Law of Tort/Duty of Care

Question 1

Staples for determining whether duty is owed?

Answer 1

• Precedent
• Loss is reasonably foreseeable
• Relationship between parties (proximity)
• Fair, just and reasonable (policy

Question 2

Process for negligence?

Answer 2

Loss
Duty
Breach
Causation
Remoteness
Defences

Question 3

Types of loss? (5)

Answer 3

Physical/bodily injury
Psychiatric harm
Property damage
Consequential economic loss - i.e. wages, revenue when shop shuts due to damage
‘Pure’ economic loss - lost savings due to investment based on bad advice, harm to reputation due to negligent ad etc.

Question 4

3 key factors to duty?

Answer 4

1. how to determine whether a duty is owed
2. liability for omissions (and exceptions)
3. issues re. public bodies

Question 5

First case that attempted to establish test for duty of care?

Answer 5

Donoghue v Stevenson [1932]

• Ginger beer with snail in
• Friend bought the beer
• Was allowed to sue the manufacturer
• Lord Atkin’s key ‘neighbour’ speech
• Test of foreseeability of harm established (objective - what reasonable person could foresee)

Question 6

In what case was the expansive approach laid out in Donoghue ended by the court?

Answer 6

Caparo Industries plc v Dickman [1990]

• HoL criticised expansion of liability
• This is where the ‘foreseeability’ or neighbourhood/proximity and ‘F,J&R’ principles were expanded
• But court still struggled to create general rules as such. Established starting point as ref to existing authorities

Question 7

What is the relevance of Robinson v Chief Constable of West Yorkshire [2018]?

Answer 7

Established the concept of drawing upon existing analogy. THEN go onto proximity, foreseeability and F,J&R

Question 8

Poole BC v GN [2019] in terms of proximity?

Answer 8

ASSUMED RESPONSIBILITY
Courts will continue to look at legally significant features of the situations with which earlier authorities concerned.
i.e. principle clear is that defendant may owe duty where they have assumed responsibility for the claimant (whether in the concept of proximity or not).

Question 9

Within F,J&R, what might the court consider?

Answer 9

Floodgates - policy consideration
Insurance - if D are (or should have been) insured
Crushing liability - paying damages out of proportion
- Also: deterrent for undesirable behaviour, or maintaining high standards, or ‘defensive’ practices’

Question 10

Precedent for drivers owing duty to other road users?

Answer 10

Nettleship v Weston [1971]

Question 11

Precent for medical professionals owing duty to patients?

Answer 11

Cassidy v Ministry of Health [1951]

Question 12

Precedent for rescuers in terms of foreseeability of trying to rescue?

Answer 12

Baker v T.E. Hopkins & Son Ltd [1959] - doctor tried to save workmen trapped down mine

Question 13

Precedent for policy owing duty to public from protecting from reasonably foreseeable injury during arrest?

Answer 13

Robinson v Chief Constable of West Yorkshire Police [2018]

Question 14

Duty established in new area re. boxer’s injurys?

Answer 14

Watson v British Boxing Board of Control [2001]

Question 15

What’s the general rule for liability for omissions? What case?

Answer 15

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.
Smith v Littlewoods Organisation Ltd [1987]

Question 16

Exceptions to omissions? (6)

Answer 16

1 Where there is statutory duty
2 Where there is contractual duty
3 Where the defendant has sufficient control
4 Where the defendant assumes responsibility
5 Where the defendant creates the risk
6 Where the omission is a failure to prevent a third party from causing harm and…

Question 17

Re. the 6th omission, ‘Where the omission is a failure to prevent a third party from causing harm and…’ what are the 4 subcategories?

Answer 17

1 There is sufficient proximity between D and C
and/or
2 There is sufficient proximity between D and third party
and/or
3 D created the danger
and/or
4 The risk is on D’s premises

Question 18

Case re. omission exception contractual duty?

Answer 18

Stansbie v Troman

Question 19

Case re. omission degree of control?

Answer 19

Reeves v Commissioner of Police for the Metropolis [1999]: police duty to protect prisoner’s health including possibility of suicide. Police had high degree of control and risk of suicide well documented.

Question 20

Case re. omission assumption of responsibility for welfare?

Answer 20

Barrett v Ministry of Defence [1995]: drunk naval pilot choked to death on own vomit: although Ds not liable for him, they did assume responsibility once officer took action to care for him.
Once started helping, duty of care to watch over him and take reasonable steps.

Question 21

Case. re omission D created the risk?

Answer 21

Goldman v Hargrave [1967]: D liable for naturally occurring fire when he should have taken steps to mitigate danger.

Question 22

Rule. re omission D created the risk in relation to emergency services - fire services?

Answer 22

Fire brigade: NOT under positive duty to attend fire. However if do attend fire, duty to not make worse.
Capital and Counties plc v Hampshire County Council [1997]

Question 23

Rule. re omission D created the risk in relation to emergency services - police?

Answer 23

Police: NO duty of care to respond to emergency calls
Alexandrou v Oxford [1993]
- Claim failed - action against local police after ignored message from burglar’s alarm
- However note from Reeves; does owe duty in other situations (omission re. helping).

Question 24

Rule. re omission D created the risk in relation to emergency services - ambulance?

Answer 24

Ambulance: ONLY owes duty once accepts 999 call: then, must respond within reasonable time (unless reason why ambulance not provided) acceptance of call established proximity. Kent v Griffiths & Others [2000]
Note: might note be breached if more pressing call being dealt with.

Question 25

Rule. re omission failure to prevent third party causing harm: proximity (special relationship) between D&C? 8 cases.

Answer 25

1. Stansbie v Troman [1948]
   - contractual relationship - decorator allowed burglars into property by accident
2. Palmer v Tees Health Authority
   - Mental Health Authority sued after psychiatric patient who was released threatened to kill child: no proximity of relationship
3. Home Office v Dorset Yacht
   - proximity was established between Home Office and Yacht, and Cs were identifiable victims at risk over and above public at large borstal boys had history of escape and only way was yachts.
4. Hill v Chief Constable of West Yorkshire [1989]
   - Yorkshire Ripper case last victim - Court accepted foreseeability, but not proximity
5. Swinney v Chief Constable of Northumbria (No.2)
   - Police did not have ‘blanket immunity’ - anonymity of pub landlady witness - Court disagreed that there was no proximity: informers should have special status over public - relationship with police
6. Smith v Chief Constable of Sussex Police [2008]
   Mitchell v Glasgow City Council [2009]
   - Man injured by boyfriend, police did not look into text info: Court aligned with Hill re. defensive policing. Also lack of proximity between C and D. Lord Bingham dissent.
7. Mitchell v Glasgow City Council [2009]
   - Council under no duty to warn potential risk to neighbour from eviction. No special relationship. Also courts did not think F,J&R. Duty would only arise where responsibility for victim assumed.
8. CN and GN v Poole Borough Council [2019]
   - children into care - Court held although council had power to do this, did not have responsibility as had not assumed responsibility for children’s welfare.

Question 26

Rule. re omission failure to prevent third party causing harm: proximity (special relationship) between D&third party? 2 cases.

Answer 26

Duty imposed on basis D has right/responsibility to control/supervise third party - much involves public podies.

1. Home Office v Dorset Yacht Co [1970]:
   - Boys left unsupervised - supervisory relationship created proximity - damage also reasonably foreseeable. (decided at time where expanding liability)
2. Rigby v Chief Constable of Northamptonshire [1985]
   - Courts more likely to find duty where failing is operational rather than policy. Police fired CS gas without considering fire risk.
   - Use of gas was policy related (courts would not interfere), however way in which it was used was operational - amounted to breach

Question 27

Rule. re omission failure to prevent third party causing harm: creation of danger?

Answer 27

May be liable even if it was third party who who cause damage: remember Stansbie v Troman, decorator letting burglars in.

Question 28

Rule. re omission failure to prevent third party causing harm: dangers on Ds premises?

Answer 28

If a defendant knows, or ought to know, of a danger on their property created by a third party, they may owe a duty to anyone who is subsequently damaged as a result of the said danger.
Smith v Littlewoods [1987]: emphasis placed on awareness of third parties.
- vandals broke into abandoned cinema and started fire, damaging neighbours property. HELD no duty - not foreseeable that vandals would break in.

Question 29

Two complicating factors when applying principles of duty to public bodies?

Answer 29

1. powers derived from statutes

2. F,J&R and policy considerations different for public bodies

Question 30

What’s the relevance of powers or duties derived from statutes re. public bodies?

Answer 30

Remember CN and GN v Poole Borough Council?

1. if from act of Parliament, court will not intervene - parliamentary sovereignty
2. re. omissions, hard to argue that because a public body has the power to act that a failure would give rise to duty in negligence.

Question 31

What’s are 2 example of duty imposed on public body for ‘public service’?

Answer 31

1. Phelps v Hillingdon London Borough (2000):
   - Council misdiagnosed C’s dyslexia in child - assumed responsibility for educational services.
2. Jebson v Ministry of Defence [2000]:
   - drunk soldier fell off moving lorry - lost footing and fell - not supervised. Assumed responsibility for safe return.

Question 32

When looking at public body cases, should you focus on policy considerations?

Answer 32

No - look at ‘assumption of responsibility’ mainly, but still important to look at policy considerations to some degree. Remember Hill v Chief Constable of West Yorkshire [1989].

Question 33

What’s a good approach to take following Poole re. public bodies duty?

Answer 33

Even where a duty would arise applying ordinary principles, the court will not impose a duty if it would conflict with the scheme of the legislation governing the public body.