Special Duty Problems

Question 1

I: Omissions and 3rd Parties
General principle + Exception

Answer 1

No duty for pure omissions (Sutradhar v Natural Environment Research Council) unless:
1. A assumed a responsibility to look after B (Assumption of responsibility)
2. A put B in danger of suffering harm (creation of danger)
3. A was in control of a dangerous thing/person that posed a foreseeable threat to B (control)

Question 2

I: Omissions and 3rd Parties
Gorringe v Calderdale [2004]

Answer 2

C was driving a car and saw a bus, she took a sharp break and went into the bus lane causing an accident. HOL found it was an omissions case as the council had no duty to inform the driver of the dangerous road ie by placing a slow sign. The council can only be found liable under tort if the legislature has a clear intention of placing a duty of care under tort for the act. This liability does not flow from public law

Question 3

I: Omissions and 3rd Parties
Yetkin v London Borough of Newham [2010]

Answer 3

C, pedestrian was injured while crossing road that runs through a central reservation. In the summer they were tall shrubs and as a result she could not see the oncoming traffic so she sued the council. The court found that the council was liable as it was a positive act as they planted the plants and failed to matintain them.

Question 4

I: Omissions and 3rd Parties
Assumption of responsibility

Answer 4

No duty: Michael v CCSWP [2015]:
call handler made no promise as to how quickly they would respond.

Duty owed: Stansbie v Troman [1948]
Assumption of responsibility arose from contractual relationship

Question 5

I: Omissions and 3rd Parties
Creation of Danger

Answer 5

Hardy v Brooks [1961]
D was driving when a cow appeared into his path, D hit the cow and it died. He drove away and did not inform the authorities of the cow. Another driver caused a collision due to this and injured himself. He sued to the first driver.the court found there was a duty of care as he did not inform the authorities.

Pure omission, they just made the situation worse without acting.

Question 6

I: Omissions and 3rd Parties
Creation of danger or occasion for danger provided?

Answer 6

Difficult to distinguish
Mitchell v Glasgow CC [2009]:
Neighbours renting a council flat managed by D. G and M did not get along. G killed M as the cc informed G of his behahaviour and he got riled up. The question was whether the cc should have warned M of the possible violent actions G may have taken. The court found there was no such duty.
Council had not done enough for it to be correct to say that it had created a danger to Mitchell. The council did not assume a responsibility for M.

Question 7

I: Omissions and 3rd Parties
Control of dangerous thing/person

Answer 7

Carmarthenshire CC v Lewis [1955]
Child wondered out of nursery and into the road, caused accident and man died, wife sued the cc who owned the nursery. The court did find a duty

Question 8

2. Public Policy
   The diceyan approach

Answer 8

‘Public bodies owe no duty of care by virtue only of the fact that they have statutory powers or public law duties’ (Lord Hoffmann)

Capital & Counties plc v Hampshire CC [1977]
CA: ‘In our judgment, the fire brigade are not under a common law duty to answer the call for help, and are not under a duty to take care to do so. If, therefore, they fail to turn up, or fail to turn up in time, because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable’.

Question 9

2. Public Policy
   The policy approach

Answer 9

The courts will find that a public body owed C a duty of care to save her from harm unless there is some reason of public policy why it would be undesirable to find the public body was subject to such a duty.

Hill v CC of West Yorkshire Police [1989]
‘no special characteristics or ingredients beyond reasonable foreseeability of likely harm which may result in civil liability for failure to control another man to prevent his doing harm to a third…that is sufficient for the disposal of the appeal.’ (Per Lord Keith of Kinkel)
However, he went on to observe that there were policy reasons why it would be undesirable to allow the police to be sued for failing to catch criminals:

Question 10

2. Public Policy
   Kent v Griffiths [2001]

Answer 10

Ambulance arrived late, Kent lost her child. Court found a duty was owed. Fire fighters have a duty to the world at large, the hospital however owes a duty of care to individuals. Duty of care was established because the ambulance is an extension of the doctors, and there is a duty of care between patients and doctors.

Question 11

2. Public Policy
   Anns v Merton

Answer 11

The lessees of a block of flats (Cs) found that faulty foundations had resulted in cracks in their flats
Cs sued Merton LBC (D) for damages for the negligent exercise of its statutory powers by approving foundations that were not deep enough and failing to inspect them properly
Held (House of Lords)
D was liable for negligence
The cracks were regarded as physical damage to property and hence actionable

Question 12

2. Public Policy
   Kent v Griffiths

Answer 12

An ambulance service when responding to a call is not acting in pursuance of a public duty but a duty to the caller

A doctor called for an ambulance and was assured that it was on its way, but the ambulance did not arrive until well after ‘target’ time
As a result, C suffered respiratory arrest
C sued D ambulance service for negligence
The doctor gave evidence that if she had been informed of the delay she would have driven C to hospital

Question 13

2. Public Policy
   D v East Berkshire NHS Trust

Answer 13

D v East Berkshire NHS Trust [2004] (MAK v Dewsbury NHS Trust; RK v Oldham NHS Trust):

Local council took custody of child under suspicion of abuse, the scars were indeed just an allergic reaction. The parents sued as the distance between mother and child caused distress. The HoL found the health care professionals owe a duty of care to the children but not the parents as their interest are different. The local council can only owe a duty of care to the children this includes health care professionals.

Question 14

2. Public Policy
   Robinson v CC of West Yorkshire Police [2018]

Answer 14

Reasserted the incremental approach to duty of care
Ordinary principles of negligence, namely the omissions rule and its exceptions, apply to public authorities
The police do not benefit from any special immunity from liability based on public policy

Two police officers injured an old woman (C) by falling on her while chasing a drug dealer
C claimed negligence
D argued that the police are immune from negligence liability when exercising their powers of investigation or crime prevention on the ground of public policy

Question 15

2. Public Policy
   Michael v CC of South Wales Police [2015]

Answer 15

The ordinary principles of negligence should be applied public authorities
The police does not owe a general duty of care to the public at large for the discharge of their duties

The deceased’s ex partner had come to her home, violently took her current partner and told her that he will return to hit her
The deceased made a call to the police, the call was initially graded as requiring an immediate response but was accidentally downgraded in urgency
The resultant delay in response resulted in her death

Question 16

3. Liability for Psychiatric Injury
   Actionable Harms

Answer 16

Bereavement
Fatal Accident Act 1976, s1A.

Mental distress (anxiety, worry, grief etc.)
Has to be medically recognised psychiatric harm (not mere negative emotion)

Pure psychiatric injury (or nervous shock, severe psychological harm): medically recognised psychiatric harm
c.f: Consequential mental harm recoverable under the head of ‘pain, suffering and loss of amenity’ (non-pecuniary damages). Attia v British Gas [1987] 3 All ER 455

Question 17

3. Liability for Psychiatric Injury
   Un-actionable Harms

Answer 17

Fear of future claimants

c.f Page v Smith
For primary victims, it is sufficient that the risk of physical injury is reasonably foreseeable even if no physical injury occurred
Laid down the ‘egg-shell personality rule’

C was involved in a car collision caused by D’s negligence which caused no physical injury
As a result of the accident, C suffered from chronic fatigue syndrome which affected him on and off for 25 years but has now became permanent
D argued that it is not foreseeable that a person of normal fortitude would suffer psychiatric illness

C’s claim succeeded

Question 18

3. Liability for Psychiatric Injury
   Primary Victims

Answer 18

A victim whose physical safety is imperiled or one who reasonably believes s/he was imperiled by D’s negligence

It is a two-party situation: Victim — Defendant

Two forms:
A. the ‘zone-of-danger’ primary victim
B. the ‘guilt-ridden’ primary victim

Question 19

3. Liability for Psychiatric Injury
   Primary Victims
   Page v Smith [1996]

Answer 19

B will be able to sue A for his psychiatric illness provided he can show that A owed him a duty to take care not to do X based on the fact that A’s doing x would result in B’s being physically injured even if there was no physical injury.

Question 20

3. Liability for Psychiatric Injury
   Primary Victims
   Zone of danger

Answer 20

Young v Charles Church Ltd [1997]: C was a primary victim as he was in the area of physical danger created by D’s negligent system of work in allowing scaffolding to be erected near ‘live’ power-lines

Question 21

3. Liability for Psychiatric Injury
   guilt-ridden’ primary victim

Answer 21

W v Essex CC [2001]
Involuntary participants who were placed by D’s negligence in a position where they unwittingly contributed to the accident and developed psychiatric injury from the feeling of guilt can be treated as primary victims

Question 22

3. Liability for Psychiatric Injury
   Secondary Victim

Answer 22

C is not a direct participant but merely witnesses accident or arrives in aftermath of accident.
No duty of care owed to C in principle, unless C shows ‘something more’ (e.g close and loving relationship, immediate aftermath, etc…).

Question 23

3. Liability for Psychiatric Injury
   Alcock mechanisms– secondary victims
   (You need all 5 elements)

Answer 23

Relationship proximity

Physical proximity

Whether the psychiatric injury was a reasonably foreseeable consequence of the acts or omissions constituting the breach of duty to the primary victim

Shock

Temporal proximity

Question 24

3. Liability for Psychiatric Injury
   Rescuers
   White (Frost) v CCSYP [1999]

Answer 24

Modified the rescuer rule
secondary victim must satisfy Alcock mechanisms.

Question 25

3. Liability for Psychiatric Injury
   Rescuers
   Chadwick v British Railways Board [1967]

Answer 25

distinguished (two-party situation, in a dangerous zone).

Question 26

3. Liability for Psychiatric Injury
   Employer responsability

Answer 26

Hunter v British Coal Corp [1999]:
D had not owed the C a duty of care not to cause the accident that had triggered his depression because the C had not witnessed the accident (Dooley v Cammell Laird and Co Ltd [1951] narrowed to limit the category of D)

Question 27

3. Liability for Psychiatric Injury
   Stress at work

Answer 27

Walker v Northumberland CC [1995]: C’s first nervous break down made his second breakdown reasonably foreseeable

Question 28

4. Pure Economic Loss
   General Principal

Answer 28

C cannot sue D in negligence if a D’s positive act resulted in the C suffering pure economic loss, namely a loss does not result from the C’s being injured or the C’s property being harmed.

Question 29

What type of loss is recoverable/not recoverable

Answer 29

C’s pure economic loss is a consequence of a negligently performed service and C has suffered a setback to her pecuniary interest:
- can be recovered by Hedley Byrne

C has acquired a tangible item of property which then turns out to have been defective in some way and therefore worth less than was originally thought
denied by the courts after Murphy v
- Brentwood DC [1991]

Question 30

Economic loss is recoverable if it results from physical injury to C’s person or property.

Answer 30

Conarken Group Ltd v Network Rail Infrastructure [2011]
D who damaged rail system liable to C for amounts it was required to pay to operating companies for loss of service while lines being repaired. If C is liable to third-party for loss of use of its property, can recover from D even though third-party could not.

Shell UK Ltd v Total UK [2010]
C who has equitable ownership may be able to recover resulting economic loss if legal owner is joined to suit.

Question 31

Pure economic loss is not recoverable - Spartan Steel v Martin

Answer 31

D contractors of the electricity board negligently drove a power shovel though a cable which supplied electricity to C’s factory, causing a power cut
C sought to claim damages for the following losses:
Reduction in value of the metal that had to be removed from furnace before it solidified and damaged machinery
Consequential loss of profits from the damaged metal
Loss of profits due to the downtime that prevented factory work from being carried out

Only damages for physical damage and consequential loss were awarded
The loss of profits from the downtime is a pure economic loss that is not recoverable

Question 32

Negligent services and the Hedley Byrne Principle

Answer 32

Hedley Byrne and Co Ltd v Heller [1964]: had there not been a disclaimer attached to the info given, D would have owed a duty of care and would have been liable for C’s economic loss.
even if the loss is purely economic

Question 33

Hedley Byrne & Co Ltd v Heller and Partners[1990] HL :
A duty of care could arise in pure economic loss situations where advice was given…

Answer 33

A special (for ‘fiduciary’) relationship of trust and confidence exists between the parties; and

the party preparing the advice/info has voluntarily assumed the risk (express or implied); and

there has been reliance on the advice/info by the other party; and

such reliance was reasonable in the circumstances.

Question 34

Advice given without responsibility

Answer 34

When A made it clear that the advice is given without responsibility, there is no liability.
NG: there is a duty if D is subject to s2 (2) of the Unfair Contract Terms Act 1977,

Question 35

Un reasonable reliance on advice

Answer 35

Steel v NRAM Limited [2018]
Did D owe a duty of care to C despite the fact that D was acting for the other party on the loan transaction?

Held (Supreme Court)
C’s claim failed; D did not owe a duty of care to C

No duty is owed by a solicitor towards the other party in a transaction who is not their client

Question 36

Advice directly given to advisee knowing that the advice will be relied on

Answer 36

D is likely to be liable:
In Hedley Byrne, Lord Reid observed that:

If he chooses to adopt the last course he must, I think, be held to have accepted some responsibility for his answer being given carefully, or to have accepted a relationship with the inquirer which requires him to exercise such care as the circumstances require’.

Question 37

Advice directly given to advisee knowing that the advice will be relied on

Welton v North Cornwall DC [1997]

Answer 37

Welton v North Cornwall DC [1997]
It does not depend on whether D intend to assume a responsibility but will instead on whether D gave the impression that he intended to assume a responsibility.

Question 38

Advice given on social occasions

Answer 38

No duty is owed to the advisee if the advice is given on a social occasion. But if the advisor explicitly assures the advisee that she can safely rely on the advice, then duty is owed.

Chaudhry v Prabhakar [1989] (duty is owed as D discouraged C from seeking an alternative opinion on the condition of the car and had therefore explicitly indicated to her that his advice could be safely relied on)

Question 39

advice given by non-expert

Answer 39

If D makes it obvious that he is not an expert, the courts will usually find that D did not indicate to C that his advice could be safely relied on.
Mutual life and Citizen’s Assurance Co Ltd v Evatt [1971]

Question 40

advice given by third party

Answer 40

Williams v Natural Life Health Foods Ltd [1998]
the lack of contact between Mistlin and C meant that Mistlin did not indicate to the C that they can safely rely on his advice

Question 41

Hedley Byrne: The Extended Principle (voluntary assumption of responsibility)

Answer 41

If A has indicated to B that B can safely rely on him as a professional to perfor m a particular task with a certain degree of care and skill and B has so relied on A, A will owe B a duty to perform that task with a professional degree of care and skill.(Dicta in Hedley Byrne and Henderson v Merrett Syndicates Ltd [1995])

Question 42

Extended Hedley Byrne general scenario

Answer 42

Most of them deal with the following kind of situation:
A is a professional – that is, he holds himself out as being able to preform a particular task T with a professional degree of care and skill;
As a result, B is led to believe that A can be safely relied on to perform task T with a professional degree of care and skill;
B asks A to perform task T for her;
A knows that B’s request is made in the belief that A can be safely relied upon to perform task T with a professional degree of care and skill and B knows that A knows this
A agrees to perform task T for B.

Question 43

Hedley Byrne: The Extended Principle
Degree of care and skill

Answer 43

A will not owe B a duty with any more care and skill than he indicated he could safely rely on to exercise in performing the task.
Philips v William Whiteley Ltd [1938] (the C’s claim that D, a jeweler, should exercise a standard of care as a reasonably competent surgeon in piercing her ears was dismissed)

Question 44

difficult case: Smith v Eric S Bush [1990]

Answer 44

This case extended the duty of care for negligent misstatement to third parties who are not parties to a contract nor direct recipients of advice.

C obtained a mortgage with a bank for the purpose of purchasing a property
The bank commissioned a report from D surveyor, C paid the bank for the cost of the report
The report led to C purchasing a house which was later found to need expensive repair owing to subsidence
The report contained a disclaimer that neither the bank nor surveyor warranted that the report would be accurate

Held (House of Lords)
D was liable to C in negligence
The exclusion of liability clause was found to be void for unreasonableness pursuant to s11 Unfair Contract Terms Act 1977