Negligence I: Duty, Breach & Damage Flashcards
From which case does the neighbour principle come from?
Donoghue v Stevenson
How has the test for finding a duty of care developed?
- Anns v Merton LBC created a two stage test which asked was harm forseeable as to bring the claimant within the neighbourhood principle? If yes, was there any good policy reason to deny the existence of the duty?
- NOTE, this test received much judicial scrutiny, foreseeability is not enough alone, there must be proximity between the two
- Confirmed in Marc Rich & Co that foreseeability alone is insufficient to create a duty
- Caparo v Dickman then established the three stage test for confirming a duty of care
What is the Caparo test?
- Proximity
- Obvious risk of harm / foreseeability
- Is it fair, just and reasonable to impose a duty
For proximity, the person must not be one of an indeterminate class of persons, Goodwill, the test is ultimately a factual one based on case. HOWEVER, this does not mean that we should we try to find duties in all cases. If there is an analogous situation, then rely on that case authority
What does the case law say about the liability of public authorities?
- Robinson v CC of West Yorkshire: The ordinary principles of negligence apply to public authorities, no special immunity for the police
- Poole BC v CG: Public authorities do not owe a duty of care merely because they have statutory duties or powers
What does Bolton v Stone tell us about the standard of care required?
- Likelihood of harm must be taken into account, the greater the risk the greater the need for precaution to be taken
- Remote possibility of injury is not enough, there must be sufficient probability that it would occur
What does the The Wagon Mound No2 say in relation to a risk?
Where the person was aware of an incident and ought to have known of the risk, and did not take steps to prevent this when such steps presented no difficulty or expense they will be seen as being negligent
Why was the standard of care different in Paris v Stepney Borough Council?
D had fallen below the standard of care by not providing protection to someone with a greater injury risk (this would be taken into account against the reasonable man)
How does the law treat learner drivers, children and professionals?
- Nettleship v Weston: No change for learner drivers
- Mullin v Richards: Lower standard of care for children
- Bolam: No negligence if a doctor / professional acts in a way accepted as proper by a responsible body of individuals in that career (extended in Bolitho to say practice accepted must be based on logical and defensible grounds)
How has the Bolam test subsequently developed and changed?
Montgomery v Lanarkshire Health Board Where the issue is not one of medical expertise and knowledge the patient should be free to choose what form of treatment, if any, to undergo
What is the rule for adults with mental impairments?
Mansfield v Weetabix
Where D’s mental capacity is impaired by an illness which he is unaware of and he is unaware he is impaired at the time of the negligent act, the standard of care must shift to what is expected of a reasonable person with such a condition
CONTRADICTS
Dunnage v Randall
Decided mental illness should not be considered in determining the standard of care.
What are the requirements for psychiatric harm for secondary victims?
McLoughlin v O’Brian / Alcock
1. A close familial relationship between the claimant & victim
2. There must be close proximity to the accident in both time and place
3. Shock suffered must come through sight or hearing of the event or its immediate aftermath
How have the rules on psychiatric injury been developed?
Alcock v Chief Constable of South Yorkshire (Hillsborough)
1. Psychiatric illnesses caused not by shock, such as by the experience of losing a loved one, attracts no damages
2. Damages for psychiatric shock from merely being informed of, or reading, or hearing about the accident are not recoverable
3. Mere mental suffering, although reasonably foreseeable, if unaccompanied by psychiatric injury, is not recoverable
4. There is yet no authority that a negligent person or his estate is liable for psychiatric shock sustained as a result of self-inflicted injury or death by the negligent person
What further developments have been given to the law on pyschiatric harm?
Alcock
* A loving relationship is presumed with husband/wife and parent/child, other situations burden of proof is on the C
* Watching the accident on TV was not sufficient for the third element (potentially could in different situations, e.g. if live)
White v CC
Having the status of a rescuer does not give an exception to the Alcock rules
Attia v British Gas
Psychiatric harm may be recoverable if suffered as a result of physical harm to property, likely would have to be grave like a home fire
What is the difference between primary and secondary victims?
Page v Smith
* Primary victims are those involved in the accident
* Secondary victims are those not directly involved but who suffer as a result of what they see or hear
What are the rules on involuntary participants, i.e. those who feel responsible for injury?
Monk v PC Harrington
1. Belief that the claimant had himself caused or been responsible for the accident must be a reasonable one
2. The justified feeling of control over the process which unwittingly led to death / injury
How has the case of Paul developed the law on pyschiatric injury?
Paul v Royal Wolverhampton NHS Trust
* No longer a requirement of sudden shock, no medical basis for such idea
* No requirement of witnessing a ‘horrifying event’ as there is no available scale of horror
* Requirements not satisfied in this case because there was no accident or immediate aftermath, which is external, there was only the materialisation of a medical condition
What is the general rule on omissions in negligence?
Usually no liability for omissions, there is no general duty of care to guard against harmful conduct of third parties (Smith v Littlewoods)
What is the liability of public authorities for omissions?
Gorringe v Calderdale MBC
A private law duty in tort cannot be inferred from the mere existence of statutory power or duty, must be shown there is a Parliamentary intention to create a duty. In the absence of a right to sue for breach of the statutory duty, it would be absurd to hold that D was under a common law duty
What two cases confirm the liability of public authorities such as the police?
- Michael v Chief Constable of South Wales: Police do not owe a general duty of care to the public at large nor do they owe a duty of care towards victims of crime
- Robinson v Chief Constable of West Yorkshire: The ordinary principles of negligence apply to the police, no special immunity
What case shows an exception to the general rule that emergency services do not owe a general duty of care?
Kent v Griffiths: Where assurance is given to a caller that help is on the way they have a specific duty to that person
When will a private party be liable for an omission?
Smith v Littlewoods gives 4 cases in which a private party will be liable for a failure to act / actions of a third party:
1. Relationship between the parties creates an assumption of responsibility on behalf of D for the safety of C
2. Relationship of control between D and a third party that causes the damage (e.g. Dorset Yacht case)
3. D creates or permits a source of danger to be created, which is interfered with by third parties and this was foreseeable
4. D fails to remove a source of danger which he is aware of
How has the recent case law developed the principles for a duty of care in relation to omissions?
Tindall v Chief Constable of Thames Valley Police
* No duty on the police to warn of a risk as it was not reasonably foreseeable that if they did not warn they would be making things worse. No reason to know that a driver had been warning people prior
* There was no special case here to make the position better as they had not assumed responsibility, the police had no special status and they had not taken control
* No general duty of care to confer benefits on people. If this is not a case of worsening does a special condition apply? Is there an assumption of responsibility
HXA v Surrey County Council
* Social workers had not assumed responsibility for children, the case was analgous to the Poole decision
* However there can be some cases in which a local authority will assume responsibility, e.g. where care order is obtained and authority assumes parental responsibility or their safety has been entrusted to them
* Reliance is not always needed, e.g. where there is a child with learning difficulties it would be wrong to require reliance
