Negligence - Duty of Care - General Principles and Public Policy

Question 1

Introduction

Answer 1

• definition in Blyth v Birmingham Waterworks Co 1856 - “negligence is omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”
• Cl has to prove, on balance of probability, that:
  . Def owed them a duty of care
  . Def was in breach of the duty
  . They suffered damage caused by the breach
  . damage wasnt too remote
• can still fail if have defence
  Caparo Industries plc v Dickman 1990 - Lord Bridge said “Its never sufficient to simply ask whether A owes B duty of care. Its always necessary to determine scope of duty of reference to the kind of damage from which A must take care to save B harmless”.
• reasonable foreseeability by Def of damage to Cl
• sufficient legal proximity between Def and Cl
• whether its just and reasonable for duty to exist
• public policy - whether its in wider interests of society as whole for duty to exist

Question 2

Modern approach to determining whether duty of care

Answer 2

• If no duty of care, no liability in negligence, regardless of how Def behaved or how serious harm suffered
• majority of cases revolve around breach or causation, duty usually “easy” as some been recognised by Court already - one highway user to another, doctor to patient, employer to employee, manufacturer to those affected.
• problem when Ct have to impose duty in new situation or whether scope of duty should be extended to encompass new kind of harm
• Robinson v Chief Constable of West Yorkshire Police 2018 - Sup Ct reviewed development of law re duty of care.
• first q, is there a precedent that determines a duty of care exists? If so, follow the precedent.
  If not, Ct look at analogous cases and weigh up reasons

Question 3

Start of modern tort of negligence - Donoghue v Stevenson 1932

Answer 3

• before 1932, no recognised test to see if duty exists, would only find duty if claim fell squarely within precedent or analogy.
• use of analogy allowed some gradual extension of duty, but very cautious.
• early attempt was in Heaven v Pender 1883
  -Donoghue v Stevenson 1932 - date of case significant as marked step away from conservative idea that people owe duty of care only towards whom they have a contract and those that case law explicitly recognised being owed such duty, towards more principled approach

Question 4

Donoghue v Stevenson 1932 and “neighbour principle”

Answer 4

Donoghue v Stevenson 1932 - friend bought bottle of ginger beer in opaque bottle, Cl poured half into glass and drank it, then poured remainder of it out and remains of decomposed snail drain from bottom of bottle. Cl got ill and sued manufacturer.
- case went to H of L, Def argued facts not fall into category, but H of L said manufacturer had duty to take reasonable care to ultimate consumer. Lord Atkins said famous “neighbour principle” test as device to determine when duty owed - “you must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour. Who them, in law, in my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought to reasonably have them in contemplation as being so affected when I am directing my mind to the acts or omissions called in question”
- case settled outside of Court, but importance was on preliminary ruling that duty could be owed outside of a contractual relationship

Question 5

From Donoghue to Anns v Merton LBC 1978

Answer 5

• test based on reasonable foreseeability of damage didnt find acceptance until 1960s
  -Home Office v Dorset Yacht Co Ltd 1979 - H of L approved Atkins statement and gave impetus to development of tort of negligence
• Lord Reid said that although neighbour principle would “require qualification to meet new circumstances.. the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion
  -Anns v Merton London Borough Council 1978 - Lord Wilberforce set out test whether there was a duty of care in 2 stages:
  a. Asking whether there was a sufficient relationship of proximity between Def and Cl, that in reasonable contemplation , carelessness on their party might have been likely to cause damage to Cl
  b. If yes, was there any considerations that ought to have negated, reduced or limited the scope of duty owed
• took tort into area of recovery of pure economic loss caused by negligent conduct
• criticised as was too Cl friendly as enabled Cl to establish prima facie duty of care by ref to foreseeability of harm, and if Cl could prove foreseeable then up to Def to convince Ct to reject duty.
  Another criticism was gave Ct too much freedom to take policy into account, came regarded as implied in statement of Lord Wilberforce
• was overruled by H of L in Murphy v Brentwood District Council 1990 and reviewed in Caparo v Dickman 1990

Question 6

Caparo v Dickman 1990 Approach

Answer 6

• whether auditors of company owed duty of care only to audited company and its organs, or also to its shareholders and to members of investing public. Ct found only owed duty to company and organs, but Ct disapproved of Anns test.
• 2 different reasons, first was assumed single general principle that applies to all situations where a duty of care might exist - Cts should proceed incrementally and by analogy.
• 2nd argument was Anns mis described role of policy considerations - burden of pleasing policy should like with Cl, so should be up to Cl to show that policy considerations support imposing duty of care.
• Caparo replaces 2 stage Anns test with 2 new tests, incremental test and 3-stage test

Question 7

Incremental test

Answer 7

• Lord Bridge said “importance of underlying general principles common to whole field of negligence, law has now moved in direction of attaching greater significance to more traditional categories of distinct and recognisable situations as guides to existence, scope and limited of varied duties of care which law imposes. Must now recognise wisdom of the words of Brennan J in High Court of Australia in Sutherland Shire Council v Heyman 1985 where said that its preferable that law should develop novel categories of negligence incrementally and by analogy”.
• test is conservative and cautious, makes more difficult to establish new duties of care.
• In Caparo could have been said that past cases showed that duties of auditors be limited to auditors and its organs and was no good reason to extend without further analogy. But they then identified 3 stage test as well.

Question 8

Three-Stage test - foreseeability, proximity and “fairness, justice and reasonableness”

Answer 8

• Lord Bridge then said that Anns was mistaken as foreseeability of harm not enough, there has to be proximity, and should be considered as fair, just and reasonable
• said that cannot be precisely defined and “amount to little more than convenient labels”
• less Cl friendly, complimented the Anns test.
• proximity of relationship between Cl and Def - linked to idea of Donoghue test
• fair, just and reasonable had to be relevant to impose duty on Def.
• now way to approach issues concerning duty of care, other parts could be factors CT consider when determining whether to impose duty of care in novel situation with incremental approach.

Question 9

Foreseeability and Proximity

Answer 9

• foreseeability means reasonable person in Def position would have foreseen some damage to Cl at time of alleged negligent act or omission - Cl must prove damage to Cl in question was foreseeable.
  -Bourhill v Young 1943 - Cl heard accident and saw blood on road, so suffered psychiatric damage and gave birth to stillborn. Was foreseeable that people would suffer as result of negligence, Cl injury was not as she was too far from accident and not within range so owed no duty of care.
• Concept of foreseeability overlaps with proximity, where physical harm is foreseeable, usually physical proximity as well.
  -Evans and Another v Vowles 2003 - amateur rugby player injured in game where ref didnt enforce rules, sued ref and Welsh Rugby Union, who accepted that if ref was liable to Cl, they were vicariously liable. Ct of A held duty was owed.
  -Wattleworth v Goodwood Road Racing Company 2004 - amateur racing driver killed due top flaw in track design, widow sued national licensing body and international body. Ct said not necessary to apply Caparo test to personal injury, especially where assumption of responsibility.
• enough if activity gave rise to situation that caused injury, and where Def involved in activity which creates foreseeable risk of personal injury to others, owe duty of care to others.
• Found national licensing body owed duty of care. Ct encourage acceptance of responsibility and liability. Fact that would affect insurance or open floodgates not good reason for denying liability.
  -Sutradhar v Natural Environment Research Council 2006 - claim for personal injury re arsenic poisoning from drinking water near Cl home, when NERC said fit to drink, but not expected to test for arsenic. Said that no prospect of establishing proximity, as they had no control over supply of water or whether safe to drink, and not foreseeable for people to rely on it.
• relied on omission - usual rule is there is no liability.
  -Mitchell v Glasgow City Council 2009 - H of L confirmed reasonable foreseeability of harm, even in physical harm, isnt sufficient to impose duty of care. Was an asbo tenant and assaulted M and M died, fam issued claim against Council that had duty to warn M of risks of D, created foreseeable risk to harm and close proximity. Held not in public interest to impose duty on local authority to warn about asbos.
• also raised issued whether Council acted in way that was incompatible with M right to life under Art 2 ECHR and liable under HRA 1998 - was whether Council knew or ought to have known of a real and immediate risk to life, and on facts H of L said no.

Question 10

Fair, just and reasonable - policy considerations

Answer 10

• Lord Scarman said in McLoughlin v O’Brian 1983 - “policy considerations have to be weighted. If principle requires decision re policy risk, Ct have to adjudicate according to principle and leave policy to Parliament. If principle leads to results that are socially unacceptable, Parliament makes new law or map new path, why should Ct not draw line
• can identify some
  1 Floodgates argument - whether imposing duty opens potential for flood of litigation. Letting flood of claims overwhelm Def and Cts. Typically in context of psychiatric harm and pure economic loss where potential of causing harm is high.
  2. appropriate allocation of risk and loss - some covered by insurance, which compulsory in some situations. Easy for Ct to justify recognition of duty of care due to negligent driving.
• Idea is that availability of affordable insurance cover gives careless drivers benefit of a “safety net” against risk of liability. Same with employers who have public and liability insurance
  -Whittington Hospital NHS Trust v XX 2020 - Sup Ct prepared to overrule earlier case law that stated damages to cover cost of foreign commercial surrogacy were barred as would be contrary to public policy. - said as now allowed in UK the meaning of family has now changed, so concluded “its no longer contrary to public policy to award damages for costs of a foreign commercial surrogacy”.

Question 11

Incremental test - Caparo to Robinson

Answer 11

-Michael and Others (FC) v Chief Constable of South Wales Police and Another 2015 - Sup Ct made clear Caparo 3-stage test isnt a set test if novel facts. Lord Toulson said Lord Bridge’s speech taken as blueprint but it wasnt intended to be”
-Robinson v Chief Constable of West Yorkshire Police 2018 - dismissed idea of Caparo test and always consider if theres an existing precedent, said that “Ct will consider closest analogies n existing law, and weigh up reasons for and against imposing liability to decide whether existence or duty of care would be just and reasonable”
- after Robinson cases confirmed “incremental approach” is approach used by Cts when determining whether duty of care is owed by Def in novel situation
-Darnley v Croydon Health Services NHS Trust 2018 - Cl went to A&E, said he had a had injury and was told wait was 5 hours, so he went home as was too long for him to wait as felt too ill. Later, was taken back by ambulance, had surgery and suffered brain injury due to injury. Claimed neg as receptionist should made clear triage nurse would see in 30 mins. Trial J and Ct of A dismissed as neither receptionist or NHS Trust owed duty to advise about wait times. Sup Ct said no test, but said should consider analogous cases, but in this case not necessary, as case law provided was duty between hospital staff and patient, duty not to cause physical injury to patient, and extends to duty to not provide misleading info that may foreseeably cause physical injury.
-James-Bowen and Others v Commissioner of Police of the Metropolis 2018 - Sup Ct said where Cl seeking to impose duty in novel cases, Ct look at other cases. This case, Cl said that employer had duty to protect economic and reputation interests in litigation. Officer arrested BA so brought claim that officer assaulted him, and sought damages from Def on basis vicariously liable. Claim was settled, got apology, admitted liability for officer’s “gratuitous violence”. Officers claimed against Def for negligently inflicting economic, reputational and psychiatric harm. Sup Ct refused to extend duty of care.

Question 12

Lawyer as advocate

Answer 12

• Ct concerned that tasks with high value to society not carried out efficiently if threat of civil action for negligence always present, immunities for liability must be carefully reviewed otherwise society suffer if work or skill no longer available
  -Rondel v Worsley 1969 - H of L held barrister not sued by client in respect of conduct of case in Ct and immunity extended to preliminary work connected with proceedings.
  -Saif Ali v Mitchell 1980* - held immunity applied for pre-trial work which was immediately connected with conduct of case in Ct.
  -Arthur J S Hall & Co v Simons 2000 - ruled no longer enjoy it for civil proceedings. 3 appeals, in negligence against solicitor advocates, immunity had been built upon that given to barristers and agreed that one immunity now stand without the other. Rondel was not followed, as Ct said no longer reflects public policy.
• Brings legal profession in line with developments in professional negligence which affected other practitioners. Could be argued that public perception of advocates would be enhanced by possibility that negligent performance of core task could be subject of civil action.
• Doesn’t mean automatically negligent, Ct continue to distinguish between lack of reasonable care and errors of judgment which fell short of negligence.

Question 13

Liability for omissions

Answer 13

-Donoghue v Stevenson 1932 - referred in neighbour test to “acts or omissions”, but means omissions in course of positive action, not same as “pure omission” or non-feasance.
- General principle is no liability for omission unless positive duty to do so - if legal relationship (employer/employee, parent/child) may be positive duty imposed.
-Smith v Littlewoods Organisation Ltd 1987 - def bought building and left it empty, fire started and damaged Cl property, started by vandals (not know to Def), issue whether Def liable for failing to prevent 3rd party causing harm. Ct held while duty to ensure prop not source of danger, would extend to preventing damage by vandals if damage reasonably foreseeable. As Def not know of earlier fires, not liable.

Question 14

Exceptions to general exclusionary rule

Answer 14

1. Def exercises control over Cl, as for example in Reeves v Commissioner of Police for Metropolis 1999 - detainee committed suicide when in police custody, partner claimed neg against police, who denied liability as he wasnt mentally ill. H of L disagreed and said owe duty to assess suicide risks of prisoners, they failed to take reasonable steps to assess risk and were liable.
2. Def assumed responsibility for Cl, as in Barrett v Ministry of Defence 1995 - naval officer very drunk and collapsed after party, office in charge ordered taken to bed and left to recover. Became unconscious and choked on vomit, Ct of A held duty arose from assumption of responsibility. While responsible for drunken state, when officer took control assumed responsibility.
3. Def caused or adopted risk, as in Capital & Counties plc v Hampshire County Council 1997- whether Def actions considered positive act or omissions could be source of dispute. Tindall v Chief Constable of Thames Valley Police 2022 - officers attended RTA, put up “Police slow” sign but removed before leaving - Cl husband involved in fatal head-on accident hour later and said failure of police to clear black ice and warning was negligent, H Ct Def sought to have claim struck out on basis no duty of care, but struck out at arguable case that police made matters worse.
   - Appealed to Ct of A allowed, said not made matters worse they left it as they found it, removal of temp warning sign was failure to confer benefit rather than make worse. - didnt involve assumption of responsibility to other road users in general or Mr Tindall in particular for preventing harm caused by danger of existence of which police not responsible.

Question 15

Liability for acts of third party

Answer 15

• issue of liability for omissions often concerns failure on part of Def to prevent 3rd party causing harm.
• usually no, but general exclusionary rule subject to exceptions as set out by Lord Goff in Littlewoods.
  1. Where there is a special relationship between parties, such as contractual relationship
  2. Where was special relationship between Def and 3rd party. Home Office v Dorset Yacht Co Ltd 1970 - boys escaped detention centre and caused damaged to yachts. Def owed duty of care to prevent 3rd party causing harm as they in position on control.
  -Perl (Exporters) Ltd v Camden London Borough Council 1984 - Def premises left unsecured and thieves got in. Held while result foreseeable, Def not owe duty of care, and likely policy factors as Cl insured.
  3. Where Def negligently causes or permits a source of danged to be created, which is interfered with by 3rd party (Haynes v Harwood 1935)
  4. Where Def knew or had means of knowing, that 3rd party as creating danger on property and failed to take reasonable steps to abate it (Sedleigh-Denfield v O’Callaghan 1940)
• while way of limiting liability, other elements can also prevent liability arising.
  -Lamb v Camden London Borough Council 1981 - Def negligently damaged water main t hat flooded Cl prop, occ moved out and squatters took over house causing damage. Concluded damage too remote consequence of breach of duty.

Question 16

Police activities

Answer 16

• Ct generally draw distinction between operational activities and policy decisions
• area where ECHR very influential, with cases often engaging Art 2 (right to life) and Art 3 (right not to be treated in inhuman and degrading way). English Ct public authorities with obligation to act in way which is compatible with rights contained in ECHR, can be basic right in Art 6 right to fair trial.
• usually concern omissions resulting in harm caused by 3rd party.
  -Hill v Chief Constable of West Yorkshire 1988 - mother of last ripper victim said police failed to use reasonable care in apprehending murderer of daughter. Cl argued was foreseeable that would kill again if not caught and on that basis police owed duty to victim. H of L found no proximity and victim could be anyone, as would restrict exercise of police discretion in investigations
  -Osman v Ferguson 1993 - subject to series of racial attacks by son’s teacher, police aware of attacks and threats to kill but failed to record or caution teacher. Teacher shot father and son, killing father and seriously injuring son. Claim struck out by Ct of A on basis that police had immunity as per Hill, H of L refused appeal.
• Took to ECtHR in Osman v United Kingdom 1998 - argued series of convention rights breached, Art 2, Art 6, Art 8 and Art 13, found no breach of Art 2, or Art 8. Was breach Art 6 as not looked at case, and then breach of Art 13 as no remedy provided, so got £30k award.
• Z v United Kingdom 2002 - children brought claims against local auth for not removing them from parents care, as treatment of them described as worst ever seen. Took local auth 5 years to remove kids but claims failed as H of L held local auth had immunity for actions re neg or breach of duty re childcare. Took claim to ECtHR for breach Art 3 and 6, Ct rejected Osman as not operate as exclusion or immunity, said Art 3 breach but Art 6 not, awarded damages for breach of Art 3
  -Brooks v Commissioner of Police for Metropolis 2005 - Cl key witness to murder of Steven Lawrence and also attacked. Claimed neg against police for way treated and case handled, as suffered PTSD. H of L held no basis for finding that police owed duty to witnesses of crime in way they handled crime investigation.
• show position taken by H of L that police shouldn’t be fettered in routine investigations by threat of action in tort.
• are cases where contrasting approach taken, normally where assumption of responsibility for Cl.
  -Swinney v Chief Constable of Northumbria Police 1996 - held duty arose to take care for safety of informant who had provided police with info re violent crime. Left in unsupervised vehicle and stolen - Ct of A found duty of care owed as police assumed responsibility for informant by accepting info knowing informant would be in danger if criminal found out.

Question 17

Police activities (2)

Answer 17

-Waters v Commissioner of Police of the Metropolis 2000 - psychiatric damage to female police officer in circumstances where o police to give precedence to public. Lord Slynn drew attention to fact that Cl wasnt suing as member of public, but as employee (nearly). Said that it doesnt make claims frivolous, vexatious or abuse of process.
- effect of intro of HRA 1998 can clearly be seen in combined appeals of Van Colle v Chief Constable of Hertfordshire Police 2008 and Smith v Chief Constable of Sussex Police 2008. In Van Colle witness intimidated, police aware but didnt act before he was shot and killed. Family brought claim under HRA 1998 for breach of Art 2 and 8.
Smith - Cl told police re death threats, offensive messages and emails from ex-lover but they did nothing. He was attacked by ex-lover and suffered brain damage. Brought claim for neg.
- Van Colle Ct of A said Art 2 and 8 breached but reduced comp. In Smith found arguable case that facts showed proximity to base duty of care in neg.
Van Colle - H of L said must be positive obligation on national auths to take preventative measures but only when knew or ought to have known at the time of existence of real and immediate risk to life and failed to take measures to avoid risk. Not applied in Van Colle and Def appeal allowed.
- Smith said that duty to take care in circumstances would alter detrimentally manner in which police went about duties. Appeal allowed, and said that liability principle which had considered in Ct of A to effect that common law action for negligence, was close proximity especially as police visited him and assured him investigation was progressing, so could be seen as assumption of responsibility.
-Michael v Chief Constable of South Wales Police 2015 - Cl called 999 and told handler that ex was threatening to kill her, handler heard “hit” so called local police but made no mention of “kill”, called again few mins later, but she screamed and line went dead, police took 10 mins to go to her house, but she was dead. Attacker pleaded guilty to murder, but family claimed for negligence and breach of Art 2, applied for strike out and J first said no, but Ct of A said neg struck out but breach of Art 2 go ahead. Appealed to Sup Ct, but rejected arguments that police owe duty of care where:
1. aware or ought reasonably to be aware of threat to life or physical safety of identifiable person, or member of identifiable small group;
2. member of police gives police apparently credible evidence that 3rd party, identity and whereabouts knows, presents specific and imminent threat to life or physical safety.
.rejected 1st principle by saying hard to see why duty confined to physical injury or death, speculation whether duty improve performance of officers in domestic violence and not public interest for priorities affected, would have potentially significant financial implications for police, and no necessary to develop law of negligence to mirror or go beyond what required in Arts 2 and 3 ECHR.
. rejects 2nd principle as would be unsatisfactory to draw dividing lines according to who reports threat, whether threat credible and imminent or credible and not imminent, whether whereabouts of threatmaker known or not, and whether threat physical or not.
Whether had cause for breach Art 2, depends on what call handler heard.
-Robinson v Chief Constable of West Yorkshire Police 2018 - Cl physically injured when knocked over by 2 officers tried to effect arrest of suspect, sought damages in negligence. Dismissed on basis that while harm reasonably foreseeable and was physical proximity between Cl and Def not fair, just and reasonable to impose duty of care. Sup Ct allowed appeal and made clear never been blanket immunity re operational matters, for omissions police in same position of all Defs or deemed control, found harm reasonably foreseeable and caused by direct physical interface with officers.
- Since HRA 1998 alternative cause of action for when ECHR rights breached. - Commissioner of Police of Metropolis v SSD 2018 where 2 victims of black cab rapist succeeded in claim under s7 HRA 1998 for damages for police for serious mistakes in investigation leading to breach of Art 3, held that Art 3 placed positive duty on police to investigate crimes to ensure individuals are protected against inhuman and degrading treatment - serious failure in conduct of investigation could be sufficient to establish claim.

Question 18

Rescue Services

Answer 18

-Capital and Counties Plc v Hampshire County Council 1997 - appeals asked whether fire service could come into relationship of proximity with owner or occupier of property damaged by fire, to owe duty of care to person re safety of property. Held that attending scene of fire and fighting it, proximity didnt arise, but if fire brigade actively increased the risk of damage, such as turning sprinkler off, duty would arise.
-OLL v Secretary of State for Transport 1997 - coastguard same as fire brigade. Ct made distinction between positive acts and omissions, duty owed for positive, no duty for negative
-Kent v Griffiths 2000 - Ct of A fund duty of care owed to member of public to whose assistance has been called, as soon as call accepted. Ambulance was associated wit rest of health service, rather than other emergency services, whose responsibility is to protect public. Cl was specific person and duty arose to her to attend within a reasonable time- didnt arrive until 40 mins after call, and she suffered cardiac arrest, so no good reason for delay and record altered to show quicker response than it was.

Question 19

Public bodies acting under statutory powers

Answer 19

• generally, Ct reluctant to impose duty of care given that any comp would be payable from public funds and risk of litigation could lead to defensive practices that wouldn’t serve interests of public at large.
  -Stovin v Wise 1996 - H of L considered case where accident occurred at junction where Def view obscured by bank of earth - was known to local highway auth and they had stat duty to maintain highway. Cl sought damages but Ct found stat power to maintain didnt create duty of care in negligence. 2 preconditions needed before failure to exercise stat duty can give rise to private law action in negligence:

1. would be irrational for auth not to have exercised power in circumstances
2. existed clear grounds for discerning policy in statute to confer right to comp to person affected by omission.
   -Gorringe v Calderdale Metropolitan Borough Council 2004 - Cl seriously injured on dangerous road as no road markings but H of L held stat duty to maintain road didnt create duty of care in negligence.
   -X v Bedfordshire County Council 1995 - Def had duty under Children Act 1989 to protect children from significant harm but failed to do so, H of L refused to impose duty of care in negligence on basis not fair, just or reasonable and defence would be harmful. They pursued claim in ECtHR under Z v UK 2002
   -Barrett v London Borough of Enfield 1999 - Claim against auth alleging negligence in connection wth matters in time in care, applied to strike out but H of L refused, Cl had been taken care of local auth at time of alleged negligent acts and omissions, so arguable case duty may have arisen by assumption of responsibility
   -Phelps v Hillingdon London Borough Council 2000 - psychologist employed by local auth didnt diagnose dyslexia and Cl argued deprived of opportunity to benefit from remedial teaching made available if diagnosed. H of L found didnt intend to create damages for statutory duty failure, but allowed appeal on psychologist could be personally responsible. Ct found evidence of breach of duty and damage caused, possibility of direct claim but anticipated not needed as auth acts through employees and agents.

Question 20

Public bodies (2)

Answer 20

-JD v East Berkshire Community Health NHS Trust 2005 - social workers wrongly suspected Cls of abusing kids and Cl suffered psychiatric injury and economic loss, parents argued Def owed suspected abusers duty of care to carry out investigation with due care, but H O L said no duty and interference with family life didnt justify imposing duty.
-Poole Borough Council v GN and Another 2019 - Sup Ct said circumstances when local auth would owe duty of care to protect children from harm by 3rd party. Cl bros, moved and mum subject to asbo, harassment and damage to prop by neighbouring fam who were known to do it, mum complained and one child attempted suicide so review commissioned. Case went to Ct of A and Council argued no duty, appeal allowed and said council not assumed responsibility. Held CA 1989 doesnt create stat cause of action and didnt accept case.

Question 21

Liability for failure to warn of risks of medical treatment

Answer 21

-Sidway v Bethlem Royal Hospital Governors 1985 - Cl had agreed to op to relieve pain in shoulder, with 1% risk of damage to spinal cord which could lead to paralysis - Dr didnt tell her of risk and she didnt ask. Risk materialised and Cl argued if had been told, wouldnt have consented. Dismissed claim as H of L said not whether sufficient info given but whether reasonable Dr would have acted in way Def did. If patient asks specific and direct q of Dr, should get full response. If Dr thinks patient incapable of making choice given all info, justified in withholding some.
-Rogers v Whittaker 1992 - Cl suffered injury to eye as child so blind, Dr recommended treatment to improve cosmetic appearance and possible visibility but didnt warn of risk of damage to good eye, Ct held patient entitled to all info that enables them to make informed decision, so determined by level of importance to patient rather than what Dr disclosed.
- Strong criticism on Sidaway as placed too much power in hands of Drs and not enough in hands of patients.
-Montgomery v Lanarkshire Health Board 2015 - Sup Ct overruled Sidaway. as result of complications during delivery, son born with serious disabilities - Cl sought damages on behalf of son saying Dr responsible for care during pregnancy and labour. Cl had diabetes and more likley to have big babies, so more chance ot shoulder dystocia when natural birth - can be resolved by procedures, Cl had concerns about natural birth but Drs police not routinely to advise diabetics of risk so didnt, as risk was small, but if advised would have opted for C - Section. Ct said test was whether Dr decision to withhold info was reasonable, and it was so rejected.
- Sup Ct allowed appeal and said that patients treated as adults capable of understanding medical treatment uncertain of success and may involve risks - duty on Drs to take reasonable care to ensure patients fully aware. 3 points to take into acc:
1. assess significance of risk fact-sensitive and cant be reduced to percentages
2. to advise, Dr must speak to patient
3. therapeutic exception limited and shouldnt be abused.
Illustrates Cts appreciation of patient’s self determination and ability to understand risks of treatment - Sdrs under clear duty to take reasonable care to ensure patients aware of all material risks.

Question 22

Influence of HRA1998 on liability of hospitals

Answer 22

• often also engage ECHR rights - Defs could be police, local auth or healthcare providers.
• one issue whether hospitals owe different duty depending on status of psychiatric patient.
  -Inner North London Coroner (Takoushis) 2005 and Savage v South Essex Partnership NHS Foundation Trust 2008 - In Savage stated hospital not owe same duties of care to formally admitted and informally admitted patients.
  -Reynolds v United Kingdom 2012 - ECtHR found distinction between formally or informally admitted patients violates Art 2 and 13 as blocks Cl from bringing action in respect of harm caused to informally admitted patients.
  -Rabone v Pennine Care NHS Foundation Trust 2012 - made clear hospitals owe same duties whether voluntary, involuntary, formally or informally admitted.
• Reynolds, don voluntary patient for schizophrenia, assessed as low risk of suicide and assigned to 6th floor room. No history of self harm, tests showed suicidal tendencies subsided but one night jumped out window and died, mum said death result of failure to take care to keep from harming himself, but Ct said not as no arguable cause of action. Instituted claim against UK, and held English law clear not allowing claims for voluntary patients, except due to gross negligence amounting to manslaughter. Held restriction in interpretation of Art 2 and 13.
• Rabone daughter committed suicide while in care of Def trust, suffering depression and admitted on informal basis following suicide attempt, Dr assessed her as high risk for suicide but allowed 2 days home leave and committed suicide on home leave. Cl brought action against trust for negligence and breach of Art 2, neg settled but Ct held no Art 2 duty to prevent it. Ct of A dismissed Cl appeal. Sup Ct disagreed and allwed, said that factor was not formally admitted as patient, but ECtHR said that public auth owed duty to protect from real and immediate risk of suicide and found this risk existed when allowed to go home. Decision to allow her to go home not reasonable decision and trust failed to do all reasonably expected to prevent risk of suicide.
• bereaved parent can claim for own pain and suffering under Art 2 - S1A Fatal Accidents Act 1976 allows it for parents when deceased child was minor - was reason why Cl persisted with it after neg settled.