English Legal Cases Made Easy Episode 4 - Don't Believe the Hype - A warning for purveyors of snake oil

Once upon a time (and a very, very long time ago) people were extremely silly and believed what they were told in an advertisement, something which would never happen these days! One of these people bought a small ball filled with carbolic acid from which a rubber tube entered the nose and when the ball was squeezed, the vapours made the nose run thereby preventing the catching of flu. Well, so the company who made them claimed. In fact, they were so insistent that this little device would prevent the owner from getting flu, they proclaimed in their advertisement that if it were to fail, they would pay £100 to the poor sufferer (if they survived of course, as flu was a tricky customer in 1891) and to show their sincerity, they had deposited £1000 with a bank in Regent Street.

Well, Mrs Carlill (for that was her name) duly bought herself a Carbolic Smoke Ball and used it in accordance with the instructions. Sadly, however, she contracted the flu. Upon recovery from said flu, Mrs Carlill became the personification of vengeance and pursued the Carbolic Smoke Ball Company to within an inch of its life. I won't bore you with the arguments but the outcome was that Mrs Carlill won her reward of £100 (and seemed to suffer no lasting ill-effects from either the flu or the nasally-inserted rubber hose complete with nostril-hair-removing carbolic fumes).

The point of law that arose from this strange case was to do with contract law (Case citation: Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1). The company argued that it was not meant to be a real contract and that the promise of a reward was a "mere puff" which was not meant to be taken seriously. They also said that it did not comply with the requirements of a proper contract as the offer was made to the public as a whole and there was no "acceptance" (necessary to form a contract at that time). The judges thought otherwise and said that the Company had made a UNILATERAL offer of a contract to the entire world and that Mrs Carlill had accepted that offer by purchasing the Smoke Ball. They also said that the Company had clearly meant what they had said as they had deposited the money with a bank. In other words, the only "mere puff" had been from the smoke ball itself.

Finally, just so as you know, carbolic acid was put on the Poisons Register in 1900 and Mrs Carlill lived to a ripe old age of 96, succumbing to the Grim Reaper in 1942 mainly through old age but, sadly, also due to a touch of flu.

Tina Morgan   www.john-kennedy.co.uk

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English Legal Cases Made Easy Episode 3 - All at Sea - When can you eat the office junior?

When is it permitted to eat one of your shipmates? Certainly not whilst he is still alive and definitely not if you've had to kill him first. It's also no excuse to say that he was almost dead anyway so you were just helping him along a little and it's not going to wash if you say that it is a normal custom of the sea.

So, next time you are lost at sea in a very small lifeboat accompanied by 3 of your shipmates and just 2 tins of turnips, do not (and I repeat) DO NOT start eyeing up the cabin boy whilst licking your lips and wondering where you are going to find a nice bottle of claret in the middle of the ocean. Just like Mr Dudley and Mr Stephens, you will end up in prison. Mind you and on the other hand, they only got 6 months - make your own mind up!

To read the report on the Pythonesque but true bizarre story of the cabin-boy-eating case see R v Dudley & Stephens (1884) 14 QBD 273 DC. Oh and by the way, the answer to the question of when is it permitted to eat one of your shipmates is - whenever you like, as long as they are already dead. Bon appétit!
 

Tina Morgan   www.john-kennedy.co.uk

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English Legal Cases Made Easy Episode 2 - Danger Down Under - In which oil is poured and troubles waters

Once upon a time and about 60 years ago, a rather careless ship's engineer on the SS Wagon Mound, allowed furnace oil to leak out through an unclosed valve into the water in a harbour in Sydney. Today, this would have made him very unpopular - just ask BP! The oil drifted around on the surface of the water and shlooped up under a wharf and around several other ships that were moored there. The owners of the wharf were making repairs on one of the ships. They were welding and when they saw the spreading bunkering (as it was called) oil, they stopped their welding activities for fear of setting the whole place alight.

After some enquiries by the owners of the wharf, it was decided that as far as anyone knew, furnace oil was not inflammable when it was spread on water. (Hmm...well it was a long time ago!). They continued their welding activities though having some care to not let stuff drop into the water. In the meantime, the SS Wagon Mound happily went on its way leaving, what was to become, a trail of disaster behind it.

Sadly, in those days, there was not a lot of care for the well-being and cleanliness of water and so there was some cotton waste merrily bobbing along beneath the wharf. Sparks from the welding cascaded prettily down and landed on the cotton which caught fire leading to the ignition of the oil-coated timbers supporting the wharf resulting in a conflagration of devastating consequences.

Unfortunately, the owners of the wharf, when suing the charterers of the Wagon Mound for the damage, argued themselves into a bit of a corner. They argued that it must have been petrol that was spilt into harbour as everybody knows that furnace oil does not burn! Er...so... where did that leave them when it was established that it was not petrol but furnace oil. Well, actually, nowhere because after much fighting in the Australian Courts the case came over to England to be heard at the Privy Council (which is where appeal cases from Australia go to be decided) and they said that it was not "foreseeable" that a fire would result from the spillage of the oil.

So there we have it. This case established foreseeability in English law. Prior to that, if someone was negligent, they were liable for the direct consequences of the negligence (ie dropping a plank into the hold of a ship that had been carrying benzene and when the plank hit the bottom of the hold, it caused a spark which ignited the fumes that were still in there). From this point on, it had to be reasonably foreseeable that your negligence would cause the damage that it had caused before you could be sued for it. If it was too "remote" then you wouldn't be held to be liable for the damage.

In this case and unfortunately for the owners of the wharf, they were very reluctant to argue that fire was the foreseeable result of sparks landing on furnace oil on the water, as it was their workmen who had decided that it wasn't. (I think they call that being hoist by your own petard).

Viscount Simonds, when giving his judgment on the matter, said 'The raison d'être of furnace oil is, of course, that it shall burn, but I find the [defendants] did not know and could not reasonably be expected to have known that it was capable of being set afire when spread on water.' (Case citation: Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or The Wagon Mound (No 1) [1961] UKPC 1)

Ironically for the owners of the wharf, the owners of the 3 ships that had been moored there and also destroyed in the fire, went on later to sue the charterers of the SS Wagon Mound and succeeded. Based on exactly the same facts as the first case, the Privy Council said that a reasonable ship's engineer would have been aware that his carelessness could cause a risk of fire and as the gravity of the potential damage from such an event was of such great magnitude, there was no excuse for him allowing the oil to escape.

So there you have it. It is now established in English law that you will be able to claim damages where the extent of possible harm from someone's negligence is so great that a reasonable man would guard against it (even if the chance of the loss occurring was very small). (Case citation: Overseas Tankship (UK) Ltd v The Miller Steamship Co or The Wagon Mound (No 2) [1967] 1 AC 617)

The lesson in plain English is this - if you behave in a negligent way without due care and attention to what you are doing and your behaviour causes other people to suffer some kind of loss or damage, then as long as the damage that they have suffered is in your reasonable contemplation, you will be liable for it. Shimples - as they say in Russia!

Tina Morgan  www.john-kennedy.co.uk

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