Negligence : Duty Of Care

Front 1

Elements of negligence?

Back 1

Duty of care

Breach

Causation (Damage as a result of breach)

Damage not too remote

Front 2

Duty of Care

Back 2

Relationship b/w D and C such to impose duty on D to prevent injury to C in all circumstances of the case. Lord Esher MR: "a person is entitles to be as negligent as he pleases to the whole world if he owes no duty to them." i.e. even cause damage but no duty. --- control device so no gen duty to prevent harm.

- must be owed specifically to claimant - palsgraf (US case: train, fireworks, suitcase, claimant not person knocked over)

-twin functions -- b/w particular cliamants, in all cases of a particular type. Eg hedley byrene, yes gen duty but not in this case

for physical damage directly caused, not hard to establish duty (but no gen duty): i.e. Goff "function not to establish where liability is imposed, rather where it is not."

*established duty of care

*outside of these, in accordance with principles developed by case law ---- even if gen, must apply to particular facts --- eg foreseeable victim?.

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Established duty situations

Back 3

*one road user to another

*employer to employee

*manufacturer to consumer (CPA)

*doctor to patient

*solicitor to client

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Devlopment

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1) Donoghue v Stevenson - Atkin's neighbour principle (Lord Macmillan: The categories of negligence are never closed -- can formulate new categories to reflect current social view and make decisions based on public policy considerations.

but judicial relucatnce intially to aply tpo other situ--- eg none for negligent misstatements.

problem??? -

Home office v dorset yacht co ltd. --- regard neighbour principle applicable in all cases where no justification for exclusion

One of the main attractions of the neighbour principle (its pleasing simplicity) is also its key weakness.

2) Anns v Merton

criticised 2 broad. Yuen Kun-Yeu -v- Attorney-General of Hong Kong : counter revel. said 2 ways could be interpreted. either first stage proximity = only reasonable foreseeability/ take policy into account there ---they preferred this

3) Caparo Industries plc v. Dickman : introduced just, fair and reasonable. said stop lookig general test. analogies described below. cliamant had to prove just, fair and reasonable. broke anns first stage into 2.

4) 3)a)Caparob)assumption of responsibilityc)the "incremental test" asks whether law should develop novel categories of neglig incrementally and by analogy with established categories.

A local authority is not liable in tort for negligent application of the building regulations, where the resulting defects are discovered before physical injury occurs. The loss suffered is purely economic. Following the decision in Murphy v. Brentwood District Council[1991] 1 A.C. 398, HL it was generally thought that the scope for the imposition of a duty of care not to cause economic loss was severely restricted. in such circumstances the test formulated in Anns was not a sufficient basis for the imposition of a duty of care to avoid causing economic loss.

no one can be mechanically applied ans so warned that: Customs and Excise: ""unhappy experience with rule so elegantly formulated by Lord Wilberforce in Anns has showed us that judges should seek simplicity and distrust it"

use tests all 3 in suitabe cases--mutually supportive way but Lord Bingham (another case) tripartite = most favouable.

Front 5

Donoghue v Stevenson: narrow+broad rule

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Facts: C's friend bought her a bottle of beer. C found a decomposed snail in it and developed physical illness.

Held: C couldn't sue in contract (didn't buy the bottle herself), brought claim against manufacturer. Narrow rule: manufacturer of goods owes duty to ultimate consumer.

Broad rule: neighbour principle of Lord Atkin, to establish duty of care in any situation. “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

Front 6

Anns v Merton

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C = Tenants of flats built with approval of the Council (D). Foundations were too shallow. C suedfor negligently approving the plans and failing to inspect the foundations.Held: D owed a duty of care and was liable even though the loss was economic.

Test = 1) sufficient proximity => reasonable foreseeability 2) are there any limits on imposing the duty or any reason not to impose it?

Front 7

Caparo v Dickman

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Facts: Investors suffered financial loss, auditor's liability?

Held:

Narrow rule: no duty of D in respect to the purchase of shares because failed test to establish claimant negligent misstatement => D had to know the statement would be communicated to C, that thestatement would be connected to a transaction, and that C would be likely to rely on the statementto decide whether to proceed with the transaction. --- duty to company shareholders but not at large anyone buyng shares (even if forseeable result). Lord Bridge FAIRNESS : to hold liable " to confer upon the world at large teh entitlement to apropriate expert knowledge for own) --- ALSO protecting against MULTIICILPLITY OF CLAIMS AND RUINOUS LIAB

Broad rule: reformulation of neighbour principleTest = 1) reasonable foresight of harm 2) sufficient proximity of relationship (even where physical injury, C must show D had a measure of control over and responsibility for the potentially dangerous situation) 3) it is fair, just and reasonable to impose a duty. = why impose a duty?

use similar situations (incrementalism), build nalogies using caparo. ----stop looking for general test.

-no use really in established duty situ/ where not established. specialised rules for things like psych trauma (included in factors of proximity/ just fair??) really only use novel area/ new duty still developing

Front 8

Categories of Caparo v Dickman overlap?

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Lord Hoffman: boundaries b/w 3 somewhat porous but not a bad thing. i particular, requirement 3 may be used to inform whether there should be considered a relationship of proximity and sometimes special reason as to why duty should not exist even if otherwise proximate.

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Interplay b/w tests:

Customs and Excise Commissioners v Barclays Bank Plc

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C had obtained freezing order against 2 companies. served to bank who wrote in acknowledgement of its oblig to obey but b4 received (/probs even sent) companies managed of withdraw huge irrecoverable sums.

on the incrementalism test: not regarded as solvent in own right because no indication where increments should stop ---radically diff result in 3 steps instead of a leap? however helpful as the closer facts are, court more ready to fin assumption of responsibility or that proximity/ policy conditions are satisfied. converse is also true ---- also caution and analogical reasoning are valuable cross checks against other approaches. (on facts of this---Lord Mance not incremental, not analogous to any previous situation.

assumption of respons---- bank had no choice but to comply.

caparo ---- foreseeable yes. whether or not proximity established, not just, fair and reasonable: could conceive of situation where could potentially be indeterminate ruinous liability.

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assumption of responsibility

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-- -prominence in context of liability for statements/ undertaken to perform a task for C, usually economic loss . does not require actually intends responsible (objectively assessed) cases ----however not confines and not solvent (in fact Caparo statement case on pure economic loss)

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Caparo factors more detail

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1) foreseeabiltiy - (reasonably foreseeable C may be harmed if D negligent) q of fact, no need specific claimant, class is a-okay, also objective standard.

2)proximity ---wider than physical nearness (Donoghue v Stevenson) where dircet harm by act, may be established by foreseeability and nothing else. for things like tp etc, will demand substantially closer relationship. also consistently appears n misstatement cases. Hedley Byrne: Lord Devlin -- akin to contract.

3) JUST, FAIR AND REASONABLE: caparo itself (multiplicity, ruinous liability)

vulnerability/deodence of C (Esanda Finance v Peat Marwick Hungerford)

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Omissions

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pure omission: omissions which cannot be rephrased as doing something badly: No liability → Stovin v Wise [1996] 3 All ER 801, Gorringe v Calderdale MBC [2004] 1 WLR 1057

Why? 1)Morally intrusive where is the limit of a duty to intervene

2) why pick me?

3)Argument omissions are less culpable than actions

4) erosion of attribution of individual responsibility (make the wrong defendant liable) tort law aims to compensate for wrong done, there should be no right to a benefit)

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Exceptions to no omission rule

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1) positive duty to act-----Special relationship of dependence/assumed control/ relationship giving rise to a duty to protect/rescue:parent-child, school-child, prison authorities – prisoners, employer-employee, occupier-visitor: Barnes v Hampshire CC [1969] HL, Reeves, occupiers, worker/ passenger (gain some benefit--- employee/carrier)

2)Acts of third parties:

-)D controls X

-)Assumption of responsibility to C

-)D creates source of danger and forseeable that third party would exploit it

Front 14

Barnes v Hampshire CC [1969] HL

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The school didn't stop a 5 year old child from wandering off out of the school gates. The child washit by a lorry driven without fault on the driver's part.Held: the school had a duty to care about the child as well as a duty to act to prevent youngchildren from crossing the road without adult supervision.

Front 15

Reeves v Commissioner of Police of the Metropolis [2000] HL (Exception to NAI)

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V committed suicide in police custody. He was known as suicidal. Some security measures weretaken but that was not enough. It was argued V was sound of mind so his voluntary and informedact broke the chain of causation.Held: the act of suicide was the very thing the police had a duty to prevent, it made no sense to seeit as a novus actus.to prevent to treat this as such would deprive the duty of any substance. Due to the degree of control the police had, it was held liable.

Front 16

Barrett v Ministry of Defence [1995] CA

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C's husband was in the Navy. He was extremely drunk and passed out. Officers checked on himseveral times but he was found dead.Held: even if there was no duty to prevent him from drinking, once the officer assumedresponsibility for him (by taking care of him) he had a duty of care to ensure V receivedappropriate supervision.

Front 17

Acts of third parties ::::::::D controls X, D assumes responsibility to C, D creates a source of danger and it was foreseeable a 3rd party would exploit it.

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no general duty of care unless there is a special relationship with that third party or the source of danger. Rules established in Smith v Littlewoods.

Front 18

Stovin v Wise [1996]

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Car accident, D tried to put part of the responsibility on the highway authority because of a moundhampering visibility.Held: it was a “pure omission” (L. Hoffmann), the authority was not liable. --- not caused by something they did, rather failed to do.

Front 19

D controls X

Carmarthenshire CC v Lewis [1955] HL

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D employed X who left a 4 year old child without supervision. The child went on the road where adriver swerved to avoid him and died.Held: D was liable, it had taken charge of a child and had a duty to take care to prevent him fromcausing harm to others.

Front 20

D assumes responsibility to C

Stansbie v Troman

Swinney v CC of the Northumbria Police [1997]

Mitchell v Glasgow City Council [2009] HL

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Stansbie v Troman [1948] CA D was a decorator, he left the house he was working on with the door unlocked when he was toldTo close it whenever he left. A thief entered the house.Held: A duty of care was created by the contractual relationship. D liable for value of goods taken as this was exactly the sort of loss he should have guarded against and foreseen.

Front 21

Swinney v CC of the Northumbria Police [1997]

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C passed information to the police, the document recording the info was stolen from the police car.C received violent threats and suffered psychiatric injury.Held: D assumed responsibility to deal with the information appropriately because he accepted theinfo, and knew of its confidential and sensitive nature. There were no reasons not to impose a dutyof care. There was a duty to protect informers and encourage them to speak.

Front 22

Mitchell v Glasgow City Council [2009] HL

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V had been threatened by X, the local authority D had warned X to stop and kept V informed of the steps they took. They summoned X at a meeting without warning V, after the meeting X killed V. Held: nothing showed D assumed responsibility of protecting V from X. It would not be fair / just / reasonable to impose such a duty. Situations where there may be liability: -vicarious liability for acts of a 3rd party -D had an obligation to supervise the 3rd party -D created a risk of danger -D assumed responsibility for C

Front 23

Home Office v Dorset Yacht Co [1970] HL

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Held:The Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm would result from their inaction.

Front 24

D creates a source of danger and it was foreseeable a 3rd party would exploit it.

Back 24

Topp v London Country Bus Ltd [1993] CA

Smith v Littlewoods [1987]

Front 25

Topp v London Country Bus Ltd [1993] CA

Back 25

D a bus company left a bus unattended with the keys on, near a pub. A drunk stole the bus and ran over V. Held: this was not a pure omission as it was a claim the company's system of switching drives was Negligent. Act of a third party over whom they had no control broke the chain of causation and there was no duty as an abandoned bus is not a source of danger.

Front 26

Smith v Littlewoods [1987]

Back 26

D owned a cinema. Children started a fire in it when it was unattended. The fire spread. Held: D unaware of previous vandalism in the cinema and it had no obvious fire risk. There was no duty to protect C's property by securing the cinema. The duty of care depends on the context and socially accepted standards. D owes a duty in relationship to a 3rd party's acts if: -there was a special relationship between C and D -Special relationship between D and X -D negligently created a source of danger and it was reasonably foreseeable 3rd party would interfere. -D knew/was capable of knowing that a 3rd party created a danger/risk of danger and D failed to abate it.

Front 27

extra TP????? Everett and another v Comojo

Back 27

duty of care on the management of a nightclub in respect of the actions of third parties on the premises but the standard of care imposed or the scope of the duty had to be fair, just and reasonable (here no duty as not imminent danger, not under oblig to take steps). As between the managers of a nightclub and guests, there should not be a higher degree of foreseeability than was required under the common duty of care in the Occupiers' Liability Act 1957 --- enough proximity.

Front 28

Special C and D:

Public authorities:

Unborn children:

Rescuers:

Haynes v Harwood [

Back 28

Unborn children:

Rescuers:

Haynes v Harwood [

Front 29

Public authorities

Back 29

1) may incur liability just like individual (rule of law demands this)

2) just cause actionable in public law (/statutory duty), doesn't mean there will be one in private law. ----must fulfil Caparo test (problems with 3rd part)

3) just cos statutory power, doesn't mean duty ---gorringe

*Problems with common law liability of public authorities :

- unelected judges review bodies established by an elected government

-overlap? statutory scheme already provided remedies (but -Increasing recognition that there might be a duty (decrease reluctance to not give duty where stat) but no fault and thus no liability → Barrett v Enfield London Borough Council )

- liability might make them less efficient (defensiveness and financial burden)

• non-justiciable matters: political decisions/policy decisions e.g. allocation of resources,cannot be challenged in negligence → Smith v MOD [2013] UKSC 41, Barrett v EnfieldLondon Borough Council [1999] 3 WLR 79

- omissions to exercise statutory functions need to pass the Caparo test, liability where a dutyis found by assumption of responsibility

Front 30

Public authorities

(again if direct damage by positive act ---hampshire cc----then likely duty imposed easily)

Back 30

Gorringe v Calderdale MBC [2004] UKHL 15: The claimant was injured in a head-on collision with a bus at the crest of a hill. The word "slow" had been painted on the road below the crest of the hill, but that marking had apparently disappeared when the road was resurfaced. The claimant argued that the local authority had caused the accident by breaching its duty under the Road Traffic Act 1988 s 39 to ‘carry out a programme of measures designed to promote road safety’. The defendant won. Following Stovin v Wise (and extending it to cases in which a public authority has a public law duty to take measures to prevent harm), the House of Lords held that a common law duty of care cannot be founded ‘simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide’

Front 31

fire services --- Capital and Counties v Hampshire City Council [1997] CA

(Fire brigades owe no duty to act but if they act they are liable when they make things worse, duty to the public, not the individual)

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Fire brigade got on location, chief decided to turn off the sprinkler system, the fire got out of control. If had been on, some blocks of the building would have been saved. Held: D increased the damage, held liable (not a simple omission). also operational question ---- not one of resources or policy

Front 32

ambulances ----- Kent v Griffiths [2001] CA

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The ambulance was late, when calls were made they were told it was “on its way”. If the delay hadbeen known C's husband would have driven her to the hospital.Held: once an ambulance accepted a call it assumed responsibility. C and D proximate enough.It was reasonably foreseeable C would suffer if the ambulance was late. Just, fair & reasonable. he deemed it relevant that it only has to deal with the victim at the scene, and is not having to act with 'concern to protect the public generally', unlike the fire and police services (Obiter dicta: The ambulance service would not owe a duty of care under negligence for refusing to respond to a 999 call (though they may be in breach of statutory duty))

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Highway authorities

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> see Stovin v Wise.

gorringe

Front 34

Police > no general duty of care owed by the police to any particular individual.

Hill v CC of West Yorkshire Police [1989] HL

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Yorkshire ripper, last victim's parents sued police for negligence in not catching him sooner.Held: foreseeable but no proximity; not fair, just and reasonable. Killer = 1/1000, victim =1/1000.Police need to investigate without having fear of being liable if they don't succeed, if not theywould spend time on covering themselves from claims.

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Education authorities/Social services

X & others v Bedfordshire CC [1995] HL

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C suffered parental neglect and abuse which the Council knew about and failed to prevent. C notabused but Council thought they were.Held: D had a difficult task, if negligent liability was imposed it would make the task more difficult+ arguments about fault: “can't blame them”. defensive tactics harming duty overall. statutory scheme already allowed remedies.

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Wrongful birth:

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*negligent sterilisation → child is born (negligent killing of a child entitles parents to £13,000)• no compensation for the upbringing of healthy child but for the discomfort of pregnancy → McFarlane v Tayside Health Board [2000] 2 AC 59

*compensation possible for additional cost of disabled child (but not basic maintenance costs)→ Parkinson v St James and Seacroft University Hospital [2002] 2 QB 266 (also as child born direct result of failed sterilisation operation so foreseeability+proximity satisfied)

*damages for disruption of autonomy → Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309: it was just, fair and reasonable to make a conventional award of GBP 15,000, reflecting the parents' loss of opportunity to limit their family and live life the way it had been planned

* McKay v Essex AHA Doctor (D) did not advise mother to abort, child (C) born disabled. Child claimed damagesHeld: No legal obligation of D under Abortion Act 1967. Claim was contrary to public policy >violation of the sanctity of human life. The effect of the Congenital Disabilities (Civil Liability) Act 1976was that no child born after the passing of the Act could have a cause of action based on the loss of a chance to die.

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Rescuers

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Haynes v Harwood

D left horse-van unattended in street, horses bolted, police officer tried to stop them and was injuredHeld: D owed a duty of care > had created a danger source

Ogwo v Taylor

D set fire to premises negligently, a fireman suffered serious burns from steam.Held: Duty of care was owed to a professional policeman even if the risk was not exceptional.L.Bridge “not justice if professional fireman is disadvantaged compared to a layman entitled toInvoke the principle of 'rescue' cases”.

Baker v TE Hopkins & Son Ltd

X employed by D to clean a well, were instructed not to go in the well but did and fainted in it. C adoctor passing by tried to rescue them but fainted as well. All died of monoxide poisoning.Held: C's actions were not a novus actus. It was foreseeable that if D placed X in danger, someonemight come to rescue + C's actions were not unreasonable---- did not act with wanton regard for personal safety.

Harrison v British Railways Board

A person who, through lack of care for his own safety, puts himself into a situation of danger, and who ought reasonably to have foreseen that another person might endanger himself by attempting to rescue him, is liable to his rescuer for injuries sustained by him in the course of the attempted rescue.