Negligence - Duty of Care

Question 1

3 elements of neg

Answer 1

1) legal duty to take care
2) breach of that duty
3) damage suffered as a consequence of that breach

Question 2

Caparo Industries v Dickman (1990)

Answer 2

“no simple formula” to test for DoC

Question 3

Donoghue v Stevenson (1932)

Answer 3

P’s friend ordered drink at cafe. P drank some, friend poured remainder into a glass, found decomposed snail. P became seriously ill. No contract with retailer and not neg (bottle opaque so snail couldn’t be seen), couldn’t sue. Manufacturer raised def of privity and claimed if P couldn’t sue in con, couldn’t sue in tort either.
Held: could be remedy in tort. Man had DoC to ultimate consumer of his product.

Question 4

Yuen Jun Yeu v AG of Hong Kong (1988)

Answer 4

Provimity of neighbourhood - composite of whole relationship between P and D

Question 5

Hedley Byrne v Heller (1964)

Answer 5

HoL extends neighbour principle to cover cases of pure economic loss not resulting from physical damage in circumstances where a “special relationship” arises between parties

Question 6

Home Office v Dorset Yacht Co (1970)

Answer 6

Borstal boys escaped from custody during night while (allegedly) 3 officers in charge were asleep. Boarded yacht and cased damage to P’s yacht moored nearby. HO said contrary to public policy to hold it liable for acts of 3rd party by failing to restrain them.
Held: Officers owed DoC to P. “Special relationship” between HO and boys. HO relationship with yacht owner sufficiently proximate to give rise to DoC. “Control imports responsibility”

Question 7

The Two Stage Test: Anns v Merton (1978)

Answer 7

Lessees of flats built on foundations of insufficient depth. Such local auth in neg on basis they had failed to inspect foundations or neg in carrying out inspections.
Held: HoL - LA liable. Exercise of stat powers and duties by public bodies give rise to a DoC to individuals.
Two stage test:
1) was the harm foreseeable and thereby bringing the P within the neighbour principle?
2) If so, was there any valid policy reason to deny the existence of a DoC in this case?

Question 8

Junior Books v Veitchi Co Ltd (1983)

Answer 8

Anns liberating. Test reached its peak. HoL went a step further than Anns, allowed neg claim over question of quality rather than a dangerous defect

Question 9

Governors of the Peabody Fund v Sir Lindsay Parkinson & Co (1985)

Answer 9

Retreat from Anns begins. HoL warns against liberal test in Anns and subsequent court decisions have sought to reassert limits to scope of liability.
P development co required to provide adequate drainage system for new dwellings, Approved by LA, but proved unsatisfactory and caused P economic loss. P alleged LA had breached duty to ensure system was suitable.
HoL - denied remedy to P. Retreated from Anns test, introduced a requirement that the P should ID policy grounds on why duty should arise - is it “just and reasonable” to do so?

Question 10

Murphy v Brentwood DC (1990)

Answer 10

P purchased house built on poor foundations. Discovered cracks in house in 1981, sued local council for neg’ly approving plans for the foundations.
Held: LA not liable. House had only damaged itself therefore was a defective house, until actual damage had occurred the cost of making the house safe/any diminution in its value is purely economic loss.
HoL overruled Anns. Contracted scope of DoC in economic loss cases

Question 11

The Three Stage Test: Caparo v Dickman

Answer 11

1) Harm must have been reasonably foreseeable
2) Must have been a relationship of proximity between parties
3) In all circs of the case, it must be fair, just and reasonable to impose a DoC

Question 12

Bhamra v Dubb (2010)

Answer 12

Sikh caterer aware that religion forbids consumption of meat, fish or egg. Provided food for wedding reception. Guest had egg allergy and died after eating food from caterer. Not a Q of whether DoC was owed (it was) but the nature and scope of the duty. Caterer appealed decision that he was liable.
Held: Dismissed appeal. There was an additional requirement that food not contain ingredients prohibited by Sikhism. Deceased had been entitled to rely on D to ensure he didn’t suffer harm as result of food containing egg.

Question 13

Marc Rich & Co v Bishop Marine Co (1995)

Answer 13

Vessel developed crack which carrying cargo from South American to Italy. Surveyor employed by marine classification society pronounced that with temp weidling, vessel was fit to complete voyage. Few days later ship sank w/total loss of cargo.
Held: Class Soc owed no DoC to cargo owner. Despite damage being physical harm (damage to property) not pure economic loss, it was insufficient to give rise to DoC. Policy factors. Soc were independent, non-profit operating for sole-purpose or promoting welfare/safety of ships/lives at sea

Question 14

Watson v British Boxing Board of Control (2001)

Answer 14

Box suffered brain damage after match. Alleged Board had been neg in not providing better ringside medical care. Taking account of bower’s reliance on Board to reduce effects of injuries once they had occurred = fair, just and reasonable to impose DoC. Board’s non-prof status not enough to deny liability.

Question 15

Perret v Collins (1998)

Answer 15

Passenger injured in aircraft accident allegedly caused by unairworthy aircraft claimed in neg against inspector who cert it fit to fly. D sought to rely on Marc Rich.
Held: DoC was owed. D assumed degree of responsibility. Case involved personal injury (unlike Marc) and inspector had key role under statute. So owed DOC to passengers to use reasonable care in inspecting aircraft & issuing cert. Imp: plane could not fly w/out the cert

Question 16

Duty under Contract

Answer 16

Limitation on liability in con law may be good reason to limit duty in tort, too.
Mainly prop damage, not personal injury.
Would upset prior allocation of risk.
Norwich CC v Harvey (1989)
BT v James Thomson & Sons (

Question 17

Hill v CC of West Yorkshire Police (1988)

Answer 17

P mother of Peter Sutcliffe’s last victim. Claimed damaged on basis that police had neg failed to apprehend murderer before her daughter was killed.
Held: HoL - notwithstanding harm was reasonably foreseeable, insufficient prox between police and victim. Sutcliffe wasn’t under their control (Dorset Yacht Club) and nothing to set Miss Hill apart as more at risk than rest of female pop. No DoC.
General DoC on police to protect members of the public from crime - impractical (public policy)

Question 18

Osman v Ferguson (1993)

Answer 18

Police failed to act on warnings that teacher, infatuated with student, was likely to commit serious offences. Harassed Osman family, eventually killing father & injuring son.
Held: CoA accepted case differed from Hill (there was sufficient prox), Hill immunity applied & case failed on public policy grounds.
Took to ECHR, no violation of art.2 (right to life) but “blanket immunity” for police = breach of art.6 (fair trial)

Question 19

Van Colle v CC of Hertfordshire (2008)

Answer 19

CC appealed against finding that police under duty to protect witness who was being threatened and subsequently shot dead before giving evidence. Claim relied on Art.2 ECHR.
Held: Appeal allowed. The Osman test - police ought to have known “at the time” that “a real and immediate risk to life” of ID’able indiv from crim act of 3rd party. Not met.

Question 20

Smith v CC of Sussex (2008)

Answer 20

C informed police repeatedly that former partner had threatened to kill him. Could have prevented hammer attack which cased him serious injuries. Appeal allowed. Preserving principle in Hill more imp on balance. In absence of special circs, police owned no common law DoC to protect individuals against harm caused by crims.

Question 21

Hall & Co v Simons (2000)

Answer 21

3 separate cases. Clients brought claims against solicitors alleging neg. 1st ins: struck out, immunity under Rondel v Worsley. CoA: shouldn’t be struck out. HoL: dismissed appeal. Changes in law/soc - Rondel no longer justified. Unanimously abolished immunity in civ and crim proc.

Question 22

Liabilities of Public Bodies

Answer 22

No DoC where LAs are carrying out discretionary stat functions
Where improper exercise of discretion, may be liable
Is it f, j, and r to impose DoC?

Question 23

X (minors) v Bedfordshire CC (1995)

Answer 23

Actions for breach of Children Act 1989. Abuse, failure to take abused children into care, ID-ing wrong person as abused, wrongly taking children into care.
Held: HoL said would not be f/j/r to subject LAs to common law DoC in carrying out discretionary stat functions. Could lead to functions being performed defensively. Contrary to public interest

Question 24

Stovin v Wise (1996)

Answer 24

Road verge resp for several accidents. Norfolk cc aware, had stat power to improve. LA failed to exercise stat power to require landowner to remove the obstruction. Wise neg drove out from side road and claimed junction contributed to the accident.
Held: HoL said LA owed no DoC. Was stat power to improve road junction, but under no duty to do so. Omission to act so no liability. Power v duty.

Question 25

Barrett v Enfield LBC (1999)

Answer 25

Child in LA care for 17 years claimed suffered psych problems as result of LA’s neg in making/supervising placements.
HoL reversed CoA decision to uphold Council’s app to strike out P’s claim

Question 26

Phelps v Hillingdon LBC (2000)

Answer 26

CoA allowed appeal against 1st ins decision that educational psychologists employed by LA was under DoC to P for failing to diagnose her dyslexia. CoA said unsatisfactory for LAs to be liable by “back door” of vicarious liability unless resp clearly established.
Held: HoL ed psych owed Miss Phelps a DoC. Was specifically called in to assess a specific child. Also held Hillingdon vicariously liable

Question 27

Bradford-Smart v West Sussex CC (2002)

Answer 27

Shift away from blanket immunity. In exceptional circs (though not here), schools are liable for failure to take reasonable steps to prevent bullying outside school

Question 28

A v Essex

Answer 28

2 young children placed with Cs for adoption. One had severe behavioural problems. Parents claimed LA vic liable for failure of social workers to disclose info about behaviour

Question 29

JD v East Berks Comm Health Trust (2005)

Answer 29

2 sets parents sued for psych injuries due to misdiagnosis of child abuse by social services/health auth. Held: health professionals acting in good faith in what they believe to be best interests of the child should not be subject to potentially conflicting duties when deciding whether child might have been abused. Caparo applied.

Question 30

Fire Brigades: Capital and Counties v Hampshire CC (1997)

Answer 30

No common law DoC to answer emergency call or duty to take reasonable care to do so, no prox or relationship between brigade and building owner. Liable only if cause additional damage. Policy considerations.

Question 31

Ambulance Service: Kent v Griffiths (2000)

Answer 31

Once call accepted, assumes resp for patient and DoC arises - ambulance took 28 mins to arrive after orig call, pregnant claimant suffered resp arrest resulting in brain damage and miscarriage. CoA held ambulance coul dbe liable in neg.

Question 32

Watson v British Boxing Board (2001)

Answer 32

F/J/R to impose duty when body makes provision in rules for medial precautions to be employed and makes compliance with rules mandatory. Sufficient prox between body and members, gives rise to DoC.

Question 33

Burton v Islington Health Auth (1993)

Answer 33

Liability for the Unborn
DoC owed to unborn person which becomes actionable on live birth of that child.
P’s mother admitted for operation. Hosp didn’t know she was pregnant. P said she had been born with abnormalities because of op while an embryo. D sought to strike out on basis embryo has no legal status.
Held: P had cause of action available to child born alive for injuries sustained in the womb

Question 34

McKay v Essex Area Health Auth (1982)

Answer 34

No Claim for Wrongful Life
Mother would have had abortion. Wrongly told unborn child was not infected with rubella. Born with severe disabilities, claimed in respect of harm caused to her by her birth.
Held: CoA said no claim for “wrongful life” - to allow child to recover damages for pain and suffering of being alive against public policy

Question 35

Thake v Maurice (1996)

Answer 35

Claims for “wrongful birth”

Failure of neg conducted sterilisation or abortions are recognised by courts

Question 36

Goodwill v British Pregnancy Advisory Service (1996)

Answer 36

P claims she had relied on Dr’s neg advice to her partner that his vasectomy had been successful and didn’t need to use contraception. Held: No DoC to P because D had not assumed responsibility for her, didn’t know their advice would be communicated to future sexual partners

Question 37

McFarlane v Tayside Health Board (1999)

Answer 37

Couple sued health auth for neg failure of vasectomy. As consequent of alleged neg, healthy/unplanned child born. Parents said loved child but claimed costs for upbringing to 18yo. HoL rejected claim unanimously.

Question 38

Parkinson v St James and Seacroft University NHS Trust (2001)

Answer 38

In case of unhealthy child born as result of neg sterilisation, parents could claim extra costs

Question 39

Rees v Darlington Memorial Hospital NHS Trust (2004)

Answer 39

Healthy child of disabled parents, McFarlane applied, but £15,000 awarded over and above damages for legal wrong

Question 40

Liability for Acts of 3rd Parties: Smith v Littlewoods Ltd (1987)

Answer 40

D purchased cinema, remained empty/unattended for a month. Child vandals regularly broke in. D/police didn’t know, but contractor hired by D knew. Fire deliberately started by vandals causing serious damage to P’s prop. P sought compensation from Littlewoods, claiming D should have prevented vandals gaining access to site.
Held: HoL held P’s claim failed. No general DoC to prevent 3rd party causing damage. But would arise if D causes or permits a source of danger and it is foreseeable that 3rd party might interfere

Question 41

Carmarthenshire CC v Lewis (1955)

Answer 41

Child ran from nursery on to busy road. C’s husband swerved to avoid child, and was killed himself when car hit tree. HoL confirmed resp of parents and teachers for behaviour of children. CC and teachers held jointly in control of child. DoC therefore to take reasonable steps to prevent him becoming a danger to others

Question 42

Topp v London Country Bus Ltd (1993)

Answer 42

Minibus left with key in ignition, stolen by unknown person and killed P’s wife. Bus co not liable. Act of wrongdoer regarded as novus actus interveniens

Question 43

Stansbie v Troman (1948)

Answer 43

Decorator warned by house-holder to shut door when leaving. Carelessly left house unlocked, and while absent house was burgled and jewellery stolen. Held: decorator was liable. Duty to householder arose from implied term in his contract to keep premises safe.

Question 44

Barrett v Ministry of Defence (1995)

Answer 44

Soldier became unconscious after heavy drinking. Left in room unchecked. Died choking on vomit. Widow brought action against MoD. Held: no liable for preventing deceased from excessive drinking, or anything prior to collapse. But D assumed resp for him when he collapsed and measures taken fell short of standard reasonably expected

Question 45

Sutradhar v NERC (2006)

Answer 45

C, villager in Bangladesh where many affected by arsenic contamination in drinking water. Alleged D caused/materially contributed to illness. Failed to draw attention to arsenic or by issuing report which claimed water was safe. D commissioned to test water for minerals harmful to fish - not required to test for arsenic. Claimed no arg case that they were in prox relationship with the population of Bangladesh.
HoL upheld CoA: no relationship of prox between C and D that would give rise to positive duty to test for arsenic