Duty of Care

Question 0

Anns v Merton test

Answer 0

1. Were C and D in a sufficient relationship of proximity or neighborhood so that in D’s reasonable contemplation his carelessness might cause damage to C?
2. Were there any other considerations which ought to negative, reduce or limit the duty?

Question 1

Donoghue v Stevenson

Answer 1

You must take reasonable care to avoid acts or omissions which you can reasonably foresee as likely to injure your neighbor. Neighbors are those who are so closely and directly affected by my act that I ought reasonably to have them in contemplation when directing my mind to that act or omission.

Question 2

Caparo test

Answer 2

1. Was the harm suffered by C foreseeable?
2. Were the parties sufficiently proximate?
3. Would the imposition of a duty of care be fair, just and reasonable?

These are three facets of the same question rather than distinct stages in the test!

Question 3

Sutradhar

Answer 3

The requirement of “proximity” may refer to the relationship between D and the source of harm in the sense that D must have had a measure of control over the potentially dangerous situation such that there was a direct and immediate connection between D’s role and C’s injury.

Question 4

Mare Rich

Answer 4

Where the balance of rights and duties between C and D are regulated by international law the courts must have regard to this when deciding whether to impose a duty of care.

Question 5

Perrett v Collins

Answer 5

Where C suffers injury of a high order (here personal injury vs property damage in Rich) the courts will be more ready to find a duty of care.

Question 6

Caparo

Answer 6

If recognizing a DoC would open the floodgates, e.g. By conferring an unwarranted entitlement on the world at large, imposing a DoC would not be fair, just and reasonable.

Question 7

McKay v Essex AHA

Answer 7

To recognize a claim for wrongful life just because C is disabled would devalue the worth of many people in society.

Question 8

McFarlane v Tayside Health Board

Answer 8

It is not fair, just and reasonable to consider a child “damage” as this offends the sanctity of human life.

Question 9

CBS Songs

Answer 9

If imposing liability would subvert a statutory regime or other existing common law rules covering the same ground courts should be reluctant to do so.

Question 10

Spring v Guardian Assurance Plc

Answer 10

Employers have a duty to provide a fair and accurate employee reference and take reasonable steps to ascertain the factual basis of their assertions.

Question 11

Parkinson v St James University Hospital

Answer 11

It is fair, just and reasonable that a surgeon be held responsible for the terrible physical outcomes of his negligence.

Question 12

Bourhill v Young

Answer 12

C cannot build on a wrong to someone else because the DoC must be owed by D TO THE PARTICULAR CLAIMANT.

Question 13

Burton v Islington

Answer 13

D need not be able to identify C specifically; C need not even be in existence when the tort was committed as long as the DoC would be owed to her had she been.

Question 14

Kirkham v CC Greater Manchester

Answer 14

Where C is under the care or control of D and cannot protect himself (eg mentally disturbed person in police custody) D owes a duty to act.

Question 15

Davis v Stena Line

Answer 15

Where D gains benefits from his relationship with C he may have a duty of positive action to save C (eg carriers have a duty to save a man overboard).

Question 16

Home Office v Dorset Yacht

Answer 16

Where D has a r/s of supervision of control with the person causing C harm he may owe a duty to C to exercise that supervisory control.

Question 17

Lewis v Carmathenshire CC

Answer 17

The HOME OFFICE V DORSET YACHT principle applies to schools and schoolchildren in their care.

Question 18

Barrett v MoD

Answer 18

If C is a full adult of sound mind the extent of D’s duty to protect C must be tempered by considerations of self-responsibility.

Question 19

Smith v Littlewoods

Answer 19

D’s duty as property owner to remove hazards on his land for the safety of his neighbors or visitors does not extend to guarding against willful human conduct if this would impose an unreasonable burden, save in very special circumstances.

Question 20

Capital and Counties PSC

Answer 20

The fire service is not liable for turning up late to a fire but it will be liable if it does turn up and makes things worse

Question 21

Hill v CC of West Yorkshire

Answer 21

The police do not owe a duty of care to a particular victim of crime to apprehend the criminal before he victimizes C.

Imposing such a duty on the police would run the risk of defensive policing which would affect their ability to serve the public good

Question 22

Kent v Griffiths

Answer 22

If an ambulance service accepts a call from C specifically and negligently fails to turn up at the target time it may be liable, since unlike police/fire service upon accepting the emergency call the service takes up a duty to C specifically.

Question 23

Reeves v MPC

Answer 23

A public service may incur liability for failing to save an identifiable person whose protection from personal injury it can be said to have assumed.

Question 24

Hedley Byrne (2)

Answer 24

If D undertakes to see to it and C relies upon that undertaking, D might be liable for negligent misstatement causing pure economic loss IF he has not given a disclaimer.

It is relevant whether D is giving advice gratuituously or is acting for indirect reward.

Question 25

Henderson v Merrett Syndicates

Answer 25

If D holds himself out as possessing a particular expertise and C places implicit reliance upon that expertise an assumption of responsibility imposing a DoC may be found.

Question 26

Smith v Bush

Answer 26

Liability may arise if D knew or ought to have known that P would rely in the statement he gives and P’s reliance was reasonable.

Question 27

Williams v Natural Life Health Foods

Answer 27

C’s reliance must have been reasonable for an assumption of responsibility to arise.

Question 28

Chaudry v Prabhakar

Answer 28

A Gratuituous agent may owe a DoC where the circumstances make it clear that considered advice is being sought.

Question 29

White v Jones (which case extended the decision beyond its facts?)

Answer 29

A solicitor who knows that the economic will-being of the testator’s beneficiaries is dependent on his careful conduct of the testator’s affairs owes them a duty of reasonable care.

(Extended outside of the solicitor-will context in Borhm, the pension plan case)

Question 30

Vowels v Evans (QUOTE)

Answer 30

Referees in amateur rugby matches assume responsibility to the players.

“Rarely if ever does the law absolve from any obligation of care a person whose acts or omissions are capable of causing physical harm to others in a structured relationship into which they have entered.

Question 31

Spartan Steel v Martin (facts?)

Answer 31

Only economic loss which is consequent on damage caused by D to property in which C has a proprietary right is recoverable in negligence.

Facts - steel manufacturers, power cut, furnace

Question 32

Aliakmon

Answer 32

Cs are unlikely to be allowed to circumvent bad contractual bargains through a claim in tort when they could have negotiated for contractual terms providing for fairer risk allocation.

Question 33

Homburg

Answer 33

If more than insignificant damage in the property begins before C acquired the property and worsens thereafter the damage is complete in law before C acquires the property.

Question 34

Muirhead (facts?)

Answer 34

A manufacturer of goods, following Donoghue, owes a duty not to cause damage to persons or property but not a duty to not cause them a loss in business profits.

Question 35

Goodwill v BPAS

Answer 35

There must be a sufficient relationship of proximity between D and C to sustain C’s claim for pure economic loss; a doctor does not owe a DoC to anyone and everyone who might sustain loss as a result of his negligent treatment of one patient.

Question 36

Dulieu v White

Answer 36

Where C suffers shock from a reasonable fear for his own safety caused by D’s negligence and the shock causes actionable injury, this is recoverable.

Question 37

McFarlane

Answer 37

C need not actually be in danger - it is sufficient that C reasonably believes he is in danger.

Question 38

Page v Smith

Answer 38

If D breaches his DoC to C in respect of physical injury, he will be liable for psychiatric injuries resulting from D’s pre-existing weaknesses even if these were not reasonably foreseeable because mental and physical injury are both facets of personal injury.

Question 39

A v Essex CC

Answer 39

Page v Smith applies where D’s negligence causes C to be exposed to psychiatric injury caused by the intentional acts of third party.

Question 40

Simmons

Answer 40

Page v Smith applies where D’s psychiatric injury is caused not by fear for his safety but emotions such as anger, as long as the emotion is triggered by D’s negligence.

Question 41

Chadwick

Answer 41

If D is within the zone of physical danger it is immaterial whether C’s psychiatric injury is triggered by fear for his own safety or that of others.

Question 42

Rothwell

Answer 42

It seems that Page v Smith will not apply where there is no temporal proximity between D’s negligence and C’s psychiatric injury or where C’s psychiatric injury is caused by apprehension of the possibility of an event that has not actually happened.

Question 43

Alcock (3-stage test for secondary Vs)

Answer 43

1. Is there a sufficiently close r/s of love and affection between C and D such that shock suffered by C as a result of peril to D was reasonably foreseeable?
2. Is there a sufficient proximity of time and place between C and the event leading to his mental injury?
3. Was C’s mental illness caused by the sudden appreciation by sight and sound of a horrifying event which violently agitated the mind?

Question 44

McLoughlin

Answer 44

It is sufficient for stage 2 of the Alcock test that C sees the immediate aftermath of the accident

Question 45

Vernon v Bosley

Answer 45

o Distinction needs to be made between PTSD ( mental illness in reaction to the event) and pathological grief disorder (in reaction to the grief caused by the event) and it seems if both are causes, there is no discount for the latter

Question 46

Frost v CC South Yorkshire

Answer 46

o Rescuers who are not within the zone of physical danger and who have no qualifying r/s with V are not entitled to claims for mental injury resulting from the trauma of the rescue

Question 47

Frost/Dooley

Answer 47

If D’s negligence puts C in the position of thinking that he had involuntarily caused the death or serious injury of another (as in Dooley) there is a possibility that such cases might not be subject to the Alcock control mechanisms (Frost)

Question 48

Greatorex

Answer 48

A primary victim does not owe a DoC to others not to inflict shock on them by the self-infliction of his injuries

Question 49

Hatton v Sutherland)

Answer 49

C may claim damages for mental injury due to extended exposure to stress at work;
the question is one of whether D has fulfilled his general duty to not injure the health of his workers taking into account those weaknesses of C which ought to have been known to D

Question 50

Gorringe

Answer 50

A common law DoC “cannot grow parasitically out of a statutory duty not intended to be owed to individuals”. An unreasonable exercise/failure to exercise of statutory powers is relevant to administrative and not tort law.

Question 51

Attia v British Gas Plc

Answer 51

Psychiatric trauma attendant on damage to C’s own property may be recoverable in damages subject to remoteness considerations (but in principle control mechanisms similar to the Alcock ones ought to apply)

Question 52

X v Hounslow LBC

Answer 52

A common law assumption of responsibility cannot be inferred merely because D exercises a statutory function which may be regarded as for the protection of persons such as C

Question 53

Stovin v Wise (quote)

Answer 53

A statutory duty to give proper consideration to an exercise of discretionary power does not impose a duty of care in relation to the exercise of that power (the statutory “may” cannot be turned into the common law “ought”)

Question 54

X v Bedfordshire CC (justiciability+dicta)

Answer 54

Where C is calling in question D’s exercise of Parliament-conferred discretion, the court cannot adjudicate on the matter where the “factors relevant to the exercise of the discretion include matters of policy” (however, if the decision complained of “is so unreasonable that it falls outside the ambit of the discretion conferred upon the [public body], there is no a priori reason for excluding all common law liability” )

Question 55

Barrett v Enfield London Borough (2 precedents)

Answer 55

1. Just because the decision challenged can be described as having a policy character does not render it non-justiciable; whether it is justiciable depends on all the circumstances
2. Provided that the decision in question is justiciable, it is preferable to apply directly the common law concept of negligence RATHER THAN apply as a preliminary test the public law concept of Wednesbury unreasonableness

Question 56

Carty v London Borough of Croydon (Dyson LJ)

Answer 56

Support was lent to a 2-stage assessment of whether a public authority is liable for negligence in the performance of its statutory functions -

1. Is the issue justiciable?
2. If so, apply the Caparo test

Question 57

Connor v Surrey CC

Answer 57

Where the statutory duty of D “plainly marches together” with D’s duty of care to C, judicial interference with the exercise of statutory discretion will normally be warranted

Question 58

W v Home Office/R(A) v Secretary of State

Answer 58

In some cases one might distinguish between policy decisions, which are made when the public body is making a value judgment and are not justiciable (W v Home Office), and operational decisions when the public body is implementing their value judgment which is justiciable (R (A) v Secretary of State)

Question 59

X v Bedfordshire CC (defensive)

Answer 59

Where the statutory scheme provides for ALTERNATIVE MEANS OF REDRESS, there is a risk that imposing a DoC might cause the public body to adopt DEFENSIVE TACTICS hampering its ability to do its job and there is a risk of VEXATIOUS complaints imposing a DoC is rarely fair, just and reasonable.

Question 60

D v East Berkshire (+ dicta on defensive tactics)

Answer 60

Where there is a conflict of interests between the class of persons the statutory scheme seeks to protect and the claimants, the court will not find that D statutory body owes a DoC to C.

When considering whether the “defensive tactics” rationale applies one must consider whether awareness of a DoC might have an insidious effect on C’s decision-making.

Question 61

Murphy v Brentwood DC (2 precedents).

Answer 61

If the building suffers from a defect in quality which has not eventuated in property damage or physical injury the claimant’s loss is purely economic; the building was worth less than he paid for it.

Once the defect becomes apparent, it no longer presents a danger and any expenditure incurred in removing the danger is “incurred not in preventing an otherwise inevitable injury but in order to enable him to continue to use the property” and if D remains and courts the danger, he may be the author of his loss.

Question 62

Junior Books

Answer 62

If there is a special r/s of proximity between C and D (e.g. where C has specifically chosen D to perform the task in question) D may be liable for building defects.

Question 63

Targett v Torfaen BC

Answer 63

Whether C authors his own loss by remaining in the property despite his knowledge of the defect depends on whether his decision was reasonable in all the circumstances

Question 64

Murphy/D&F Estates

Answer 64

Property damage requires something that was initially perfect and rendered imperfect by D’s negligence.

The complex structure proposition(D&F Estates) does not apply in cases like Murphy because the builder creates a single integrated unit incorporating both the foundations and the building. Dicta suggest if the electrical system/steel frame etc damage the building this may qualify.

Question 65

Walters v North Glamorgan NHS Trust (2 precedents)

Answer 65

A single horrifying event may consist of several successive events over one extended period of time, encompassing perception by sight and sound, violent emotions and information given to C as the event unfolds.

The “suddenness” requirement may be satisfied by several successive blows to the nervous system.

Question 66

Hambrook v Stokes

Answer 66

Dulieu v White applies also to physical injury due to nervous shock from fear for the immediate safety of your loved ones.

Question 67

Kane v New Forest (distinguish)

Answer 67

If the local authority is responsible for making the highway dangerous it owes a duty of care to users of the highway. Stovin and Wise distinguished; in that case D local authority did not make the highway dangerous, but merely omitted to make it safer.

Question 68

Stovin v Wise - 3 conditions

Answer 68

These are the MINIMUM 3 conditions for imposing a common law DoC based on statutory power (not duty!)

1. It was so irrational to not exercise the power that there was in effect a public duty to act.
2. There were exceptional grounds, based on the policy of the statute, indicating civil liability should be imposed for non-exercise of the power.