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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 Defendant’s Activity
 Cost & Practicability of Measures to Avoid Harm
 Intelligence
 Knowledge
 Skill
 Proof of Negligence: Res Ipsa Loquitur
 Causation
 Remoteness of Damage
Definition of Tort
A 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 & Crime
The 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 defendant’s
wrongful conduct.
Tort & Contract
Tort 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 plaintiff’s position should
not be made worse by the defendant’s 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 Negligence
Negligence 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. A duty of care owed by the defendant to the plaintiff;


iv. Breach of they duty by the defendant; and
v. Damage to the plaintiff which is legally deemed to be the
consequence of that breach of duty.
Duty of Care

The 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
consumer’s life or property, owes a duty to the consumer to take
that reasonable care.
Duty of Care
This 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 Care
The 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 Care
Austin v Attorney General [1986] High Court, Barbados

Facts

H, a convicted prisoner, escaped from Glendairy Prison and entered


the plaintiff’s 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
carpenter’s 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 Care
Austin 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 Care
Reasoning
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 Duty
Having decided that a duty of care was owed to the
plaintiff, the court’s 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 Duty
The risk factor has four elements:-

iii. The likelihood of harm;


iv. The seriousness of the injury that is risked;
v. The importance or utility of the defendant’s conduct; and
vi. The cost and practicability of measures to avoid the harm.
The Likelihood of Harm

The greater the likelihood that the defendant’s 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 Harm
Hilder 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
defendant’s adjacent land where children were in the habit of
playing.

Held
The defendant was negligent in having failed to take precautions to
prevent footballs from being kicked onto the road, since, in the
circumstances, the likelihood of injury to passers-by was
considerable.
Likelihood of Harm
Mowser 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 Risked
The 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 Risked
Rhyna 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 appellant’s 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 plaintiff’s 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
Defendant’s Activity
The seriousness of the risk created by the defendant’s activity
must be weighed against the importance or utility of such
activity, and where the defendant’s 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
Defendant’s Activity
Daborn 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
Defendant’s Activity
Byfield 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
plaintiff’s 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 Harm
Another 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.
Intelligence
In 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.
Knowledge
2. 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.

4. 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.

6. With regard to the facts and circumstances surrounding him,


the defendant is expected to observe what a reasonable man
would notice.
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.
Knowledge
Haseldine 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.
Knowledge

5. 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.
Knowledge
Glasgow 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.
Knowledge
Glasgow 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.
Skill
A 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 Negligence

Res 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 Loquitur
In 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.

5. The accident was of such a kind as would not, in the


ordinary course of things, have happened without
negligence on the defendant’s 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.
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 appellant’s 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
1977–78 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 off-
side. 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.
Reasoning

The 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.
Causation
Having 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

v. Remoteness of damage in law.


Causation
Causation in Fact
The first question to be answered is: Did the
defendant’s 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 defendant’s 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
appellant’s 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 child’s 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 Damage

The 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 person’s 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.