Rainford v Lawrenson [2014] EWHC 1188 (QB)

The Claimant was walking, with her sister Vicky, from her home to a bus stop on the A588 to catch a bus to school. The Claimant was aged 14 years and 8 months. As the Claimant crossed to reach the bus stop she was knocked over by the Defendant sustaining severe injuries including a serious head injury.

The Claimants sister was recorded by police as saying “her sister didn't look but ran across the road to get her bus.” The Defendant stated she was driving to work as normal, there were cars coming the other way. As she approached the bus stop she noticed there was a group of school children on her left hand side on the grass verge. One of the group stepped out into the road. The Defendant swerved into the offside carriageway to avoid her.

The court had to determine two related issues of:

  1. whether the Defendant had kept a proper lookout; and
  2. whether the Claimant had been contributory negligent in that she was aware of the Green Cross Code and was of a certain maturity.

In determining whether a child was at fault, the standard by which a child's conduct was to be measured was not that to be expected of a reasonable adult but that reasonably to be expected of a child of the same age, intelligence and experience.

On the evidence, the primary liability lay with the Defendant who had failed to keep a proper look out and take appropriate steps to the real risk that presented itself to her. However, the Claimant was aware of the Green Cross Code, was of a certain maturity, and was therefore held to be 50% contributory negligent.

Thompson v The Renwick Group plc [2014] EWCA Civ 635

In 1969, the Claimant commenced work for a company (AW) during which time he regularly handled significant amounts of raw asbestos through a process known as 'hand baling'.

In 1975, AW was acquired by another company (DH). The Defendant company was the holding company of DH, accordingly, it also became parent company of AW.

The Claimant was employed by DH between 1975 and 1978. After the take-over, DH operated under the umbrella of the Defendant, for example, the lorry that the Claimant drove was painted in the Defendant's livery.

The Claimant developed diffuse pleural thickening most likely caused in whole or in part by exposure to asbestos dust. He issued proceedings seeking damages. Neither AW nor DH, as his employers at the relevant time, were worth pursuing and neither had had in place responsive liability insurance.

Consequently, the proceedings were issued against the Defendant as parent company of the employing companies. The parties agreed that a preliminary question should be resolved, namely, whether the Defendant had owed a direct duty of care to the Claimant.

The County Court Judge concluded, on the sparse evidence that was before him, that the Defendant, through a director appointed by it to DH, had taken control of the daily operation of the business of DH to a sufficient extent to have given rise to a duty of care owed by the Defendant to the Claimant. He found that that control had become apparent after 1 April 1976.

There was no evidence that the director in question had been employed by, or a director of, the Defendant and no evidence as to by whom he had been employed whilst working at DH. The Defendant appealed.

The appeal would be allowed.

In running the day to day operations of DH, the director appointed by the Defendant had not been acting on behalf of the parent group. He had been acting pursuant to the fiduciary duty that he had owed to DH and pursuant to no other duty. Consequently, the basis upon which the Judge had determined that the Defendant had owed a duty of care to the Claimant was unsupportable.

There was no basis upon which it could be concluded that in running the affairs of DH, if he had, that the director in question had been acting on behalf of the Defendant.

The findings that the Judge had made on the basis of the very limited evidence available had fallen far short of what was required for the imposition of a duty of care on the Defendant.

There was no evidence that the Defendant at any time had carried on any business at all apart from that of holding shares in other companies, let alone that it had carried on either a haulage business or a business an integral part of which had been the warehousing or handling of asbestos or indeed any potentially hazardous substance. Under established principles, what one looked for was a situation in which the parent company was better placed, because of its superior knowledge or expertise, to protect the employees of subsidiary companies against the risk of injury and moreover where, because of that feature, it was fair to infer that the subsidiary would rely upon the parent deploying its superior knowledge in order to protect its employees from risk of injury.

There was no basis upon which it could have been asserted that the Defendant in the instant case either had had or should have had any knowledge of that risk superior to that which the subsidiaries could have been expected to have. The Judge's findings on the intermingling of the businesses had not meant that the legal personality of the subsidiaries separate from that of their ultimate parent had not been retained and respected.

McGregor v Genco (FC) Ltd [2014] EWHC 1376 (QB)

The Claimant had worked in the shoe section of a department store. Around 1976, refurbishment work had been carried out in the store and escalators had been taken out and replaced. It was alleged that no special precautions had been taken to deal with asbestos during the works.

The Claimant's employment with the Defendant ended in 1981. The Claimant, aged 58, developed malignant Mesothelioma of the pleura. She began suffering with symptoms of Mesothelioma in May 2012 with shortness of breath and lethargy and was diagnosed in August. The prognosis was poor. The Claimant brought a claim in damages for personal injury against her former employer on the basis of a breach of common law duty of care. Damages were agreed in the sum of £135,000, inclusive of interest. The proceedings concerned liability only.

The issue for consideration as whether the Defendant was liable to the Claimant in negligence. In particular:

  1. whether the Claimant had been exposed to asbestos dust during the course of her employment with the Defendants;
  2. if so, what had been the extent of her asbestos exposure;
  3. whether that exposure had caused her Mesothelioma; and
  4. whether that asbestos exposure had been negligent.

The question arose as to was whether the Claimant's asbestos exposure from the Defendant had given rise to a foreseeable risk of injury having regard to the state of knowledge at the time of her employment.

The claim would be dismissed.

It was settled law that what had to be foreseen was not the likelihood or probability of injury, but the risk that it might occur. The test in every case ought to be whether the Defendant could reasonably foresee that his conduct would expose the Claimant to risk of personal injury.

On the balance of probabilities, the Claimant had been subjected to exposure of asbestos dust during her employment by the Defendant at the store in 1976. On the facts, her exposure to asbestos had been for a relatively short period, a matter of months in 1976 during the escalator works, and had been light.

The question was whether the carrying out of the escalator works should have alerted the Defendant to the fact that the Claimant might be at risk of injury when she worked for them in 1976. In the circumstances, the Court was unable to accept that, during 1976, when the escalator work was being carried out.

It followed that the claim had to fail. It was not correct to suggest that the Defendant should have appreciated that the Claimant had been at risk of an asbestos related injury and that their failure to appreciate and take what would be regarded as appropriate precautions or to make enquiries about the nature of the dust was negligent.

Dervishaj v (1) Burton (2) The Co-operative Society (2014)

The Claimant was driving down a dual carriageway at night. A lorry driven by the First Defendant pulled out of a side road and on to the central reservation. The intention was for the lorry to turn right onto the opposite carriageway. The lorry was too long for the central reservation and the rear protruded into the carriageway on the Claimants side of the road.

The Claimant was overtaking another vehicle as he approached the lorry. He did not see the lorry in time. Although he swerved to avoid the lorry he collided with the rear of the lorry shearing off the roof on his car. The Claimant was not wearing a seatbelt.

Liability was found to be 100% the Defendants fault as he had taken an unnecessary risk. Evidence produced suggested that if the Claimant had been wearing a seatbelt he would have been decapitated. Therefore, there was no finding of contributory negligence, even though the Claimant was breaking the law, if he had been wearing the seatbelt, he would have been killed.

Tracy Earl v Middlesbrough Council (2014)

The Claimant worked as a gardener for the Defendant for a period of 20 months from March 2006. The Claimant developed a cancerous spot on her nose which had to be surgically removed. She claimed damages from her employers stating they were under a legal duty to provide her with sun cream and a hat whilst working.

The claim was rejected in the first instance at Middlesbrough County Court. The decision was appealed.

The Court of Appeal found that the County Court had been entitled to reject the claim after hearing evidence relating to the latency of the Claimants condition, and the effectiveness of sun screen in the prevention and rate of incidence in outdoor workers. It was found therefore, that the Defendant did not hold such a duty towards the Claimant.