep in the published flock book, and as a result, he faced the risk of being expelled. He initiated proceedings in the High Court, and the association sought an injunction.

Issue

The issue was whether Mr. Hickman was prevented by the articles to commence court proceedings. Was his action valid or not?

Judgment of the Court in Hickman v Kent

It was decided that the action violated the obligation imposed on the claimant by the company’s articles, which required him to submit his grievance to arbitration before taking it to Court.

As a member, he was bound to comply with the company’s policy regarding the arbitration of disputes and could not resort to Court.

Enforceability of rights

Articles of association are a company’s bye-laws or rules and regulations that govern the management of the company’s internal affairs and the way the company conducts its business. They are also known as charter documents.

The articles of association usually form a statutory contract binding on the company and its members and enforceable by both. Each member is obligated to follow the rules outlined in the Articles. He is obligated to abide by everything that is contained in the Articles of the company.

Astbury J stated as follows:

“Firstly, that no articles can constitute a contract between the company and a third person; secondly, that no right merely purporting to be given by an article to a person, whether a member or not, in a capacity other than that of a member, as for instance, a solicitor, promoter, director, can be enforced against the company; and, thirdly, that articles regulating the rights and obligations of the members generally as such do create rights and obligations between them and the company respectively.”

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Eley v Positive Government Security Life Assurance Co Ltd (1876)

Eley v Positive Government Security Life Assurance Co Ltd (1876) is a UK company law case that dealt with the point that a company, by its articles, is not bound to outsiders.

Case name:	Eley v Positive Government Security Life Assurance Co Ltd
Case citation:	(1876) 1 Ex D 88
Court:	Court of Appeal
Jurisdiction:	England and Wales
Date/year:	1876
The bench of judges:	Lord Cairns LC, Lord Coleridge CJ and Mellish LJ
Area of law:	Constitution of a company; Articles of Association

Facts of the case (Eley v Positive Government Security Life Assurance)

In the given case, there was a provision in the company’s Articles of Association that stated Eley would serve as the company’s solicitor for life and could not be removed from office for any reason other than misconduct. Eley served as the solicitor of the company and also became a member of it over the course of the period. However, his employment with the company was terminated. Following this, he sued the company for damages, claiming that it had violated the terms of the contract.

Issue

Could Eley succeed in his claim? Did he have a contractual right to act as the company’s solicitor?

Judgment of the Court in Eley v Positive Government Security Life Assurance Co Ltd

The Court held that the Articles cannot serve as the basis for a contract between the company and an outsider. Only a member can enforce rights under the Articles.

In this case, it is important to keep in mind that Eley was attempting to exercise his right as an employee of the company, not as a member. He was suing the company in his capacity as a solicitor. A person can be both a member of the company and a creditor or employee of the company at the same time.

When the company was first formed, he did not purchase any shares in it. After that, however, he had taken shares and become a member of the company; but this fact was not brought up in the judgments of the Court of Appeal.

Therefore, apart from what was stipulated in the Articles, there was no independent contract between the company and Eley. Consequently, his lawsuit was dismissed.

The reasoning behind the decision

Because the Articles of Association do not constitute a contract between the company and the outsiders, the outsiders cannot sue the company. An outsider is not permitted to use the articles as legal grounds to sue the company for violating a right that is conferred upon him by the articles. Even if the proposed business makes reference to a third party in the Articles of Association, the company is in no way obligated to comply with the terms of that reference.

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Causer v Browne [1952]: A Quick Summary

Case name & citation: Causer v Browne [1952] VLR 1

Decided on: 12 October 1951

The learned judge: Herring C.J.

Area of law: Exclusion of liability and its notice

What is the case about?

Causer v Browne [1952] is an Australian case concerning the effectiveness of an exclusion clause.

According to it, even if a statement excluding liability is placed on the back (or front) of a ticket that is given to a person at the time of hiring an item, a court may find that a reasonable person would expect the ticket to be merely a voucher providing evidence of payment rather than a contractual document.

Facts of the case (Causer v Browne)

In order to have her dress dry-cleaned, the plaintiff’s husband (Causer) left it with the defendant (Browne). The dress was stained by the defendant, who later attempted to absolve themselves of responsibility by relying on an exclusion clause that was printed on a docket and given to the plaintiff’s husband at the time of receipt. It said that there would be no responsibility of the dry cleaner for any loss or damage to the garment.

Issues that arose

Was the defendant liable for breach of contract and negligence?

Could the liability be avoided on grounds of the exclusion clause contained in the docket?

Judgment of the Court in Causer v Browne

The Court decided that the exclusion clause was not valid because a reasonable person would have thought that the docket was an aid to identify the dress for collection rather than a contractual document. And also, the fact that the docket contained any such exclusion terms was not brought to the attention of the customer.

Hence, the defendant (dry cleaner) was liable.

Relevance of the exclusion clause and its notice

The non-benefiting party must have been made aware of the existence of the exclusion clause in order for it to be considered a part of the contract. To put it another way, it is the duty of the party that will benefit from the clause to demonstrate that the other party was aware of both its existence and its terms.

Moreover, having an exclusion clause written into a document like a ticket, receipt, or notice, etc. may pose a number of issues. Would it be reasonable for a person to assume that the non-contractual document included such an exclusion of liability, or that it would even form part of a contract at all?

In the given case of Causer v Browne, the exclusion clause in the docket did not constitute a term of the contract.

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Sydney City Council v West (1965): A Summary

Case name & citation: Sydney City Council v West (1965) 114 CLR 481

The concerned Court: High Court of Australia

Decided on: 16 December 1965

Area of law: Exclusion of liability; four corners rule

What is the case about?

Sydney City Council v West (1965) is an Australian contract law case on the issue of exclusion clauses.

Facts of the case

West takes his car to the parking lot of the Sydney City Council and parks it there. He was issued a ticket that instructed him to present this ticket in order to regain possession of the vehicle. In addition, an exclusion clause on the ticket protected the parking lot from liability for any loss, regardless of how the loss/damage/injury may occur or be caused. West returned to pick up his car, but it had been stolen; a thief had broken into the car and driven it down to the checkout area. The operator had let the thief go on his being claiming that he had lost the parking ticket. Thus, the plaintiff brought an action against the Sydney City Council to claim damages. But the Council denied liability on the grounds of the exclusion clause on the ticket.

Issue

Could the liability of the Council be excluded in these circumstances?

Judgment of the Court in Sydney City Council v West

The Court held that the exclusion clause could not be applied in this case and the Council could not rely on it when the plaintiff’s car was stolen from the car park.

It was held that a clause that excludes liability can only do so if the act from which it is seeking to exclude liability falls within the parameters of the contract.

The clause gave protection (for acts of negligence) only in the performance of the contract: it could not have been intended to protect the Council from “negligence on the part of the Council’s servants in doing something which it is neither authorized nor permitted to do by the terms of the contract”.

The release of the vehicle was not merely negligent; it was also a delivery outside the terms of the contract. The act of the attendant at the exit area to allow the thief to take the car without checking was not something that was authorized. And enforcing the exclusion clause might seem to have produced injustice.

Therefore, as a result of the fact that the circumstances fell outside of the scope of what the clause was supposed to cover, it was determined that the clause did not apply.

The main principle from the case of Sydney City Council v West

Four corners rule

The act for which you are attempting to exclude your liability must be authorized or contemplated by the contract within the four corners of the contract in order for you to be able to do so.

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Joel v Morison (1834): A Case Summary

Case name & citation: Joel v Morison (1834) 6 C & P 501; [1834] EWHC KB J39; (1834) 172 ER 1338

Court and jurisdiction: High Court, England and Wales

Decided on: 03 July 1834

Area of law: Vicarious liability; negligence of a servant while on duty

What does the case deal with?

Joel v Morison (1834) is one of the earliest tort law cases on vicarious liability. It established very early on that a servant who goes on a “frolic of their own” is not acting in the course of their employment and therefore cannot hold the master liable for any torts that they commit.

Facts of the case (Joel v Morison)

The plaintiff was walking on foot across a certain public and common highway at the time of the incident. The defendant was in possession of a cart and horse, which were being driven along the said highway by a servant of his, who had the charge of their care, management and direction. The servant was driving the cart in a careless, improper, and negligent manner when he struck the plaintiff whilst he was taking a diversion from the task that his master had sent him for. The plaintiff was thrown to the ground, and the bone in one of his legs was fractured. And as a result, he became ill, was unable to conduct business, and was needed to incur a great deal of medical expense, as well as a further great deal of expense in retaining and employing individuals to supervise and manage his business for six calendar months.

As a consequence, the plaintiff filed a claim for compensation against the defendant.

Issue raised

Is it possible for a master to be held liable for damages caused by the negligent driving of a servant?

Judgment of the Court in Joel v Morison

The Court decided that the master was liable for the negligence of his servant. The servant decided to take a detour, while still being on his master’s business.

Parke B stated as follows:

“The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.”

Another case

The Courts have taken a differing view in certain cases. For instance, the case of Storey v Ashton (1869) LR 4 QB 476 in which the court determined that the deviation constituted an entirely new and independent journey, is a good example.

Here, a driver who delivered goods as instructed, but instead of returning directly to his employer’s premises, drove in a different direction to visit the home of a colleague’s relative on personal business, was deemed to be acting outside the scope of his employment for the purposes of an action brought against his employer by a pedestrian injured during the course of that diversion. The employer was not held responsible for the negligence of his employee.

As a result, it may be seen from the cases that have been decided that the degree of diversion to be permitted by the courts cannot be determined with absolute certainty. There is no hard and fast rule. Instead, the outcome in a given case will largely depend on the specific facts of that case and the judge’s perception of what justice requires.

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A Case Summary of Condon v Basi [1985]

Case name & citation: Condon v Basi [1985] 1 W.L.R. 866; [1985] EWCA Civ 12

Court and jurisdiction: Court of Appeal, England and Wales

Decided on: 30 April 1985

The bench of judges: Sir John Donaldson M.R., Stephen Brown L.J., Glidewell J.

Area of law: Duty of care; negligence

What is the case about?

Condon v Basi [1985] is a tort law case that concerns the standard of care to be exercised by sports persons. It says that those participating in competitive sports owed a duty of care to their fellow competitors, not to cause injury or harm to them.

Facts of the case (Condon v Basi)

In this case, the plaintiff sustained a broken leg when the defendant tackled him during a football match in an English local league.

The defendant made a slide tackle on the plaintiff well into the second half of the game, which is when the plaintiff suffered his injury. The slide started about 3.5 metres away from the plaintiff, it was “late” (the plaintiff had already kicked the ball away), and it was made with the boot studs showing; the defendant’s foot was about a quarter of a metre above the ground when it happened.

According to the referee, the tackle was both “reckless and dangerous” and constituted “serious foul play.” He removed the defendant from the field of play, which was the harshest punishment that could have been given while the game was in progress.

The plaintiff filed a lawsuit accusing the defendant of negligence, claiming damages, and he was successful at the trial. The appeal that the defendant filed with the Court of Appeal was turned down.

Issue

The standard of care that is expected of a football player was the issue that the court needed to determine. And whether the defendant was liable for damages.

Judgment of the Court in Condon v Basi

The trial judge ruled that the defendant owed the plaintiff a duty of care and that the defendant’s behaviour amounted to “serious and dangerous foul play which showed a reckless disregard of the plaintiff’s safety and which fell far below the standards which might reasonably be expected in anyone pursuing the game.” As a result of this ruling, the trial judge allowed the plaintiff’s claim.

At the Court of Appeal, Sir John Donaldson M.R. (with whom Stephen Brown L.J. and Glidewell J. agreed) found that the conclusions reached by the trial judge were accurate and that, as a matter of law, it could not be said that the defendant was not negligent.

Thus, the defendant was held liable.

The Court of Appeal held that the duty was to exercise such a level of care that was commensurate with the gravity of the circumstances, taking into account all of the relevant factors. The Court made the observation that the standard of care is objective, but dependent upon the circumstances; as a result, there will be a higher degree of care expected of a player participating in a first division football match than there will be for a player participating in a local league match.

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Woodroffe-Hedley v Cuthbertson (1997): Case Summary

Woodroffe-Hedley v Cuthbertson (1997) QBD Unreported, 20 June 1997

Woodroffe-Hedley v Cuthbertson (1997) is a tort law case that involved a tragic mountaineering accident. It concerns the issue of duty of care and negligence.

Facts of the case (Woodroffe-Hedley v Cuthbertson)

The plaintiff (Hedley) hired the defendant, a qualified and professional mountain guide, to accompany him on a climb in the French Alps. During their time together, the two were involved in an accident that led to this lawsuit.

The guide (Cuthbertson) used only one ice screw to secure the plaintiff to the North Face of the Tour Ronde, despite the fact that it was “universal practice” to use two ice screws unless there was an overriding reason to do otherwise. Cuthbertson was in the lead and he did this to save time as he was concerned about the sun’s effect on the snow.

Unfortunately, a large sheet of ice broke away from the mountain, the single screw belay loosened and an accident occurred whereby Hedley fell off and died. The victim’s six-year-old son brought a negligence case against the defendant.

Issue

Was the victim’s mountain guide guilty of negligence?

Judgment of the Court in Woodroffe-Hedley v Cuthbertson

Because the defendant was unable to provide a reasonable explanation for why he used only one screw, he was found to be liable for the death of the plaintiff, who had fallen off the North Face after the one screw he was using became loose. The Court held that the defendant was negligent on his part and fell below the standard of care that ought to have been owed to the victim.

The victim’s son was awarded £150,000 in damages.

The reasoning behind the decision

People who organize sports activities and take responsibility for the participants are expected to exercise care when providing them with guidance and instruction. In these kinds of situations, the standard of care provided is very similar to what is expected of people who work in professional settings.

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A Case Summary of Wells v Cooper [1958]

Case name & citation: Wells v Cooper [1958] 2 All ER 527; [1958] 2 QB 265

Court and jurisdiction: Court of Appeal, England and Wales

Decided on: 05 May 1958

The bench of judges: Lord Justice Jenkins, Lord Justice Parker and Lord Justice Pearce

Area of law: Duty of care; negligence

What is the case about?

Wells v Cooper [1958] is a UK tort law case concerning the standard of care. It dealt with the issue of determining whether an amateur carpenter was liable for negligence.

Facts of the case (Wells v Cooper)

Albert Wells, a fishmonger, was delivering some fish to a house in Guestling near Hastings when one of his customers invited him in for tea. The home was called “Hazelgarth,” and it was located in Guestling. He pulled the back door shut behind him as he left. As the door was stiff and the day was windy, he had to exert considerable force to open it. The handle broke off, causing him to fall four feet off an unrailed platform and sustain injuries.

Fred Cooper, the owner of the house and an amateur carpenter with some experience, was the one who fitted the handle. Cooper believed the handle to be secure because he had installed it himself five months earlier and it had not shown any signs of becoming loose.

Issue that arose

Was Cooper liable for negligence?

Judgment of the Court in Wells v Cooper

The Court decided that Cooper was not negligent because he had acted with the skill of a reasonably competent carpenter, despite the fact that he had used three-quarter inch screws when a professional carpenter would have used one-inch screws.

Having undertaken the task, he was needed to exercise reasonable care (rather than merely doing his best), but he was not required to show the same level of workmanship as a contracted professional would show.

The reasoning behind the decision

It is not appropriate to expect ordinary people who lack specialized skills to adhere to the same degree of care as skilled individuals.

As far as the current case is concerned, the action for negligence failed because in carrying out the work, the defendant exhibited the same level of skill as a reasonably competent carpenter. He was not to be judged by the standard of care expected of a professional carpenter.

Quotes from the case

“Accordingly, we think the Defendant did nothing unreasonable in undertaking the work himself. But it behoved him, if he was to discharge his duty of care to persons such as the Plaintiff, to do the work with reasonable care and skill, and we think the degree of care and skill required of him must be measured not by reference to the degree of competence in such matters which he personally happened to possess, but by reference to the degree of care and skill which a reasonably competent carpenter might be expected to apply to the work in question. Otherwise, the extent of the protection that an invitee could claim in relation to work done by the inviter himself would vary according to the capacity of the inviter, who could free himself from liability merely by showing that he had done the best of which he was capable, however good, bad or indifferent that best might be.”

“Accordingly, we think the standard of care and skill to be demanded of the Defendant in order to discharge his duty of care to the Plaintiff in the fixing of the new handle in the present case must be the degree of care and skill to be expected of a reasonably competent carpenter doing the work in question. This does not mean that the degree of care and skill required is to be measured by reference to the contractual obligations as to the quality of his work assumed by a professional carpenter working for reward, which would in our view set the standard too high. The question is simply what steps would a reasonably competent carpenter wishing to fix a handle such as this securely to a door such as this have taken with a view to achieving that object.”

(Lord Justice Jenkins)

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Topp v London Country Bus (South West) Ltd [1993]

Case name & citation: Topp v London Country Bus (South West) Ltd [1993] 1 WLR 976; [1993] EWCA Civ 15

Court and jurisdiction: Court of Appeal, England and Wales

Decided on: 29 January 1993

The bench of judges: Dillon and Rose L.JJ. and Peter Gibson J.

Area of law: Duty of care; negligence

What is the case about?

This is a UK tort law case concerning the duty of care to road users. It is one of the decisions which was arrived at using the simple test of reasonable foresight to determine whether or not a duty of care existed.

Facts of the case (Topp v London Country Bus Ltd)

The defendants did not lock the bus while it was parked and left the keys in the ignition. The driver who was supposed to pick up the bus did not show up for his shift. Joy-riders stole it and then crashed it into another vehicle (a bicycle), which unfortunately resulted in the death of the claimant’s wife. He then brought an action for damages against the defendant bus company.

Issue

Did the bus company owe a duty of care to the claimant? Was it liable to pay damages on account of a collision by unidentified joy-riders with his wife’s bicycle?

Judgment of the Court in Topp v London Country Bus (South West) Ltd

The Court determined that although it was unquestionably negligent for the bus to have been left with the keys in the ignition, the defendants owed no duty of care to the claimant to guard against the voluntary actions of third parties over whom the defendants had no control.

It was held that the claimant was unsuccessful because he was unable to establish that the defendants ought to have reasonably foreseen that a joyrider(s) would steal the bus which their employee left unattended in a lay-by and that it would run a woman off her bicycle.

This led to the claimant’s case being dismissed.

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