Breaching a duty of care (A)

Question 1

How do we establish a DoC?

Answer 1

1. Neighbourhood principle (D v S).
2. Reasonably foreseeable? Proximate?
3. Fair, just and reasonable? Caparo –> Mitchell v GCC.

Question 2

Muir v Glasgow Corporation 1943 SC (HL) 3, 1944 SLT 60.

Answer 2

• Did Mrs Alexander breach her DoC?
  Was there a DoC? YES.
  Did she breach it? NO. Not reasonably foreseeable.=

Lord Thompson: “It has long been held in Scotland that all that a person can be bound to foresee are the reasonable and probable consequences of failure to take care, judged by the standard of the ordinary reasonable man.”

Lord Wainwright: “it is not a question of what she actually thought in the moment, but what the hypothetical reasonable person would have foreseen.”

Question 3

What are some other instances where a DoC isn’t breached?

Answer 3

• Defender acted involuntarily (Waugh v James K Allan Ltd 1964 SC (HL) 102, 1964 SLT 269.
• Conduct does not amount to negligence (McTear v Imperial Tobacco Ltd 2005 2 SC 1).
• Practical precaution limit liability (Quinn v Cameron and Roberton Ltd 1956 SC 224, 1957 SLT 2).

Question 4

What is the calculus of risk?

Answer 4

What can a person reasonably do to avoid causing foreseeable loss e.g. Quinn v Cameron.
CONSIDER:
- Probability of injury to pursuer.
- Gravity of injury to potential pursuer.
- Utility/value of the defender’s activity.
- Practicality of taking precautions, incl. availability and knowledge.
- Cost of taking precautions.
- Standard trade/business/professional practice.

Question 5

Establishing a breach of a DoC.

Answer 5

Murphy v East Ayrshire Council 2012 SLT 1125.
“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.” - Lord Tyre [13].

Question 6

What are the rules for establishing a DoC?

Answer 6

1. Voluntary act on the part of the defender.
2. Probable consequence must harm pursuer.
3. Negligence must exist / calculus of risk.

Question 7

Step 1: Voluntary act?

Answer 7

Waugh v James K Allan.

Question 8

Step 2: Probable consequence? i.e. reasonable foreseeability.

Answer 8

Muir v Glasgow Corp.

Hughes v Lord Advocate 1963 SC (HL) 31.
- Even if the loss or harm is not itself foreseeable, liability may arise provided the actual loss falls within a “foreseeable class of harm”.
Classes of harm: certain types of activity we can put into classes.
Maintenance, construction etc. Can foreseeably result in certain kinds of harm. Machinery etc.

Bourhill v Young.

Maloco and Smith v Littlewoods Organisation Ltd 1987 SC (HL) 37.
- It was in fact reasonably foreseeable that some damage would occur, but Littlewoods had taken reasonable steps to avoid it, not liable.

Kaizer v Scottish Ministers [2018] CSIH 36.
- Reasonable foreseeable, threats had been made. Nothing was done about it.

Question 9

Step 3: Negligence, calculus of risk.

Answer 9

CONSIDERATIONS:
1. Probability of injury to the pursuer (Phee v Gordon 2013 SLT 439 / Kennedy v Cordia (Services) LLP [2016] UKSC 6).
2. The seriousness of the injury to the pursuer (Paris v Stepney Borough Council [1951] AC 367).
3. Utility of the activity (Gilfillan v Barbour 2003 SLT 1127).
4. Practicality of precautions (Bowes v Highland Council [2017] CSOH 53; 2017 SLT 749).
5. Cost of precautions (Collins v First Quench Retailing 2003 SLT 1221).
6. Trade practice (Brown v Rolls Royce Ltd 1960 SC (HL) 22 - negligent activity cannot be excused merely because it is common practice).