C2A: Duty of Care

Question 1

What did Michael v Police and Robinson v Police decide about suing the Police for negligence?

Answer 1

Michael: victim of domestic abuse was killed because police didn’t get to her on time. Victim’s family lost.

Robinson: Mrs Robinson got hurt when police arrested a suspect. She won.

Reasoning was because an omission to act by police is not a cause for police to be liable for the duty.

Question 2

Give 5 examples of where an established duty of care exists?

Answer 2

1. Road users, owe other road users
2. Doctors, owe their patients
3. Employers, owe their employees
4. Parents, owe their children
5. Lawyers, owe their client

Question 3

Which case established the neighbour principle?

Answer 3

Donoghue v Stevenson [1932]

After Mrs Donoghue was able to sue the manufacturer of the ginger beer, after finding a snail in her bottle, Lord Atkin formulated a general principle to govern the existence of a wider duty of care, known as the ‘neighbour test/principle’. The general principle is that one must have reasonably had other people in mind when thinking about their act.

Question 4

What is the neighbour principle?

Answer 4

Lord Atkin developed the general principle, which is that one must have reasonably had other people in mind when thinking about their act.

The neighbour principle can be broken down into two key questions:

1 - Was this harm reasonably foreseen?
2 - Was the proximity between parties close or far?

Question 5

What is the background to the Caparo test?

Answer 5

The Caparo test came about after a case where an error on a set of accounts meant the claimants suffered. The Caparo test made the court ask three questions to determine if there was a duty of care.

Question 6

Is the Caparo test still used?

Answer 6

This test is now considered a formulation, rather than a test.

Question 7

What is the modern approach to determining whether a duty of care is owed in a novel situation?

Answer 7

There is no single definitive test that should be used to assess whether or not a duty of care arises in a particular case.

The starting point will be existing precedent.

Courts can then look at the Caparo formulation as potentially indicating whether there should be a duty of case. The main change is that if one of the answers to a question is ‘no’, the courts are not bound to conclude that a duty of care doesn’t exist, or vice versa.

Question 8

What are the three questions of the Caparo test?

Answer 8

1 - Foreseeability: Was the risk of the injury or harm to the claimant reasonably foreseeable?
2 - Proximity: Was there sufficient proximity between the parties?
3 - Is it fair, just and reasonable, on public policy grounds, to impose a duty of care?

All answers to these questions must be ‘yes’ in order for the duty of care to be valid.

Question 9

What is the first question of the Caparo test and what does it mean?

Answer 9

1 - Reasonable foreseeability of harm

Whether a reasonable person in the defendant’s position would reasonably have foreseen that the claimant might be injured or harmed.

Smith v Littlewoods (cinema fire, omission to act)

Question 10

In the duty of care, would a defendant be liable for an omission to act, contrasted to a positive act?

Answer 10

As a general rule, a defendant will not be liable for an omission to act, contrasted to a positive act.

There are some cases where duty of care can be imposed in respect of omissions, often where there is additional proximity between parties.

Question 11

What is the second question of the Caparo test and what does it mean?

Answer 11

2 - Proximity between the parties

Doesn’t just mean physical proximity, but the relationship between parties that could create a legal relationship.

Can mean neighbours i.e. physical proximity, people riding in a car (Nettleship v Weston), employees i.e. not physically close, but legally proximate (Chadwick v British Railways Board), or regulators of boxing matches (Watson v British Boxing Board) - injury to boxers.

Sometimes proximity cannot be found, e.g. in Topp v London Country Bus Ltd, where a hit and run victim’s husband sued the bus company for leaving a bus unlocked (which was used in the hit and run). Judges ruled against proximity.

Question 12

What is the third question of the Caparo test and what does it mean?

Answer 12

3 - Fair, just and reasonable

As a matter of public policy, some claims are dismissed, e.g. if a robber is injured through the careless driving of their accomplice.
It wouldn’t be fair, just and reasonable to impose liability.

In L v Reading Council, social workers’ unfounded allegations on a father sexually abusing his daughter stopped him seeing her for many years. CoA rejected a claim for damages because it was held not to be fair, just and reasonable to impose a direct duty of care of the father on to the council.
Policy is defined as ‘those non-legal considerations underpinning legal decisions’.

Question 13

What does s1 Compensation Act 2006 give the courts power to do?

Answer 13

s1 Compensation Act 2006 give courts power to consider wider implications of any decision to impose liability on a defendant in a tort case.

A court… may… have regard to whether a requirement to take those steps might:

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.

Question 14

Can a rescuer who is injured whilst attempting to rescue a victim claim damages from the defendant?

Answer 14

Yes, the basic rule is that the person being rescued owes a duty of care to the rescuer, as long as a reasonable person would do the rescue (the same as the rescuer) as they would feel obliged to assist.

A person who creates a dangerous situation is liable for all foreseeable consequences of their negligence.

Question 15

What is the courts’ view on the rescuer claiming damages from a rescued person?

Answer 15

The courts have decided as a matter of policy that the rescuer deserves favourable consideration on moral grounds.

E.g. Baker v T E Hopkins, where a doctor (Baker) tried to rescue two workmen in a fume-filled well. The doctor had a ‘natural and proper’ response to the situation, so it was a foreseeable result of the workmen’s negligence that he died. The doctor’s estate was successful in the claim.

Question 16

When is the rescuer not able to claim damages from a rescued person?

Answer 16

When unjustifiable and unnecessary interference means the rescuer has taken a risk - no duty of care is owed to them.

Question 17

What is misfeasance and nonfeasance?

Answer 17

Misfeasance: positive conduct that causes damage to the claimant

Nonfeasance: where the defendant fails to act and thereby causes damage to the claimant.

Question 18

What is the difference between these two omissions/failures to act:

1. a person is driving a car and omits to apply the brakes.
2. A sees a stranger, B, drowning in a river, and does not come to their assistance.

Answer 18

1. an omission in a course of positive conduct. The driver would be liable for negligence.
2. a simple failure to act for another person’s benefit unless there was a positive duty to do so (i.e. there was a legal relationship between A&B, like parent/child, employer/employee). A would not be liable for not assisting B.

Question 19

What did the courts decide about whether doctors, nurses and other healthcare workers (including receptionist staff) owed a duty of care to their patients? The case is Darnley v Croydon Health Services NHS Trust [2018]

Answer 19

Doctors, nurses and other healthcare workers owe a duty of care to their patients, including healthcare trusts and their non-medically qualified receptionist staff. This case was about the receptionist staff, who did not provide correct information about waiting times in an A & E department.

Question 20

Is there a general duty of care to the world at large?

Answer 20

No. Murphy v Brentwood District Council [1991] - overruled the thought that there was a general duty of care to the ‘world at large’

Question 21

How did the Caparo test come about? The case was Caparo Industries plc v Dickman [1990]

Answer 21

Caparo Industries plc v Dickman [1990] - defendants made an error in preparing a set of accounts for a company and claimants bought more shares in that company on strength of those accounts. They then took over the company and suffered as a result. Led to the Caparo test.

Question 22

What was the situation around Michael and Others (FC) v Chief Constable of South Wales Police and Another [2015]? What was the outcome?

Answer 22

Michael and Others (FC) v Chief Constable of South Wales Police and Another [2015] - Joanna Michael was murdered by her former partner, after the 999 operator classed her call at a lower grade than if they had heard Joanna say that the former partner had threatened to kill her. The civil claim against the police was dismissed on the basis that the police could not be held responsible for the actions of third parties. Caparo’s test/formulation should not be taken as a blueprint for deciding cases involving novel facts.

Question 23

What was the situation around Robinson v Chief Constable of West Yorkshire Police [2018]? What was the outcome?

Answer 23

Robinson v Chief Constable of West Yorkshire Police [2018] - Mrs Robinson was injured by police officers effecting an arrest of a third party. Contrary to older cases where police were not liable for accidents in operational duties, the court distinguished positive acts by the police against pure omissions (eg. Hill and Michael) - therefore the police owed Mrs Robinson a duty of care. Supreme Court majority agreed that Caparo test should be dismissed.

Question 24

Are police liable in civil law for operational duties?

Answer 24

Hill v Chief Constable of West Yorkshire [1987] - A decision that held that the police were not liable in civil law for operational duties.

(1) The police could be liable in tort to persons who are injured as a direct result of their acts.
(2) However, the police do not owe a general duty of care to apprehend an unknown criminal.

Question 25

In Smith v Littlewoods [1987], a cinema was burned down by some children and it burned down some properties near the cinema. Claimants sued them for negligence. What was the outcome? What would have changed that outcome?

Answer 25

Smith v Littlewoods [1987] - Littlewoods purchased a cinema, intending to demolish it and replace it with a supermarket. The work wasn’t completed and it stayed empty. Some children deliberately started a fire in it and it burned down other properties near the cinema.

The claimants sued on the basis that their losses were caused by the negligence of the defendants. Case failed as the cinema did not present a fire risk, there was no duty to protect the claimant’s property by securing the cinema.

However, if there was a ‘special relationship between claimant or defendant, if defendant negligently created danger or if a third party created a danger that defendant knew about, then it may have succeeded.

Question 26

What happened in the case against the learner driver?

Answer 26

Nettleship v Weston [1971] - a learner driver was held by the court to owe a duty of care to their instructor who had been in the car with them at the time of the accident.

Question 27

If someone has rescued people in a train crash and then suffered shock, would the rail company be liable for proximity?

Answer 27

Chadwick v British Railways Board [1967] - Chadwick was a window cleaner who suffered shock after rescuing passengers in a rail crash.

He was not physically close to the British Railways Board, but they clearly owed him a duty of care.

‘the Court held that it was reasonably foreseeable that people, other than D’s employees, might try to render assistance and might suffer personal injury, physical or psychiatric, as a result. A duty of care was therefore owed to D. Moreover, there was nothing on the circumstances to suggest that the damage suffered by D was so remote as to be outside the contemplation of D.’

Question 28

If a bus is left unlocked and someone steals it and accidentally kills someone, will the bus company be liable? (Proximity)

Answer 28

Topp v London Country Bus Ltd [1993] - the defendant left one of their unattended buses unlocked, with the keys in the ignition, at a bus stop for nine hours.

The bus was stolen by a joyrider, and the bus struck and killed the claimant’s wife. Two of the three judges in the Court of Appeal held that there was no sufficient proximity between the defendant and the victim for liability to be imposed.

Question 29

Is injury in a professional sport sufficient proximity to have a duty of care? Boxing case.

Answer 29

Watson v British Boxing Board of Control [2001] - there was considered to be sufficient proximity between the defendants and the claimant boxer, because injury to boxers at or during a fight was a foreseeable and inevitable consequence of such an activity. The defendants regulated this activity and had complete control of medical provision at matches, so should have provided enough care.

Regarding consenting to injury - A participant in sport consents to any risk of harm within the rules of the game, but not all risk of harm.

Question 30

If there is an inadequate warning for a very dangerous situation, will the person ignoring it be to blame? E.g. Well

Answer 30

Ward v T E Hopkins & Son Ltd; Baker and Another v T E Hopkins & Son Ltd [1959] - The defendants were a company contracted to clean a well. As part of this, they installed an engine within the well which began to emit dangerous fumes. The onsite manager told the employees to stop work inside the well until he arrived to check the well. Two employees ignored this and continued work inside the well. They were killed by exposure to the fumes. (A doctor attempting to save them was also killed after his rope became stuck and he could not be pulled out of the well in time.)

Where the defendant creates a very dangerous situation, warning people not to go near may be insufficient to discharge their duty. Any warning should properly enable the other party to understand why the situation is dangerous. If a warning is inadequate, then the fact that another person ignored it will not necessarily be to blame.