Negligence (duty in law)

Question 1

7 elements of negligence

Answer 1

1) duty in law
2) duty in fact
3) fault / breach of duty
4) damage
5) factual causation
6) legal causation
7) remoteness of damage

Question 2

DIL - current approach

Answer 2

= Lord Reed in Robinson v CC West Yorkshire : apply precedent if there is one, if not = novel case: dvp by analogy w/ existing cases & include relevant policy considerations

Question 3

DIL - attempts at establishing general test (4)

Answer 3

• Lord Atkin’s neighbour principle in Donoghue v Stephenson
• Lord Reid in Home Office v Dorset Yacht
• Anns test = Ann v Merton LBC
• Caparo test = misinterpretation of Lord Bridge in Caparo industries v Dickman

Question 4

DIL - support of incremental approach (4)

Answer 4

• Donoghue v Stephenson : Lord Macmillan, + also Lord Akin warning against general statements of principle
• Lord Diplock in Home office v Dorset Yacht
• Lord Bridge in Caparo v Dickman
• Lord Reed in Robinson

Question 5

DIL - Lord Atkin’s neighbour principle

Answer 5

= everyone must take reasonable care not to injure their ‘neighbours’ = ppl one ought reasonably have in mind when acting bcs ‘closely and directly affected’ by one’s act

= Donogue v Stephenson

Question 6

DIL - Lord Reid in Home office v Dorset Yacht

Answer 6

approves idea of a principled approach
=> “when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles apply to it”

Question 7

DIL - the Anns test

Answer 7

=> 2 stage test = sufficient proximity for damage to C to be within contemplation of D + policy considerations which ought to negative or reduce duty

Question 8

DIL - the Caparo test

Answer 8

1. foreseeability of damage
2. relationship of proximity / neighbourhood
3. fair, just and reasonable to impose a duty

Question 9

DIL - incremental approach - Donoghue v Stephenson

Answer 9

• Lord Atkin articulated neighbour principle, but also warned against overly general statements of principle : “the more general the definition the more likely it is to omit essentials or to introduce non-essentials”
• Lord Macmillan adopted an incremental approach, by keeping focus on circumstances of the case and whether such as to attract a duty

Question 10

DIL - incremental approach - Home Office v Dorset Yacht

Answer 10

Lord Diplock’s approach = ID relevant characteristics (kind of conduct and relationship) common btw the case under consideration and previous cases where courts have found DOC

Question 11

DIL - incremental approach - Caparo

Answer 11

Lord Briggs repeatedly warns against general / principled approach
=> highlights “inability of any single general principle to provide a practical test which can be applied to every situation”

=> “[T]he concepts of proximity and fairness … are not susceptible of any such precise definition as would be necessary to give them utility as practical tests”

Question 12

DIL - incremental approach - Robinson

Answer 12

Reasserted by Lord Reed:
- “[f]ollowing the Caparo case, the characteristic approach of the common law […] is to develop incrementally and by analogy with established authority”
- “[t]he drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned”

=> Approach the court should take = ID specific characteristics which link a ‘category of similar cases’ in which a duty has repeatedly been found to arise, then attempt to match the facts of the case under consideration to those criteria

Question 13

DIL - steps for PSY I claim (5)

Answer 13

1) us it consequential
2) Recognised psychiatric illness
3) PV of SV
4) SV : shock, category of C, proximity

Question 14

Consequential PI

Answer 14

= csq of physical damage (to person or property) => eg Attia v British Gas [1988]

/!\ damage must be to property belonging to C

=> not subject to special restrictions at DIL stage

Question 15

DIL - PSI - recognised psychiatric illness

Answer 15

Mental harm must amount to a clinically recognised psychiatric illness (eg depression, PTSD)

=> no bringing an action in negligence for normal human emotions (grief, anxiety…), even if severe suffering = confirmed in Alcock

Question 16

DIL - PSI - primary or secondary V?

Answer 16

Distinction = Page v Smith
* PV = persons physically endangered by D’s negligence
* SV not phys endangered by D’s negligence and suffer psychiatric harm bcs of smth that happens to somebody else (the PV)

=> Claims by PVs are not subject to the same restrictions as the claims by SV at the duty of care stage = Alcock v CC South Yorkshire [1992]

Question 17

DIL - PSI - limits on claims by SV (3)

Answer 17

= Alcock :
- shock requirement (Rothwell)
- Proximity to accident (time & space)
- class of person whose claims are recognised

Question 18

DIL - PSI - SV - shock requirement

Answer 18

PI must be caused by ‘shock’ = “the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind” (Alcock)

=> see also Rothwell : worry over time causing depression not enough

Question 19

DIL - PSI - SV - categories of persons whose claims are recognised (3)

Answer 19

1) persons w/ a close tie of love and affection to the V = Alcock
=> presumption in favour of spouse / parent / child, C must prove relºfor others

2) rescuers
/!\ only those who were or had reasonable cause to believe they were exposed to danger = White v CC South Yorkshire

3)** involuntary participants**
= those who pare placed by D’s negligence in a position where they feel responsible for the accident - see W. v Essex

/!\ unconnected bystander might still be allowed to as SV recover if accident was especially horrific – Lord Ackner didn’t close that door completely

Question 20

DIL - PSI - Proximity in time & space

Answer 20

• most likely where C witnesses event directly
• immediate aftermath ok = McLoughlin v O’brian : C arrived in hospital a couple of hours after car crash
  ≠ Alcock one of Cs ased to ID body of brother in law 8h after not immediate aftermath
• Witnessing events on TV : generally no recovery except if live coverage and clear from images that C’s loved ones injured (alcock) -> bcs shock in latter case, vs only anxiety if don’t know for sure, shock comes later

Question 21

DIL - PEL - general rule

Answer 21

= not actionable in negligence

=> see Spartan Steels v Martin and Murphy v Brentwood

Question 22

DIL - PEL - acquisition of defective product or premises

Answer 22

Generally not recoverable in N = Murphy v Brentwood

=> for chattels, claim under SGA 1979 or CRA 2015, but pb for premises

Question 23

DIL - PEL - csq of damage to person or property of 3P

Answer 23

no recovery in N = Sparta Steels v Martin

/!\ statutory exception where negligence causes death = dependants can recover under Fatal Accidents Act 1976

Question 24

DIL - PEL Spartan Steels v Martin

Answer 24

D (building contractors) cut through electricity cable, lead to loss of power in C’s metal processing plant  led to loss of profit on the metal they would otherwise have processed – BUT couldn’t recover bcs cable didn’t belong to them, so loss not flowing from damage to personal property

Question 25

DIL - PEL - Murphy v Brentwood

Answer 25

C had acquired house with already defective foundations  tried to sue local authority for negligent inspection, but not allowed to recover bcs PEL, not damage to property (the property was already damaged when C acquired it)

Question 26

DIL - PEL - Main exception = AOR

Answer 26

• established in Hedley Byrne v Heller : originally, only cases where C had relied on negligent statement by D
• extended in Henderson v Merret : lb for negligent performance of service to claimant (where there was previous AOR)
• restricted in Caparo : only cases where advisor knows advice is being given for a purpose and will be relied on by advisee

Question 27

DIL - PEL - exceptions - White v Jones

Answer 27

HL held that intended beneficiary of a will was entitled to recover damages from the testator’s solicitors if, by reason of their negligence, C had not received what the testator had intended them to have

=> Doesn’t fall within Hedley Byrne bcs no AOR towards C = beneficiaries : solicitors taking on task for testator – but treated as such bcs otherwise there would be a gap in the law, bcs the person / estate with the contractual claim (testator) hasn’t suffered a loss, C has (otherwise, negligent solicitors would get away w/ it)

Question 28

DIL - Omissions - general rule

Answer 28

= Smith v Littlewoods : no lb for mere omº / general duty to guard against harmful conduct of others

Question 29

DIL - OM - 4 exceptions to general rule

Answer 29

• AOR
• Occupiers
• creating the danger
• Parents?

authority for 1st 3 = Smith v Littlewood

Question 30

DIL - OM - exceptions - AOR

Answer 30

= where D has assumed responsibility to C which obliges him to take reasonable steps to confer a benefit to the claimant = see Smith v Littlewoods

(eg lifeguard lb for failing to rescue swimmer)

Question 31

DIL - OM - exceptions - occupiers

Answer 31

= may owe duty to neighbours to take reasonable steps to prevent danger arising out of their land from causing damage to neighbour’s property

=> eg Goldman v Hargrave : Occupier of land in the Australian bush lb for not doing more to prevent a fire caused by bolt of lightning on his property from spreading to neighbour’s land

=> justification = power to exclude

Question 32

DIL - OM - exceptions - creating the danger

Answer 32

= Haynes v Harwood

Summary: D negligently left his horses (with vans) unsecured on the street, a stone thrown by children startled them and caused them to bolt down the street, C = policeman prevented them from injuring lots of ppl but was injured himself -> CA allowed C’s claim bcs D had created the dange

Question 33

DIL - OM - Parents ?

Answer 33

• Surtees v Kingston-upon-Thames did owe positive duty – can also be explained by AOR
• Barnes v Hampshire CC: school acting in loco parentis did owe duty – again also AOR
• Armes v Nottinghamshire CC : obiter suggestion that biological parents do owe duty

Question 34

DIL - om - pbc authorities - issue

Answer 34

= controversial question – issue = whether the general rule of no lb for omº applies w/ equal force in cases where pbc authority D is being sued for failing to confer a benefit on C by exercising a statutory duty or power which is imposed or conferred on D by Parliament

Answer (now) seems to be no = Lord Reed in Robinson

Question 35

DIL - om - pbc authorities - cases

Answer 35

• Anns v Merton (1978) : HL found that statutory power to inspect foundations of buildings could give rise to positive duty in negligence (towards Ps of buildings)
  /!\ Anns overturned in Murphy on economic loss point, not omº
• Stovin v Wise (1996) : much more restrictive approach than in Anns, but didn’t rule out the possibility that in some exceptional circumstances, courts might superimpose a DOC in negligence to a statutory duty or power
• Gorringe v Calderdale MBC (2004) : HL held that in the absence of circumstances which would ordinarily give rise to duty at CL, pbc body would not be lb for omº in negligence
   highway authority not lb for failing to paint warning sign even through under statutory duty to promote road safety
• Michael v CC South Wales (2015): police did not owe a DOC to a woman who made an emergency call reporting a threat to kill her and was murdered before the police arrived at her house
• N v Poole BC [2019]: SC held that in the absence of AOR, a local authority owed no CL DOR in relation to the exercise of its statutory obligations to safeguard the welfare of children in its area