Duty of care Flashcards
The foreseeability of harm is very often part of the test for a duty of care. It is sometimes said that the test of foreseeability is ‘objective’. This means we ask:
(a)
What a reasonable person would consider appropriate circumstances to impose a duty.
(b)
What a reasonable person could have been expected to foresee.
(c)
What the claimant foresaw
(d) What the defendant foresaw
(b) What a reasonable person could have been expected to foresee.
This is what we mean when we say that the test of foreseeability is objective.
To consider what the defendant (or indeed the claimant) foresaw would be to adopt a subjective test – to look at what the subjects themselves (the defendant or claimant) foresaw. This is not correct.
To consider what a reasonable person would consider appropriate circumstances to impose a duty would be an ‘objective’ test, but it throws out the idea of foreseeability all together. This is not how the court approaches the question of whether to impose a duty.
In Caparo Industries v Dickman Lord Bridge indicated that the necessary ingredients in a situation giving rise to a duty of care are:
(a)
Foreseeability of damage, a relationship of proximity between the parties, and that it be economically productive to impose a duty.
(b)
Foreseeability of damage, a relationship of proximity between the parties, and that it be fair, just and reasonable to impose a duty.
(c)
Foreseeability of damage, an assumption of duty by one party to the other, and that it be fair, just and reasonable to impose a duty.
(d)
Knowledge of the likelihood of harm, a relationship of proximity between the parties, and that it be fair, just and reasonable to impose a duty
(b) Foreseeability of damage, a relationship of proximity between the parties, and that it be fair, just and reasonable to impose a duty.
This is what the case established, but it is important to note that Lord Bridge went on to explain that these three ingredients are ‘little more than convenient labels to attach to the features of different situations which the law recognises pragmatically as giving rise to a duty of care.’ The idea of an ‘assumption of duty’ is not something that Lord Bridge articulated in Caparo Industries v Dickman, although it can be relevant to whether a duty is owed in some circumstances. It is not necessary that the defendant knows that harm is likely before a duty is owed – it might be enough that it is foreseeable, even if unlikely. It is not necessary that it be economically productive to impose a duty, but the court will consider the economic effects of imposing a duty when deciding whether to impose one. Revisit the part of this element relating to Caparo Industries v Dickman.
The general rule on omissions is that…
(a)
…liability is imposed on a failure to act on the same principles as it is imposed in relation to acts.
(b)
…no liability is imposed on a mere failure to act
(b) …no liability is imposed on a mere failure to act
This is the general rule (Smith v Littlewoods Organisation Limited [[1987] AC 241), but of course there are many exceptions.
Reeves v Commissioner of Police for the Metropolis [1999] 3 All ER 897 held that the police had a duty to take action (ie to avoid omissions) to protect a prisoner’s health, including protecting him from self-harm, because…
(a)
The defendant was a vulnerable person at significant risk of harm.
(b)
The police had a high degree of control over the defendant.
(c)
The police were in a relevant contractual relationship with the defendant.
(d)
Statute imposed such a duty.
(b) The police had a high degree of control over the defendant.
The other answers are incorrect. Whilst statutes can require action and this can give rise to a duty in tort, this is not at the heart of this particular case. Similarly, a tortious duty to act can arise from a contractual relationship, but this was not relevant in this case – there was no contract between police and prisoner. The defendant may indeed have been vulnerable, but this is not really the important point in the case. Had the defendant been vulnerable but not in the police’s control, it is unlikely that they would have had the same duty to act.
Which of the following has a positive duty to respond to emergency calls?
(a)
The fire service
(b)
The ambulance service
(b) The ambulance service
The ambulance service has a positive duty to respond to emergency calls. The answering by the service of a call creates sufficient proximity between the caller and the service. Note, however, that even though the service has a duty to respond, it will not necessarily breach that duty if it responds late due to the unavailability of ambulances. The other answers are incorrect. Neither the police nor the fire service owe a duty to respond to emergency calls: but if they do respond, they may well be under a duty not to make the situation worse.
The general rule is that there is no duty owed for a failure to prevent a third-party causing harm. However, there are a number of exceptions to this rule which are:
(a) There is sufficient proximity between the defendant and claimant; and
There is sufficient proximity between the defendant and third party; and
The defendant created the danger; and
The risk was on the defendant’s premises.
(b) Where the defendant assumes responsibility for the claimant.
Where the defendant has sufficient control over the claimant.
Where the defendant creates the risk.
(c) There is sufficient proximity between the defendant and claimant; and/or
There is sufficient proximity between the defendant and third party; and/or
The defendant created the danger; and/or
The risk was on the defendant’s premises.
(d) Where there is statutory duty.
Where there is contractual duty.
Where the defendant has sufficient control over the claimant.
Where the defendant creates the risk.
(c) There is sufficient proximity between the defendant and claimant; and/or
There is sufficient proximity between the defendant and third party; and/or
The defendant created the danger; and/or
The risk was on the defendant’s premises.
In the case of Stansbie v Troman the defendant decorator owed the claimant a duty of care for failing to secure the claimant’s property, which allowed for a third party to break in and commit a burglary. On what basis did the defendant (Troman) owe the claimant (Stansbie) a duty of care?
(a)
There was sufficient proximity because the claimant was an identifiable victim at risk of damage over and above the public at large.
(b) There was sufficient proximity between the claimant and defendant because of the contractual relationship between the parties. In addition, the defendant created the danger by failing to secure the property.
(c) The defendant had assumed responsibility for the claimant’s welfare.
(d)
There was sufficient proximity between the claimant and defendant because the defendant knew the claimant – he was working in the claimant’s property.
(b) There was sufficient proximity between the claimant and defendant because of the contractual relationship between the parties. In addition, the defendant created the danger by failing to secure the property.
Two of the exceptions to the general rule in relation to acts of third parties were satisfied and so the courts held that a duty of care was owed (sufficient proximity between the parties and creation of the danger).
The police are transporting two dangerous criminals in a police van to be interviewed about a recent murder. The criminals escape from the van and seriously injure a passer-by in the process.
Which of the following statements is most accurate in relation to whether a duty of care is owed by the police to the passer-by?
(a)
It is likely a duty of care would be owed. The criminals were under the care and control of the police at the time the passer-by was injured, and the police assume responsibility for the safety of the public.
(b)
It is likely a duty of care would be owed. The criminals were under the care and control of the police at the time the passer-by was injured, and the passer-by was an identifiable member of a small group at risk over and above the public at large.
(c)
It is unlikely a duty of care would be owed. The criminals were not under the care and control of the police at the time the passer-by was injured, and the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group.
(d)
It is unlikely a duty of care would be owed. Whilst the criminals were under the care and control of the police at the time the passer-by was injured, the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group.
(d) It is unlikely a duty of care would be owed. Whilst the criminals were under the care and control of the police at the time the passer-by was injured, the police had not assumed responsibility for the welfare of the passer-by. The passer-by was an unidentifiable member of a massive group.
There appears to be sufficient proximity between the police (defendant) and criminals (third party) but not between the police (defendant) and passer-by (claimant).
A public body has a power to repair a highway. It fails to do so, and a cyclist suffers an injury as a result. Which of the following is the best way to analyse whether the public body owes a duty of care?
(a)
The public body is likely to owe a duty to repair the highway because choosing not to do so was an act which would foreseeably cause injury.
(b)
The public body is unlikely to owe a duty to repair the highway unless the normal principles applying to individuals would suggest liability for omitting to do so.
(c)
The public body will owe a duty of care to repair the highway because it had a power to repair the highway, and the failure to do so would foreseeably cause injury.
(b) The public body is unlikely to owe a duty to repair the highway unless the normal principles applying to individuals would suggest liability for omitting to do so.
The other answers are incorrect.
The case of CN and GN v Poole Borough Council [2019] UKSC 25 makes clear that when looking at omissions, the usual law applying to individuals would again apply, and it would be very hard to argue that because a public body has a duty or power to act in a particular area, that a failure to act would give rise to a duty in negligence.
For this reason, it would be wrong to say that the public body will owe a duty of care to repair the highway because it had a power to do so.
It would be wrong to say that not repairing the highway is an act. It is an omission.
When considering whether public bodies owe a duty of care, the starting point should be…
(a)
…to apply the same principles that are applicable to private individuals.
(b)
…that public bodies do not owe a duty of care, other than in exceptional circumstances.
(c)
…to find precedents that concern public bodies, and to apply those.
(d)
…to apply principles of public law.
(a) …to apply the same principles that are applicable to private individuals.
For this reason, it would be wrong to start with precedents that concern public bodies, as this would be to take too restrictive an approach. It is wrong to say that public bodies owe a duty of care only in exceptional circumstances, because the starting point is that they owe a duty when a private individual would. Public law and the law of tort are two separate things, and are best considered separately.
We often talk about ‘policy considerations’ in various contexts, including when considering whether a public body should owe a duty of care. When we talk about the ‘floodgates’ policy consideration, we mean concern that…
(a)
… imposing a duty of care would lead to so many claims that the public body might be financially or practically overwhelmed.
(b)
…imposing a duty of care now would help to avoid undesirable practices by the public body in the future
(c)
… imposing a duty of care would lead to a significant increase in the number of claims against the public body.
(d)
… imposing a duty of care would lead to a release of money to successful claimants in a way that would make it difficult for the claimants to manage that money.
(a) … imposing a duty of care would lead to so many claims that the public body might be financially or practically overwhelmed.
What are the exceptions in relation to the rule that no duty of care is owed for omissions?
- Where there’s statutory duty
- Where there’s contractual duty
- Where D has sufficient control
- Where D assumes responsibility
- Where D creates risk
What is the rule in relation to duty of care for emergency services?
Ambulance service: Owe duty of care to respond to 999 call within reasonable time. However, this duty might not have been breached where service properly exercised discretion to deal with more pressing emergency before attending to C or where it had made choice about allocation of resources
Fire brigade: Do not owe duty to attend fire but if they do attend fire, they owe duty not to make situation worse through positive act. Capital and Counties plc v Hampshire County Council [1997] QB 1004 - a fire- fighter ordered a sprinkler system, operating at the fire, to be turned off
Police: Owe no duty of care to respond to emergency calls (Alexandrou v Oxford [19931 4 AIl ER 328 - the police did not owe the claimant a duty to respond to his burglar alarm). However, police can owe duty in other circumstances eg Reeves: duty in relation to omission but omission was not failure to respond to emergency call
What are the exceptions to the general rule that third parties do not owe duty of care?
Where omission is failure to prevent TP from causing harm and:
1. There’s sufficient proximity between D and C and/or
2. There is sufficient proximity between D and TP and/or
3. D created danger and/or
4. Risk is on D’s premises
How did the court summarise the law in relation to duties owed by public bodies?
When looking at positive acts and omissions, the liability of a public authority is in principle the same as that of a private person, but may be restricted by statutory powers or duties. So an act which would normally amount to a breach of duty cannot if it is specifically authorised by an Act of Parliament. This principle gives effect to the principle of parliamentary sovereignty.
When looking at omissions, the usual law applying to individuals would again apply, and it would be very hard to argue that because a public body has a duty or power to act in a particular area, that a failure to act would give rise to a duty in negligence
