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TUTORIAL 4 Judicial Precedent and Institutional Writings This tutorial will be held in the tenth teaching week of term, in the week beginning 11 November 2019, and will be concerned with ground covered in lectures during the seventh and ninth weeks. The aim is to improve knowledge and understanding of the use of judicial precedents and institutional writings as sources of law. 1. Read the judgements of Lord Atkin and Lord MacMillanin Donoghue v Stevenson 1932SC(HL)31; 1932 SLT 317 and answer the following questions: 1. (a) what were the material facts of the case and what was the question of law the House of Lords had to answer? Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer. "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 in question."

2. (b) what was the decision of the court? Her claim was successful. This case established the modern law of negligence and established the neighbour test.

3. (c) what is the ratio decidendi of Donoghue v Stevenson? negligence, by setting out general principles whereby one person would owe a duty of care to another person.

2. Read both Grant v Australian Knitting Mills [1936] AC 85 and Evans v Triplex Safety Glass [1936] 1 All ER 907 and answer the following questions: 1. (a) why was Grant’s claim successful in the first case? Grant v Australian Knitting Mills, is a landmark case in consumer and negligence law from 1935, holding that where a manufacturer knows that a consumer may be injured if the manufacturer does not take reasonable care, the manufacturer owes a duty to the consumer to take that reasonable care. It continues to be cited as an authority in legal cases, and used as an example for students studying law. In June 1931 Dr Grant purchased two pairs of woollen underwear and two singlets from John Martin & Co. There was nothing to say the underwear should be washed before wearing and Dr Grant did not do so. He suffered a skin irritation within nine hours of first wearing them. Dr Grant applied calamine lotion, but continued to wear the underwear for the rest of the week, he then wore the second pair for the next week and washed the first pair. This was in an era when changing his underwear only once a week was "the ordinary custom of ordinary people. the skin irritation got worse and developed into a severe case of dermatitis. Dr Grant blamed the underwear and sued John Martin & Co. for breach of contract, being the statutory warranties that the goods were fit for the purpose and were of merchantable quality. Dr Grant also sued the manufacturer, Australian Knitting Mills, alleging that they had been negligent in failing to take reasonable care in the preparation of the garments; the garments in question were alleged to contain an excess of sulphur compounds, variously described as sulphur dioxide and sulphites. [2]

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2. (b) why was Evans not succesful in the second case? Mr Evans bought a new Vauxhall car fitted by the manufacturer with a windscreen made of toug hened safety glass manufactured by Triplex. One year later, he and his family were injured during a car journey when the windscreen shattered. Held: Triplex did not owe Evans a duty of care because: any weakness in the glass might have been caused by Vauxhall when fitting the windscreen; a defect might have been detectable on inspection by Vauxhall prior to fitting; too much time had elapsed between the product leaving their control and the accident – the glass could have been weakened in use.(c)The claimant has failed to take reasonable precautions prior to or when using the product. A claimant must be able to show that the product has been used appropri-ately, in accordance with instructions. 3Public interest. This criterion covers a wide range of circumstances involving what may bedescribed as policy or public interestissues. A duty of care will not be acknowledged unless it is fair, just and reasonable and not damaging to the interests of the public at large, however beneficial it might be to the individual claimant. The court may refuse to develop the scope of negligence to provide a right of action already covered by an exist-in g area o f the law, or to d evel op t he law so as t o di scour ag e peo pl e from ta ki ng reasonable precautions, such as insurance, to protect their own interests. A duty may be developed because it will actively promote the public interest. In Donoghuev Stevenson,public health considerations made it desirable to impose a duty, as well as the fact that Mrs Donoghue had no other legal rights to pursue. It was fair to put the loss on the man-ufacturer who stood to profit in general from his product.

 3. (c) what authority does the first case have in this country? - may not be binding but very similar 4. Read Williams v A and W Hemphill Ltd 1966 SLT 33 and answer the following questions. 1. (a) what were the material facts of the case and what was the question the court had to answer? Against his employers’s instructions a driver of a lorry deviated substantially from his route. On the detour an accident occurred owing to the fault of the driver. The question arose whether the employers of the lorry driver were vicariously liable. Held: Lord Pearson said: ‘Had the driver in the present case been driving a lorry which was empty or contained nothing of real importance, I think that so substantial a deviation might well have constituted a frolic of his own. The presence of passengers, however, whom the servant is charged qua servant to drive to their ultimate destination makes it impossible (at all events, provided that they are not all parties to the plans for deviation) to say that the deviation is entirely for the servant’s purposes. Their presence and transport is a dominant purpose of the authorised journey, and, although they are transported deviously, continues to play an essential part. It was said in argument that there must be some limits to that contention and that one could not hold that, if the driver had gone to Inverness, he would still be acting on his master’s business. No doubt there are such limits to the argument as common sense may set on the facts of each case. But when there are passengers whom the servants on his master’s behalf has taken aboard for transport to Glasgow, their transport and safety does not cease at a certain stage of the journey to be the master’s business, or part of his enterprise, merely because the servant has for his own purposes chosen some route which is contrary to his instructions. . . . The more dominant are the current obligations of the master’s business in connection with the lorry, the less weight is to be attached to disobedient navigational extravagances of the servant In weighing up, therefore, the question of degree, whether the admittedly substantial deviation of the vehicle with its passengers and baggage was such as to make the lorry’s progress a frolic of the servant unconnected with or in substitution for the master’s business, the presence of the passengers is a decisive factor against regarding it as a mere frolic of the servant. In the present case the defenders remained liable, in spite of the deviation, for their driver’s negligence.’

2. (b) what bearing did the previous cases cited have on the decision of the case? 3. (c) Was there any merit in the dissenting opinion delivered in the case? 5. Using only the four cases cited above as authority, consider what claim – if any – Anne might have against Bows & Bouffants on the following facts. Anne always has her hair done at Bows & Bouffants on the High Street. She likes going there because Claudine, one of the hairdressers employed by the firm, usually agrees after doing Anne’s hair to give her poodle a free shampoo and blow dry. One day Claudine, while chatting to a colleague, holds the dryer too close to the dog and singes its fur. The dog gives Anne a vicious bite. Duty of care- negligence of the hairdresser causing damage to the dogs fur- causing the dog to bit anne

6. Read Cawdor v Cawdor 2007 SC 285 and answer the following questions: 1. (a) what was the source of the finding that a promise duly made is obligatory? 2. (b) would a promise to give a friend a lift home be obligatory? no 3. (c) what sources would need to be considered in answering the last question?...