A Scottish court found that care workers transporting a
wheelchair-bound man by taxi were not legally responsible for
ensuring that he kept his seatbelt fastened. This result is
different from that of a similar English case.
The case - JANETTE MURPHY V EAST AYRSHIRE COUNCIL [2011]
CSOH 136
The issue
The pursuer sued on behalf of her husband under a power of
attorney. Mr Murphy, 65, had his right leg amputated below the knee
in 2003 and used an electric wheelchair. He suffered strokes in
1993 and 2005 which left him with limited power of speech, but his
mental capacity was not impaired. He attended a day care centre
twice weekly and was transported between his home and the centre in
his wheelchair by a specially adapted taxi.
On 26 September 2005 Mr Murphy was being transported home from
the day care centre. The two carers from the centre were sitting
alongside the driver in the front of the taxi. Mr Murphy and
another wheelchair user were in the rear. The wheelchairs were
secured in the taxi using webbing attachments, and there were
seatbelts available to secure the passengers being transported in
wheelchairs. The taxi driver had to brake sharply when another
vehicle pulled out of a junction and Mr Murphy was thrown from his
wheelchair, sustaining injuries. He had not been wearing his
seatbelt at the time. Damages were agreed at £7,887 and the trial
was concerned only with liability.
The decision
The judge, Lord Tyre, found as a matter of fact that Mr Murphy's
seatbelt had been fastened at the start of the journey and that Mr
Murphy had undone the seatbelt himself during the course of the
journey. Mr Murphy had been found on previous occasions to have
undone his seatbelt when the taxi arrived at his home. On all but
two of those occasions, when he was noticed to have unfastened his
seatbelt during a journey, it was not known whether he had
unfastened his seatbelt whilst in transit or as the taxi had
arrived at his home. On a previous occasion one of the care workers
had explained to Mr Murphy the risk of undoing his seatbelt. A risk
assessment completed by another of the care workers had identified
the potential hazard of Mr Murphy undoing his own seatbelt. Since
Mr Murphy's accident it became the defenders' practice to have at
least one care worker seated in the rear of the taxi. The pursuer
argued that ought to have been the practice at the time and it
would have prevented his accident.
With reference to the House of Lords decision in Mitchell v
Glasgow City Council 2009 SC (HL) 22, Lord Tyre held in this case
that the "foreseeability of harm is not of itself enough for the
imposition of a duty of care. The law does not normally impose a
duty on a person to protect others from harm which is not caused by
his or her wrongful act. Something more, such as an assumption of
responsibility, is required. In the present case I can identify no
basis upon which the defenders assumed a legal responsibility for
ensuring that Mr Murphy, a person of full age and capacity, did not
travel with his seatbelt unfastened."
Lord Tyre went further, and explained that even if such a
general duty did exist, it did not arise in the circumstances of
the present case, as there was insufficient evidence that it was
reasonably foreseeable that Mr Murphy was prone to undoing his
seatbelt whilst in transit.
Carly Stewart
The judge in this particular case refused to impose duties
on the care workers beyond those that would apply between any
adults with full mental capacity in the same situation. There was
no duty on the care workers to take positive steps to enforce the
wearing of seatbelts by day care attendees.
This may be contrasted with the unreported English case of
Reynolds v Strutt & Parker, 15 July 2011. In that case the
defenders' employees attended an activities afternoon, which
included a cycling race. Twelve employees participated in the race
including the plaintiff. Only one person wore a cycle helmet - not
the plaintiff. He was involved in a collision with another of the
cyclists during the race and sustained serious head injuries. The
court held that the activity was not 'in the course of employment'
and therefore the 'six pack' regulations did not apply.
However, there was a duty of care on the partners who
organised the event, neither of whom had sufficient knowledge to
carry out an adequate risk assessment. The risk of collision and
the potential consequences ought to have been obvious. The
defenders were liable for failing to inform participants about the
wearing of helmets. The pursuer was, however, held to be two-thirds
contributorily negligent both for his failure to wear a helmet and
for the manner in which he rode his bicycle.
It is difficult to reconcile these two judgements. It may be
that courts in Scotland are more reluctant than the courts in
England to impose duties on persons to take positive steps to
protect the safety of others.
Alternatively, it may be that although the judge in Reynolds
held the activity was not being carried out "in the course of
employment," he was prepared to hold, perhaps as a matter of policy
having regard to their status as employers, that the defenders had
"assumed responsibility" for the safety of its employees for whom
it had organised an activities afternoon.
OTHER CASES
The case - Cheshire Mortgage v Grandison [2011] CSOH
157
In this case, lenders sued solicitors for breach of warranty of
authority, contending in each case that the solicitors warranted
that they had the authority of the individuals who owned the
properties over which standard securities were purportedly
granted.
The pursuers had been the subject of a mortgage fraud by a
fraudster. In each case the fraudster applied for a loan pretending
to be Mr and Mrs X of a particular address, owning heritable
property which they offered as security. When the loan was
approved, a pretended standard security was executed giving the
pursuers security over the property which they claimed to be
theirs. The pursuers advanced the money to the fraudsters,
believing them to be Mr and Mrs X of that address, and the
fraudsters have subsequently disappeared.
In setting up the standard security in each case, the fraudsters
instructed firms of solicitors. Those solicitors were themselves
deceived; they accepted instructions from the fraudsters believing
them to be who they said they were.
The defenders, while recognising the doctrine of a solicitor
giving an implied warranty of authority, argued that the warranty
does not go as far as contended. The judge summarised their
position as follows: "There is no warranty of the identity of the
person for whom they act, nor is there any warranty as to whether
he is or is not the owner or occupier of any particular property.
They say, in effect, that they warranted only that they had
authority from the person or persons who were already known to the
pursuers and with whom the pursuers were already dealing."
Lord Glennie held for the defenders. He said: "Of particular
importance, to my mind, is the fact that, by the time the
borrowers' solicitors became involved, the lenders knew who they
were (or thought they were) dealing with. They had made the
decision in principle to lend to those individuals. The solicitors
were instructed by the borrowers for a limited purpose, namely to
help draw up the relevant loan and security documentation and to
liaise with the Mellicks, solicitors instructed by the lenders, to
that end. In those circumstances, it is, in my opinion, difficult
to see any room for any implied representation by the solicitors as
to the identity of the borrowers for whom they were acting, other
than that they were acting for the people with whom the lenders
were already engaged in a process of finalising a loan
transaction."
He also said that the fact that a solicitor is required to make
identity checks "does not mean that that solicitor automatically
warrants to the other party the accuracy of the information with
which he is provided by his clients. That is simply a non
sequitur."