Negligence- duty of care Flashcards
What did Lord Akin say in the Neighbour principle in Donoghue v Stevenson
‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’
2 principles from Donoghue v Stevenson that we must establish in order to determine if there is a duty of care
- proximity
- reasonable foreseeability of harm
what does Fleming say about the neighbour principle
it is ‘apodictic’- concerned with the necessary truth
what did Lord Atkin want to set out with the neighbour principle
a universal application, to secure the interests of everyone in society- achieving corrective justice
what does Fleming critique about the neighbour principle
he questioned whether it is a test of foresight, or does it raise a tension between principle and policy?
British Virgin Islands v Hartwell- what does Lord Nicholls say about reasonable foreseeability
(probability)
It embraces a wide range of degrees of probability from:
-highly probable to
possible but highly improbable
(this gives judges greater discretion in the way they apply the law)
Lord Reid in Dorset Yacht- what does he say about the neighbour principle
the neighbour principle should apply unless there is some justification or valid explanation for its exclusion’
-in favour of applying neighbour principle
Lord Wilberforce in Anns v Merton: what 2 questions did he say judges should address
1) Is there a sufficient relationship of proximity or neighbourhood between C and D?
2) Are there any considerations which ought to negative, or reduce the scope of duty?
consideration- policy- which judges are sceptical about- they want principle
Lord Wilberforce in Anns v Merton: what did he say that it is not necessary to now do
it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist’
- the law is open to novel claims
- law is receptive to novelty
outcome in Murphy v Brentwood DC
House of Lords disapproved of the two-stage duty of care test set out by Lord Wilberforce in Anns v Merton LBC
(retreat from Anns)
Lord Bridge: Caparo v Dickman
what are the three considerations
1) Reasonable foreseeability of harm (Atkinian)
2) Proximity (Atkinian)
3) Is it fair, just and reasonable to impose a duty?
Caparo v Dickman: conceptual blurring
what does Lord Bingham say in Caparo, is blurred
The interrelationship between reasonable foreseeability of harm and proximity
Caparo v Dickman: conceptual blurring
What does Neil LJ in James McNaughten say is blurred
The interrelationship between proximity and justice, fairness and reasonableness is blurred
what does Lord Oliver say in Caparo about proximity
discretion
that it gives judges considerable discretion because it is a deniable concept, used ‘pragmatically’
Sutherland Shire Council v Heyman, what does Brennan J say about incremental development
- the law should develop novel categories incrementally and by analogy with established categories
- He said the new decision must remind us of earlier case law-analogist to the cases we already have
how does Simon Blackburn define analogy
something which is similar to another
what is the economic approach called
the Hand Formula
what case was the Hand Formula first found in
United States v Carroll Towing
what are the 2 objections to the hand formula
- The dignitarian objection: should our security be a matter of cost-benefit calculation?
- The empirical objection: can we put precise figures on the cost of taking care, the probability of harm, and gravity of harm?
what does Hand J say about the hand formula
that it will yield clear answers- but this may not be the case
what does Howarth say about generality
that it has been uneasy for judges to generalise on the topic of duty of care
what does Fleming say about the impossibility of generalising
- ‘No generalisation can solve the problem upon what basis a duty must arise out of some “relation”, or some “proximity” between the parties’
- ‘no one has ever succeeded in capturing in any precise formula’
what 2 things does Fleming say are control devices
remoteness and duty of care
why does Fleming argue that duty of care and reasonableness are control devices
-because judges expertise strong discretion when they use these control devices- they can apply these doctrines in ways they think take into account the particular circumstances, and policies they see relevant
if Fleming is right about the idea of control devices, what 2 things clash
the distinction between principle and policy collapses
Australian High Court’s ‘Salient Features’ Approach
what approach did they abandon and what approach did they develop
- they abandoned the approach to duty of care set out by Lord Bridge in Caparo
- they adopted the ‘salient features’ approach (which embraces considerations of principle and policy).
Australian High Court’s ‘Salient Features’ Approach
what matters do the Australian courts address first then second
they address matters of principle before they turn to policy considerations
Australian High Court’s ‘Salient Features’ Approach
leading case
Sullivan v Moody
what was Kirby J’s critique of the ‘Salient Features’ approach to duty of care
- argued that this approach lacks clarity (Woolcock Street Investments v CDG PTY Ltd
- we’d be better off with Caparo
what approach does Steele take to embrace policy and principle (2)
a ‘multi-factorial’ approach to duty of care (that embraces both principle and policy).
-she highlights the importance of knowing what we are ‘looking for’ when we seek to apply this approach to duty of care.
3 arguments arguments against the imposition of a duty of care (Howarth)
- the pure omissions principle
- the ‘overkill’ argument
- the allocation of scarce resources by a public body
what is the pure omissions principle
by Howarth
if there is a duty to care and one fails to do so properly there can be an omission
2 cases for pure omissions principle
- Smith v Littlewoods Organisation Lt
- Kirkham v Chief Constable of Greater Manchester
case for ‘overkill’ argument
Rowling v Takaro Properties Ltd
what is the ‘overkill’ argument (3)
- Imposing liability on public bodies it may deflect them from acting in ways that serve the public interest
- instead of focusing on the public, they will be managing the risk of litigation
- applying negligence law to them, could be detrimental to the public interest because we will foster overkill
case for the allocation of scarce resources by a public body
Rowling v Takaro Properties Ltd
what is the allocation of scarce resources by a public body
- If the judge impose liability on a public body, it is essentially setting priorities for that body
- judges are staking out positions in which they are setting priorities for that body, in doing so in politically controversial ways
Caparo in action
Spring v Guardian Assurance Plc outcome
- ‘kiss of death’ reference
- C recovers for pure economic loss
- harm was reasonably foreseeable, relationship between C and D was close, and as a matter of justice, fairness and reasonableness, or policy
Caparo in action
White v Jones outcome- what does Lord BW say on the incremental development of negligence law
- recovers compensation
- it is legitimate to extend the law to the limited extent proposed using the incremental approach by way of analogy advocated in Caparo Industries Plc v Dickman’. Claim successful
Caparo in action
Marc Rich v Bishop Rock Marine Co outcome
- C was able to meet the first two Caparo requirements (reasonable foreseeability of harm and proximity)
- Held: not just, fair and reasonable to impose liability on the classification society. Policy trumps principle here, for public interest
how did Lord Hoffmann in Stovin v Wise, argue that judges should deal with policy
-When policy is ‘properly analysed’, it should not matter whether a judge uses the two-stage test from Anns, or the three considerations described by Lord Bridge in Caparo.
But what did Lord Hoffmann in Stovin v Wise say about the Anns test
Anns is more strongly associated with expansion in the law than Caparo- hesitant/ restrictiveness approach to the development of the law. (This approach is apparent in Robinson)
What did Lord Reed argue in Robinson v Chief Constable of West Yorkshire
- The idea that there is a caper test which applies to all claims is mistaken
- Lord Reid argued that we have established principles so we don’t need to go in detail on duty of care
- he said search for established principles, use them if you can, if you can’t find them should the law develop?
relevant considerations (Steele)
case for reasonable person standard
Glasgow Corporation v Muir
relevant considerations (Steele)
case for probability of harm
Bolton v Stone
relevant considerations (Steele)
case for gravity of harm
Paris v Stepney Borough Council
relevant considerations (Steele)
case for cost of precautions
Latimer v AEC Ltd
relevant considerations (Steele)
case for D’s purposes (3)
Watt v Hertfordshire CC
Humphrey
Daborn
relevant considerations (Steele)
case for D’s resources
British Railways Board v Harrington
relevant considerations (Steele)
what is the theme (organising idea)
balancing competing interests (judges want to strike a balance between the security we want, and freedom of action)
The Compensation Act 2006, s1
what is the purpose of s1
to address the perceived problem of ‘blame culture’
To prevent people from giving up desirable activity because of the fear of reprisals
The Compensation Act 2006, s1
Courts ‘may’ consider whether a decision in favour of C ‘might’ … (2)
(a) ‘prevent a desirable activity from being undertaken’ or
(b) ‘discourage persons from undertaking functions in connection with a desirable activity’.
Hopps v Mott MacDonald Ltd
- relevant consideration
- relevant concern
- the social utility of emergency infrastructure projects in post-conflict Iraq
- the possible deterrent effect that a finding of liability might have on such activity in the future.
Hopps v Mott MacDonald Ltd
what was the rule of law related problem in Hopes
- Clarke J applied section 1 to an incident that occurred nearly three years before the 2006 Act came into force
- There was a problem: laying the law down ahead of applying it, not applying it after the circumstances occurred
breach of duty and pursuit of justice case
Glasgow Corporation v Muir
Glasgow Corporation v Muir - what does Lord Thankerton
- All that a person can be bound to foresee are the reasonable and probable consequences of the failure to take care’
- We don’t expect D’s to foresee all harm, we expect them to be reasonably attentive to the risks In their environment, and where risks are foreseeable, to take reasonable care, where relationships with the C are of proximity.
Glasgow Corporation v Muir
what 2 interests are we balancing as seen here
-Balancing C’s interest in security and D’s interest in freedom of action
2 occupational stress cases
- Walker v Northumberland CC
- Hatton v Sutherland
Walker v Northumberland CC- outcome
- D held liable for C’s second mental breakdown
- D must make a ‘reasonable response’
- a case of incremental development
Hatton v Sutherland what did Hale LJ set out
Hale LJ set out a number of ‘practical propositions’ to guide judges when deciding occupational stress cases
Hatton v Sutherland what are some of the propositions Hale LJ (2)
- She stated that there are ‘no special control mechanisms’ that apply to occupational stress claims
- An employer is usually entitled to assume that the employee can withstand the normal pressures of the job’. Employer has to be attentive to what is going on in the work place.
Hatton v Sutherland what did Hale Lj say that judges should address
-She stated that judges should address the question: was harm reasonably foreseeable?
Hatton v Sutherland- what did Hale LJ say what would happen if D’s offered a confidential advice service
-Where D offers a confidential advice service, with referral to appropriate counselling or treatment services, a finding of liability is unlikely’
Steele on occupational stress
-what does she say about the amount of claims since Walker and about psychiatric harm
- since Walker, claims for employment-related psychiatric injury have become common
- since Walker, the entire shape of tort liability for psychiatric harm has altered
what was the effect of the law since Walker
the development itself is driven by the commitment of corrective justice
Breach of duty and medicine case
Bolam v Friern Hospital management Committee
Bolam v Friern Hospital management Committee- when will a doctor not be negligent
-if they have acted in accordance with a practice accepted as proper by a responsible body of medical men [or women] skilled in that art
Bolam v Friern Hospital management Committee- what was the criticism in this case
-judges are making law on area they have no knowledge of (doctors a setting out a standard for themselves)
what is the test in Bolam v Friern Hospital management Committee
the standard of the ordinary reasonable man [or woman] exercising … that special skill
Morris v West Hartlepool Steam Navigation Co Ltd- held
prevailing standards are not conclusive on the question of reasonable care- doctors setting their own standards may be different to the standards set out by courts
Bank of Montreal v Dominion Gresham Guarantee & Casualty Co- held
Neglect of duty does not cease by repetition to be neglect of duty’
(see also Re the Herald of Free Enterprise)
