Negligence: Formulating a Duty of Care Flashcards
Remember the four questions when discussing negligence: 1. Is there a duty of care? 2. Has there been a breach? 3. Is there actionable damage? 4. Are there any defences?
Donoghue v Stevenson (1932)
The ‘Neighbour Principle’ regarding the establishment of a Duty of Care. One must be closely and directly affected by the act, and the act has to be reasonably foreseeable (Lord Atkin, p. 580-1). N.B.: refrain from using this case if you can; use more novel ones when seeking a duty of care.
Hedley Byrne v Heller (1964)
A negligent misstatement may give rise to an action for damages for economic loss. When a party seeking information or advice from another – possessing a special skill – and trusts him to exercise due care, and that party knew or ought to have known that the first party was relying on his skill and judgment, then a duty of care will be implied. This thus provides a very limited circumstance in which one can claim for pure economic loss.
In this case, D (the bank) gave faulty advice as to the creditworthiness of their client.
D v East Berkshire (2005)
‘Wrongs should be remedied’ is not a particularly helpful way of describing the law. The world is full of harm in which the law furnishes no remedy. The policy of law concentrates on compensating the victim for the effect of his injuries, whilst doing little or nothing for ‘others’ (third parties). In other words, D owes a duty of care to C, but not to third parties - who suffer no legal wrong. (Lord Roger, [100-1])
Moreover Lord Brown clarifies that the duty has to be owed to a particular claimant; you cannot have a ‘parasitic’ duty of care (in this case, to the parents of the children). A conflict of interest when finding a duty should be avoided [135]. For this case, it was held to be important that the duty of social workers should exclusively be the safeguarding of children’s welfare [138].
The Nicholas H (1996)
In negligence, the common law “develops incrementally on the basis of the consideration of analogous cases where a duty has been recognised or desired.” (Lord Steyn, p. 236)
Dorset Yacht v Home Office (1970)
Public authorities can owe a duty of care to third parties (in this case, the borstal boys) and thus be liable for their actions.
Anns v Merton (1977)
Lord Wilberforce advocates a two-stage test to establish a duty of care: Was there sufficient proximity? If so, are there any considerations to reduce/negate liability? (p. 751-2). This case was eventually overruled by Murphy v Brentwood (1992)
Robinson v West Yorkshire Police (2018)
The leading, most recent case regarding the establishment of a duty of care. There is nothing in the ratio of any previous authorities which is inconsistent with the police being under a liability for negligence resulting in personal injuries where such liability would arise under the ordinary principles of tort (Lord Reed [68]). Robinson reiterates that the law in this area develops incrementally and analogously with established authority [27].
Moreover, Lord Reed indicates that the Caparo test should not be utilised for every negligence case. We do not always start from ‘Is it fair, just, and reasonable?’ - sometimes we already know that a duty exists [21]. Consequently, the FJS requirements will only be utilised when the Courts have to “exercise judgement” in a novel type of case [27].
Caparo v Dickman (1990)
There was an attempt to sue auditors of a company who negligently produced a company health report. The claim failed as no duty was owed to the claimants in their capacity as potential takeovers.
Duties of care should develop incrementally, and analogously with established past authorities. Caparo modifies (the now overruled) Anns by establishing three criteria for finding a duty of care:
1. Proximity
2. Reasonble Forseeability
3. Fair, Just and Reasonable to Impose a Duty
(Lord Bridge, p. 617-8)
James-Bowen v Commissioner of Police (2018)
This is an example of a ‘novel case’ in the establishment of a duty of care. Thus, the proposed duty must be “tested against considerations of legal policy and judgement”, with regard to the “achievement of justice” and the “coherent development of the law” (Lord Lloyd-Jones, [23]).
Therefore, Caparo is not the ‘grand solution’; it is merely a summary of the existing law and has to be built upon depending on the case.
Darnley v Croydon Health Services NHS Trust (2018)
C turned up at the hospital. He was assaulted and had a head injury. The receptionist - who was not medically qualified - told him that he’s likely to be seen within 4-5 hours. He failed to tell C that a nurse (not a doctor) would see him within 30 minutes. C leaves after 20 minutes. On the way him, he suffers permanent brain damage. By a majority, the CoA held that no duty was owed; however, the SC reversed this decision.
Note that this was decided after Robinson, which saw that Caparo was put ‘back in its box’. As such, you only ‘wheel out’ FJS when no principle applies, no analogous principle applies, and the Court cannot think of anything else to do. So usually, all you have to do is investigate whether there is proximity, reasonable foreseeability, and remoteness: ‘control mechanisms’ that limit liability to an affordable amount society can pay. Moreover, D conceded here that the relationship between C and the hospital began once C entered the premises.
Note the importance of ‘false information’ vs. ‘no information’
Meadows v Khan (2019)
C wished to avoid having a child with haemophilia. So she took a blood test, where D assured her that the results were normal. However, her child was born with haemophilia. Further genetic testing revealed that C was, indeed, a carrier. If she was tested properly, she would have found out that the foetus was affected and terminated the pregnancy. The child was later diagnosed with autism as well. The question was whether that, in addition to damages for the faulty diagnosis and prolongation of pregnancy, C was entitled to claim the costs associated with the autism diagnosis (i.e. what is the scope of a duty of care?)
The Court of Appeal held for D, in that C can only claim for the costs associated with the haemophilia diagnosis. Importantly, the purpose of the consultation was whether C was a carrier of the haemophilia gene, not whether she should be pregnant more generally. Therefore, D did not have the duty to warn C of the general risks associated with becoming pregnant/continuing the pregnancy. The autism diagnosis was a ‘coincidental’ injury. There was thus no adequate link between the negligence and the particular type of loss claimed.
This went against the First Instance ruling, where it was argued that the purpose of the consultation was to provide C with the necessary information so as to allow her to terminate a pregnancy afflicted by haemophilia - and that this extended to preventing the birth of A and all the consequences that brought.
Hill v Chief Constable of West Yorkshire (1989)
An example where the defensive practices argument was used to deny police liability for negligence. It was further held that the police owed no specific duty of care to a member of the general public.
Michael v CC of South Wales Police (2015)
An example where the defensive practices argument was used to deny police liability for negligence (Toulson LJ [121]). Moreover, D (the police) cannot be held liable for the actions of third parties.
In [102], Lord Toulson discusses how the categories of negligence are never closed, and that it is open for the Court to “create a new exception to the general rule about omissions.” It is thus possible in the future to find the police liable for a duty held to potential victims - but this must be done via an incremental process, which involves examining decided cases to “see how far the law has gone and where it has refrained from going…”. It is in this incremental, analogous process that the Court decides whether to extend liability via analogy or whether an earlier limitation is “no longer logically or socially justifiable.” This, in turn, requires examining the overall “coherence” of the law - which inevitably involves a mixture of policy considerations.
In sum, paragraph [102] summarises the Court’s general approach.
White v Chief Constable (1998)
Police accepted negligence with respect to those who died in the Hillsborough Disaster. However, the families of those victims could not claim for psychiatric harm. Due to this, it was considered that it would be ‘unfair’ for the policemen themselves to then have a successful claim (suing for PTSD) - see Lord Hoffmann, p. 510: it would “offend against his [the ordinary person] basic notions of distributive justice. He would think it unfair between one class of claimants and another, at best not treating like cases alike, and, at worst, favouring the less deserving against the more deserving.” As such, neither were considered to be ‘primary victims’.
Lord Goff, in his dissent, argues that one should not ‘reason backwards’ and thus apply distributive justice concerns; one should simply ask: is a duty of care owed? Is D responsible in law for C’s injury? (p. 488)
