Negligence (Duty of Care and Breach)

Question 1

What are the steps to consider for a Negligence question?

Answer 1

1) C can consider suing D for [insert harm] in the tort of NEGLIGENCE
2) Consider whether D owes C a legal DUTY OF CARE
3) Consider whether there has been a BREACH of this duty
4) CAUSATION - Did D’s breach of duty CAUSE the harm suffered by C?
5) Consider whether D may raise any DEFENCES

Question 2

Define Tort of Negligence?

Answer 2

A breach by the defendant of a legal duty of care owed to the claimant that results in actionable damage to the claimant unintended by the defendant

Question 3

Upson

Answer 3

One road user to another

Question 4

Nettleship v Weston [1971]

Answer 4

Driver to pedestrian

Question 5

Baker v Hopkins [1959]

Answer 5

• Defendant to RESCUER, where D has created a dangerous situation so that it is reasonable that somebody may attempt rescue

Facts: Used a petrol pump to clear out the well. Carbon Monoxide fumes gathered overnight as pump was left on. The workers disregarded orders not to go down the well and went down anyway. A doctor was called to help, went down the well to rescue, became ill and unconcious himself. All died

Question 6

Arthur J S Hall v Simons

Answer 6

Advocate to client

Question 7

Vowles v Evans

Answer 7

Referee to sports player

Question 8

Kent v Griffiths

Answer 8

In limited circumstances: ambulance service to emergency callers

Question 9

In what situations does an established duty of care NOT exist?

Answer 9

a. Soldier to colleague (Mulcahy v Ministry of Defence)

b. Fire service to emergency caller (Capital & Counties v Hampshire County Council)

Question 10

Hill v Chief Constable of West Yorkshire [1989] - House of Lords

Answer 10

General rule – public policy driven: The police do NOT owe a duty of care to individuals, only to the public at large

Facts: Jacqueline Hill was the final victim of the Yorkshire ripper. Her mother made a claim against the chief constable on the grounds that the police had been negligent in their detection and detention of Sutcliffe.

Question 11

Which cases confirm Hill v Chief Constable of West Yorkshire?

Answer 11

Brooks v Commissioner of Metropolitan Police; Osman v UK; Smith v Chief Constable of Sussex Police

Question 12

Osman v UK [1999]

Answer 12

Court of Appeal held that the police owed no duty to a claimant they knew was being harassed by a 3rd party. ECHR said police blanket immunity a violation of Article 6 (right to fair trial). However, in Z v UK [2002] ECHR says that it does not breach Art. 6.

Question 13

Kirkham v Chief Constable of Greater Manchester Police [1990]

Answer 13

Where the police have assumed a responsibility for someone or someone has been entrusted to their care, the police owe a duty of care to that person. Suicidal prisoner – police failed to pass on relevant risk info to prison authorities.

Question 14

Case authority for when police might owe a duty of care to take reasonable care?

Answer 14

Rigby v Chief Constable of Northamptonshire [1985] – QBD – psychopath in gun shop. Police use one of two cannisters which causes fire and damage. Defendant and his officers had been negligent in failing to react to the departure of the fire-fighting equipment by arranging to have other fire fighting equipment available

Question 15

Case authority for when police have a duty of care to keep informant ID safe?

Answer 15

Swinney v Chief Constable of Northumbria Police [1996] Court of Appeal – 1st plaintiff supplied information to a police officer as to the ID of the driver of a vehicle which had hit and killed another officer. The info. In a document which included the 1st plaintiff’s name, address etc. was stolen from the police vehicle and came into hands of alleged driver. Her and her husband, 2nd plaintiff, were threatened with violence and arson

o CofA dismissed the police’s appeal to have the action struck out. Usual police immunity from actions in negligence in relation to the investigation and suppression of crime had to be weighed against need to protect informants

Question 16

Facts of Donoghue v Stevenson [1932] House of Lords

Answer 16

Appellant in a restaurant, her friend purchases some ginger beer for her, opaque bottle, she drinks and notices a decomposed snail in it. Sight of this and impurities in drink cause shock and severe gastro-enteritis. She sues for negligence.

Question 17

Narrow ratio of D v S?

Answer 17

manufacturer owes a duty of care to the ultimate consumer of the goods

Question 18

Define the neighbour principle (Lord Atkin)

Answer 18

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour

Question 19

Facts of Caparo Industries v Dickman [1990]

Answer 19

House of Lords – Caparo Industries began buying shares in Fidelity (electrical goods co.) and on the basis of annual accounts audited by Dickman, took over the company. The profits forecast where wrong and there was some error in the auditing. Caparo sued for negligence. HELD – that liability for economic loss due to negligent misstatement was confined to cases where the statement given to known recipient for known purpose. This was not the case here. (Read Lord Bridge’s speech for Caparo test)

Question 20

Caparo test?

Answer 20

1) Reasonably forseeable that D’s actions will affect this particular C?
2) Is there sufficient proximity of relationship?
3) Is it fair just and reasonable to impose a duty?

Question 21

Bourhill v Young [1943] HoL

Answer 21

C hears collision between motorcycle and car. Goes to scene and later says she suffered shock and a miscarriage. Claimed damages against estate of dead motorcyclist whose negligence caused the accident. HELD – Mrs Bourhill was not a foreseeable victim of motorcyclist’s negligence, no duty owed

Question 22

Marc Rich v Bishop Rock Marine [1996] – House of Lords

Answer 22

C’s cargo lost at sea when ship sank. C made claim against ship owner, Bishop Rock, and ship classification society NKK. NKK inspected ship for damages, recommended repairs, certified ship safe for sea. Ship owner responsible, but internationally agreed contractual structure limited liability of owner. C could not recover fully from owner so went after NKK. Carelessness on part of NKK surveyor. HELD – NKK did not owe a duty of care to the cargo owners. Would not be fair, just and reasonable to impose a duty because the society was non-profit, collective welfare of safety at sea)
• Case shows there may be sufficient proximity and foreseeability, but court can still decide that F, J, R not satisfied

Question 23

Can there be liability for pure omissions (general rule)?

Answer 23

There is no liability for pure omissions, and you do not owe a duty to the world for doing nothing to prevent harm [Stovin v Wise [1996] - junction which Norfolk County Council could have fixed but hadn’t due to very low accident numbers. Man had been knocked off his motorcycle and claimed damages]

Question 24

East Suffolk Rivers v Kent [1940]

Answer 24

No liability in tort, even if you act carelessly. Only liability if you make matters worse

Facts: Land belonging to the claimant was flooded when a sea-wall was breached. The defendant had no duty to repair the wall but it did have a statutory power to do so. The defendant did decide to repair the wall. However, it took a long time to do so, during which the claimant’s land remained flooded

Question 25

Home Office v Dorset Yacht [1970] House of Lords

Answer 25

House of Lords – there is a duty to act positively in cases where a person has a special relationship of control over another: Seven Borstal boys working on an island under supervision of three officers, left the island at night and boarded, cast adrift and damaged claimant’s yacht. House of Lords dismissed appeal and held that the officers owed the claimant’s a duty of care; should have foreseen the harm to the claimant’s yacht when they failed to supervise the boys, who all had criminal records

Question 26

Smith v Littlewoods [1987] HL

Answer 26

No duty was owed. Duty of care does not extend to cover actions of 3rd parties OUTSIDE D’s control

Question 27

Carmarthenshire County Council v Lewis [1955] – House of Lords

Answer 27

4 year old strays from Nursery run by LEA. C’s husband driving lorry swerves to avoid child and dies. HELD – LEA had assumed responsibility for controlling the child and had duty to prevent child endangering others

Question 28

Two limbs of test for breach?

Answer 28

1) How OUGHT D have behaved? (Identify the standard of care expected in the circumstances; a question of law)
2) How DID D behave? (Identify whether D fell below the relevant standard of care; a question of fact)

Question 29

Ordinary standard of care?

Answer 29

Standard of a REASONABLE PERSON (Blyth v Birmingham Waterworks (1856) Alderson B.)

Question 30

Is the reasonable person test subjective or objective?

Answer 30

This is an objective test (Glasgow Corporation v Muir [1943])

Question 31

What standard is expected where D is a professional, or holds himself out to have a special skill?

Answer 31

The standard of D’s profession/a reasonably competent professional in the circumstances (Bolam v Friern Hospital [1957] – QBD – Patient undergoes Electro-Convulsive-Therapy which goes wrong)

i. The courts will consider compliance with common practice in the relevant profession as strong evidence that D is not negligent (Bolam).

Question 32

Final decision on reasonableness of professional person’s behaviour?

Answer 32

ii. The final decision whether a skilled D’s behaviour is reasonable is the court’s (Bolitho and Hackney HA [1997])

Question 33

Does common practice in a profession justify taking risks?

Answer 33

Common practice won’t necessarily justify the taking of risks, as the courts can reject ‘expert evidence’ and condemn commonly accepted practice as negligent (Re Herald of Free Enterprise)

Question 34

Allowance for inexperience?

Answer 34

There is no allowance for inexperience (Nettleship v Weston [1971])
i. E.g. car drivers must meet standard of a reasonably competent driver, even if learners (Nettleship).

Question 35

Exception to rule in Nettleship v Weston [1971]?

Answer 35

Exception: where D suffers from an unexpected disability (Mansfield v Weetabix)

Question 36

What about professional inexperience?

Answer 36

Wilsher v Essex Health Board – junior doctor must meet the standard of a competent doctor in first day on post. Standard tailored to post, not individual experience

Question 37

What standard of care must a child reach?

Answer 37

Reasonable child of D’s age (Mullins v Richards [1998])

Question 38

Bolton v Stone

Answer 38

If the RISK OF HARM is particularly small, and neglect is reasonable, it is justifiable not to take steps to mitigate.

Question 39

Miller v Jackson

Answer 39

If the risk of harm is HIGH, one must take steps to mitigate

Question 40

Paris v Stepney BC

Answer 40

If there is a risk of VERY SERIOUS HARM, one must take appropriate steps to mitigate

Facts: Paris was employed by Stepney Borough Council as garage-hand. He had suffered a war injury that left him with sight in only one eye. While Paris was attempting to loosen a rusted car axle bolt with a hammer, he caused a chip of metal to fly into his sighted eye, and as a result was permanently blinded in both eye

Question 41

Latimer v AEC [1953] House of Lords

Answer 41

Consider the COST AND PRACTICABILITY of solutions. If taking precautions would have been impracticable and incurred great expense, this may excuse D for not doing so, provided the risk of harm is small

Facts: Adverse whether, cause bad conditions in factory, worker slips up and injures himself. Wet signs ubiquitous. First instance: breached duty, should have shut factory. HL: Impracticable to do this.

Question 42

Watt v Hertfordshire CC

Answer 42

If D’s actions are in the PUBLIC INTEREST/have substantial social utility, this may justify D taking greater risks

Question 43

Fardon v Harcourt Rivington

Answer 43

There is no duty on D to protect against ‘fantastic’ possibilities.

Question 44

Waugh v James K Allen

Answer 44

D is not liable if his actions were due to a sudden incapacity

Question 45

Scott v London & St Katherine Docks

Answer 45

Res ipsa loquitur – D may be liable even if there is no conclusive proof of blame (in limited situations only)

Question 46

Civil Evidence Act 1968, s.11

Answer 46

If guilty in criminal proceedings, D is also presumed liable in tort

Question 47

Roe v Ministry of Health

Answer 47

D’s conduct should be considered in relation to the state of knowledge at the time of the event only

Question 48

Three conditions for application of res ipsa loquitur?

Answer 48

. Thing causing damage must be under the control of the defendant or someone for whom he is responsible

. The accident must be such as would not normally happen without negligence

. The cause of the accident is unknown to the claimant - no evidence

Question 49

Eligozouli Daf v Commissioner of the Police of the Metropolis

Answer 49

CPS dropped the case after the claimant had been held unnecessarily on remand for a long time. The court had to decide whether a duty of care should be imposed on the Crown prosecution service when dealing with defendants in criminal trial. HELD – No duty imposed. Courts did not want the CPS to behave in an overly defensive manner. Litigation that will be a waste of scarce resources (floodgates).

Question 50

Vowles v Evans; Smolden v Whitworth

Answer 50

Players injured as a result of negligent refereeing. Did referees in rugby matches owe a duty of care to players? HELD – Courts did impose a duty on referees

Question 51

Condon v Basi

Answer 51

Footballer should be able to sue another footballer for a negligent tackle

Question 52

Barret v Ministry of Defence

Answer 52

The MOD were liable, not through breach of a duty of care to prevent him becoming dangerously intoxicated, Until the deceased became unconscious, he alone carried the legal responsibility for his own actions, however, once the senior officer assumed a responsibility for him by ordering the Petty Officer to look after him a duty of care did arise. He was in breach of duty by failing to ensure the deceased received the appropriate supervision.

Question 53

Sutherland Shire v Heyman

Answer 53

“It is preferable that the law should develop novel categories of negligence incrementally and by analogy with established categories rather than by a massive extension of a duty of care”

Question 54

Arthur JS Hall v Simons

Answer 54

At one time advocates in court were immune from actions in negligence. In 2002 House of Lords removed this immunity. Argument that suing an advocate would involve retrying the case in which the negligence was alleged, was no longer sufficient to justify continuing immunity for advocates

Question 55

Whitehouse v Jordan

Answer 55

Baby born with severe brain damage after mother in labour for long time, senior registrar tries trial by forceps delivery, but then abandons for a Caesarean section. Court of Appeal and House of Lords found that it was an error of judgement rather than negligence. Had not fallen below the standard of care owed by a reasonable professional.