Negligence Cases (DOC)

Question 1

Anns v Merton LBC [1978] HL

Answer 1

Merton Council

Held: The council did owe its tenants a DOC to ensure the structural integrity of a block of council flats.

Lord Wilberforce’s 2 stage test for establishing a DOC:

1. Is there sufficient proximity between D and C to impose a prima facie duty ?
2. If yes, are there any policy considerations which would prevent such a duty being imposed?

Subsequently overruled by Caparo

Question 2

Caparo v Dickman [1990] HL

Answer 2

Company Caparo

Held: A negligent accountant (Dickman) did not owe a DOC to the the purchaser of company shares, to provide an accurate audit.

Reason: There was not sufficient proximity between Caparo and the auditors since the auditors were not aware of the existence of Caparo nor the purpose for which the accounts were being used by them.

Caparo Principles: Lord Bridge held that 3 issues need to be considered when deciding whether a DOC exists.

1. Foreseaabilty
2. Proximity
3. Fair, just and reasonable

Question 3

Phelps v Hillingdon LBC [2001]

Answer 3

Phelps Psychology

Held: An educational psychologist (employed by the council) did owe a DOC to her students when assessing them for dyslexia.

Reasoning

• Moreover it was held that the local authority could be held responsible for the negligence of the psychologist it employed.
• In contrast to Hill and the idea of blanket immunity, Lord Clyde held that imposing a DOC on the local authority would have positive impact in ensuring high standards were achieved.

Question 4

Smith v Littlewoods [1987] HL

Answer 4

Littlewoods Cinema

Held: The owner of a cinema did not owe a DOC to nearby proprietors to keep the cinema safe/secure (Lord Goff) OR did owe a duty but was not in breach of that duty (Lord Mackay), and was therefore not liable for damage caused by vandals breaking in and starting a fire.

Omission

Analysis

• Common law does not impose liablity for ‘pure omissions - Lord Goff
• N.b. a pure omission is not a situation in which D creates a hazard.
• However there are exceptions to the ‘pure omissions’ rule:

1. Undertaking or assuming responsiblity for the claiamnts welfare (e.g. Kent, Barnett)
2. A pre-existing relationship between C and D e.g. (employer/employee, school/child, gaoler/prisoner - Reeves)
3. A relationship between D and a TP e.g. (Dorset Yacht)

Question 5

Everett v Comojo [2011] CA

Answer 5

Comojo Nightclub

Held: A nightclub did owe a DOC to keep its guests safe, even in relation to acts of TPs, however on the facts of the case there had been no breach - the nightclub had behaved reasonably in response to the risk of harm.

Omission

Question 6

Home Office v Dorset Yacht Co [1970] HL

Answer 6

Damaged Dorset Yacht

Held: Home office owed a DOC to local yacht owners to prevent the boys under their control from causing damage to private property.

Omission / TPs

• Key point is that the boy (TPs) were under the control of the HO, hence why the HO were liable for damage caused by the boys.

Question 7

Stovin v Wise [1996] HL

Answer 7

Road Wise

Held: The council did not owe road drivers a DOC to remedy a dangerous junction.

Other:

• Court was reluctant to impose a common law duty on a public body operating under statutory powers, where no statutory DOC existed.

Question 8

Kent v Griffiths (No 2) [2001] CA

Answer 8

Asthmatic Caller Kent

Held: The ambulance service did owe a DOC to a patient (caller) not to unreasonably delay their arrival to the patient.

Analysis:

• Omission Exception 1 - AOR
• Applied the Caparo test:
  
  • Foreseeability was present (1) (not an issue);
  • Fair, just and reasonable to impose a duty (3) (not an issue)
  • Proximity was an issue (2): However Lord Woolf found that once the first 999 call was accepted (the call put the ambulance service on clear notice of the serious nature of the emergency), there was a relationship of proximity between D and C.

Question 9

Barrett v Enfield LBC [2001] HL

Answer 9

Barret Care

Held: Enfield Council did owe a DOC to children in care to raise them with a reasonable degree of care.

Question 10

D v East Berkshire Community NHS Trust [2003], [2005] HL

Answer 10

Erroneous East Berkshire

Health professionals responsible for investigating suspected child abuse did not owe a DOC to parents suspected of having committed the abuse, provided they had acted in good faith.

Reasoning:

• Majority (Lord Nicholls) - the doctors should be able to act in the best interests of his patient (child) where there is a conflict of interest between the parent and the child -should not be bound by a duty which prevents that.

Question 11

Gorringe v Calderdale MBC [2004]

Answer 11

Held: Local authority did not owe a DOC to vehicle users to improve the highway

Analysis:

• Upheld Stovin v Wise

Question 12

Mitchell v Glasgow City Council [2009] HL

Answer 12

Held: The council did not owe P a DOC to inform him of a meeting taking place between the Council and Drummond ( P’s neighbour who had recently threatened to kill him). Drummond killed P after the meeting

Analysis:

• Just because it was foreseeable that P would be killed does not mean that a DoC exists. No DoC because of policy reasons – no liability for omissions.
• Citing Lord Goff in Smith v Littlewords (cinema arson case).

Question 13

Michael v Chief Constable of South Wales [2015] UKSC

Answer 13

Ms Michael

Held: South Wales Police did not owe Joanna Michael a duty of care on recieving her 999 call.

Analysis

• UKSC held 7:2 majority
• Minority of Hale and Kerr gave strong dissents saying policy concerns about police acting out of fear of being sued unfounded
• However the court unamiously held that a claim based on the police violating ECHR art. 2 (right to life) should proceed to trial.

Question 14

Donoghue v Stevenson [1932] HL

Answer 14

Held: The manufacturer of a bottle of ginger beer did owe a duty to care to the end user of its product.

Question 15

Hill v CC of West Yorkshire [1987] HL

Answer 15

Held: The police did not owe a general duty of care to members of the public at large to apprehend an unknown criminal (unless such failure creates an exceptional additional risk and there is a proximity between the officers and the potential victim)

Reasoning

• As a matter of public policy, the police ought to be immune from allegations of negligence arising from their investigation and suppression of crime - imposing a DOC may encourage defensive policing
• IN the CofA Fox LJ had been influenced by the existence of an alternative satisfactory remedy: held that Mrs Hill could seek damage through the Criminal Injuries Compensation Scheme.

Question 16

McFarlane v Tayside Health Board [2000] HL (Sc)

Answer 16

Held: The Health board, who had performed a vasectomy, did owe a DOC to the wife to prevent an unwanted pregnancy (and for the costs/pain arising from that), however it did not owe a DOC in respect of the financial burdern incurred in raising the child.

Reasoning

• Applied Caparo - it was not fair, just and reasonable to impose such a duty on the helath board.

Question 17

Parkinson v St James & Seacroft University Hospital [2001] CA

Answer 17

Pregancy Parkinson

Held: The NHS Trust, which had negligently performed a sterilisation operation on P, as a result of which she had given birth to a disabled child; were liable for the special costs arising as result of the child’s specific disability (Foreseeability & proximity satisfied - Caparo followed), but were not liable for the general basic costs associated with raising any child (McFarlane applied)

Question 18

Rees v Darlington Memorial Hospital NHS Trust [2003] HL

Answer 18

Held: The cliamant, a disabled woman who was the victim of a failed sterilisation operation, was not able to sue for the costs of raising her healthy child, despite the extra burdern raisng a child would have on her given her own disability. However the claimant was entitled to an award of an arbitrary lump sum of £15,000 for the parents’ loss of opportunity to limit their family and live life the way they had planned.

Analysis

• 4:3 Majority
• McFarlane -v- Teeside held that parents could not claim the costs of bringing up a healthy child born as the result of a failed sterilisation. In Parkinson -v- St James & Seacroft University Hospital NHS Trust, it was decided that a parent could claim the extra costs of bringing up a disabled child.
• The issue in this instance was whether the decision in McFarlane meant that none of the costs of bringing up a healthy child could ever be claimed whatever the circumstances. (In other words, the Court of Appeal were faced with the precise reverse of the situation in Parkinson i.e. disabled mother, healthy child).

Question 19

Barnett v Chelsea Hospital [1969]

Answer 19

Held: A hospital authority which provides a casualty department owes a DOC towards persons presenting themselves there complaining of illness - D had failed to treat the C for arsenipoisoning and C subsequentely died however on the facts of the case the doctors negligence was not a but-for cause of C’s death and therefore no liablitity.

Analysis

• Omissions Liability Expcetion 1 - AOR for C’s welfare.

Question 20

Knightley v Johns [1982] CA

Answer 20

Held: Senior Police officer did owe a DOC to a junior police officer, and therefore was liable for negligently instructing the junior officer to drive into a tunnel against the flow of traffic.

Analysis:

• Exceptional circumstance where police can be found to owe a DOC

Question 21

Reeves v Commissioner of Metropolitan Police [2000] HL

Answer 21

Held: Police officer owed a DOC to a man in custody to prevent him from self harm - although such a DOC is not generally owed to person of sound mind, in this instance there was a duty because of: (1) control of police over the man; (2) stresses inherent to the custodial situation.

Question 22

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC

Answer 22

Held: Police officers did owe a DOC to an elderly passer-by who was knocked to the ground as the police sought to arrest a criminal suspect.

Analysis

• Hill does no confer ‘blanket immunity on the police. While it is true that the police do not a general DOC to teh public at large, they can still owe DOC by reference to ordinary ordinary tortious principles.
• Thus Police officers might be under a duty of care to protect individuals from a danger of injury which they themselves had created, but had no duty to protect against dangers caused by the conduct of third parties.
• In this case they were under such a duty. The reasonably foreseeable risk of injury in attempting an arrest when pedestrians were close by was enough to create a duty of care.

Question 23

McKay v Essex Area Health Authority [1982] CA

Answer 23

Held: There is no claim in law which allows a child born alive with deformities to claim damages for negligence against doctors in allowing it to be born alive. Doctors are under no duty to abort a disabled foetus, regardless of whether they negligently failed to inform the mother that the child would be born disabled.

Analysis

• Would be against public policy to allow such a claim to succeed.
• Congenital Disabilities Act did not include cases where P had “lost the chance to not be born”

Question 24

Congenital Disabilities (Civil Liability) Act 1976

Answer 24

• Creates a ‘derivative’ action for a child who has been born with a disability that has resulted from an injuiry sustained before its birth (S.1 CD(CL)A)
• Child may bring a claim against a D who owed a DOC to its parents and would have been liable to them in tort had they suffered injury or damage, even if the parents suffered no actual damage themselves. (s.1(3) CD(CL)A)

Question 25

Alcock v Chief Constable of South Yorkshire [1992] HL

Answer 25

Held: Police who caused the Hillsborough disaster did not owe a DOC to those who had witnessed the crush in person or via TV - none of the cliamant were rpimary victims ( never in danger themsleves) and could not cliam as seondary victims as they failed to satisfy Lord Oliver’s ‘control mechanisms’

Alcock control mechanisms

1. Foreseeability of psychiatric harm
2. A sufficient relationship ( close tie of love & affection) between C and V
3. Proxmity to the event in time and space
4. Perception of events with C’s unaided senses
5. Sudden Assault /Immediate Shock on the nervous sytem

Question 26

Dulieu v White [1901] KB

Answer 26

Held: A claimant, who suffered psychiatric harm resulting in premature birth, from the sight of horse and cart crashing into the pub wehere she was working, was able to claim damages for psychiatric injury.

Analysis

• Can be retroactively analysed as a case inovling a primary vitim of psychiatric Harm.
• Reason the purely psychiatric harm was recoverable was because she had a real and immediate fear of injury to herself (Kennedy)

Question 27

Page v Smith [1996] HL

Answer 27

Personal injury (psychiatric) Page

Held: Claimant was able to claim in respect of psychiatric harm suffered during a car crash - in order to owe a DOC to a primary victim in respect of psychiatric injury, D need only foresee personal injury of some kind (no need to foresee psychiatric injury).

Lord LLoyd

• Whether D can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the DOC is established, even though physical injury does not in fact occur. There is no justifcation for regarding physical and psychiatric injury as different ‘kinds of damage’.

Question 28

White v CC of South Yorkshire Police [1999] HL

Answer 28

Held: Police officers who had witnessed the Hillsborough disater were unable to claim damages for psyhciatirc harm suffered from witnessing the event.

3:2 (Goff strongly dissenting )

Reasoning

• Relationship of employment between the employer and employee did impose a DOC on the employer to protect employees from phsyical harm but this did not extend to psychiatric harm, when no physical harm had been suffered or threatened.
• Rescuers were also not a special class of victim: unless they put themselves in danger they too were not primary victims and had to fulfill Alcock criteria to claim as secondary victims.
• Police officers were not primary victims because they had not been in danger, or reasonably believed themselves to be. Did not fulfill the Alcock criteria to qualify as secondary victims.

Analysis

• Was this decision made on policy grounds? See Lord Hoffman: it would be unfair to allow Police to claim when relatives/bystanders could not (Alcock).
• This in fact narrows the test for a DOC with regards vitims of psychiatric harm, and exmploys ex post facto reasoning in its assement
  
  • In Page it was held that if D can reasonably foresee that his conduct will expose C to the risk of personal injury then D owes a DOC in respect of any psychiatric harm C suffers
  • However in White the onus was put on the victim. It seems that it is not simply enough that D foresees the risk of personal injury to C, rather a (primary) victim must have actually been (or believed themselves to be) in danger of personal injury. Foresseability of risk is not enough, exposure to actual risk is required.
  • Can be reconciled by saying that D can only reasonably foresee risk of personal injury in circumstacnes where C is in fact exposed to that danger. Where C is not exposed to risk of injury ( e.g. a rescuer), then D cannot reasonably foresee that his conduct would endanger C.
  • Either way it shows the articicilaity of teh DOC concept. It is less about what D reasonably foresees, and more about what C did in fact experience. If C experienced danger of personal injury, then D ought to have foresee, if C did not experience danger, then D ought not to have foreseen it.

Lord Steyn

• To qualify as a primary victim the plaintiff must at least satisfy the threhold requirment that he objectively exposed himself to danger or reasonably believed that he was doing so.

Question 29

Chadwick v British Railways Board [1967] QB

Answer 29

Held: Chadwick who rescued victims of a railway crash, was able to claim damages for psychiatric harm suffered from witnessing/experiencing the ‘horror of the whole experience’.

Analysis

• in White Goff used this to argue that Rescuers were a sepcial class of victim who could cliam damage for psychiatric harm without needing to satisfy the Alcock criteria. However this was rejected by the majority:
  
  • Steyn: hadwick was correctly decided. But it is not authority for the proposition that a person who never exposed himself to any personal danger and never thought that he was in personal danger can recover pure psychiatric injury as a rescuer.

Question 30

McLoughlin v O’Brian [1983] HL

Answer 30

Held: C was able to claim for psychiatric damage suffered from witnessing the immediate aftermath of an accident in which her family were injured/killed.

Reasoning

• No need to witness the event -> sufficient to witness the immediate aftermath (saw the surviving members of her family in the hospital 2-3 hours later).
• Can be seen as a gloss on the Alcock Control mechanism 3: proximity.

Question 31

Paul v The Royal Wolverhampton NHS Trust [2020] High Court

Answer 31

Held: Two sisters who witnessed their father’s fatal heart attack were ablet o recover even though the alleged neligent event leading to it ahd occured over a year before, when teh hospital had failed to diagnose the father’s heart disease.

Analysis

• Recent appelate case which potentially expands the scope of what qualifies as proximate to the event. In this case the event was teh collapse rather than the failure to diagnose. Event thsu seems to be defined by reference to when causation takes effect, rather then when the breach of duty/negligent act is committed.
• The Chamberlain J further considered where the “stopping point” may fall, so as to demarcate the end of an actionable event leading to liability for a secondary victim. Concluded that the end point for such liability would be when the damage to the primary victim becomes “evident”.

Question 32

Barber v Somerset County Council [2004] HL

Answer 32

Held: Barber was able to claim against his employee for psychiatric harm suffered as a result of being overworked.

Analysis

• Enmployer will be only be liable for psychiatric harm if the harm was foreseeable and the employer had failed to take reasonable steps to prevent it. ​

Question 33

Spartan Steel & Alloys v Martin [1973] CA

Answer 33

Held: D negligently cut through a power cable while performing road works, inadvertently cutting off power to C’s factory and ruining a steel melt that was in production. C was able to claim for (i) physical damage to the melt in the furnace, (ii) loss of profit on the sale of that melt, but not (iii) hypothetical loss of profit on the sale of four melts that could have been processed during the time that the power was out.

Reasoning

• PEL is not recoverable because of policy - desire to avoid defendants being subject to claims of a potentially indeterminate size,
• Lord Denning: I think the question of recovering economic loss is one of policy. Whenever the courts draw a line to mark out the bounds of duty they do it as to limit the responsiblity of the defendant
  
  • Also noted that C could have put in place a back-up generator or taken out insurance against the risk of a power outage.

Analysis

• Demonstrates the three main categories of tort losses
  
  • Physical Damage (i)
  • Consequential Economic Loss (ii)
  • Pure Economic Loss (iii)

Question 34

Spring v Guardian Assurance [1995] HL

Answer 34

Held: An employer owed his former employee a DOC to take reasonable care in producing an accurate and fair report when writing references to prospective employers.

Reasoning

• Natural extension of the Hedley Byrne Principle.
• Lord Woolf approached the question if there was a duty of care by directly applying the Caparo test: foreseeability, proximity, fair, just and reasonable. However, Caparo also required that a court consider whether the case was sufficiently analogous to existing categories where a duty is owed. Since Hedley Byrne concerned an allegedly negligent positive reference, Lord Woolf reasoned that it was not too large a step to recognize a duty in respect of a negligent negative reference.
• One significant difference NOT noted by Lord Woolf is that the person who suffers loss as a result of the negative reference is not the person to whom the statement was directed, nor the person who relied upon it.
• Using negligence in this way enables the courts to bypass the strictures of defamation which require malice in order to establish a claim (doctrine of qualified priviledge)
• PEL Exception 2: Negligent References

Question 35

White v Jones [1995] HL

Answer 35

Held: A solicitor’s AOR giving rise to a DOC in respect of his client, also extended to the intended beneficiary of the will, therefore the beneficiary was able to claim damages for losses suffered from the solicitor negligently failing to update the testator’s will.

Analysis

• Intended beneficiary can recover providing it was reasonably foreseeable by the solicitor that a consequence of his negligence might result in the loss of the intended legacy without either the testator or his estate having a remedy against him
• PEL Exception 4: Breach of fiduciary duty

Question 36

Murphy v Brentwood DC [1991] HL

Answer 36

Held: The council did not owe a DOC in negligence for the remedial cost incurred in remedying a building because the inherent damage is purely economic. Therefore the buyer of a defective house was unable to sue the council who negligently authorised the building of that house.

Analysis

• Overruled the Anns test
• Lord Bridge also held in obiter that if a defect in a chattel causes economic loss (rather than physical problems as in Donoghue) a manufacturer cannot be held liable, even if the thing is defective to the point of being worthless. Liability in such a case is for contract to determine. No DOC because no proximity/special relationship.

Question 37

Thomas v Taylor Wimpey [2019] HC

Answer 37

Held: The loss suffered by a building owner from an ordinary building defect was the cost of rectifying the defect and was ordinarily irrecoverable in tort as pure economic loss. Lord Bridge’s dictum in Murphy v Brentwood DC which qualified that principle to allow some recovery where buildings were close to the boundary of the owner’s land, did not represent the law.

Analysis

• Reaffrimed that PEL from defective goods is not recoverable

Question 38

Hedley Byrne v Heller & Partners [1964] HL

Answer 38

Held: A bank which negligently stated that the Claimant’s customer had good credit, did not owe a DOC to the claimant becase they had disclaimed responsibility for any errors in the making of its statement. However had there not been a disclaimer, the bank would have owed a DOC in respect of PEL suffered by the claimant.

Analysis

• Court established a three-part test for when a DOC will airse in relation to a negligent misstatement:
  
  1. A ‘special relationship’ between C and D
  2. An AOR by D
  3. ‘reasonable reliance’ placed by C on D

Lord Morris: If in a sphere in wbich a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himslef to give information or advice to another person who, as he knows or should know, will place reliance upon it, then a DOC will arise.

Lord Reid: where it is plain that the party seeking information or advice was trusting teh other to exercsie such a degreee of care as the circumstaces requires, where it was reasonable for him to do that, and where the other gave information or advice when he knew or ought to have known that the inquirerer was relying on him.

Special relationship

• In Caparo it was ehld that in order for a special relationship to exist D must have:
  (i) communicated the statement to the claimant
  (ii) made the statement in relation to a particular transaction

_(_iii) knew that C was likely to rely upon the statement

Question 39

Commissioner for Customs & Excise v Barclays Bank [2006] HL

Answer 39

Held: Barclays Bank were not liable to HM Customs for neligently failing to put a freexing order on a customer’s account.

Reasoning

• No DOC was owed because
  
  1. There was no voluntary AOR so could not impose Hedley Byrne liablity
  2. Applying the Caparo principles to this ‘novel situation’ there was inussificenty proximity and it was not FJR to impose liability on the bank.

Obiter

• Lord Bingham: The ‘reliance test’ is similar to the ‘but for rest i.e. If A had not relied on B’s statement A would have acted differently.

Question 40

The equality principle

Answer 40

This is the idea that the smae law which governe the conduct of private indivduals, govern the conudct of public authorities.

Positive effect

• Robinson [2018] - since a private indvidual would be liable for teh harm caused in taht instance, the PA ough to be too
  
  • Lord Reed: At common law, public authorities are generally subject to the same liabilities in tort as private individuals and bodies […] Accordingly, if conduct would be tortious if committed by a private person or body, it is generally equally tortious [185] if committed by a public authority […] It follows that public authorities are generally under a duty of care to avoid causing actionable harm in situations

Negative Aspect

• Hill
• Gorringe , Michael
  
  • ​Decisions were made on the footing that since a private party would not be subject to negligence liability for failing to act in the circumstances in question, a public authority should not be so liable either.
  • ‘public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm

Question 41

What’s a good rule of thumb for identifying pure omissions cases.

Answer 41

Ask whether, if the defendant were removed from the situation altogether, the claimant would still have suffered the damage.