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
