Health and Safety Law - Civil Law PDF

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Information on negligence within Scottish law, looking at what is negligence and the penalties, with case studies included. This was completed by Clive Mitchell ...

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Health and Safety Law Civil Law – Negligence

Structure of health and safety law

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Civil law 

Health and safety law is governed by both civil and criminal law

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It is important to distinguish between the these two branches of law

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Civil law seeks to remedy and possibly compensate for a wrong done by one individual or business entity against another

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For example, a civil law court action would be brought by an employee where they have been injured as a result of an employer’s negligence

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Pursuer v Defender (Scotland) or Plaintiff v Defendant (England and Wales)

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The standard of proof in a civil case is on the balance of probabilities (more likely than not)

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The decision in civil cases will find the defender liable or not liable

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The key remedy available through the civil courts is damages

Law of delict – negligence 

Negligence is part of the LAW OF DELICT

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Delict may not be an instantly recognised term – it is useful to explain the term delict by reference to the law of contract – in a contract you enter into a voluntary obligation – by contrast, a delict arises from an involuntary obligation

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We encounter contracts on a daily basis when we buy goods or services

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You may have a contract of employment which defines the terms and conditions of your employment

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As a result, contract is a term with which most people are familiar and readily understand

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In contrast, delict is not a term that is widely known – it is, however, very important as it creates a relationship ex lege (from law)

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What is delict? 

In a contractual situation, the parties agree to be bound by the terms of the contract and all sides are aware of the obligations imposed upon them and the other parties to the contract

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BY CONTRAST – delict imposes obligations on the parties whether they want it or not

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Delict imposes a general duty on everyone to act in a manner that does not harm their neighbour – this is imposed by law (it is not a matter of choice)

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In the event that a party is in breach of their duty of care resulting in harm to another, the party causing the harm may be required to make reparation

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The main remedies offered by the courts in an action for delict are reparation which takes the form of damages (payment of money) or interdict which stops further wrongful conduct

What is delict? 

There are different forms of delictual action – a delict can be either deliberate or unintentional

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Where a party sets out to harm another either physically or financially, this is an example of an intentional delict

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Where someone is harmed as a result of the lack of care (negligence) of another, this is an example of an unintentional delict – the negligent party did not set out to cause harm, but harm nevertheless resulted

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General principles 

Key to an understanding of delict is the legal concept of the duty of care

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Everyone owes a duty, but not this does not mean that duty is owed to the whole world

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You are liable only to those who may foreseeably be harmed by your lack of care

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Delict is part of private law which relates to the rights and duties of individuals and organisations – Pursuer v Defender

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An injured party, whether an individual or organisation, can pursue an action in the civil courts for an appropriate remedy such as damages

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Civil courts will assess the evidence presented and apply the principles of delict to the case in order to assess loss and any compensation for the loss suffered

damnum injuria datum 

As has been stated already, delict imposes a general legal duty on everyone not to cause harm to others – central to delict is the breach of that legal duty

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This is encapsulated in the Latin maxim damnum injuria datum

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damnum

loss or harm (either physical or financial)

injuria

wrongfully

datum

caused

In addition to this, it is essential that a causative link is established between the defender’s conduct and the resultant harm to the pursuer

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damnum injuria datum 

Wrongful conduct which does not result in loss means there cannot be a claim – loss is an essential component for an action in delict to succeed

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I drive through a red light – there are no traffic or pedestrians around – I continue on my journey – is there any delictual liability here?

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Loss which is not accompanied by a legal wrong means there cannot be claim – there must be a legal wrong for an action in delict to succeed

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I am self-employed and catch swine flu from someone – I have to go into isolation – as a result, I lose my income – is there any delictual liability here?

culpa 

In Scotland, you must establish fault or blame for your loss or injury for your claim to succeed

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The system in Scotland is based on fault – in contrast, some jurisdictions have a “no fault” system of liability which is the main alternative to a faultbased system – this is a no fault compensation system (such as in New Zealand) financed through compulsory private insurance/public revenues

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The law of delict does limit the extent to which a person is liable for the consequences of their actions

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Delict is centred on culpa meaning fault, blameworthiness or negligence

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You must be under a duty to act for liability in delict to attach – if you were not under a duty to act then no liability attaches

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culpa 

You see a young boy in difficulties in the deep end of the local swimming pool – you decide not to go to his aid because you are not a strong swimmer and the water is too deep – are you liable for the boy’s subsequent death?

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There must be a relationship between the parties

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This relationship can be one which is pre-existing such as the relationship between employer and employee or solicitor and client OR the relationship can be one which arises from circumstances such as a road traffic accident – the proximity or closeness of the parties gives rise to the creation of a relationship between the parties

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A solicitor owes a duty of care to a client – a significant delay in drafting a will during which time the testator dies will result in disappointed beneficiaries claiming damages

Remedies 

Damages – the court can compensate the pursuer by making an award of damages for loss resulting from a breach of duty – patrimonal loss in respect of property (for example, loss of income) – solatium in respect of injury to feelings or pain and suffering

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Interdict – prohibits the defender continuing the unlawful state of affairs

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Declarator – action brought by an interested party to have some legal right declared but without claim on any person called as defender to do anything

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Negligence - duty of care 

“The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour, and the lawyer’s question, “who is my neighbour?” receives a restricted reply. 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 into question.” Lord Atkin in Donoghue v Stevenson [1932] AC 562

Key elements of negligence 

Duty of care

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Reasonable foreseeability

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Scope of duty

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Standard and degree of care

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Burden of proof

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Causation

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Remoteness

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Reasonable foreseeability 

Not what was ACTUALLY FORESEEN

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What a REASONABLE PERSON would foresee

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THE ACTUAL HARM need not be foreseen

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Muir v Glasgow Corporation [1943] AC 448 Church party had permission to use Glasgow Corporation tearoom – tea urn inexplicably dropped – pursuer was scalded – Glasgow Corporation owed a duty of care to the pursuer – had this duty of care been breached? – held the manageress had taken reasonable care and could not be expected to prevent all accidents

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Hughes v Lord Advocate [1963] AC 837 Post Office workmen left a manhole with a tarpaulin shelter covering it and kerosene warning lamps surrounding while on a break – 8 year old boy knocked over a lamp – this resulted in fire and an explosion – the boy was burned – risk of fire was foreseeable, but not the risk of an explosion

Standard and degree of care 

The standard of care is that of a reasonable person, who is neither over-cautious nor over-confident

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The degree of care depends on the circumstances, for example, take more care with cyanide than water, or with babies than adults

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Bolton v Stone [1951] AC 850 A cricket batsman hit the ball for six over a seven foot high fence and struck Miss Stone almost 100 yards away – this resulted in injury to her – no-one had previously been injured – evidence was led to the effect that the ball had only ever gone over the fence six times in the last 30 years – held the claim failed – such an accident was reasonably foreseeable, but the chance of it happening was very small – the reasonable person would not have done anything further to avert the risk

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Lewis v Buckpool Golf Club 1993 SLT (Sh Ct) 43 Defence of volenti non fit injuria unsuccessful

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Degree of care 

Factors to be taken into account –  The likelihood or risk of injury  The consequences of the injury  What would have been required to avert or minimise the risk  Cost of averting the risk  Usefulness of defender’s activities

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Paris v Stepney Borough Council [1951] AC 367 (HL) Paris was a susceptible victim – he was known by his employer to be blind in one eye due to a war injury – the repair job he was doing as mechanic was not particularly dangerous – goggles were not normally supplied – while removing a U bolt a piece of metal flew off and entered his good eye rendering him totally blind – held duty on the employer to supply goggles to this particular employee given the serious consequences to Paris of such an injury occurring

Proof of negligence and res ipsa loquitur 

Standard of proof is the balance of probability

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Burden of proof is on the pursuer

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Burden on defender where there is res ipsa loquitur

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res ipsa loquitur – “the thing speaks for itself”

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The circumstances create a presumption of negligence and the burden of proof shifts to the defender, so that it is up to him to prove that he was not negligent

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res ipsa applies where – 

The offending thing is under the defender's control or management

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It is not the sort of thing that would normally happen when proper care is taken

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There is no other reasonable explanation

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res ipsa – case law 

Ward v Tesco Stores Limited [1976] 1 WLR 810 Ward slipped on yoghurt in the defendant’s store – Tesco Stores were unable to provide an explanation of how this occurred – they also failed to satisfy the court that they had appropriate measures in place for dealing with such spillages – res ipsa loquitur applied – held Tesco were not able to demonstrate that they were not at fault and were accordingly found liable for the injury sustained

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Devine v Colvilles Ltd 1969 SC (HL) 67 A workman employed in a steelworks was working on a platform 15 feet above the ground – there was a violent explosion 75 yards away from him – a general panic ensued and the workman jumped from the platform – he was injured – held res ipsa loquitur applied – the defenders were not able to provide sufficient evidence of the exact cause of the explosion – they were found liable as they had failed to establish that they had not been negligent

Causation 

causa causans – real, effective or predominant cause of harm – the legal cause

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causa sine qua non – cause without which the harm might not have occurred – i.e. a contributory factor

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novus actus interveniens – “a new act intervening” An unexpected and abnormal act which intervenes between the wrongful conduct (the causa causans) and the harm which occurs, thereby breaking the chain of causation

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Kay’s Tutor v Ayrshire and Arran Health Board 1987 SLT 577 Mr Kay’s son admitted to hospital suffering from meningitis – mistakenly given an overdose of penicillin – suffers a convulsions and paralysis – eventually recovered from the meningitis, but was left permanently deaf – the hospital conceded liability for the overdose and the resultant convulsions and paralysis, but not the deafness – held the Health Board were not liable for the deafness – the causa causans of the deafness was the meningitis

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Causation – case law 

Barnett v Chelsea & Kensington Hospital [1968] 1 All ER 1068 Three night watchmen arrived at a hospital casualty department complaining about vomiting after drinking tea – the duty doctor negligently failed to conduct a clinical examination and sent them home with the advice that they should contact their own doctors – one of the men subsequently died – held the claim failed – although the doctor in question had been negligent, the man was suffering from arsenic poisoning and would have died anyway – the causa causans of his death was not the negligent treatment, but the arsenic poisoning

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McKew v Holland Hannan & Cubbits 1970 SC (HL) 20 An employee injured his left leg as a result of his employer’s negligence – the employer was liable for this – some weeks later, while the pursuer was going down a flight of stairs, he felt a weakness in his injured leg and opted to jump down the remaining stairs to the next landing – he injured his right leg – held jumping down the stairs was a novus actus interveniens, breaking the chain of causation, and the employers were only liable for injury to the left leg

Remoteness of damage 

“The grand rule on the subject of damages is that none can be claimed except such as naturally and directly arise out of the wrong done; and such therefore, as may reasonably be supposed to have been in the view of the wrongdoer.” Lord Kinloch in Allan v Barclay (1864) 2 M (IH) 873

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Defender not liable for loss that is too far removed from the negligent action

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EXCEPTION – “Thin skull” rule – defender is liable for all medical consequences of the delict – applies in personal injury cases only

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Remoteness of damage – case law 

Re Polemis and Furness Withy & Co Limited [1921] 3 KB 560 While a ship was in dock, a board was accidentally dropped into the hold due to the negligence of stevedores employed by the ship’s charterers – the board ignited petrol vapour in the hold and the ship was completely destroyed – held that the employers of the stevedores were liable for all the direct consequences of the negligent act, even though those consequences could not reasonably have been anticipated

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Overseas Tankship (U.K.) Limited v The Miller Steamship Co (“The Wagon Mound”) [1961] AC 388 Oil was negligently spilled from the ship “The Wagon Mound” while it was docked in Sydney Harbour – it was accidentally set alight and caused extensive damage to the wharf and two other ships – held that the defendants were only liable for damage that was reasonably foreseeable, though in the present case the damage was in fact foreseeable, even though the risk may have been small

“Thin skull” rule – case law 

Smith v Leech Brain & Co [1962] 2 QB 405 While he was at work, a piece of molten metal struck Smith on the lower lip, causing a burn – the burn was the triggered the development of cancer, in tissues which were pre-cancerous – Smith died from the condition three years later – Smith’s widow claimed damages – held the risk of a burn was reasonably foreseeable – a defendant must take his victim as he found him – the test of the defendant’s liability was not whether they could reasonably have foreseen that a burn would cause cancer, but whether they could reasonably foresee the burn itself – the employers were liable for Smith’s death

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Defences to an action in negligence 

Many cases of negligence are defended on matters of fact rather than law – the defender denies that what the pursuer says happened is correct and it is up to the court to decide who to believe on the balance of probability

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The defender can also claim that some or all the elements of a delictual claim are missing – the pursuer has not suffered a loss or, if he has, the defender did not owe a duty of care

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If there was a duty of care, it has not been breached – the defender can try to establish that he has taken reasonable care and so has not been negligent

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OR that the breach of the duty of care did not actually cause the loss or harm or that the loss or harm was too remote, was not a foreseeable consequence of the defender’s act or omission

Defences to an action in negligence 

There are a number of specific defences open to a defender in delict. If the defender can establish that he has a defence then he may be wholly or partly relieved of liability – volenti non fit injuria and contributory negligence.

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volenti non fit injuria 

Literally means ‘a legal wrong is not done to someone who is willing’ – in other words, someone who willingly takes the risk of harm or loss

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This is less common as a defence than it used to be as the courts are reluctant to accept it

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It will only apply where the pursuer freely and voluntarily submits to the risk of the harm actually suffered, particularly in employment cases

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An employer must still take reasonable care for your safety and more will be required of him or her because of the hazards of a particular job

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volenti is often mentioned in connection with sport – the argument is that those who participate or spectate know they are taking a risk

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If you play rugby or football you know these are physical contact sports and that you may be injured – injury caused by play which is outwith the rules of the game may result in liability.

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