S2 LESSON 2 (WEEK 2) Flashcards
In 1990 what happen to the futy of care principle and why
re evalution due to the case of Caparo and Dickman
Brief summar y of caparo and Dickman 1990
Dickman audited accounts didn’t do a good job
accounts now made available to the public
Caparo firm invest nearly all theri money 0 company fails
Caparo loses lots of money and wanna pursue the auditors Dickman
in the caparo and dickman case from dickmans POV who were the neighbours
anyone who looked at those accounts - as they were sufficiently close in proximity
what was the question that was raised as a result of the caparo v dickman case
Does firm have responsibility to all those who use the accounts to invest based on the accounts you audtied
what was the re evaluaiton of the cpaapro and dickman case mad eby the courts
the caparo test
the caparo test refrmes what and adds what
the donoghue and stevenson neigh bour principle
and adds a few more checks
what are the 3 checks in the cparo test
HARM HAS TO BE FORESEEABLE
PROXIMITY BETWEEN CLAIMIANT AND DEFENDANT SHOULD BE THERE
JUST FAIR AND REASONABLE
What does Harm has to be forseeable mean
was damage to injury or claimant forseable given the circumnstances
could you imagine it would happen
if you couldnt it is unforseeable and unforseeable harm is not your responsiblity
what does PROXIMITY BETWEEN CLAIMANT AND DEFENDANT MEAN i.e. court says only repsonible if
Court says only responsible for people if sufficient closeness of relationship
Where is the proximity checkpoint also found
in the neighbour principle - people are so closely affected you ought to reasonably have them in your contemplation
what do other definitnos of procimity say it means
closeness in time, space , place
(but its an arguable area )
sometimes we ave a public policy stop gap what does this mean
law found to be working perfectly logically and academically but not working perfectly in terms of operating a state
so the court says a duty of care only imposed on someone if - JUST AND REASONABLE - to impose a duty of care in public interest
okay so if someone owes you a duty of care and it was foreseaable if courts dont beieve it will assist the broaer picture of operation of the state what will hppen
no redress/compensation from harm caused
foreseaablity o f harm case
HOME OFFICE V DORSET YACHT Co 1970
HOME OFFICE V DORSET YACH CO 1970
group of male young offenders
taken to island as part of rehab/sentence
island surrounded by boats (famous for it)
guards left kids unsupervised and went for drink when think young off sleeping
they escape from island in a yacht as mnay
crash into other boats and cause lots of damge
owners not happy and look for someone to seek copensation from q
who do yacht owners pursue and why
home office as got overarching repsonisbilty for young offenders and for administration of justice
young men got no money and guards got no money
do the caparo test on the home office v dorset yach tco that the court did
forseeable - yes - forseeable if put unsupervised group of young offenderson an island surrounded by £££ boats they might bring some boats to harm
proximity - yes - close relationship between home office and those that lost money through yacht damges as direct vitims of home office lack/of actions
just and reasonable to impsoe a duty - yes as awnt state to be properly supervising its young off so worthwhile to find responsibility
home office responsible for damage caused by young offenders who werent supervised
as we need 3/3 in caparo test give example fo hwen home office wouldn’t be charged as this isn’t forseeable
e.g if were supervised at all times but still did yachts
not forseeable that if reamined in supervision they would casued damage
what case do we use for priximity
BOURHILL V YOUNG 1943 - PREGGO FISHWIFE CASE
BOURHILL V YOUNG 1943
Young drives motorcycle and recklessly crashes into car and killed in road
bourhill on bus hears large bang but dont see nathing
gets off to walk home and walks past scene of incidnet (body been removed)
she says at htis point she suffers nervous shock
goes home and has stillbirth baby
she seeks to pursue estate of mr younf
what bourhills reasoning for pursuing the estate of Mr. Young
He should’ve had the people around him in mind when he was driving recklessly, he was responsible to bystanders and people who would encounter the scene
His actions have caused my damage
did court find duty of care in bourhill and young case
no
why didnt court find duty of care in bourhill and mr young case
no proximity in time and place
give an exmaple of what could have changed the analysis of bourhill and young
if she knew ,r young/ saw the incident with her own eyes
proximity is a questiton of
facts of individual case
for proximity what needs to be evident
close proximtiy in
time
space
place
JUST REASONABEL (and FAIR - is interest in wider population rather than onoe individual perosons best interest) case?
HILL v CHIEF CONSTABLE OF WEST YORKSHIRE 1989
HILL V CHIEF CONSTABLE OF WEST YORKSHIRE 1989
serial killer PETER SUTCLIFF of women and girls
lots of people had an encounnter w him so lots of evidence allowing them to come up with an E-fit which was clsoe to serial killer
Mrs Hill found police had lots of opportunities to catch this man and they ddint - lakc of cross r eferencing evidence meant they were negligent - acts and omissions casued hatm to her daighter
discuss how court assessed te hill v chief consti
FORSEEABILTY OF HARM - If police don’t check there massive database of intelligence do we think serial killer may go on to kill many more people - yes
PROXIMITY - do you owe family of victims duty of care not to kill their family memebers - yes
Court not happy with the fair just and reasonableness of this imposition of duty
They create a principle that says - although you may think foreseeable harm taking place you want to impose liability- is it in interest of wider society to do that - they say no
why was it not in interest of widerr society in the hill v chief case
They say - yes there are negligence and failings if we impose this responsibility on the police we are gonna have a less successful police force for everyone casue -
- Police gonna be v defensive about what they do - Might choose to collect less intelligence so don’t have to look thorugh so much - May get absolutely bogged down in claims
Also the idea the police could be respsonsible to every perosn for a failure to catch someone who commited a crime not knowing who their speicifc next victim willl be is just too broad
too big to cope with so state says no to duty fo car
when would police have a responsiblity to protect us
If police do have a specific potential victim in contemplation they have a +ve repsonsiblitiy
e.g. if police know you have an ex partner that Is v violent and you’ve reported them and told them you worried about that they got repsonsiblity to protect you as you identiifed as an indiviudla perosn at some risk of harm - so got some futies to indiviudal but not enormous duty to all potential victims of crime .
to sum up what are hte cases for each stage of caparo test
forseability of harm - home office v yacht co
proximity - bourhill v young
jus reassonable fair - hill v chief constable
what case demoonstrates extent people you encounter in hospital are repsonsible for your well being
Darnley v Croydon Health Servicces NHS Trust 2018
ofc it’s croydon
what happened in Darnley v Croydon Helath
darnley fight on night out got hit in head
friend took him to A&E receptionsit told him it’ll be a 6 hour wait
he goes home and suffers big brian injury which he dont recover
seeks to pursue hospital saying they had a duty of care to him as the parient who suffered the injury
run through the court test on darnely v NHS Croydon
forseaable - is it forseeable if you leave early cause not been able to see A and E and you have head injury you might hae brain injury - yes
sufficiently proximate - nurse mad ebig error as receptionsit told his friend ther was sa huge wait but there was rule a triage nurse/doctor must see you within 20minutes and darnley left and if he ha d knwn he wouldve stayed longer
also nurse and patient to close relationship
fair ust and reasonable to say ahd a duty of care - yah and imposed neglgience as fell sort of futy when they didnt explain that you were gonna be triaged
in the darnley v croydon health services when would ther not hahve been a duty of care
if nurse explained to him there was gonna be a triage nurse to see him in 20 minutes but he left anyway
as he free to make good and bad choices
establishing a duty of care
give an example of someone who owes a duty of care
motorist to otehr road suers
in what context are we talking about duty of care
common law duty of care in a new situation where no duty of care like this been established in law before
what test is a common law test in dealing w new situations
caparo test
if thers not what two things do we go to the caparo test
if not a judicial president or statutory law setting out these things
whats the metntal cheklist we go through when we wanna know if a duty of care is being estbalished
is there a duty of are already set out somewhere in law statutory law e.g parliament made some laws such as landords ar erepsonsibel to tenants
if not there may be a duty of care that exists in common law e.g nettleship and western estbalishing drivers have a duty of care to each other i.e leartner driver repsonible to other road users and passengers at the same standard as a normal driver
then if it not and its a new novel case we go to ther caparo 3 stage test
sum up how we establish duty of care
check if got stautory duty of care
common law duty of care
if not and its new caparo 3 stage test
