Negligence duty Flashcards
what is negligence?
Another area of tort,
breach of duty of care which results in damges to another
what are the 4 concepts to prove negligence?
- duty of care
- breach of duty
- causation/damages
- defences
what is duty of care?
is a duty of care owed to you
relationship between 2 or more people
law laid by lord atkin in donoghue v stevenson - neighbour principle
if rels obvious= donoghue - manu- consumer
if rels not obvious= 3 part test
american historical cases for duty of care?*
-American cases -
Palsgraf v. Long Island Railroad [1928] - need proximate cause, need responsibility to protect and look after you, if not= not liable
Ultramares Corporation v. Touche- floodgates
“The Law should not admit to liability in an indeterminate amount for an indeterminate time to an indeterminate class.”
(Cardozo, CJ) [444]
need aspect of predictability
main historical case for duty of care?
Donoghue v. Stevenson [1932]- neighbour principle, but also dont always need pre existing rels 2 groups departing from this case how they apply = wider ratio and narrow ratio
wider ratio-Haley v. London Electricity Board [1965]- blind person- blind people foressen= d.o.c
Grant v. Australian Knitting Mills Ltd [1936] - PC- restricts to only 2 products e.g manu to consumer
other historical cases for duty of care?
Lamb v. Camden London Borough Council [1981]
Hilder v. Associated Portland Cement Co [1961]
Camarthenshire CC v. Lewis [1955]
Anns v. Merton LBC [1978]
Murphy v. Brentwood DC [1990]
Ravenscroft Rederiaktiebolaget Transatlantic [1991]
Muirhead v. Industrial Tank Specialists [1985]
Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co Ltd [1985]
Smith v. Littlewoods Organisation [1987]
what is the modern way now of establishing d.o.c?
if not obvious now - used to be 2 part test-Anns v. Merton LBC where proximity and policy only- but bad bc judges shoudlnt be making law- policy
now we use 3 part test
1st case for 3 part test?
Yeun Kun-yeu v. Attorney-General of Hong Kong [1987] - PC- gave foresseability and proximity
what case gave us the actual 3 part test and what is the test?
Caparo Industries v. Dickman [1990]
- foreseeability of damge
- proximity “neighbourhood btw parties” rels of prox
- Just and reasonable - cts look is it fair/jr to impose a duty
pass all el= duty of care
1st 4 cases of modern application 3 part test?
- Topp v. London Country Bus (South West) Ltd [1993]- not foreseeability= 3rd party action
- wright v lodge- lorry driver more liable dangerous driving than mini
council cases 3 part test?
stovin v wise- liability for omission-policy arg-lord hoffman believes we should protect council-dissenting opinion-utilitarian perspective, fairness reason for prox
Larner v. Solihull MBC [2001]-in favour of council-s he has 2/3rds of contrib neg she should have seen sign-avoid liability of councils
Gorringe v. Calderdale MBC [2004]- not fair to impose liability on council-Key Facts: A council did not owe road-users a duty to install marking / road-signs to warn of a dangerous part of the road
other cases of three part test?
Customs & Excise Commissioners v. Barclays Bank plc [2006] - prox, fair and just, assumption of respons= slogans rather than practical evs to see if duty exists-Key Facts: A bank owed no duty to Customs & Excise to take reasonable care to comply with a freezing injunction on an account
Islington LBC v. UCL Hospitals NHS Trust [2005]- Key Facts: A local authority was unsuccessful in a negligence claim to recover the costs of residential care against a hospital for public policy reasons
Bhamra v. Dubb (t/a Lucky Caterers) [2010]- duty of care owed in a sense
drinking cases-assumed respons?
Barrett v. Ministry of Defence [1995]-lack of omission- prox- d.o.c
Key Facts: A senior naval officer assumed responsibility for a drunken airman after he had engaged in a bout of heavy drinking (2/3 contrib N)
Jebson v. Ministry of Defence [2000]–assumption of liab
what is incremental steps?
Sutherland Shire Council v. Heyman [1985] Australia- if you want to being case in modern era need steps- cant argue 100% - 80% previous next 20% your opinion- you have to follow existing categories
example cases of incremental steps?
Van Oppen v. The Clerk to the Trustees of Bedfordshire Charity [1989]-Key Facts: A school does NOT have to tell parents that playing rugby is dangerous
Philcox v. Civil Aviation Authority [1995] -Key Facts: The CAA had the responsibility towards the general public rather than to correct owner’s mistakes
- Perrett v. Collins [1998] -Key Facts: A passenger in an airplane was ENTITLED TO ASSUME that proper care had been taken when an airplane was inspected
- Smolden v. Whitworth & Nolan [1996] -referee like teacher sit- exsiting vat first - not found liable
- Watson v. British Boxing Board of Control (BBBC) [1999] - first time ref found liable-Key Facts: The National Governing Body for Boxing was held liable for failing to implement reasonable medical protocols for a known risk
- Sutradhar v. National Environment Research Council [2006] -sued uni but not prox- dont just need expert knowledge but also need rels and proximity
summary of all together for establishing duty of care?
-
what do we do after establishing duty of care?
other liabilities that fall within duty of care:
- contracts,reliance & 3rd parties
- 3rd parties
- emergency services
- public bodies
- special groups
what about contracts,reliance & 3rd parties?
When we look at this we must know parties
To extent donoghue was 3rd party
When we talk 3rd parties theyre usually specialists
Historically for contracts,reliance & 3rd parties?
-White v. Jones [1995]- IMPORTANT- Key Facts: A solicitor was liable to two intended beneficiaries of a will when due to a breach of professional duty, a new will was not drawn up- loss to estate not u -
Stansbie v. Troman [1948]- jewller gone - he forgot to lock house- cause/novus- ct said it was rob fault - WE SHOULDNT BE LIABLE FOR ACTIONS OF 3RD PARTIES UNLESS ASSUME RESPONS 4 ACTIONS OF 3RD PARTY - so he was not liab*
- Cassidy v. Ministry of Health [1951] - could be responsible based on what duty says = non delegable duties - cant get rid of respons for 3rd party even if wanted to *
- Bellefield Computer Services Ltd v. E Turner & Sons Ltd [2002]- assumption of responsibility- if asked to do something and you say yes = respons*
- West Bromwich Albion Football Club v. El-Safty [2006]- liab based on rels so not to club but owed it to patient- if wanted club should have mentioned PROX RELS BTW 2 have 2 be aware need to know who parties are!*
- Hamed v. Mills [2015]-split fault 50/50
- Marc Rich & Co v. Bishop Rock Marine Co Ltd (‘The Nicholas H’) [1996]- policy reason - impose doc but may change over time - alt view -super prox test- most important prox?
pregnancy for 3rd parties?
could cost of raising child not their fault be economic loss
Goodwill v. British Pregnancy Advisory Service (BPAS) [1996]- Key Facts: The claimant was informed that a vasectomy operation had been successful, but 3yrs later it spontaneously reversed pregnancy- not down to prox
McFarlane v. Tayside Health Authority [2000]- wrongful birth- reliance surgeon knew about 3rd party- apply for damage of birth but not growth of child
what is 3rd party relation to in relation to 3 part test for establishing duty?
FORESEEABILITY
what is emergency services?
dont always have to rescure
examples of emergency? (think police)
- Hill v. Chief Constable of West Yorkshire [1988]- sued police for not finding daughter- policy- - do what they want in operational issues- policy part= no liab
- Swinney & Another v. Chief Constable of Northumbria [1999]- all about greater publiv good-police should have done more
- Alexandrou v. Oxford [1993]-Key Facts: The police did not owe a duty of care to a shopkeeper to investigate whether a burglar alarm had been activated or was a false alarm - policy= no liab
- Reeves v. Commissioner of the Metropolitan Police [1999]]- d.o.c owed in suicide attempts by police- 50/50 in end both fault- purpose and needed to take steps
- Osman v. UK [2000]?
- Vellino v. Chief Constable of Greater Manchester [2001]- injury was claimants unlawful act
-Chief Constable of Hertfordshire v. Van Colle [2008] HL / [2013] ECHR-police may be blame for public policy-lim duty- accepted omission- this duty that lim-Key Facts: The police did not owe a duty to protect two witnesses – one murdered just before giving evidence, the other in domestic violence
-Brooks v. Commissioner of Police for the Metropolis [2005]- Key Facts: The claimant (friend of Stephen Lawrence) brought a claim against the police for their failures to investigate the crime appropriately
??
- Michael v. Chief Constable of South Wales Police [2015]-Key Facts: The Police did not owe a duty of care to a specific member of the public when they were aware of an imminent threat to her life
- Palmer v. Tees Health Authority [2000]- if no and porx= duty -Key Facts: Whether the THA were liable in negligent for failing to diagnose, treat and assess the man who went on to abduct and murder a child
- Capital Counties plc v. Hampshire County Council [1997]- if do come out fire brigade need to act approp
- OLL v. Secretary of State for Transport [1997-Key Facts: Lyme Regis Canoe Tragedy 1993. The coastguard did not owe a duty of care in relation to mistakes in the search for the canoeists- no prox
- Sandhar v. Department of Transport [2004]]-Key Facts: The Department of Transport did not owe motorists a duty of care to ensure that all roads would be salted in freezing conditions- just need to be extra careful
- Kent v. Griffiths [2001]- proximity -Key Facts: A pregnant asthmatic patient suffered substantial damage following a delayed ambulance request (the details of which were later falsified)
- accepted duty and rels = prox - should have said busy isntead and time
what do you think about in relation to 3 part test with emergency services?
PROXIMITY AND POLICY
what about public bodies?
- Home Office v. Dorset Yacht Co [1970]- prison boys off to get better -sued home office- fail ommission -causal link=blame
- X v. Bedfordshire County Council [1995]- about policy have to take things into consid
- Z v. UK / TP v. UK [2001] ECHR- u could sue council difficult but could
- Phelps v. Hillingdon LBC [2001]-Key Facts: A teacher / psychologist could in principle owe a duty of care to a child as well as the local council that employed them
- JD v. East Berkshire Community NHS Trust [2005]
- JD v. East Berkshire Community NHS Trust [2005] - DISSENT-Key Facts: Health professionals investigating child abuse claims did not owe a duty to parents if the investigation was carried out in good faith
what do you think of 3 part with public bodies?
FJR
what is special groups?
e.g barristers, messed up in cy couldnt sue barrister,it would cause probs if we could sue bar
example of special groups?
- Rondel v. Worsley [1969] – Now DISAPPROVED
- Hall (Arthur & Co) v. Simons [2000]- could sue sol- reason behind immun= ct
- Mulcahy v. Ministry of Defence [1996]- still immunity - soldies - distinctio on sctive service to peace keeping role - not sue in war zone but can in peace keeping role = fjr
- Smith v. Ministry of Defence [2013]- distinc with immun
what do we do once know how to estab d.o.c and other liabilites within it?
look at special duties of care- psych injury
Historical aspect of pschy injury?
no allowance for psych illness, floodgate, cant know unless acting certain way, most often dont believe and if do but limited
Historical cases for psych injury?
-Dulieu v. White & Sons [1901]-Key Facts: A pregnant lady gave birth prematurely and suffered severe shock when a horse & van crashed through the wall of her off-licence
?
- Hambrook v. Stokes Brothers [1925]- mother died -died by anx = duty claimed- can estab rels btw kid and mom and care
- Bourhill v. Young [1943]- not prox= no duty
- Dooley v. Cammell Laird & Co Ltd [1951]-Key Facts: A crane driver suffered nervous shock when his crane sling broke dropping material into the hold of a ship where men were working?
what do you need first?
can you claim?
leading case- att
-does it fall within dsm etc need illness
-Loss of possessions can amount to a psychological injury
what about dsm?
The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV - 1994 soon to be replaced with DSM - V, May 2013),
or the ICD 10 Classification of Mental And Behavioural Disorders: Clinical Depressions and Diagnostic Guidelines 1992, published by the World Health Organisation (ICD-10).
if actually have cond u can claim
ptsd = one
intro cases for psych injury?
-McLoughlin v. O’Brien [1983]
-Brice v. Brown [1984]
-Reilly v. Merseyside RHA [1994]
-Attia v. British Gas [1987]
????
what do you next need to look at?
after prove neg need sudden shock etc need to look at victims:primary and secondary
what are primary victims?
involved
test: fear of something might happen to me , im in danger zone
rules more relaxed for pv
Once this Duty of Care has been established, it is essentially irrelevant whether the injuries are physical or psychological
leading case for primary victims?
leading case:page v smith
what about secondary victims?
result of learning
4 req
4 requirements of secondary victims?
- Close Ties of Love & Affection
- Proximity of Time & Space
- Witnessing with own (unaided) senses
- Sudden Shock
case for close ties?
Alcock v. Chief Constable of South Yorkshire Police [1991]- only calim if love some 1 but how can ct prove e.g divorce but love
professor jane also created gender bias factores - prblmatic dont reflect real law
case for proximity time and space?
Alcock v. Chief Constable of South Yorkshire Police [1991]- if not immediate aftermath= not time and space - you werent there so cant claim
what about unaided senses?
heard from someone else or didnt watch with eyes or ears= enough to block claim
what about sudden shock?
e.g violent assults = suddent imapct case can claim- aclock for all of the req
cases based on the req?
Hicks v. CC of the South Yorkshire Police [1992]?
- White & Others v. Chief Constable of South Yorkshire Police [1999]
- Ravenscroft Rederiaktiebolaget Transatlantic [1992] (No.2)
Criticise 4 criteria?
- Dooley v. Cammell Laird & Co Ltd [1951]
- W. v. Essex CC [2000]
- Walters v. N.Glamorgan NHS Trust [2002]
- Galli-Atkinson v. Seghal [2003]
- Taylor v. A Novo [2013]
- Berisha v. Stone Superstore Ltd [2014]
what about rescuers?
assits in rescue op resulting in d’s neg
- Chadwick v. British Railways Board [1967]- he put himself -suffered conseq- he could claim??
- McFarlane v. EE Caledonia Ltd [1994]*- rejects
psch injury for anxiety?
AB v. Tameside & Glossop Health Authority [1997]
Palmer v. Tees Health Authority [2000]
Barber v. Somerset CC [2004]
Rothwell v. CIC / Grieves v. FT Everard & Sons Ltd [2006]
-Wild v. Southend University Hospital NHS Foundation Trust [2014]
what is another special duties of d o c?
economic loss
what is economic loss?
look in books
key thing about economic loss is floodgates principle
Historical case for economic loss?
Candler v. Crane [1951] (NOT GOOD LAW)- dont use
what is pure economic loss?
where loss and how does it relate to whether got proof or not- Consequential damage is recoverable, however PURE economic loss is not recoverable (too remote / indeterminate)
Recovery is based on proximate relationships
can claim p.i not pure financial loss
cases for pure economic loss?
- Weller v. Foot & Mouth Disease Institute [1972]
- Spartan Steel v. Martin [1973]
- Pride & Partners v. Institute for Animal Health & Others [2009]
what is meant by recover needs to be by rels?
eco caused by neg miss than just neg act
hedley byrne- skrv - special rels = liab -
Mutual Life v. Evatt [1971] (Privy Council)- if reliance for eco loss more likely case will succeed
Howard Marine & Dredging Co v. Ogden & Sons [1978]-
Chaudhry v. Prabhakbar [1988]-
special relationship overall?
Leading Case: Hedley Byrne v. Heller [1963] UKHL 4
Claimant and defendant are in a ‘Special Relationship’
Key factor is ‘Reliance’
Possible for liability to be based in social as well as business contexts
3rd parties and eco loss?
Justification for 3rd party liability is based on reliance
-Often a key factor will be public policy / fairness, or the presence of professional norms
-Junior Books v. Veitchi [1983] (Anomaly)- reliance and prox
-White v. Jones [1995]- solic- reliance
-
what is meant by reliance?
prox
-Esso Petrol v. Mardon [1976]
-JEB Fasteners Ltd v. Marks Bloom & Co [1983]
-Smith v. Bush [1990]
-Caparo Industries v. Dickman [1990]
-James McNaughten Paper Group Ltd v. Hicks Anderson & Co [1990]
-James McNaughten Paper Group Ltd v. Hicks Anderson & Co [1990]
-Henderson & Others v. Merrett Syndicates Ltd [1995] (No.1)- busines cases
-S.Australia Asset Management Corporation v. York Montague [1996]
-Law Society v. KPMG Peat Marwick [2000]
-Lennon v. Commissioner of Police of the Metropolis [2004]
-Customs & Excise Commissioners v. Barclays Bank plc [2006]
-Calvert v. William Hill [2009]
-
overall for reliance?
Leading Case: James McNaughten Paper Group Ltd v. Hicks Anderson & Co [1990] EWCA Civ 11
Leading Case: Customs & Excise Commissioners v. Barclays Bank plc [2006] UKHL 28
3 options: assumption of responsibility, tripartite test, incremental test
Quality of the relationship is important in determining liability e.g. Proximity / Reliance
