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Date: Wed, 30 Jul 2008 09:17

From: James Lee

Subject: A Quartet of Cases


Dear Colleagues,

It appears that, in the past week, there have been some noteworthy cases decided in England and Wales. While they will be of general interest to members, some of them will be particularly so because they touch directly on themes or issues discussed at last week’s excellent Obligations Conference (congratulations again to Andrew Robertson and Tang Hang Wu for organising it). I apologise in advance for the somewhat lengthy e-mail.

A successful claim for defamation and misuse of private information as a result of the creation of a false profile and a group on “the popular social networking site, Facebook”: Applause Store Productions Ltd & Anor v Raphael [2008] EWHC 1781 (QB) (24 July 2008). It was admitted that the material was defamatory and made use of private information. The case is worth reading for two reasons, I think: firstly, it is a useful example to which students can relate (and perhaps learn lessons for their own use of Facebook – I think that some UK universities have been warning students about the possibility of liability for writing things about their tutors on the site); secondly, and more importantly, there is some consideration of “vindication” in the role of damages, which will be of note to some members.

Smith v ADVFN Plc & Ors [2008] EWHC 1797 (QB) (25 July 2008), decided by Eady J the day after the more headline-grabbing Mosley case, concerns a multiplicity of issues arising from the use of colourful language in the blogosphere. Eady J holds that the claims would not succeed because the relevant postings were “obviously, in their context, either mere vulgar abuse or fair comment”, or perhaps protected by qualified privilege. The case can be read alongside Applause because Eady J concludes by saying “I would not suggest for a moment that blogging cannot ever form the basis of a legitimate libel claim”.

Bocardo SA v Star Energy UK Onshore Ltd & Anor [2008] EWHC 1756 (Ch) (24 July 2008), saw a Mohamed Al Fayed succeed before Peter Smith J in a claim for trespass against a company that had extended its drilling for oil underneath his land (or the land of a company claiming on his behalf). There is a nice point about the limitations of the maxim “cuius est solum eius est usque ad coelum et ad inferos” as to the extent of a trespass. Peter Smith J awarded 9% of the value of the oil extracted as “compensation” and Edwards v Simms/Lee, Wrotham Park, Stoke v Wass and WWF are all mentioned.

Bailey v The Ministry of Defence & Anor [2008] EWCA Civ 883 (29 July 2008) is case on causation in negligence. Bonnington Castings Ltd v Wardlaw, McGhee v National Coal Board, Hotson v East Berkshire Area Health Authority, Wilsher v Essex Area Health Authority, Fairchild v Glenhaven Funeral Services Ltd, and Gregg v Scott were all cited. Waller LJ gives the leading judgment for the Court and summarised the first instance judge’s findings and reasoning as:

17. So the judge was concerned to ascertain whether the negligence in the care of the claimant (admitted to some degree) made a material contribution to the injury suffered by the claimant – material meaning something more than negligible. He held that it did and his reasoning in essence was (1) if appropriate care and resuscitation had been provided after the procedure on 12th January the claimant would have been to fit to have, and have had, a further procedure on the 12th January which would have saved all, or at least some, of the traumatic and life-threatening period and procedures which she had to endure on 15th to 19th January; (2) that would have avoided the considerable weakening of the claimant, which resulted and which was occurring in addition to any debilitation arising from her pancreatitis; (3) the physical cause of her aspiration and subsequent cardiac arrest was her weakness and inability to react to her vomit; (4) there were two contributory causes of that weakness, the non-negligent cause pancreatitis, and the negligent cause, the lack of care and what flowed from that; and (5) since each "contributed materially" to the overall weakness, and since the overall weakness caused the aspiration, causation was established.

The appeal was dismissed, with Waller J concluding:

46. In my view one cannot draw a distinction between medical negligence cases and others. I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that 'but for' the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the 'but for' test is modified, and the claimant will succeed.

47. The instant case involved cumulative causes acting so as to create a weakness and thus the judge in my view applied the right test, and was entitled to reach the conclusion he did.

Although the language in the case is not always as clear as it might be, there is a difference between the material contribution to risk cases such as Fairchild and cumulative cases such as the instant case (on its facts), which involve the material contribution to the injury itself.


Best wishes,
James Lee

James Lee
Birmingham Law School  
University of Birmingham
B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629



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