PGDL Answered - Case Book sample

SAMPLE NOTES FROM OUR PGDL CASE BOOK: Tort: Duty of Care and Criminal Law: Murder and Voluntary Manslaughter PGDL Answered is a comprehensive, first-class set of case notes for the Postgraduate Diploma in law. This is a sample from our Case Book. We also offer a PGDL Core Guide.

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TORT

DUTY OF CARE KEY CASES CASE Alexandrou v Oxford [1993]

Bourhill v Young [1942]

Caparo Industries v Dickman [1990]

Donoghue v Stevenson [1932]

Hill v Chief Constable of West Yorkshire [1988]

John Munroe v London Fire and Civil Defence Authority

FACTS

PRINCIPLE

The police responded to an automated 999 call but failed to stop a burglary.

A pregnant woman heard a motorcycle crash, and later walked past and saw blood on the road. She went into shock and lost her baby, then tried to sue the motorcyclist’s estate for negligence.

There is no general duty for an emergency service to respond to a call.

COMPARE with Kent v Griffiths The damage was not reasonably foreseeable so there was no duty of care.

COMPARE with Haley v London Electricity Board

Auditors negligently prepared accounts which suggested that a company was in a better financial position than it actually was. The claimants bought the company and later sued the accountant for loss.

For liability to arise. Damage had to be reasonably foreseeable, a relationship of proximity had to exist and it had to be fair and just to impose liability.

Donoghue ate an ice cream float made with ginger beer in a cafe. The ginger beer was in an opaque bottle and had a decomposed snail in it. She subsequently fell ill and sued the ginger beer manufacturer.

Established the concept of the duty of care in tort. The duty is owed to those who are so closely and directly affected by a possible act, that you ought to have them in contemplation when you consider your own acts or omissions.

The mother of the final victim of the “Yorkshire Ripper” sued the police for failing to apprehend him.

The fire brigade left a fire before all fires had been properly extinguished and one flared up again.

[1997]

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1. No duty existed as there was insufficient proximity between all women (as potential victims) and the police to establish a duty of care.

2. For policy reasons, the police are unlikely to be held liable for failing to apprehend criminals but there is no blanket immunity.

Unless the fire brigade commits a positive act that makes things worse, no duty of care is owed by the fire brigade as a result of firefighting.

TORT

CASE

FACTS

Kent v Griffiths

An ambulance took over half an hour to respond to an emergency call about a severe asthma attack; during the wait the patient suffered respiratory arrest.

Marc Rich v Bishop Rock Marine [1996]

Paris v Stepney Borough Council [1951]

Wynne Jones v Kaney [2011]

Z v UK

PRINCIPLE The ambulance service is an extension of the health service; acceptance of a 999 call establishes a duty of care to arrive in a reasonable time.

COMPARE with Alexandrou v Oxford

A ship surveyor recommended temporary repairs to a ship but said the vessel was safe to sail. It sank, the cargo was lost and the cargo owner sought damages from the surveyor.

The shipowners had a non-delegable duty to the cargo owners to ensure the ship was seaworthy. There was no relationship between the surveyor and the cargo owner and no liability in negligence. Liability is only imposed where it is fair, just and reasonable to do so.

A man who was blind in one eye lost the sight in his other eye due to a work accident. His employer had not provided safety goggles to him.

A duty of care was held to exist, which was owed to the particular claimant as the employer was aware of his particular vulnerabilities (partial blindness). The duty is not determined by a general class of workers.

A joint statement of expert evidence was signed by the claimant’s psychiatrist. The psychiatrist had not reviewed the report and it turned out that the report was severely detrimental to the claimant's case.

The conditions of four neglected and abused children had been reported to social services several times, but it took five years before the children were taken into care. The court held that the system had failed Z and his siblings. The state had failed to protect them from ill treatment and so breached Article 3 ECHR.

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1. Removed the immunity from liability for negligence that was previously enjoyed by expert witnesses.

2. Solicitors can be liable for negligence, but judges cannot.

The ECtHR admitted to having misunderstood English law in Osman, (the English courts had subsequently clarified this). The authorities do not have total immunity restricting access to courts (this would be a violation of the ECHR) – limits are placed by the substantive right of action itself.

COMPARE with Osman v UK and Palmer v Tees HA

TORT

ADDITIONAL CASES CASE Barrett v Ministry of Defence [1995] Capital and Counties Bank v Hampshire CC [1997]

Carmarthenshire CC v Lewis [1955]

Church of Jesus Christ of the Latter-Day Saints v West Yorkshire Fire Authority

FACTS

PRINCIPLE

A naval airman got extremely drunk and collapsed. Other airmen took him home and left him in bed. He choked on his vomit and died.

A duty of care can be established by voluntarily assuming responsibility.

The fire brigade arrived at a fire, and a fireman turned off the building’s sprinklers, making the fire worse.

Although there is no duty to respond, when emergency services respond they have a duty not to actively make the situation worse.

A school boy had been left unsupervised and wandered onto a road. A motorcyclist swerved to avoid him, crashed and then sued the council.

A duty of care can be established where a relationship of care exists (here, between the school authority and pupils).

Three fire hydrants were not working, and a further one could not be located so there was an insufficient supply of water to fight a fire.

Unless the fire brigade commits a positive act that make things worse, there will be no duty of care owed by the fire brigade in respect of a fire responded to.

[1997] Costello v Chief Constable of Northumbria Police [1998] Cutler v United Dairies [1933]

Goldman v Hargrave [1996]

A police officer was attacked by a prisoner being escorted to a cell. He called for help but a senior officer nearby did nothing to assist.

A man was injured when he entered a field in an attempt to calm some horses. The horses did not present an immediate threat to anyone.

A landowner decided to leave a tree which had caught fire after being struck by lightning to burn itself out.

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Police officers assume responsibility to one another to “watch each other's back”. The omission was therefore a breach of duty.

COMPARE with Mulcahy v MoD No duty will be owed where there is no immediate threat to anyone but a “rescuer” intervenes nonetheless.

COMPARE with Haynes v Harwood In deciding not to completely extinguish the fire, he had “adopted the risk” that it might spread and was subsequently liable for the resulting damage to neighbouring property.

TORT

CASE Goodwill v British Pregnancy Advisory Service [1996]

Haley v London Electricity Board [1965]

Haynes v Harwood [1936]

John Innes Foundation & others v Vertif Infrastructure [2020]

Lejonvarn v Burgess [2017]

Michael v Chief Constable of South Wales [2015]

FACTS

PRINCIPLE

BPAS did not advise of the risks of a vasectomy reversing. A man subsequently fathered a child. The child’s mother tried to claim.

Doctors do not owe a duty to third parties. There must be a proximity of relationship between the professional and the person advised.

Workmen left a hole in the road, uncovered, but with a shovel to warn pedestrians. A blind man walked in to it and injured himself.

A policeman was injured after catching a bolting horse.

It was foreseeable that a blind person may walk by, so a duty of care was owed by the workmen.

COMPARE with Bourhill v Young, Mitchell v Glasgow CC and Smith v Littlewoods The horse’s owner owed a duty of care to the rescuer as he created the danger by leaving the horse unattended.

COMPARE with Cutler v United Dairies

The claim arose following a fire. It was claimed that had proper maintenance procedures been carried out the fire would have been prevented.

Lejonvarn and Mr and Mrs Burgess were friends who carried out favours for each other. Here, Lejonvarn designed free garden landscaping for them, but underestimated the required budget. Remedial works were also later needed.

Ms Michael called the police saying that her ex-boyfriend was at her house threatening to kill her. The call was miscategorised by the police; they did not prioritise attendance and she was murdered.

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The court looked at the three prong test in CAPARO: the foreseeability of damage, whether there was a proximate relationship and whether it was fair to impose liability. Here there was a failure to act rather than any action and no liability arose.

A professional consultant architect had assumed a duty of care in relation to gratuitous work performed for her friends.

APPLIED White v Jones and Hedley Byrne v Heller The court upheld the police’s partial immunity from liability for procedural failings. Note: the court left open the possibility of claims under the Human Rights Act 1998.

COMPARE with Hill, Osman v UK and Z v UK

TORT

CASE

Mitchell v Glasgow CC [2009]

Mulcahy v Ministry of Defence

FACTS

PRINCIPLE

Two council tenants were in a dispute. The council called one to a meeting to tell him that he would be evicted. He went home and then killed the other tenant in a rage. His widow claimed that the council was under a duty to warn them that the meeting was taking place.

A soldier was injured following a negligent action by a fellow soldier.

[1996]

Osman v UK [1989]

Palmer v Tees Health Authority [1999]

A teacher, who had been stalking a pupil, attacked him and killed his father. The police had been aware of the threat as the family had warned them of the danger many times before. However, no duty was established in this Court of Appeal case because of the immunity given to the police in Hill. On appeal to the European Court of Human Rights the claimants argued that their right to a fair trial had been breached by the police’s blanket immunity.

A hospital allowed a psychiatric patient into the community without adequate supervision. This outpatient subsequently sexually assaulted and murdered a child.

Though it may have been foreseeable that one tenant would assault the other, this did not give rise to a duty of care on the part of the council to warn the deceased tenant of his violent neighbour's eviction.

COMPARE with Bourhill v Young, Haley v London Electricity Board and Smith v Littlewoods It is not fair, just and reasonable to impose a duty of care between fellow servicemen in battle conditions.

COMPARE with Costello v Chief Constable of Northumbria Police

The ECtHR held that the police’s blanket immunity was a violation of Article 6 ECHR, as it denied a claimant the right to a fair hearing before a court.

Note: later case law has diminished the impact of this decision.

COMPARE with Hill and Z v UK

The claim by the child’s mother was struck out. There was insufficient proximity between the parties for a duty of care to exist. The child was not an identifiable potential victim.

APPLIED Hill COMPARE with Osman v UK and Z v UK

Prendergast v Sam & Dee Ltd [1989]

A pharmacist dispensed incorrect drugs due to not double-checking the doctor's near-illegible handwriting on the prescription.

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The duty of care includes writing and checking prescriptions competently.

Liability was apportioned 25% to the doctor and 75% to the pharmacist.

TORT

CASE Re F (Mental Patient: Sterilisation) a.k.a.

F v West Berkshire Health Authority

FACTS

PRINCIPLE

A mentally handicapped 36-year-old woman in a mental hospital began a relationship with another patient.

Doctors wanted to sterilise her as she had no way to deal with pregnancy or capacity to understand the alternative options.

[1990] Rigby v Chief Constable of Northamptonshire [1985]

Ross v Caunters [1980]

Police fired a canister of CS spray into a shop to flush out a dangerous criminal. There was a real risk of fire and the police failed to arrange for the fire brigade to be there.

A court found solicitors owed a duty of care to potential beneficiaries who would have benefitted but for the incorrect execution of a will.

1. Doctors may operate on adults unable to consent to or refuse treatment (due to an emergency or mental disability) if doing so is in the patient's best interest.

2. The court should be consulted where sterilisation is considered to be in the patient's best interest due to its special characteristics and effects.

The police were liable for the fire damage caused by the operational error. Here a duty of care was owed.

COMPARE with Hill, Smith and Swinney Professionals owe a duty of care to their clients when acting for them but may also owe a duty of care to third parties, such as the beneficiaries under a will.

SEE White v Jones

Smith v Chief Constable of Sussex Police [2008]

Smith v Littlewoods Organisation [1987]

A man was attacked by his former boyfriend. He had previously warned the police of calls he had received threatening violence.

Littlewoods bought a cinema, intending to demolish it. While it was vacant, vandals broke in. On one occasion, the vandals burnt it down, causing damage to neighbouring properties. The neighbours sought damages on the grounds that Littlewoods had created a foreseeable danger and omitted to take action to mitigate that danger.

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The public policy reasoning in Hill behind police immunity was upheld.

APPLIED Hill There was nothing inherently dangerous about an empty cinema.

Though vandalism was foreseeable, it did not give rise to a duty to guard against vandalism. Requiring empty building owners to hire 24-hour guards against vandalism would be overly burdensome.

COMPARE with Bourhill v Young, Haley v London Electricity Board and Mitchell v Glasgow CC

TORT

CASE

Stansbie v Troman [1948]

Swinney v Chief Constable of Northumbria Police [1997]

Van Colle v Chief Constable of Hertfordshire Constabulary [2008]

FACTS

PRINCIPLE

A decorator forgot to lock the door when he left the claimant’s house to fetch some wallpaper. The house was burgled while he was out.

The contractual relationship between the parties created proximity between them. As a result the decorator owed a duty of care. In failing to secure the premises, he had breached this duty.

A pub landlady gave information to the police on the condition that she remain completely anonymous. A file with her details in was lost, got to the person implicated and she was threatened and suffered psychiatric harm as a result.

There was a history of minor violence by the perpetrator against the victim.

The victim was due to give evidence against the perpetrator. He was killed before testifying at trial.

Due to their special relationship, the police had sufficient proximity to the informant, so it was fair, just and reasonable to impose a duty on them.

COMPARE with Hill

His parents tried to base a claim against the police on Article 2 ECHR (the right to life).The court held that the police had no duty as they did not know of a real or immediate threat to his life.

COMPARE with Osman

Vowles v Evans [2003]

A player injured in an amateur rugby match sought to claim damages from the referee.

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Established that a referee has a duty of care towards the players. He had failed to enforce rules to protect players.

CRIMINAL LAW

MURDER AND VOLUNTARY MANSLAUGHTER KEY CASES CASE

R v Byrne [1960]

R v Clinton, Parker and Evans [2012]

R v Golds [2016]

R v Richens [1993]

R v Simcox [1964]

R v Vickers [1957]

FACTS

PRINCIPLE

A man murdered and mutilated a girl.

He claimed to be suffering from irresistible impulses.

Established the classic definition of abnormality of the mind: “A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.”

Conjoined appeals considering the defence of loss of control, focusing particularly on the sexual infidelity provisions of the defence. Sexual infidelity cannot be the only trigger but may be considered with other triggers.

The defendant killed his wife and pleaded diminished responsibility.

The Supreme Court reviewed the post 2009 test of substantial impairment.

The defendant stabbed a man who was taunting him about raping his girlfriend. On appeal the trial judge was held to have misdirected the jury about loss of control by saying that it needed to be “complete” loss of control.

1. Only one element of the loss of control defence needs to be missing for it to fail.

2. The “things said or done” trigger is judged objectively.

The definition of “substantially impaired” must be given to juries. It does not mean anything which is more than trivial.

Loss of control does not need to be “complete”.

The defendant here was guilty of manslaughter not of murder.

A man set off in pursuit of his wife armed with a shotgun. He encountered and shot his wife’s sister. Psychologists said he had a personality disorder.

This turned on the meaning of “Substantial” impairment under the Homicide Act 1957. It means more than trivial and not something which “did not really make any great difference.”

The defendant was burgling a house when he attacked the occupier and caused her serious harm. The victim later died.

“Malice aforethought” is defined as intention to kill or intention to cause GBH. The defendant here was guilty of murder.

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CRIMINAL LAW

ADDITIONAL CASES CASE

AG of Jersey v Holley [2005]

DPP v Camplin [1978]

DPP v Smith [1961]

R v Ahluwalia [1993]

R v Cocker [1989]

R v Conroy [2015]

FACTS

PRINCIPLE

Following an argument, a man hacked his ex-partner to death with an axe. This was a Privy Council case, but 9 members of the H of L’s sat; it was intended that this should create a precedent.

The hypothetical reasonable man will have a normal degree of tolerance and self-restraint. Individual personality traits (such as a bad temper) are irrelevant for the purpose of s.

54(1)(c) Coroners and Justice Act 2009.

A 15-year-old killed a man who had raped him by hitting him with a pan.

The jury were initially directed to disregard his age when considering whether a reasonable person would have so reacted. The conviction was appealed.

In determining provocation, the court should consider the self-control of the reasonable person of the age and sex of the accused; that person should share characteristics of the accused which might affect the gravity of the provocation.

The defendant shook a policeman (who was trying to prevent him escaping) off his car by swerving. The policeman fell, at speed, and was killed. This was murder.

Grievous bodily harm (GBH) is defined in the alternative as “really serious harm”. The test is objective – would a reasonable person have foreseen at least GBH as an outcome of the actions.

A woman who had been beaten and abused throughout her arranged marriage set her husband on fire. She pleaded loss of control.

Loss of control (provocation, in this case) need not be sudden, but the longer the delay the less likely it is to succeed as a defence. This defence failed but diminished responsibility succeeded.

The defendant suffocated his wife in accordance with her requests. She was suffering from an incurable disease. He had “snapped”.

Loss of control does not need to be complete. Here, it failed because he had retained control and had checked if she had changed her mind.

The defendant and his victim resided at a special home for young persons with Aspergers. He killed his victim because he thought he could have sex with her. He was convicted and appealed the trial judge’s direction to the jury that they should assess the rationality of his decision-making process when considering the partial defence of diminished responsibility.

The appeal was dismissed.

For the purposes of the partial defence of diminished responsibility, the jury may assess all relevant circumstances preceding (including a long time before) and following the killing. This may involve appraising the impact of the abnormality of mental functioning both on the defendant’s decision-making generally and also on the particular decision to kill V – his decision-making process and his final decision may be enmeshed.

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CRIMINAL LAW

CASE R v Dawes, Hatter and Bowyer [2013]

R v Dowds [2012]

R v Fenton [1975]

R v Joyce; R v Kay [2017]

R v Lloyd [1967]

FACTS

PRINCIPLE

Conjoined appeals concerning loss of control and situations where the defendant has incited violence.

Loss of control is not available where you have incited the violence for the purpose of justifying your own violent attack.

A man stabbed his partner after binge drinking and tried to use “acute voluntary intoxication” (a condition recognised by medical authorities) to establish diminished responsibility.

A man suffering from a number of mental issues (described in court as a psychopathic personality) shot four people. At the time he was also very intoxicated

The defendant was a paranoid schizophrenic with a history of drug and alcohol abuse. During a threeday bender, he became psychotic and stabbed his victim to death. His unsuccessful defence relied on diminished responsibility. He argued that the intoxication was not voluntary because of his dependency, and that his underlying schizophrenia had caused his actions anyway.

A man strangled his wife. He pleaded diminished responsibility.

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1. The court held that certain “recognised medical conditions” would not stand as medical conditions for the purpose of diminished responsibility.

2. Heavy binge drinking is not sufficient for a recognised condition.

1. Hatred, jealously or anger will not in themselves demonstrate a substantial impairment of one’s ability to exercise self-control.

2. Alcohol consumption is unlikely to be an “abnormality of the mind” (although it can be in certain circumstances – see R v Wood).

The partial defence of diminished responsibility here required either: (1) schizophrenia of such severity that it substantially impaired the defendant’s responsibility; or (2) schizophrenia coupled with a drink/drugs dependency syndrome (note that voluntary intoxication would not be enough here!) which together substantially impaired his responsibility. The defendant here could not prove either on the balance of probabilities. His schizophrenic condition was stable “Substantial” impairment is not “total” impairment and is open to the jury to determine.

CRIMINAL LAW

CASE

R v Martin (Anthony) [2002]

R v Morhall [1995]

R v Saunders [1985]

R v Sutcliffe [1981]

R v Tandy [1989]

R v Thornton [1996]

R v Wood [2009]

FACTS

PRINCIPLE

The defendant shot at intruders on his farmland after a number of burglaries, killing one by firing a shotgun at his back as he ran away.

He pleaded self-defence but was convicted of murder. He later had the sentence reduced to manslaughter through diminished responsibility.

The “fear of serious violence” trigger for the loss of control defence is subjective. Here, the burglar appeared to have been shot as he ran away, so self-defence could not apply. A later appeal introduced evidence of paranoid personality disorder.

Diminished responsibility was accepted by the court.

The defendant stabbed a man who taunted him about his addiction to sniffing glue.

A person cannot rely on intoxication to explain why they lost self-control but could rely on being taunted about addiction as a trigger to explain their violent behaviour.

The defendant punched a stranger in the face, breaking his nose.

GBH is defined as “serious injury” rather than the usual definition of “really serious harm”.

The notorious “Yorkshire Ripper” pleaded diminished responsibility based on the basis that he had been “commanded by God” to kill prostitutes.

The burden of proof for diminished responsibility is on the defence, on the balance of probabilities. Sutcliffe’s plea was unsuccessful notwithstanding clear evidence of his mental health problems.

The defendant was an alcoholic and killed her daughter after drinking a full bottle of vodka. She normally drank a weaker drink. She was able to choose to stop drinking after the killing.

Being drunk in this context was not evidence of abnormality of mind (although alcoholism can be). She was able to exercise control over her drinking, to choose different drinks and to choose to stop.

A woman killed her abusive, alcoholic husband after he had made continually abusive comments and threats.

The “things said or done” trigger is judged objectively, and loss of control is based on the precise moment of the killing. That did not apply as a defence but evidence of her mental state reduced the crime to manslaughter.

CONSIDER whether coercive control would have secured a different outcome had it been available.

The defendant was an alcoholic who killed another man with a meat cleaver following two days of heavy drinking.

If drinking is truly involuntary, it can be evidence of an abnormality of mind based on alcoholism. For an alcoholic drinking becomes involuntary. The defendant was guilty only of manslaughter.

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