Negligence (duty in law) Flashcards
7 elements of negligence
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
DIL - current approach
= 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
DIL - attempts at establishing general test (4)
- 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
DIL - support of incremental approach (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
DIL - Lord Atkin’s neighbour principle
= 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
DIL - Lord Reid in Home office v Dorset Yacht
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”
DIL - the Anns test
=> 2 stage test = sufficient proximity for damage to C to be within contemplation of D + policy considerations which ought to negative or reduce duty
DIL - the Caparo test
- foreseeability of damage
- relationship of proximity / neighbourhood
- fair, just and reasonable to impose a duty
DIL - incremental approach - Donoghue v Stephenson
- 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
DIL - incremental approach - Home Office v Dorset Yacht
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
DIL - incremental approach - Caparo
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”
DIL - incremental approach - Robinson
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
DIL - steps for PSY I claim (5)
1) us it consequential
2) Recognised psychiatric illness
3) PV of SV
4) SV : shock, category of C, proximity
Consequential PI
= 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
DIL - PSI - recognised psychiatric illness
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
DIL - PSI - primary or secondary V?
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]
DIL - PSI - limits on claims by SV (3)
= Alcock :
- shock requirement (Rothwell)
- Proximity to accident (time & space)
- class of person whose claims are recognised
DIL - PSI - SV - shock requirement
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
DIL - PSI - SV - categories of persons whose claims are recognised (3)
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
DIL - PSI - Proximity in time & space
- 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
DIL - PEL - general rule
= not actionable in negligence
=> see Spartan Steels v Martin and Murphy v Brentwood
DIL - PEL - acquisition of defective product or premises
Generally not recoverable in N = Murphy v Brentwood
=> for chattels, claim under SGA 1979 or CRA 2015, but pb for premises
DIL - PEL - csq of damage to person or property of 3P
no recovery in N = Sparta Steels v Martin
/!\ statutory exception where negligence causes death = dependants can recover under Fatal Accidents Act 1976
DIL - PEL Spartan Steels v Martin
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
DIL - PEL - Murphy v Brentwood
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)
DIL - PEL - Main exception = AOR
- 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
DIL - PEL - exceptions - White v Jones
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)
DIL - Omissions - general rule
= Smith v Littlewoods : no lb for mere omº / general duty to guard against harmful conduct of others
DIL - OM - 4 exceptions to general rule
- AOR
- Occupiers
- creating the danger
- Parents?
authority for 1st 3 = Smith v Littlewood
DIL - OM - exceptions - AOR
= 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)
DIL - OM - exceptions - occupiers
= 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
DIL - OM - exceptions - creating the danger
= 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
DIL - OM - Parents ?
- 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
DIL - om - pbc authorities - issue
= 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
DIL - om - pbc authorities - cases
- 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
