NEGLIGENCE: Duty of Care

Question 1

1. What are the Elements?

The Basics: 1 - 8

Answer 1

The Claimant must prove that C has sustained actionable damage.

They must prove that a Duty of Care was owed by the Defendant.

That the Defendant breached their Duty by doing something carelessly wrong.

That there is a casual link between the breach of duty and the damage sustained.

The Damage sustained was a type that could reasonably be expected to result from the breach of duty. (Remoteness)

Causation must be proven.

Question 2

2. What is the Definition of Duty of Care?

Answer 2

Derived from the case of Donoghue v Stevenson and set out by Lord Atkin with the Neighbour Prinicple:

You must take reasonable care to avoid acts or omissions that you can reasonably forsee that would be likely to injure your neighbour.

Question 3

3. What is the Anns Test?

Answer 3

There was a two-stage test set out in Anns v Merton LBC 1978 Lord Wilberforce.

• Is there a relationship of proximity or neighbourhood between D and C so that D should realises that Carelessness may cause damage to the victim?
• If Yes, then, is there good reason to reduce, limit, or cancel the Duty of Care owed by the wrongdoer (D) to the victim.

Question 4

4. Established Duties of Care?

Answer 4

There are Duty of Cares that have already been established such as:

Motorists to other road users (Sumner v Colborne and Others)

For example: Occupiers of land owe a Duty of Care to Visitors (and sometimes trespassers) OLA 1957 and 1984

Doctors owe a Duty of Care to their patient:

As in, Darnley v NHS Croydon Trust 2018

Bolitho City and Hackney HA 1992

Barnet v Chealsea and Kensington Hospital Management Committee

Robinson v CC of West Yorkshire Police 2018

Question 5

5. What is a Novel Case?

Answer 5

Novel cases are cases that do not have a prexisting precedent to follow and that they are entirely new situations.

Question 6

6. What are the Caparo Rules?

Answer 6

• Is it reasonably foreseeable that D’s failure to take care could cause damage to the Claimant.
• Is there a sufficient relationship of proximity between D and C?
• Is it fair, just, and reasonable to establish a Duty of Care by D, to take reasonable care to not harm C?

Question 7

7. Ommissons: What is the General Rule?

Answer 7

The general rule is that mere failure to act is generally not actionable, and that there is no positive duty of to act as there’s no liability for pure omissions.

Question 8

8. Ommisions: What are the exceptions to the general rule?

Answer 8

1. Control

In cases where D has some sort of control over the Claimant or the situation it may be imposed. See Reeves v Commissioner of Police for the Metropolis

2. Assumption of Responsibility

it may be reasonable to assume responsibility to the Claimant by the Defendant see Barret v Ministry of Defence

3. Creating or Adopting a Risk

A duty of care may arise if D creates a danger or if D takes positive action and makes the situation worse.

Question 9

9. Third Parties: What is the General Rule?

Answer 9

There is no general duty of care incumbent upon the defendant for the acts of third parties (same for omissions, third party may not be at fault)

as stated in the case of Perl v Camden London Borough Council [1984] QB 342, per Waller LJ

Question 10

10. What happened in the case of Perl v Camden?

Answer 10

Facts summarised: C owned two adjoining buildings first was rented by c the other was empty there was no lock on the door by the landlord, making it easy for thieves to enter, which they did, thieves stole from the other apartment by knocking a hole in the wall.

There was an absence of reasonable care as they had continuously have been negligent in not providing a lock for them, it was revealed that there was an absence of reasonable care and that the simplest inspection would have prevented the third parties from breaking in.

This was appealed however and it was held that the council was not liable as the level for foreseeability was not sufficient enough to be held liable.

Question 11

11. What is the exception to the general rule of Third Parties?

Answer 11

Per Lord Goff in Smith v Littlewoods [1987] a duty of care exists if:

1. D exercises supervision and control over the TP
2. D assumes responsibility for C’s welfare
3. D creates a source of danger and the TP worsens this danger
4. D fails to abate a known danger created by the TP

The first three were more recently affirmed in Mitchell v Glasgow City Council [2009]
per Hope L J (para 23) and Brown L J (para 82).

Question 12

12. What is the First Exception for Third Parties?

Answer 12

***Where D exercises supervision and control over the TP
*

As in Dorset Yacht v Home Office [1970]

‘The Borstal boys were under the control of the defendants’ officers, and control imports responsibility. The boys’ interference with the boats appears to have been a direct result of the defendants’ officers’ failure to exercise proper control and supervision’

(Lord Pearson, p 1055).

Question 13

13. What is the Second Exception for Third Parties?

Answer 13

Where the TP’s actions exacerbate a danger created by D. Therefore there would be no liability for the actions of the third party for the defendant.

Haynes v Harwood [1936]

Topp v London Country Buses [1993] 1 WLR
(these two cases were distinguished) left keys in the van

Question 14

14. What is the Third Excpetion for Third Parties?

Answer 14

Where D fails to abate a known danger created by TP

Smith v Littlewoods, where had no knowledge of the third parties starting the fire on the property.

per Lord Goff (p 274)

Clark Fixing Ltd v Dudley Metropolitan Borough Council [2001] they were aware of the tresspassers as they were setting fires he decided to do nothing with the knowledge and left his property unsecured , was held liable for the property damage to the claimant.

Question 15

14. What is the Third Excpetion for Third Parties? Cont. (Proximity)

Answer 15

Proximity and Things said and done.

Swinney v Chief Constable of the Northumbria Police [1997] QB 464

(information was not kept quiet and confidential) they left the document in an unattened police car which was then attained by the criminal who then found out, there was liability for the police

Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049

A relvative of one of the victims brought an action against the police claiming to be negligent in their job , it was held that there as no duty of care as she was not a special victim at risk, she was merely just a potential victim at the time of the killing by the Yorkshire ripper.

Question 16

16. What is a Public Body?

Answer 16

A public body is a person or entity that is either an agent of the State or an entity which operates on behalf of the public and is funded by the State for that purpose.

Such as: Local Councils (see X v Bedfordshire CC)

Health (see D v East Berkshire Community NHS Trust)

Schooling (see Carty v Croydon LBC)

The Police (see Hill).

Question 17

17. What are some of the Execeptions that Judges might impose on to Public Bodies?

Answer 17

Exceptions judges endure a certain immunity to Public Bodies, they will use legal devices that rescrit the liability of public bodies some courts may refuse to hear a case. they may let in leway as a matter of public policy or in the public interest.

Question 18

18. What is the problem with widening the scope of liability?

Answer 18

The problem with widening the scope of liability is that public bodies may be more prone to getting sued.

For Example, doctors may have fear that they will get sued it may also make operations more expensive.

If a doctor follows the practice of a responsible medical body even if he is in the minority there will not be a breach of duty and so no duty of care which limits the libailty of th breach of dtuy without finding a duty of care

Question 19

19. Why are Public Bodies Special?

Answer 19

1. There is often a detailed statutory context.
2. There may be overlaps with aspects of public law (which deals with the legality of taken or proposed administrative actions or decisions).
3. Such claims often involve omissions.
4. The damages claimed may be unconventional.
5. Negligence claims in this context raise the concern of court interference with policy decisions of bodies entrusted with the task of making such decisions by an elected legislature.

Question 20

20. How does liability arise in the common law of neglignence in relation to public bodies? What will they be subjected to?

Answer 20

Any liability of public bodies in the common law of negligence arises in the same way as it does for private individuals. Public bodies will, therefore, be subject to the same incremental, analogical approach derived from Caparo, Michael and Robinson, as private individuals.

The fact that such bodies have a public function to perform and are authorised in this by statute is never a standalone reason for imposing a duty of care at common law.

Case law now makes clear that any public law avenues exist independently of any liability to private individuals in negligence.

Stovin v Wise [1996] AC 293

Question 21

21. A quote from the case of Gorringe v Calderdale?

It is not sufficient that it might reasonably have foreseen that in the absence of…?

Answer 21

Gorringe v Calderdale [2004] UKHL 15

‘It is not sufficient that it might reasonably have foreseen that in the absence of such warnings, some road users might injure themselves or others.

Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others.

But it is insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it.

Question 22

22. When does the law recognise special duties in special circumstances in relation to public bodies?

Answer 22

The law does recognise such duties in special circumstances: see, for example, Goldman v Hargrave [1967] 1 AC 645 on the positive duties of adjoining landowners to prevent fire or harmful matter from crossing the boundary.

But the imposition of such a liability upon a highway authority through the law of negligence would be inconsistent with the well established rules which have always limited its liability at common law’.

Lord Hoffmann at [17]

Issues of discretion as they are given powers to act but they can do so discretionatly.

Statute should not be a standalone reason to impose a duty of care

Question 23

23. What is justiciability? Name the quote from Carty v Croydon.

Answer 23

When it comes to high level political positions you can usually not sue

• Carty v Croydon LBC [2005] EWCA Civ 19, per Dyson LJ (para 21):
• ‘Certain decisions are simply not justiciable at all. Thus where the decision involves the weighing of competing public interests or is dictated by considerations which the courts are not fitted to assess, they will be likely to hold that the issue is non-justiciable… These cases are comparatively rare.’

Question 24

24. In relation to justicability name a quote from X v Bedfordshire County Council.

Answer 24

• ‘… the courts cannot enter upon the assessment of such “policy” matters. The difficulty is to identify in any particular case whether or not the decision in question is a “policy” decision’.