Anda di halaman 1dari 5

 

   

2008 
N.E.B.O.S.H. INTERNATIONAL DIPLOMA 
CASE LAW – OUTLINE REVISION NOTES 

ETA Consultancy® 
Page 1 of 5 
 
Contents 
Introduction ............................................................... 3 
Civil Law Basics ...................................................... 3 
Plaintiff or Defendant? ...................................... 3 
Contributory Negligence .................................... 3 
Vicarious Liability ............................................... 3 
Donoghue v. Stevenson (1932) .................................. 3 
Duty of Care – Neighbour Principle ....................... 3 
Negligence. ........................................................ 3 
Edwards v National Coal Board (1949) ...................... 3 
Reasonably Practicable – ‘the Quantum of Risk’ ... 3 
The balance of cost, time and trouble. .............. 3 
Wilsons & Clyde Coal Co. Ltd v English (1938) ........... 4 
Employers’ Common Law Duty of Care (Employers’ 
Liability) ................................................................. 4 
Marshall v Gotham Co Ltd [1954] .............................. 4 
So far as is practicable ........................................... 4 
Mersey Docks & Harbour Board v. Coggins & Griffiths 
(Liverpool) Ltd. [1947] ............................................... 4 
Vicarious Liability ................................................... 4 
Master / servant relationship – persons who 
must be protected. ............................................ 5 
 

Page 2 of 5 
 
Introduction  Donoghue v. Stevenson (1932) 
Civil Law Basics  Duty of Care – Neighbour Principle 
Civil Law concerns disputes between individuals or Negligence. 
individuals and companies.
• Whether duty owed to person injured. 
This is where an individual sues another individual or • Duty of manufacturer of article to ultimate 
company to address a civil wrong or tort (called a consumer. 
delicit in Scotland UK).
• Bottle of ginger beer bought from retailer. 
Plaintiff or Defendant?  • Bottle containing dead snail. 
• Purchaser poisoned by drinking contents. 
The individual who brings the complaint to court is
known as the plaintiff (or pursuer in Scotland UK), and • Liability of manufacturer to consumer. 
the individual or company who is being sued is known
as the defendant (or defender in Scotland UK). Mrs. Donoghue and her friend went to a shop
occupied by Francis Minchella, and known as
The civil court is concerned with the liability and the Wellmeadow Café, at Wellmeadow Place, Paisley
extent of that liability rather than guilt or non-guild. where the friend purchased ice cream, and ginger
Therefore, the level of proof required is based on the beer suitable to be used with the ice cream as an iced
‘balance of probability’, which is a lower level or drink. for Mrs. Donoghue to drink.  
certainty than that of ‘beyond reasonable doubt’
required by a criminal court. Mrs. Donoghue had no direct or indirect claim against
the manufacturer based on contractual obligations
If a defendant is found to be liable, the court would because she did not purchase the product.  
normally order him (him is such cases would also
refer to the opposite sex for ease of reference) to pay The ginger beer was contained in an opaque bottle
compensation and possibly costs to the plaintiff. that prevented the contents from being viewed clearly.  
However, the lower the balance of probability, the
Mrs. Donoghue consumed some of the product after
lower the level of compensation awarded.
which the decomposed remains of a snail emerged
In extreme cases, where the balance of probability is from the bottle when the remaining ginger beer was
just over 50%, the plaintiff may ‘win’ his case but lose poured into her glass.  
financially because the costs may not be awarded and
She sought damages against the manufacturer,
the level of compensation low.
Stevenson, from the resulting nervous shock and
Contributory Negligence  gastro-enteritis, which she claimed was caused
through the incident.  
The level of compensation may also be reduced
The trial judge found that the plaintiff could bring an
through the defence of ‘contributory negligence’.
action. The Court of Appeal overturned this decision.
For cases involving health and safety, civil disputes
The plaintiff appealed to the House of Lords.
usually follow accident or illness and concern
negligence of a breach of statutory duty. Further details can be found here:
The vast majority of cases are settled ‘out of court’. http://www.safetyphoto.co.uk/subsite/case%20abcd/don
oghue_v_Stevenson.htm 
Vicarious Liability 
Edwards v National Coal Board (1949)  
While actions are often between individuals, where
the defendant is an employee who is acting in the Reasonably Practicable – ‘the Quantum of 
course of his employment during the alleged incident, Risk’  
the defence of the action is transferred to his
employer. This is known as ‘vicarious liability’. The balance of cost, time and trouble. 
In such situations the civil action then becomes one Mr  Edwards  was  killed  when  an  unsupported  section  of  a 
between the individual and a company. travelling  road  in  a  mine  gave  way.  Only  about  half  the 
whole length of the road was shored up.  
Following are a number of landmark cases that set
the ground for terminology and interpretations in use The company argued that the cost of shoring up all roads 
today in civil law. in every mine was prohibitive when compared to the risk. 

Students are advised to familiarize themselves with “so far as is reasonably practicable” means that the
these as a minimum. degree of risk needs to be balanced against the time,
Page 3 of 5 
 
trouble and cost involved in taking the necessary been caused by any failure by them to take
measures to avoid the risk. reasonable steps to secure the roof.
• Comparison of ‘practicable’ and ‘reasonably
The question at issue was not the cost of shoring up
practicable’ precautions.
all roads in every mine operated by the company. The
• Generally interpreted to mean that whatever is
issue was the cost of making safe the section of road
technically possible in the light of current
that fell.  
knowledge must be carried out.
Some roads are secure and show no signs of failing. • The cost, time and trouble are NOT to be taken
Others may already have fallen and have already into account when arriving at a decision.
been repaired.  
Marshall, a gypsum miner was killed when a large
The section in question was already supported by piece of the mine’s marl roof fell on him.  
timber along half its length. The cost of making it safe The normal,  and ordinarily very effective,  method of
was not great compared to the risk of injury and loss
guarding against falling roof was to inspect each area
of life.
for visible faults, and then to tap the roof with a long-
Further details can be found here: handled hammer; if the noise indicated that the roof
was unsound, the unsound portion was brought down
http://www.safetyphoto.co.uk/subsite/case%20e%20f%20 before the mining proceeded. But the fall that killed
g%20h/edwards_v_national_coal_board.htm  the plaintiff was not detectable by this or any other
means.  
Wilsons & Clyde Coal Co. Ltd v English 
(1938)  As Lord Reid explained, in these “very rare” cases of
“slickenside,” (unusual geological condition).
Employers’ Common Law Duty of Care 
(Employers’ Liability)  M’s wife alleged a breach of statutory duty (under the
Metalliferous Mines General Regulations 1938) and 
The employers were held liable for injuries to a miner claimed compensation from the employer.
as a result of an unsafe system of working.
What is “reasonably practicable” depends upon a
The House of Lords held that the employer owes a consideration whether the time, trouble and expense
duty of care to his employee: of the precautions suggested are disproportionate to
the risk involved.
• Safe place of work.
• Safe equipment. It is conceded in the present  case that it was not
• Safe system of work. reasonably practicable to make the roof secure by
• Provision of competent staff and effective timbering, and to have attempted to make it secure by
supervision. pneumatic props in some places and by leaving it un-
mined in others when no slickenside had ever
Mr English, a miner, was injured at work when he was
occurred for a period of 20 years was not, in my
crushed by haulage plant. He claimed damages from
judgment, reasonably practicable.
his employer, the mine owner.  
“If a precaution is practicable it must be taken unless
The employer argued that, at the time of the accident,
in the whole circumstances that would be
responsibility for the safety of the mine had been
unreasonable. And as men’s lives may be at stake it
delegated to his agent.
should not lightly be held that to take a practicable
These  duties  were  owed  personally  by  the  employer  to  precaution is unreasonable.”
each employee and were non‐delegable 
Lord Reid – “Measures may be ‘practicable’ which are
The performance of the duties could be delegated, but not ‘Reasonably practicable.” –
the responsibility for them could not.
 Halsbury’s Laws of England, Vol. 20 para 553
Further details can be found here:
Further information can be found on the following web
http://www.safetyphoto.co.uk/subsite/case%20u%20v%2 site:
0w/Wilsons_Clyde_Coal%20Co_Ltd_v_English.htm 
http://www.safetyphoto.co.uk/subsite/case%20m%20n%2
Marshall v Gotham Co Ltd [1954]  0o%20p/marshall_v_gotham_co_ltd.htm  

So far as is practicable  Mersey Docks & Harbour Board v. Coggins 
& Griffiths (Liverpool) Ltd. [1947] 
• The employer was not liable for a breach of
statutory duty because Marshall’s death had not Vicarious Liability 

Page 4 of 5 
 
Master / servant relationship – persons 
who must be protected. 
The test: 
• “Who had the authority to direct or delegate to the
workman the manner in which the vehicle was
driven?”

Coggins and Griffiths hired a crane and driver from


the Mersey Docks and Harbour Board. The driver, Mr
Newall, drove the crane negligently and trapped Mr
McFarlane injuring him.

The contract between the Board and the hirers stated


that the driver was to become their employee for the
duration of the hire. The question was whether the
Board were liable to Mr McFarlane as Mr Newalls
principal employers or whether the hirers now bore
responsibility.

It was held as a fact that the hirers had power to


control what Mr Newall lifted with the crane but not
how he lifted it.

Further information can be found on the following


website:

http://www.safetyphoto.co.uk/subsite/case%20m%20n%2
0o%20p/Mersey%20Docks%20%20v.%20Coggins%20&%2
0Griffiths.htm  

Page 5 of 5