Law of Tort / Duty of care (general negligence) Flashcards
Legal meaning of negligence
Negligence is the breach of a legal duty to take care by the defendant resulting in loss or damage to the claimant
Elements of an action claim in negligence
Loss or damage
Duty
Breach
Causation
Remoteness
Defences
Loss or damage
Loss of damage of a recognised kind sustained by the claimant
Duty
The existence of a duty of care owed by the defendant to the claimant
Causation
Proof that the breach caused the damage both in law and in fact
Remoteness
Proof that the damage suffered was reasonably forseeable
Not too remote
Type of loss is critical
As it can determine the type of test used to determine duty of care.
Common losses
- Physical / bodily injury
- Physciatric harm
- Property damage
- Consequential economic loss
- pure economic loss
Psychiatric Harm
Generally beyond emotional distress.
Must be a recognised mental illness
Consequential economic loss
eg loss of wage
Eg loss of revenue
Pure economic loss
- Lost savings due to investment
- Harm to your business; reputation to the negligent design of an unpopular advert.
After identifying what sort of loss a claimant has suffered
You will go on to consider whether the defendant owed a duty to the claimant in respect of that kind of loss,
Lord Atkin
Donoghue v Stevenson 1932
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour”
Duty of Care
Defendant cannot be liable for carelessness unless the law requires them to be careful in the first place
Donoghue v Stevenson 1932 - FACTS
- Claimant bought friend a ginger beer
- Contained a decomposed snail
- Unable to sue the cafe owner as no contract between them
- Instead sued the manufacturer
First case to attempt to establish a test for a duty of care
Donoghue v Stevenson 1932
Donoghue v Stevenson 1932 - HELD
HoL by a narrow majority allowed the case to succeed.
Manufacturer owed a duty of care to the ultimate consumer
Prior to this manufacturers had only been liable to consumers in limited situations.
Neighbour principle
Developed by Lord Atkin
Attempted to be a test where the court considered if a duty should be imposed.
Used concepts of forseeability and proximity.
This is now old law
Neighbour test replaced by
Caparo Industries v Dickman 1990
Who is my neighbour?
Persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation.
Caparo Industries v Dickman 1990
Brought the expansive approach to an end.
With a three stage approach for establishing duty of care.
* Unwise to look for a magic test
* Recommended a cautious incremental approach based on existing authority.
Following Donoghue
During the 1970s and 1980s a duty of care was imposed in many new situations.
Greatly expanded the reach of the tort of negligence
Caparo Industries - Three step approach
1) Forseeability of harm (objective)
2) Sufficient proximity / closeness
3) Fair, just and reasonable
What does analogy with est authority mean?
- Most cases there will be est authority/precedent - no need for a test
- Only novel type of case, where courts need to decide if a duty of care should be recognized.
- Develop law incrementally and by analogy.
- Analogy = legally significant features
- Proximity important
Assumed responsibility
= Proximity
Fair just and reasonable
Courts exercise judgement given all the circumstances = broad analysis
Consider social, political and economic aspects.
Policy considerations can narrow or broaden the scope of claims
Policy consideration examples
Floodgates; Insurance; Crushing liability; Deterrence; Maintenance of high standards; Defensive practices
Floodgates
- Open the legal floodgates leading to a deluge of claims
- Important consideration in development of law re: psychiatric harm
Insurance
- Defendant is more likely to be liable if they are insured because they have the means to pay damages.
- Connected loss distribution - insurance spreads the cost of compensation through society
Crushing liability
Policy consideration refers to a concern to finding a party liable where the result would be that the party would need to pay damages out of all proportion of to the wrong committed
Defensive Practicies
Where parties act in an undesirable way in an effort to avoid claims
Robinson v Chief Constable of West Yorkshire Police 2018
Where there is no clear precedent, the question of whether to impose a duty….
Where there is no clear precedent, the question of whether to impose a duty should be approached by analogy with established authority.
First question when determining duty of care?
Is there a precedent making clear whether or not duty is owed?
Nettleship v Weston 1971
- Driver owes a duty of care to other road users not to cause injury through careless driving.
Cassidy v Ministry of Health 1951
Medical professionals owe a duty of care to patients once they have accepted them for treatment
Baker v TE Hopkins & Son Ltd 1959
Dr Baker knowingly descended into a well containing poisonous fumes to rescue two works.
CoA was owed a duty of care as it was reasonably forseeable that someone would seek to rescue the workers in danger.
Robinson v Chief Constable of West Yorkshire Police 2018
Police owe a duty of care to the public to protect them from reasonably forseeable physical injury when carrying out arrest.
Establishing duty of care with no clear precedent
Watson v British Boxing of Control 2001
Watson v British Boxing of Control 2001
- Need for immediate medical attention should have available = forseeable
- Defendant had assumed responsibility for determining medical faciltities by making regulations.
- It was fair, just and reasonable to impose a duty. No policy considerations.
If there is no such precedent….
Consider whether duty should be imposed by drawing analogies with existing cases.
As a minimum duty of care will not be imposed…
Unless harm is objectively reasonably forseeable
When considering imposing a duty in a new area
Aim is to develop law incrementally
Consider proximity
And duty of reasonableness
Liability for omissions - the general rule
- Law of tort only imposes liability on those who cause injury or damage to another.
- No such duty imposed on a mere failure to act, or omission.
Smith v Littlewoods Organisation Ltd 1987
Exceptions to the general rule on omission
Relationship between the claimant and defendant / the proximity of the parties is important.
Smith v Littlewood Orgs Ltd 1987 - General rule
No duty to avoid omissions.
Exceptions to the general rule that no duty is owed to avoid omission
- No statutory duty
- Contractual duty
- Where the defendant has sufficient control over the claimant
- Defendant assumes responsibility for the claimant
- Where defendant creates the risk
Goldman v Hargrave 1967
Where the defendant creates the risk
Defendant assumes responsibility for the claimant
Barret v Ministry of Defence 1995
Reeves v Commissioner of the Police for the Metropolis 1999
Where the defendant has sufficient control over the claimant.
Stansbie v Troman 1948
Where there is contractual duty
Exceptions to the general rule - Where there is a statutory duty
If statute imposes a positive duty to act on the defendant,
then failure to do so can be the basis for liability.
Occupiers’ Liability Act 957
Imposes a duty of care on the occupier of the premises to ensure their premises are reasonably safe for visitors.
Failure to do so could lead to liability on behalf of the occupier
Exceptions to the general rule - Where there is a contractual duty
Where a person fails to perform a contractual duty this may give rise to a duty owed for omission
Stansbie v Troman
Exceptions to the general rule - Where defendant has sufficient care over the claimant
High degree of control = impose a positive duty
Reeves v Commissioner of Police for the Metropolis, 1999
- HoL held that the police owed a duty to protect a prisoner from taking his own life because
- They had a high degree of control over the prisoner who was in their custody and there was a high known risk of prisoners taking their own life.
Exceptions to the general rule - Where the defendant assumes responsibility for the claimant
By assisting = taking responsibility for claimant’s welfare.
Barrett v MoD
Barrett v MoD 1995
- DoC arose when a naval officer started to help the victim
- He got drink and left him unattended
- Victim died from choking on vomit.
Exceptions to the general rule - Where the defendant creates the risk
- Defendant creates a dangerous situation.
- May impose a positive duty to act to mitigate the danger.
Goldman v Hargrave
Goldman v Hargrave
- Defendant held liable for a naturally occurring fire
- Ought to have known of the danger and failed to take action.
- Did not douse the embers
- Wind reignited fire
- Physical and financial means to spray water
Omissions and the emergency service - Ambulance Service
- Owe a duty of care to respond to a 999 call within a reasonable time
Kent v Griffiths & Others 2000 - May not have been breached where service exercised its discretion to deal with more pressing emergency.
- Duty and breach are separate question.
Omissions and the emergency service - Fire Brigade
- Owes no duty of care to attend a fire
- If they do attend a fire, they owe a duty to not make the situation worse through a positive act
Capital and Counties plc v Hampshire County Council 1997
Capital and Counties plc v Hampshire County Council 1997
Fire fighter ordered a sprinkler system, operating at the fire to be turned off
Kent v Griffiths & Others 2000
Ambulance have a duty of care to respond to a 999call within a reasonable time.
Omissions and the emergency service - Police
- Police owe no duty of care to respond to emergency calls
Alexandrou v Oxford 1993 - Police can owe a duty in other circumstances.
Alexandrou v Oxford 1993
The police did not owe the claimant a duty to respond to his burglar alarm.
Liability for acts of third parties -
The general rule
- Law of tort only imposes liability on those who directly cause injury or damage to another.
- No such duty is imposed on a failure to prevent a third party causing harm to another.
Smith v Littlewoods Organisation Ltd 1987
Smith v Littlewoods Organisation Ltd 1987
General rule that the law of tort only imposes liability on those who directly cause injury or damage to another.
No duty is imposed on a failure to prevent a third party causing harm to another.
There is not duty for failing to prevent a third party from causing harm except where…
- Sufficient proximity between the defendant and claimant
- Sufficient proximity between the defendant and third party
- Defendant created the danger
- Risk was on the defendant’s premises
It is established that there is sufficient proximity between the defendant and claimant when….
- The claimant is an identifiable victim at risk over and above the public at large.
- Defendant has assumed responsibility for the claimant’s safety.
Key cases re sufficient proximity
- Stansbie v Troman 1948
- Home Office v Dorset Yacht 1970
- Swinney v Chief Constable of Northumbria 1999
Stansbie v Troman 1948
Sufficient proximity between defendant and claimant because of the contractual relationship.
* Decorator owed a DoC to lock claimants property
Home Office v Dorset Yacht 1970
- Defendants liable for the wrongful acts of some borstal boys under their supervision = sufficient proximity
- Borstal boys unsupervised and attempted to escape the island using claimant’s yacht.
Swinney v Chief Constable of Northumbria 1999
- Claimant a police informer who gave information concerning a suspect on the condition that she remained anonymous.
- Car and file stolen, she was harassed.
- CoA held there was sufficient proximity between the claimant and the police.
- Known by the police who might be harmed as a result of their negligence.
- Police had assumed responsibility
Hill v Chief Constable of West Yorkshire 1989
- Mother of the last victim of the Yorkshire Ripper sued the police for negligently failing to apprehend him earlier.
- Questioned by the police and released
- Subsequently murdered again
- HoL refused to impose DoC as there was insufficient proximity between the victim who was an unidentifiable member of a massive group of potential victims.
Mitchell v Glasgow City Council 2009
- Being an identifiable victim is not enough
- Defendant must through their words or conduct assume responsibility for the claimants
- Defendant was aware of Mr Drummond’s death threats to Mr Mitchell.
- Claim failed against Mr Mitchell as the defendant had not assumed responsibility for the safety of Mr Mitchell through their words or conduct.
Insufficient proximity between the defendant and third part….
- A duty is imposed on the basis that the defendant has a responsibility to control/supervise the third party.
*
Home Office v Dorset Yacht 1970
- Defendants were held liable for the wrongful acts of some borstal boys
- Supervisory relationship = Proximity between the defendant and borstal boys
Palmer v Tees Health Authority 1997
- Lack of proximity between the authority and the third party
- Claimant argued the local MHA owed her a DoC in allowing a psych patient into the community without adequate supervision.
- Psych patient killed and attacked the claimant’s daughter.
- CoA stated that there was not sufficient proximity between the authority and patient as the patient was not under authority’s care and control at the time of har,.
- Also no proximity between claimant and defendant.
Defendant created the danger
If the defendant creates or allows the creation of a danger and the claimant is injured as a result, it may be liable even though it was a third party’s action that actually caused the damage in question.
The risk was at the defendant’s premises
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 that danger.
The defendant has a duty of care to take reasonable steps to eradicate or diminsh known danger
Smith v Littlewoods Case
1987
- Smith v Littlewoods
- Vandals broke into the defendant’s derelict cinema and started a fire which caused damage to the claimant’s neightbouring property.
- Defendant owed no duty of care to abate the danger
- Did not know of the danger nor was the danger forseeable no history fo breakins
The exceptions to the general rule are…
Ill defined
Public bodies and duty of care
- May owe a duty of care when looking at the principles applicable to private individuals.
- Two complicating factors
- Public bodies derive powers or duties form statutes - may impact courts findings
- Court must look at what is fair, just and reasonable, and take into account policy considerations
Relevance of powers or duties derived from statute - KEY CASE`
CN and GN v Poole Borough Council 2019
CN and GN v Poole Borough Council 2019 - INTRO
- Negligence claim brought against Council for failing to take children into care, to prevent act of harm caused by an another party.
- Principles established in authorities in relation to acts of third parties therefore relevant.
CN and GN v Poole Borough Council 2019 - COURT SUMMARY
- Liability of a public authority is in principle the same as a private person but may be restricted by statutory powers or duties.
- An act which would normally amount to breach of duty cannot if specifically Authorised by Parliament (Parl Sov)
- When looking at omissions the usual law applying to individuals would apply and it would be very hard to argue that because a public body has a duty or power to act in a particular area, that a failure to act would give rise to a duty in negligence.
CN and GN v Poole Borough Council 2019 - HELD
If the council had the power to take the children into care, this was insufficient to show that the Council had a duty to do so.
To succeed needed to show one of the exceptions to the rule:
* No liability for failing to prevent a third party from causing harm.
Was not able to - therefore no duty owed.
Considerations when courts decide whether to impose a duty on a public body in a new area
- Ultimately the taxpayer who pays the damages
- Imposition of a duty might lead to public services being restricted in operation due to fear of litigation (defensive practices)
Example of public bodies and defensive practices
Hill v Chief Constable of West Yorkshire 1989
* Threat of liability in cases like Hill might lead to defensive practices leading to:
* waste of resources / inefficient use of manpower.
* Also concern for the floodgates effect - police could be sued in negligence for failing to apprehend a criminal.
Distinction between operational and policy matters
- Historically, public authorities have been liable for the operational matters, but not policy.
eg Rigby v Chief Constable of Northamptonshire 1985 - Police fired CS gaswithout considering fire risk. Decision to equip the police with CS gas was a policy decision; way it was used however was an operational matter that could amount to breach.
Examples of duties imposed on public bodies
Phelps v Hillingdon London Borough
Misdiagnosed dyslexia.
DoC owed because LoA had Assumed responsibility for educational sercices.
Jebson v MoD
- Drunk claimant soldier was injured whilst returning from a night out organised by camp commander.
- Tried to climb on top of a moving lorry, lost footing and fell
- Commander owed the claimant a duty of care by impliedly assuming responsibilty for his safety on the return trip.
- Was in rbeach of duty by lack of suitable transport and supervision
Mulcahy v MoD 1996
Army do not owe soldiers a DoC in battle conditions during active combat.
