Duty of care Flashcards
What is the neighbour principle?
This attempted to create a test which could be used by the courts when considering if a duty of care should be imposed. The test used the concepts of foreseeability and proximity. However, note this ‘test’ is old law and has been replaced by Caparo Industries v Dickman.
foreseeability is seen in the words ‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’ and proximity is seen in the words ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’.
Caparo v Dickman
Three stage approach for establishing a duty of care (where there is no precedent).
- Foreseeability of harm. This test is objective; it is not what the individual defendant foresaw but what the reasonable person would be expected to foresee. It must be reasonably foreseeable that the defendant’s lack of care would cause the claimant harm.
- There must be a relationship of sufficient proximity (closeness) between the claimant and defendant.
- It must be fair, just and reasonable to impose a duty.
What does analogy with established authority mean?
In many cases there will be established authority (precedent) for a duty of care eg road user to road user. In those situations, a duty of care will be owed and there is no need to apply any test.
It is normally only in a novel type of case ie where there is no established duty, that the courts need to decide whether a duty of care should be recognised. This is very rare in practice. Following the Caparo case, the approach in novel situations is to develop incrementally and by analogy with established authority.
The drawing of an analogy depends on identifying the legally significant features of the earlier authorities ie in those previous cases why was a duty found or not found.
In many cases the significant features are connected with the relationship between the claimant and the defendant – ie their proximity. This focus on proximity will therefore remain important as a result of using earlier authorities. For example, a principle clear in the authorities is that there is proximity where a defendant assumed responsibility for the claimant.
What about fair, just and reasonable?
The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case.
It is the exercise of judgement in those circumstances that involves consideration of what is “fair, just and reasonable”.
Fair, just and reasonable involves a broad analysis. As part of this, the court will consider (expressly or implicitly) the impact of a decision socially, politically and economically on society as a whole.
These policy considerations can narrow or broaden the scope of claims depending on the prevailing legal mood at the time.
Some policy considerations are:
* Floodgates
* Insurance
* Crushing liability
* Deterrence
* Maintenance of high standards
* Defensive practices
‘Floodgates’
‘Floodgates’ is a frequently sighted policy consideration. This refers to the fear on the part of the judges that to allow one claim would open the legal floodgates leading to a deluge of claims ‘flooding’ the courts. It was an important consideration in the development of the law relating to the duty to avoid causing psychiatric harm.
‘Insurance’
‘Insurance’ is important as the defendant is more likely to be liable if they are (or should have been) insured because they will have the means to pay damages. There is also the connected loss distribution argument that finding an insured party liable effectively spreads the cost of compensation through society.
‘Crushing liability’
‘Crushing liability’ is another policy consideration that refers to a concern to finding a party liable where the result would be that the party would need to pay damages out of all proportion to the wrong committed.
what happens where there is no clear precedent?
where there is no clear precedent, the question of whether to impose a duty should be approached by analogy with established authority. In relation to fair, just and reasonable, the judgment expressly states that this will remain a relevant consideration when judging whether a duty of care should be recognised in a novel type of case.
determining whether a duty of care is owed - where there is a precedent
To be clear, when determining duty of care, the first question should be: Is there a precedent making clear whether or not a duty is owed?
YES - Apply the precedent
In practice, there are precedents covering a huge number of areas, and you will encounter some of these when studying other aspects of the tort of negligence. Examples are:
Nettleship v Weston [1971] 2 QB 691: it is well established that a driver (road user) owes a duty of care to other road users not to cause them physical injury by careless driving. If you are presented with a case of a road user causing injury to other road users, there is no need to embark on a complex analysis to establish duty – you simply need to apply Nettleship.
Cassidy v Ministry of Health [1951] 2 KB 343: Medical professionals owe a duty of care to patients once they have accepted them for treatment.
Baker v T.E. Hopkins & Son Ltd [1959] 3 All ER 225: Dr Baker knowingly descended into a well containing poisonous fumes in an attempt to rescue two workers and died from the fumes. The Court of Appeal held that Dr Baker was owed a duty of care as it was reasonably foreseeable that someone would seek to rescue the workers in danger.
Robinson v Chief Constable of West Yorkshire Police [2018] UKSC: The police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.
determining whether a duty of care is owed - no precedent
· Consider whether a duty should be imposed by analogy with existing cases within the context of the Caparo criteria. Drawing an analogy means identifying the legally significant features of the earlier authorities.
· The harm suffered (eg personal injury) must have been reasonably foreseeable.
· Many authorities involve detailed consideration of the relationship between the claimant and the defendant, which could be considered aspects of ‘proximity’.
· Deciding whether to impose a duty in an area where there is no clear precedent is an exercise of judgement which involves consideration of what is fair, just and reasonable.
The general rule - liability for omissions
The general rule: the law of tort only imposes liability on those who cause injury or damage to another; no such duty is imposed on a mere failure to act, otherwise known as an omission.
For example, if a stranger sees a child drowning, there is no legal obligation on that stranger to try to rescue.
Exceptions to general rule about liability for omissions
There are exceptions to this general rule, in which the law does impose a positive duty to act ie where liability might be found in relation to an omission.
When attempting to ascertain if a duty of care is owed, in this area like any other, you should consider whether there are any existing authorities which have already established a duty of care in the situation being considered.
If not, you should consider whether a duty should be imposed by drawing analogies with existing cases. The aim is to develop the law incrementally, and you should consider foreseeability of harm, ‘proximity’ and whether imposing a duty would be fair, just and reasonable as part of the process of drawing analogies with existing cases.
There is no duty to avoid omissions (Smith) except….
· Where there is statutory duty
· Where there is contractual duty
· Where the defendant has sufficient control over the claimant
· Where the defendant assumes responsibility for the claimant
· Where the defendant creates the risk
5 exceptions to the general rule - where there is a duty to act
(1) A positive duty is imposed on the defendant by statute. If a statute imposes a particular requirement to act then a failure to do so can be the basis for liability. For example, the Occupiers’ Liability Act 1957 imposes a duty of care on the occupier of premises to ensure their premises are reasonably safe for visitors. Failure to do so (eg failing to fix a broken window which injures a visitor) could lead to liability on behalf of the occupier.
(2) The second exception is where a person fails to perform their contractual obligations to the claimant. Much depends on the exact terms within the contract itself. The case of Stansbie v Tromanis an example of this. This case is explained in detail in the element ‘Duty of care: liability for acts of third parties’.
(3) The third exception is where the defendant has a high degree of control over the claimant. In some situations, where the defendant has a high degree of control over the claimant, the law may impose a positive duty on the defendant to act; even to the point of preventing the claimant from physically harming themselves. For example, a parent has a sufficient degree of control over their child and should intervene if they are drowning. This exception can also clearly be seen in the case of Reeves v Commissioner of Police for the Metropolis[1999] 3 All ER 897. Here, the House of Lords held that a duty did exist on the police to protect a prisoner’s health including the possibility that they may attempt to take their own life. In Reeves, the police had a high degree of control over the victim (who was in their custody) and it was well documented as to the likelihood of some prisoners taking their own life. Given the police exercised control over the victim and the known risk of taking life among prisoners, they owed him a duty to take steps to ensure that he did not harm himself.
(4) The fourth exception is where the defendant assumes responsibility for the claimant’s welfare. If a person voluntarily assumes responsibility for another, the courts may impose a duty of care. This could arise, for example, because of the nature of a person’s employment or because of a previous relationship between the parties (for example, relationship of mother and child, or teacher and pupil). In Barrett v Ministry of Defence, although the defendants were not liable for Barrett, a naval pilot, getting drunk, they did assume responsibility for him once an officer had taken action to care for him. A fellow officer started to help Barrett when he got drunk, but then left him unattended and Barrett choked to death on his own vomit. Once the fellow officer started helping him, the defendant had assumed responsibility for the claimant’s welfare and owed a duty of care to watch over him and summon appropriate medical assistance. Likewise, the police have been held under a positive duty to take reasonable steps to prevent a prisoner from taking their own life. There is a clear link between this exception, and the previous exception (where the defendant has sufficient control over the claimant). Some cases could fall under both exceptions.
(5) The fifth and final exception is where the defendant creates the risk through an omission. If a defendant creates a dangerous situation through an omission the law may impose a positive duty to act in order to mitigate the danger. A clear example of this is Goldman v Hargrave, in which the defendant was liable for a naturally occurring fire where he knew or ought to have known of the danger and failed to take reasonable steps to mitigate the danger. Lightning struck a tree on his land and started a fire. He extinguished the fire but did not douse the embers. Wind reignited the fire causing damage to the claimant’s land. The defendant had the physical and financial ability to spray water over the embers and should have taken these reasonable steps to mitigate the danger.
Omissions and the emergency services
The ambulance service (regarded as part of the health service) owe a duty of care to respond to a 999 call within a reasonable time (Kent v Griffiths & Others [2000] 2 All ER 474). However, this duty might not have been breached where the service properly exercised its discretion to deal with a more pressing emergency before attending to the claimant or where it had made a choice about the allocation of resources. Duty and breach are separate questions.
The fire brigade owes no duty of care to attend a fire but if they do attend a fire, they owe a duty not to make the situation worse through a 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).
The police owe no duty of care to respond to emergency calls (Alexandrou v Oxford [1993] 4 All ER 328 - the police did not owe the claimant a duty to respond to his burglar alarm). However, police can owe a duty in other circumstances eg in Reeves the police owed a duty in relation to an omission (but the omission was not a failure to respond to an emergency call).
