Duty of care

Question 1

• P found a decomposed snail in her ginger beer that her friend had purchased for her.
• She suffered from shock - treated for gastro-enteritis - later decided to take action against the café owner.
• Her friend had bought the treat – what did that mean? failure to meet objective standard
• Could P sue without a contract? yes, failed standard of care
• 3 principles
  
  • Negligence is a tort, and there does not have to be a contract between the parties for a claim to be brought.
  • The manufacturer D, had a duty of care in tort law to the consumer of his ginger beer.
  • The ‘Neighbour Principle’ – you must not injure your neighbour.

Answer 1

Donoghue v Stevenson (1932)

Question 2

• duty of care could be extended to different situations and facts, other than the type of relationship in Donoghue v Stevenson.
• Young Borstral inmates taken to Brownsea Island in Poole Harbour for a weekend’s leave and training.
• During the night, five boys escaped their guards and found their way to the claimants’ yacht club where they vandalised several yachts.
• When the Home Office was sued for the alleged negligence of their employees failing to restrain the boys, the first point which arose was whether the Home Office could be said to owe a duty of care in negligence in this situation.
• House of Lords held that a duty of care arose

Answer 2

Home Office v Dorset Yacht Co Ltd [1970] AC 1004

Question 3

• The plaintiffs were tenants in flats.
• The flats suffered from damage because of inappropriate foundations which were 2ft 6in deep instead of 3ft deep as required.
• The defendant Council was accountable for inspecting the foundations during the flats construction and had failed to do so.
• The House of Lords held that the defendant owed a duty of care to ensure the foundations were of the right depth.
• Established two step test:
  
  • Foreseeability and Proximity:
    
    • Is there a sufficient relationship of proximity or neighborhood between the parties?
    • If so, would the harm be a foreseeable consequence of the defendant’s actions?
  • Policy Considerations:
    
    • Are there any policy reasons or other considerations that should limit or exclude the duty of care, even if foreseeability and proximity are present?

Answer 3

Anns v Merton London Borough Council [1978] AC 728

Question 4

• Two years before Caparo in England, the Irish Supreme Court adopted the Anns test
• On the facts of the case, McCarthy J held that there was a duty of care owed, and no policy reasons existed which would negative that duty. He based his decision on the Anns two step test.

Answer 4

Ward v McMaster [1988] IR 337

Question 5

• P had bought shares in Fidelity Plc. They relied on the accounts which said that the company had made a pre-tax profit of £1.3M. In fact Fidelity had made a loss of over £400,000. Caparo brought an action against the auditors claiming they were negligent in certifying the accounts.
• Held: No duty of care was owed. There was not sufficient proximity between P and the auditors since the auditors were not aware of the existence of P nor the purpose for which the accounts were being used by them.
• Three tier test
  
  • Whether the harm was reasonably foreseeable
  • Whether there was a relationship of proximity
  • Whether it is fair, just and reasonable to impose a duty of care

Answer 5

Caparo Industries Plc v Dickman [1990] 2 AC 605 - retreat from Anns

Question 6

• Plaintiffs were granted prospecting licenses, or mining licenses, by the Minister for Energy to explore for gold in Westport. They went ahead and spent large sums of money.
• The County Council then decided to implement a mining ban.
• The ban was later held to have been ultra vires, which is a legal term meaning that the County Council didn’t have the lawful power to impose the ban.
• So, the plaintiffs sued the county council in negligence.
• granted prospecting mining licenses- then mining ban but ultra vires- court held it was not negligent
• 4 step test
  
  • Whether the harm was reasonably foreseeable
  • Whether there was a relationship of proximity
  • Whether there are countervailing public policy considerations
  • Whether it is fair, just and reasonable to impose a duty of care

Answer 6

Glencar Explorations plc and Andaman Resources plc v Mayo County Council (No.2) [2002]

Question 7

• incrementalism- Caparo only in novel cases
• Two police officers injured an old woman (C) by falling on her while chasing a drug dealer
• C claimed negligence
• D argued that the police are immune from negligence liability when exercising their powers of investigation or crime prevention on the ground of public policy
• The police officers were liable for negligence

Answer 7

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 - retreat from Caparo