Negligence continued - problem scenarios for caparo Flashcards
Consolidate
Does law recognise omissions in tort?
Tort generally recognises misfeasance not non feasance. but will consider omissions in 5 possible circumstances
Name 5 possible exceptions where a duty of care can arise from an omission
- Positive duty imposed by statute - ie road traffic act 1988
- A contractual duty
- If the defendant has a high degree of control over claimant ( ie person in custody- reeves)
- Where the defendant has actively assumed responsibility
- Where the defendant created the risk in the first place
Name a case of omission where a high degree of control by the defendant warranted a duty of care
Reeves v commissioner of police - police 👮♀️ have a duty to protect a prisoners health in custody - Reeves committed suicide and was known to be suicidal
Name 2 cases where a duty of care for an omissions was found because the def had assumed responsibility for claimant
Costello v chief constable of Northumbria- police force owes doc to one of their officers when attacked by a prisoner
Barrett v ministry of defence - an officer assumed responsibility for a drunken collegue and he choked on own vomit
Name a case of tort liability where the def created the risk?
How did this break with Alexandrou v Oxford?
Capital and Counties v Hampshire County Council -fire brigade has no general duty of care to positively respond to an emergency call, but have a Doc not to make the situation worse.
What happened in Costello v chief constable if Northumbria? Why was there a duty?
Police officer attacked by a prisoner and fellow officer didn’t intervene.
Held - duty of care owed as police are responsible for the safety of employees
What happened in Barret v ministry of defence?
Naval officer went in a binge . Fellow officer assumed responsibility for him. He choked on his vomit - officer held to have a duty of care as he assumed responsibility
What happened in Capital and counties plc v Hampshire county council?
Fire brigade turned off the existing sprinkler system worsening the fire. Duty of care to act when they created the risk
What case shows courts are reluctant to impose a duty of care for the wrongdoing of a third party?
Courts in general are reluctant to impose a duty where the wrong was committed by a 3rd part - ie Perl v Camden London borough council. Smith v Litlewood
Name 5 exceptions where the Court will impose liability for acts of a 3rd party
- Vicarious liability
- Proximity- where a special relationship exists between claimant and def
- Wheee there’s a special relationship between def and third party
- where the def created the danger
- Where the defendant is aware that a third party had caused a danger in their property
Vicarious liability
Ie employer responsibility for acts of employee
Proximity- special relationship
Courts consider all circumstances- doc found in Stansbie v Tronab ( decorator left front door open and stuff was stolen )
What happened in Home office v Dorset yacht?
Borstal boys escaped and stole and damaged claimants yacht- held Borstal officers had a doc to prevent damage to boat club - reasonably foreseeable they would try to take boat as only way off the island.
Home office had a duty to prevent delinquency and damage to property. There was a sufficient relationship as Dorset Yacht club was the only foreseeable target for their escape
Name 2 cases where no special relationship is found? why wasn’t their sufficient proximity?
Palmer v tees health authority - mental health team let a killer into the neighbourhood. He killed Palmers daughter, but he wasn’t under their control at the time and she wasn’t a known target
Hill v chief constable of West Yorkshire
What is the significance of Osman v Ferguson? is it a fair , just and reasonable outcome?
Sufficient proximity was found between police and the victim- pupil shot and dad killed by an obsessed teacher. No liability for police on policy grounds
Palmer v tees health authority
Mental patient let into community without adequate supervision stating he wanted to kill a child. Little girl was murdered.,
Held -no sufficient proximity following judgement in hill
Hill v chief constable of West Yorkshire
Last victim of Peter sutcliffe’s mum sued police for failing to apprehend him
Held - h of l refused to impose a duty of care as there was insufficient proximity between the victim and the police- it could have been any woman
Do Police enjoy blanket immunity from doc
Policy reasons do not always mean that duty of care will not be found
What happened in Swinmey v chief constable of northumbrua?
How did policy work against the police?
Pub landlady was an informer concerning suspect who killed a police officer. Her file was stolen after being left negligent lay in a car . Police knew she would be directly at risk as a result. Therefore sufficient proximity …
Osman v Ferguson not applicable as courts didn’t want to deter informers
Informer v a chief constable
Police owe a duty of care to claimants safety but not pure economic loss
What case showed courts don’t want to force local authorities and police etc to act defensively ?
Mitchell v Glasgow city council ( local authority was held to be under no duty to inform mad tenant he was being evicted. Killed the man who was his neighbour and complained about him.)
LA knew the eviction might place the tenant at risk because of their previous relationship. Courts held policy prevailed and it would not be fair, just and reasonable to impose a duty
What case shows a special relationship between def and third party
Home office c Dorset yacht company
Carmarthenshire county council v Lewis
Local authority owed doc to driver who swerved to avoid a very young pupil who had wandered in the road
Where cases involve the def creating the danger ?
Stansbie v Troman
Compared with
Top v London county bus
What happened in Topp v London country bus
Driver left bus with keys in the ignition. joy riders hijacked the vehicle and injured the claimant. Bus company wasn’t held liable
How do you apply a Doc to the police?
Apply the caparo test on a case by case basis
In what case did the Supreme Court clarify police and other public bodies are not to be given blanket immunity from tortious principles
Robinson v chief constable of West Yorkshire
How do Courts distinguish between operational and policy matters ?
Police can be held liable for operational failures but in case of policy matters such as investigations and prevention of crime
Why was Hill v chief constable of West Yorkshire dismissed?
Dismissed on policy grounds as could lead to police acting defensively leading to a waste of resources and inefficient use of man power
What was the case involving the friend of Stephen Lawrence who was there when he was killed in a racist attacked?Police treated him badly but no liability on policy Dewayne Brooks v commissioner of police for the metropolis
Dewayne Brooks v commissioner of police for the metropolis
Police treated him badly but no liability on policy grounds
What happened in Leach v chief constable of Gloucester
Fred west’s appropriate adult suffered ptsd .
Held - police didn’t have a doc to warn her of the horrific nature of the case
What happened in Swinney ?
Policy considered - should police owe duty to informants. Policy dictated they should to encourage people to come forward
What happened in Smith v chief constable of Sussex police ? How does it relate to Osman v Ferguson?
Claimant was attacked by violent ex despite going to police .
Held - no doc based on reasoning of hill- lord bingham dissented on the liability principle but house didn’t agree
What case shows Police have no duty to answer emergency calls
Alexandrou v Oxford
What is the though of ECt HR
Issue of blanket immunity approached by Europe court of human rights Robinson case clarified police don’t have blan don’t have blanket immunity from civil liability Osman c 🇬🇧 They thought immunity given to police was disproportionate.
Why is it difficult to establish a duty of care for public authorities
- Justiciability ( whether a particular activity should be examined by the courts
- Whether both foreseeability and priximity can be established
What approach was taken in X v Bedfordshire city council
Child abuse cases - child abuse and special needs kids.
Held imposing duty could lead to negative defensive practice
W v Essex court council
Court did reject policy in favour of claimants whose foster child sexually abused their kids. They asked specifically for a foster child who had no history of abusing other children
Phelps v Hillingdon London borough
Doc owed by local authority who misdiagnosed claimants dyslexia as a child
No blanket immunity to luc authorities
S. Gloucestershire it’s council- doc is owed to children in relation to child abuse
Doctors and social workers now owe a doc in cases off suspected child abusers
Jd v east Berkshire community health nhs trust
Cn v Poole
Jd held obsolescent- no duty owed by local authority making decisions as to whether care proceedings should become ced
Is there a duty of care for soldiers in battle?
What case is relevant?
Mulcahy v ministry of defence
Different if responsibility assumed
Barrett v mod
Jebskn c mod
Courts should narrowly construe immunity to active combat and planning and preparing operations
Smith v MOD
Why do rescuers require special consideratoin
Courts treat good Samaritans favourably
What happened in Haynes v Harwood
def left horse and cart in st. kids threw rocks at it. it bolted and policeman was injured bringing it to a halt.
howwas this different ro Cutler v United daries LTD
def tried to capture bolted horse that had come to rest in a field. Was injured, but the situation wasn’t an emergency and neither person nor property were at rsk
Baker v TE Hopkins
doctor tried to rescue miners trapped in mine . Died of the poisonous fumes. C of A said he was owed a duty of care as it was reasonably foreseeable he would attempt a rescue
