General Princples of Duty of Care Flashcards
Objective of Tort Law
To put the person who suffered the tort in the position they were in before they suffer the Tort.
Elements of a Negligence action
Damage
Duty of Care - Was it owed?
Breach of Duty - Did the defendant fail to meet his duty
Causation - was it this breach of duty which resulted in the damage suffered by the claimant.
Defences
Vicarious Liability
Renders one person liable for the Torts of another
Rationale for Vicarious Liability
- The employer benefits from the economic activity so they should bare the risk of anyone being harmed
- Better positioned than employees to pay out financial loss
- Through insurance financial loss can be spread
- Encourages employers to maintain good standards of practice to avoid compensation pay outs.
Alternatives to the Tort System
Royal Commission on civil Liability and compensation for personal injury
First Party Insurance
New Zealand System offers up to 80% on loss of earnings
Defences
Contributory Negligence - Claimant also negligent
Illegality - were laws broken when the claimant was harmed
Voluntary Assumption of risk - Did the claimant put themselves at risk?
Hinz v Berry Principle
No damages are awarded for grief or sorrow, unless mental damage suffered can be medically proven - Lord Hoffmann
Rothwell v Chemical insulating Principle
Damage abstract concept of being worse off
Caparo Test
Claimant should point to direct precedent or closely analogous precedent
Where there is no precedent courts apply tripartite test for duty:
- Foreseeability
- Proximity
-Fairness, Justice and Reasonableness
Donoghue v Stevenson
Neighbourhood Principle:
Must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely to injure your neighbour.
Anns v Merton London Borough Council Principle
not facts
Subject to heavy Criticism - Led to an expansion of claims which is now controlled by the Caparo test.
1) Is there sufficient relationship of proximity or relationship such that the defendants carelessness may be likely to cause damage
2) Are there any considerations which ought to reduce or limit the scope of duty or the class of persons to whom is it owed.
Michael v Chief Constable of South Yorkshire Principle
No liability on a defendant for injury or damage to the person or property of a claimant caused by the conduct of a third party
Supreme court held that the police had not assumed responsibility for Michaels wellbeing
Smith v Littlewoods Organisation Principle
No duty of care placed onto someone for an omission unless there is;
Control - Reeves v Commissioner of Police
Assumption of Responsibility - Barnet v MOD
Hill v Chief constable of West Yorkshire
Hill murder by a serial killer, police had no duty of care would fail the tripartite test established in in Caparo.
Was it reasonably foreseeable?
Is there a sufficient relationship of proximity?
Public policy arguments about fairness, justice and reasonableness of imposing a duty of care on the police.
Smith v Chief Constable of Susses Police
Police failed to respond to death threats made to someone by their partner. He was attacked and left with skull fractures.
Police not liable - Hill principle applied, No liability for omissions
Rigby V chief constable of Northamptonshire
Plaintiffs gun shop under siege. Police fired a can of CS gas into the shop without taking adequate precautions against the risk of fire.
Police liable as they assumed responsibility.
Striking out action
A procedural tactic whereby one party applies to the court to strike out all or part of the other party’s statement of case because it shows no reasonable grounds for bringing/defending the action.
Saves time and expenses
Costello v Chief constable of Northumbria
Employee of the police force called for help and her college did not come to her aid. This is an omission but the police were still liable in negligence because there is a duty of care which police have assumed for each other.
Brooks v Commissioner of Police of the Metropolis
Police failed to treat brooks appropriately as a witness and did not take reasonable care when handling his statements. Case of no duty. Considered as an omission.
Robinson v Chief constable of west Yorkshire
Police did not take reasonable care in making an arrest. Police and drug deal accidently bump into Robinson leaving her injured.
Court of appeal: Not fair just or reasonable to expect the police to have regard for the safety of people around them.
Supreme court: Unnecessary to use Caparo in such a case and instead precedent in cases like Rigby were used. It was a negligent act which led to Robinsons injuries and they should be liable for it.
Alternative to bringing a negligence claim
Article 2 ECHR ‘Right to life’ - only can be brought against public bodies
Osman vs the UK - The Osman Test:
The police knew or ought to have known with the information at the time that were was a real and immediate threat to life of the identified individual.
(Hard to satisfy)
Capital and Counties v Hampshire
Fire brigade ordinarily do not have a duty of care when responding to an emergency but in this case they were negligent in their act to turn of the sprinkler system which led to the growth of the fire.
OLL v Secretary of State for the Home Department
When the coast guard is dealing with the failure to rescue a person from the sea. They will not be liable if they fail as it is an omission.
