Duty of care Flashcards
What is negligence?
The breach of a legal duty to take care by the D resulting in loss or damage to C
The most significant tort in practice
What must be proved for a negligence claim?
D owed C a duty of care, D breached duty, breach caused C’s loss, loss not too remote
Burden shifts to D for defences
What types of losses might be considered for a claim?
- Physical/bodily harm
- Psychiatric harm (beyond emotional distress)
- Property damage
- Consequential economic loss
- Pure economic loss
What is the neighbour principle?
Old law and now replaced by Caparo
Must take reasonable care to avoid acts/omissions which you can reasonably see would be likely to injure your neighbour (foreseeability) - neighbour is someone who are so closely and directly affected (proximity) by act
What is the 3 stage approach in Caparo?
- Foreseeability of harm; objective, what reasonable person expected to see
- Relationship of sufficient proximity between C and D
- Must be fair, just and reasonable to impose duty
Used where there is no precedent
What are there already precedents for?
Meaning Caparo test not needed
- Driver owes DOC to other road users not to cause them physical injury
- Medical professionals owe DOC to patients once accepted for treatment
- Where someone will obviously be a rescuer
- Police owe DOC to public to protect them from reasonably foreseeable injury when carrying out arrest
When and how is the Caparo test applied?
When there is no precedent and we are dealing with a novel case
- Consider if duty should be imposed by drawing analogy with existing cases within context of Caparo criteria
- Harm must have been reasonably foreseeable, D and C in close proximity, excercise judgement on whether fair and reasonable…
To develop incramentally (no magic formula)
Drawing analogy with earlier authority for novel cases = identifying the legally significant features of the earlier authorities
What are policy considerations?
In context of fair, just and reasonable
- Floodgates (one claim>deluge of claims)
- Insurance (finding insured party liable spreads cost through society)
- Crushing liability (D needs to pay damages disproportionate to wrong committed)
- Deterrence (for undesirable behaviour)
- Maintenance of high standards/defensive practice (parties act in undesirable ways to avoid claims)
Example of establishing DOC with no clear precedent…
Boxer claimed that immediate medical attention should have been provided at ringside - upheld:
- Brain damage was foreseeable
- D had assumed responsibility for determining nature of medical facilities by making regulations setting out medical care
- It was fair, just and reasonable to impose a duty - would not necessarily extend to other sporting organisations
What is the general rule on liability for omissions?
Generally, no duty for a failure to act e.g. save a drowning stranger
Exceptions! E.g. relationship, statutory duty, creates danger etc.
What are the 5 exceptions to the general rule on liability for omissions?
- Statutory duty (e.g. occupier’s liability - must check safe for visitors)
- Contractual duty
- D has sufficient control over C (parent should save drowning child, police should save suicidal prisoner)
- D assumes responsibility for C (once started giving medical attention, can be liable if they die/get worse e.g. off-duty lifeguard [even if they had never started to help in the first place!])
- D creates risk (then have duty to mitigate danger e.g. starting fire)
For creating risk - Goldman - D liable for naturally occuring fire on his land - extinguished fire but did not douse the embers, wind reignited fitre and caused damage to C’s land - held that D had physical/financial means to spray water over embers and this omission gave rise to DOC
Do all 3 emergency services face ommissions liability?
- Fire brigade cannot make situation worse through positive act (Capital - firefighter ordered sprinkler system at fire to be turned off)
- Police owe no duty to respond to emergency calls
- Ambulance owe duty to respond to 999 call in reasonable time (but consider allocation of resources)
What is the general rule on liability for preventing someone else causing harm to C?
I.e. acts of third parites
Generally no duty to prevent a third party causing harm to C; liability only imposed on those who directly cause harm or damage to another
What are the 4 exceptions to liability for acts of third parties?
Where the act is done by the TP
- Sufficient proximity between D and C (D responsible for C)
- Sufficient proximity between D and third party (D responsible for TP)
- D created the danger - e.g. decorator failing to secure building and allowing burglars to enter
- Risk on D’s premises
Can be multiple at once (e.g. contracted decorator not securing house)
Also phrased as:
- A has assumed responsibility to B to protect from danger
- A has control over TP so can protect B from danger
- A has a special control over that source of danger
- A’s status creates an obligation to protect from danger
Re exceptions to liability for acts of TP
What degree of proximity should D and C have for exception?
2 things needed
For D to be held responsible for acts of TP that harm/cause loss to C (because of relationship of D and C)
Where C is an identifiable victim at risk over and above public at large + D has assumed responsibility
- Stansbie - C contracted with D decorator, D owed DOC to lock C’s property when he left when his failure to do so allowed burglars into property
- Home Office - Ds supervising borstal boys who had history of escape and Cs had yachts which were only way to escape island = Cs were identifiable victims and sufficient proximity between them and D
- Swinney - C police informer gave info on suspect on condition she remained anonymous, criminal found police file containing details she gave and harassed her causing psychiatric illness - D police assumed responsibility to protect C for info she gave
- Hill - mother of last victim of Yorkshire Ripper failed in negligence claim against police; insufficient proximity between police and the victim who was an unidentifiable member of massive group of potential victims (all women in area)
Must D have assumed responsibility for sufficient proximity between C and D for TP liability?
Seemingly yes!
Mitchell - Mr D and Mr M tenants of D, D was aware of Mr D’s death threats to Mr M, and D had threatened to evict Mr D if anti-social behaviour continued - he returned home and killed Mr M - court held not sufficient proximity between D and Mr M as D had not assumed responsibility
Re exceptions to liability for acts of TP
What degree of proximity should D and TP have for exception?
At the time of harm committed, third party under care and control of D
- Home Office -borstal boys were under supervision of Ds; supervisory relationship created proximity and DOC owed
- Hill - no proximity between D and TP (Yorkshire Ripper) as TP not under control of police at time of killing
- Palmer - psychiatric patient allowed into community without adequate supervision and had threatened to kill child after released (he did) - no sufficient proximity between D authority and patient as patient not under authority’s care and control at time harm committed
Re exceptions to liability for acts of TP
Will a risk on D’s premises created by a TP always mean D owes a DOC to anyone subsequently damaged as a result?
No - only where D knows or ought to know of a danger on their property created by a TP
- Smith - vandals broke into D’s cinema and started a fire causing damage to neighbour property - D owed no DOC because they did not know of danger and it was not foreseeable (no history of break-ins)
If there is a new case of liability for the acts of a TP, and no precedent, what should be used?
Analogies through the 3 stages of Caparo (foreseeability, proximity and fair just and reasonableness)
Do public bodies owe a duty of care? What if they have a statutory/power to act and they do not - is this an omission?
Generally only owe DOC where principles applicable to private individuals would impose such a duty, but this is complicated by…
- Statutory/power to act - restrictions of which mean a breach cannot be a breach, and just because they have it does not mean it will be an omission automatically
CN and GN - negligence claim brought against D for failing to take 2 children into care - held that liability of public authority is the same as that of a private person but they may be restricted by statutory power/duties - so a breach of duty would not amount to such if it is specifically authorised by an Act of Parl - an omission also would not be wrong just because they have a duty or power to act - court held that even if Council had power to take children into care, C would need to show that one of exceptions to rule of no liability for failing to prevent TP causing harm applied
How to succeed in showing that a public authority D owes a DOC re powers or duties derived from statute?
Show that one of the exceptions to rule that ‘there is no liability for failing to prevent a TP from causing harm’ applies
What are policy considerations re public bodies owing a DOC?
- The taxpayer will pay the damages in successful claims (not ideal)
- Public services restrict service out of fear of litigation (defensive practice)
- Floodgates opening (e.g. if police fail to apprehend a criminal)
- Distinction between policy (equipping police with CS gas) and operational matters (way in which gas used), the latter of which can amount to breach
When will a public body owe a duty of care?
Where party has assumed responsibility; exceptional proximity between C and D
- Phelps - local authority’s misdiagnosis of dyslexia; owed duty to provide special education
- Jebson - Commander owed duty to drunk soldier who fell off moving lorry because they impliedly assumed responsibility (organised night out)
Does the army owe duty to soldiers in active combat?
No
