Negligence Flashcards
Elements for a cause of action in negligence
1) Duty of Care
2) Breach of Duty
3) Damage
4) Causation
5) Remoteness
Duty of care
First needs to be established whether this is a situation in which D ought to have avoided causing loss to C
Donoghue v Stevenson
Emerging of the neighbour principle
Lord Atkin:
a person “must take reasonable care to avoid acts and omissions that are likely to cause injury to your neighbour”
Neighbour: so closely and directly affected by your act that you ought reasonably have them in contemplation as being so affected when you think about the act
(criteria: 1) Proximity 2) Foreseeability)
Home Office v Dorset Yacht
Development of neighbour principle:
should work as working presumption
Ann v Merton
Development of a testfor duty of care:
1) is there sufficiently close relationship so that it must have been in reasonabe contemplation of C that carelessnes on his part would be likely to cause damage to D
(procimity is established by foreseeability)
-> if yes priema facie duty
2) countervening policy consideration which have influence on scope of duty?
CURRENT TEST FOR NOVEL SITUATIONS
Caparo v Dickmann
1) Damage must be foreseeable
2) Proximity of relationship
3) fair, just and reasonable
Caparo
Lord Bridge
onus on C:
1) Damage must be foreseeable
-> reasonably foreseeable that C would suffer harm if D acted careless in the way he did
2) Proximity of relationship
3) fair, just and reasonable
- policy considerations come into play as in Ann v Merton
this test applies where there is not a previous category of duty guided by different rules
Lord Bridge
onus on C:
1) Damage must be foreseeable
-> reasonably foreseeable that C would suffer harm if D acted careless in the way he did
2) Proximity of relationship
3) fair, just and reasonable
- policy considerations come into play as in Ann v Merton
this test applies where there is not a previous category of duty guided by different rules
Caparo
1) Foreseeability of damage
What would a reasonable person in Ds position ought to have anticipated at the moment at which they were about to commit the act
Hill v Chief Constable of West Yorkshire
Proximity of Relationship requirement failed (police /victim)
Proximity of Relationship requirement failed (police /victim)
Hill v Chief Constable of West Yorkshire
McFarlane
Fair just and reasonable
Cost of unintended child could not be sued for due to perspective of distributive justice
Mulcahy
negligent orders from sergeant
it was common sense that on the battlefield you cant expect people to take care of others.
- combat immunity
Fair just and reasonable
Cost of unintended child could not be sued for due to perspective of distributive justice
McFarlane
negligent orders from sergeant
it was common sense that on the battlefield you cant expect people to take care of others.
- combat immunity
Mulcahy
Smith v MoD
no combat immunity, and case was not decided based on a fair, just and reasonable assesment of duty of care but MINORITY: (mance, carnwarth)
Government decisions on how much to invest into what are not for the court to investigate
no combat immunity, and case was not decided based on a fair, just and reasonable assesment of duty of care but MINORITY: (mance, carnwarth)
Government decisions on how much to invest into what are not for the court to investigate
Smith v Mod
Hill v Chief Constable West Yorkshire
not fair just and reasonable to impose a duty on police:
1) would not lead to improvement - police already works on highest standard
2) lead to defensive policing
3) divert resources to resist negligence claims where police should concentrate on crime prevention
not fair just and reasonable to impose a duty on police:
1) would not lead to improvement - police already works on highest standard
2) lead to defensive policing
3) divert resources to resist negligence claims where police should concentrate on crime prevention
Hill v Chief Constable West Yorkshire
Art. 6 ECHR
right to fair trial- excluding liability will cause courts to strike out claims
Osman
CoA had striked out a claim,
ECHR:
Hill failed requirement of proportionality
from then on: factors that give rise to court denying a claim (fair just and reasonable consideration) would have to be weighed against Cs suffering
it seemed like a claim could no longer be simply struck out but that there would always have to be such a weighing exercise
HOWEVER: Z v United Kingdom
Z v United Kingdom
art. 6 had been observed when striking out claims
there would be no requirement to do a proportionality assesment as set out in Osman where the rule that deprives C of bringing a claim is a SUBSTANTIVE LEGAL RULE
Here: it was established that there was in fact no immunity of the police but that the fair, just and reasonable principle, a sustantive legal principle, had been applied in cases such as Hill
Brooks
MODIFICATION FROM HILL PRINCIPLE
1) it should be no longer assumed that imposing a duty of care would have no positive effect on police standards as extensive failings had been shown
2) if there had been outrageous negligence this might be a reason to impose a duty of care
nb although the weighing up of factors from Osman was no longer required due to the decision in Z v UK the courts still seemed concerned about hwether degree of negligence and injury had to be considered
Van Colle
the concern was that if police was made liable they’d start to neglect crime prevention as well as education
scepticism about “outrageous negligence” from brooks
-> unclear if it still applies as Van Colle as well as Michaels suggest otherwise
CoA had striked out a claim,
ECHR:
Hill failed requirement of proportionality
from then on: factors that give rise to court denying a claim (fair just and reasonable consideration) would have to be weighed against Cs suffering
it seemed like a claim could no longer be simply struck out but that there would always have to be such a weighing exercise
HOWEVER: Z v United Kingdom
Osman
art. 6 had been observed when striking out claims
there would be no requirement to do a proportionality assesment as set out in Osman where the rule that deprives C of bringing a claim is a SUBSTANTIVE LEGAL RULE
Here: it was established that there was in fact no immunity of the police but that the fair, just and reasonable principle, a sustantive legal principle, had been applied in cases such as Hill
Z v United Kingdom
MODIFICATION FROM HILL PRINCIPLE
1) it should be no longer assumed that imposing a duty of care would have no positive effect on police standards as extensive failings had been shown
2) if there had been outrageous negligence this might be a reason to impose a duty of care
nb although the weighing up of factors from Osman was no longer required due to the decision in Z v UK the courts still seemed concerned about hwether degree of negligence and injury had to be considered
Brooks
the concern was that if police was made liable they’d start to neglect crime prevention as well as education
scepticism about “outrageous negligence” from brooks
-> unclear if it still applies as Van Colle as well as Michaels suggest otherwise
Van Colle
Liability for Omission is generally harder to establish
ex partner killing woman, who had called the police whp had classified the call as non-urgent
DISSENT IMPoRTANT:
Hale, Kerr
Societys attitudes may have changed and people may no longer find it fair to grant immunity for police from duty of care in such scenarios
Michaels
Michaels
Liability for Omission is generally harder to establish
ex partner killing woman, who had called the police whp had classified the call as non-urgent
DISSENT IMPoRTANT:
Hale, Kerr
Societys attitudes may have changed and people may no longer find it fair to grant immunity for police from duty of care in such scenarios
Hale in Michaels v Chief Constable south wales
Hale: Policy reasons against imposition have largely diminshed by the fact that undert art. 2 echr police owes a common law duty to protect members of public
Kerr in Michaels
Sufficient proximity should be recognised where:
1) closeness of association (arises f.e. where info is communicated)
2) info is about serious harm unless action
3) D is an angecy reasonably expected to act and protect
4) D is able to do so without unnecessary danger to himself
Emerging principle tests
Donoghue v Stevenson neighbour principle
Home Office v Dorset Yacht should apply
Ann foreseeability, policy considerations but
Caparo : foreseeable, proximity relationship, fair just reasonable
Proximity of relationship
Hill v Chief Constable West Yorkshire
Michaels v Chief Constable South Wales
Fair Just Reasonable
Military
Mulcahy
Smith
Fair Just Reasonable
Police
Hill v Chief Constable West Yorkshire Osman Z v UK Brooks Van Colle Michael v Chief Constable South Wales
