Duty of Care - the development 1932-1990 and policy considerations Flashcards
Donoghue v Stevenson (1932)
THE NEIGHBOUR PRINCIPLE
Established that negligence is a tort - there was no contract between the parties, as it was not Donoghue that purchased the drink it was her friend.
Established duty of care to final consumer of products
The neighbour principle -
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Your neighbour ?
A persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation
In every claim for negligence a claimant must prove
D owed a duty of care
D was in breach of that duty
The breach was the factual and legal cause of the damage suffered
Home office v Dorset yacht Co ltd (1970)
Prisoners escape from an island and crash into a boat causing damage. Claimant recovered due to the damage being foreseeable.
Lord Reid reaffirms and supports ‘the neighbour principle’ because there is no other authority available
Anns v Merton London Borough Council (1978)
Lord Wilberforce introduced a new ‘two stage test’
Proximity of the claimant and defendant
Foreseeability of the damage
Policy considerations:
There was fear that the two stage test would lead to a massive extension of duty areas, and the since the 1980’s there has been a cautious approach which is influenced more openly by public policy considerations.
Murphy v Brentwood District Council (1990)
overrules the case of Anns v Merton (1978) and the two stage test that was applied
Caparo v Dickman (1990)
Most modern law in duty of care
Introduces a three stage test
Proximity - Sutradhar v Natural Environmental Research Council (2006)
Proximity (neighbourhood) between the claimant and the defendant needs to be established - there will be fewer problems in establishing proximity where foreseeable physical harm is caused.
Foreseeability of a reasonable person - Bourhill v Young (1943)
Some damage to Claimant must be foreseeable to the Defendant at the time of his act. It is the foresight of a reasonable person that the court takes into account and not the foresight of the particular Defendant.
It is fair, just and reasonable to impose a duty in all circumstances - the public policy element.
When physical damage to a claimants property is reasonably foreseeable, then it is highly likely that a duty will arise to guard against such damage occurring.
The policy considerations…
In pure economic loss and psychiatric damage the courts have been reluctant in extending duty in the same way as physical damage or policy reasons as such this area has given rise to so much case law and debate.
Policy Considerations in Caparo and stage 3 of the test - fair, just and reasonable to impose a duty of care.
Claimants who are able to prove proximity and foreseeability can still fall down on establishing whether it was fair, just and reasonable to impose a duty of care.
Some judges regard parliament as the proper place for social or public policy to be decided. The following policy considerations are to be considered:
The ‘flood gates’ argument. It is better to be expressed as a fear of opening the floodgates to a flood of claims if a particular duty of care is recognised.
Will there be a liability for an indeterminate amount for an indeterminate time to an indeterminate class of potential Claimants.
What is the most appropriate allocation of risk and loss?
Spartan Steel v Martin and Co (1973)
Is it better to require the Defendant to take certain measures to protect Claimant against injury, or is it better to require the Defendant only to provide a warning and leave the Claimant to protect himself?
In that regard is it clear that in each particular case, one must weigh the cost of protective measures for both the Defendant and Claimant, the ease with which each party could adopt such measures.
The Law Lords recognised that public policy considerations may change with time - for example:
Hill v Chief Constable of West Yorkshire (1988)
The accountability of police for negligence in the course of an investigation.
the threat of litigation may not make a police officer more efficient and night lead to undesirable defensive practices:
Michael v South Wales Police (2015) and
Smith v Chief Constable of Sussex Police (2008)
Operational negligence, for example driving a car too fast, can give rise to a duty situation
Knightly v Johns (1982)
Vellino v Chief Constable of Greater Manchester (2002)
No duty is owed to an arrested person making an escape.
Immunity….for the police and medical services.
Police have limited immunity and the medical services have no immunity.
Should the medical profession be considered closer to the police in terms of its level of immunity.
As a general rule, a duty of care will arise only if the intervention of the rescue service makes the situation worse than it otherwise would have been. Capital and Counties plc v Hampshire County Council (1997).
Or in Kent v Griffiths (2000) where an ambulance was sent to the Claimant and there was a negligent delay in arriving at the Claimant’s home to help. In this situation the proximity between the service and the Claimant had been created and her private interest outweighed the general public interest at the time.
Omissions to act referred to in the neighbour principle
These refer to omissions in the course of conduct, for example, not putting one’s foot on the brake pedal when a car is in motion, rather than a pure omission such as the failure of a passer-by to give first aid.
Generally, there is no duty of affirmative action in English law (smith v little woods organisation ltd (1987); but there are exceptions to this general rule:
- a special relationship between claimant and defendant (e.g a contract)
- a special relationship between defendant and a third party who causes damage to claimant (e.g. prison/inmate (home office v Dorset yacht co ltd (1970))
- a stranger creates a source of danger of defendants land of which defendant is aware but about which he does nothing. But if the source of danger is created by a stranger who actions amount to a novus actus interveniens, there will be sufficient proximity.
Failure to warn a patient of the risks involved in an operation may give rise to liability (Chester v Afghan (2004))
the information provided has to depend on the level of information that a reasonable person in the claimant’s position would think is relevant, not on what the doctor thought reasonable to disclose.
Montgomery v Lanarkshire health board (2015)
The influence of the Human Rights Act 1998
Consider the cases:
Osman v United Kingdom (1998)
Z v United Kingdom (2002)
Reynolds v United Kingdom (2012)
