Lecture 2: Negligence: DoC & Problem areas Pt 1 & 2 Flashcards
What is the three-stage test
- Foreseeable harm to the claimant
- Proximity or neighbourhood between claimant & defendant
- Is it fair, just & reasonable to impose DoC in this situation [ ie. Policy considerations ]
What does caparo really do?
- it doesn’t seem to set up the three stage test
- it removes presumption of DoC established in Anns V. Merton London Borough council
- it establishes incremental approach to negligence through reference to Australian case of Sutherland shire council v. Heyman
How do you work with caparo?
- Check whether previous case establishes DoC for similar situation
- No precedent for similar situation? Past cases can still provide better guidance than caparo
- Case is about personal injury & or property damage? As per in *Robinson * foreseeability will probably suffice to establish DoC
What is an omission?
An omission is the defendants failure to project the claimant from a risk of harm caused by a third party or by herself
[ not stopping at traffic light is an omission generally speaking, but not at law ]
- Lunney & oliphant: making things worse (liability) v failing to make things better (no liability)
Three exceptions of omissions (proximity)
1. Control
2. Assumption of responsibility
3. Creation of adoption of risks
What are the 4 exceptions of liability for acts of third parties?
NB: general rule: no liability
Four exceptions:
1. Where there is a special relationship between the defendant & the claimant
2. Where there is a special relationship between the defendant & the third party, ie, control or supervision
3. Where sonerone creates a source of danger that may be sparked by a third party
4. Where there is a failure to take steps to abate a known danger created by a third party.
What is psychiatric harm in tort law
What are primary victims
primary victim is directly involved in the accident and well within the range of forseeable physical injury
What are secondary victims
secondary victim suffers psychiatric harm as a result of withnessing someone else being harmed or endangered
what are the three requirments of the alcock test for secondary victims
- sufficently close relationship of love and affection with primary victim(s) - usually claimant has to establish a close tie of love and affection; however Alcock did not rule out possibility a mere bystander may be able to recover (at 397)
- proximity to the accident or its immediate aftermath, which was sufficently close in time and space
- suffering nervous shocks through what was seen or heard of the accident or its immediate aftermath
what is known about rescuers (include cases)
- prior to ** white v cheif constable of the south yorkshire police ** [1998], it had appeared that rescuers might form a special category
- then ** white **: police officers brought action for shock suffered following experience of the ** Alcock ** tragedy: HoL held didnt satisfy close ties of love and affection of Alcock test
INVOLUNTARY PARTICIPANTS
- Dooley v Camell Laird & C0 [1915]: crane operatpr dropped load in hold of ship and suffered shock believing he had killed workmate; awarded compensation also in light of high degree of involvement and sense of responsability
can a primary victim also be a wrongdoer?
yes. Greatorex v Greatorex [2000]: father sued his son because insurance would have paid compensation on behalf of the sin who wasn’t insured to drive; father worked for emergency service and attended scene of accident caused by his son; the sued for psychiatruc injury; held no damages on policy: different ruling would encourage legal actions between family members
can you impose liability for the ways bad news was delivered?
Courts have been reluctant to impose liability for the way bad news are delivered
↳but less reluctant if what is delivered is wrong information
** AB v Tameside & Gossip Health Authority ** [1997]:
↳patients told by letter that they had been exposed to the risk of HIV infection by a health worker
↳letter had been written in impersonal and uncaring manner
↳defendant admitted negligence
↳held not liable because no breach of DoC and claimant didn’t prove whether shock was due by the message itself or by defendant informing them
NB: other related case *Wainwright v Home Office* [2016]
what is the psychiatric harm included in employment
↳When employer breached duty of care owed to employee
↳this is a problem because most of the time criteria for psychiatric harm canot be met:
- no shock but stress developed over period of time
- claimant will be the only victim
- objective standard of forseeability doesn’t apply because DoC is owed from specific employer to specific eomployee (not a stranger like a witness of a car accident)
RELEVANT CASES:
** Donachie v Chief constable of greater manchester ** [2004]:
↳police officer had to install surveillance device under a suspects car
↳device he had been provided with was faulty and he had to return to the car repeatedly
↳very stressful situation which led to a stroke
↳CoA held he was a primary victim
** Walker v Northumbria County Council **[1995]:
↳worker had second nervous breakdown after struggling to cope with heavy workload
↳held: employer liable because didn’t take any action after first breakdown
do emergency services & armed forces have liability
operational liability
↳can be liable in negligence when by directed and positive action, cause property damage or personal injury
↳usually not liable for decisions about resource allocation prioritsing of cases
↳Generally thought that only exception is when police have assumed responability to protect the victim
- robinson v chief constable of west yorkshire police [2018]
- Knightky v Johns [1982]:
↳accident at end of tunnel without first closing the other end
↳one of them hit by incoming car (driver hadnt been negligent)
↳ held: officer was liable
-
righby v chief constable of northamptonshire [1985]
↳used flammable CS to flush a suspect out of a building
↳fire and damage
↳held: liable because ommitted take usual precautions
they have strong immunity on policy reasons
- Hill chief constable of W Yorkshire [1989]:
↳woman killed by serial killer
↳police had been looking for him for years
↳HoL held that police had been negligent by applied ‘two stage’ test of ** Anns ** to determine whether DoC was owed
↳held: wasn’t owed because there wasn’t relationship of control between police and killer, or proximity of the police to the victim
↳used policy considerations
↳Lord Template added that trials are not the appropriate venue fir supervsing the efficiency of the police
↳internal or public inquiries are
- decision followed osman v ferguson [1993]
↳teacher was obsessed with student
↳harassed family and was violent
↳police was aware but teacher seriously wounded the student and killed his father
↳held: that there was a high degree of proximity byt used Hill to hold no liability on policy grounds
- led to ** osman v UK ** [1999]:
↳claimed that judgement was against art 6 ECHR (right of access to courts)
↳held: agreed and awarded compensation- ** swinney v chief constable northumbria ** [1997]:
↳informers name and details left in police car
↳alleged criminal got in possession of it
↳informers suffered intimidation and psychological injury
↳had to move house and sued police for failure to keep info confidential
↳CoA held that there was DoC, proximity, and forseeability and case could continue
↳held: not liable because car had been locked
- ** swinney v chief constable northumbria ** [1997]:
-
an informer v chief constable [2012]:
↳police suspected informer was doing money laundering and obtained order to ptohibit him from accessing his bank accounts
↳claimant suffered severe financial loss
↳held: police owed DoCtowards physical but not financial safety
HUMAN RIGHTS
- van colle v chief constable of hertfordshire [2009]
↳key-witness in murder trial threatened & killed
↳action brough under art 2 ECHR
↳held not liable because DoC only when police ‘know or ought to know of a real and immediate risk to life’
-
brooks v commisoner of polive for the metrepolis [2005]:
↳claimant was attacked and abused by a racist gang
↳he had been a witness to the murder og his friend
↳suffered post-traumatic stress
↳sued because had been treated as a suspect and witness, but not as a victim and hadn’t been protected
↳HoL held not liable -
Michael v Chief constable of south wales police [2015]:
↳woman called police at 2h29am saying was attacked by former partner and he had told her he would come back to kill her
↳call forwarded to local police station with summary but no mention of intention to kill (graded G2- response within 60 mins- instead of G1 - immediate response - which had been graded by call centre
↳called again at 2h43am, screamed and line gone dead
↳police arrived at 2h51am and found her dead
↳killer pleaded guilty and sentenced to life imprisonment
↳parent and two children brought claims under common law and art 2 ECHR
↳ No DoC (this was not an exception to the geral rule re omissions; call handler didn’t say anytging which indicated a specific assumption of responsability)
↳Duty under Art 2 ECHR are owed towards public ar large -
CLG v Chief constable of merseyside [2015]:
↳police inadvertently gave witness’ new address to third party who then served it on those accused of crime
↳brought action under atts 2 & 8 ECHR (latter is right to respect for family and private life)
↳held not liable because no assumption of responsabilityNEW BIGINNING?
- commisioner of police of the metropolis v DSD & NBV [2018]
↳cab driver raped 105 women between 2002 and 2008
↳art 3 ECHR (prohibition of torture
↳SC rejected appeal by the police, confirming that positive duty to investigate is owed to individuals as well
can a fire service and ambulance service bring a claim under psychiatric harm?
Fire serives: no DoC
ambulance: DoC
FIRE SERVICE:
** Capital & countries plc v Hampshire County Council ** [1997]:
↳officer in charge instructed that building’s sprinkles turned off
↳caused more damage
↳held: have no duty to respond to an emergency call; if answered, they have a positive duty not to make situation worse through postive acts
↳THERE IS USUALLY NO DUTY IN RELATION TO MERE OMISSIOSN
AMBULANCE SERVICE:
↳owes a DoC to individuals in certain circumstances and has a duty to respond to emerginces: ** Kent v Griffith ** [2001]
