THE DUTY OF CARE: NEGLIGENCE & ECONOMIC LOSS; WRONGFUL CONCEPTION AND WRONGFUL BIRTH Flashcards
LEARN FACTS/CASES.
Caparo Industries Plc V Dickman 1990
Caparo advised by auditor, Touche Ross who failed to recognise the fraudulent activity of company, Fidelity, of which Caparo proceeded to buy the company on the basis of this advice. HL held no DOC was owed on the share price drop, causing Caparo a massive loss.
Caparo test established:
- reasonable foreseeable
- proximity of relationship
- Fair just and reasonable
White V Jones
solicitor sued over not executing the will in time.
BECAUSE: there is an assumption of responsibility as he said that he WOULD do it on time.
therefore DOC owed.
Spring V Guardian Assurance
Employer owed a DOC to employee for negligently writing a reference which meant the claimant did NOT get the job.
(applied in Young V Bella)
HM Commissionars of Customs & Excise V Barclays Bank Plc
POINT: must apply an objective test for a DOC in torts: imposed NOT assumed.
They impose a DOC if in making the statement the defendent should have RF that C could put reliance upon it.
PURPOSE: of statement and purpose the C relied on it
CAPARO TEST: special relay between advisor/advisee.
skilled professional in a commercial context giving misleading advice, knowing specific purpose which info is wanted and that person attaches importance to it. THIS RELAY: DOC CONFIRMED.
Rees V Darlington Memorial Hospital NHS
Failed sterilisation: visual handicap thus didnt want a child.
court held McFarlane would be applied.
HL: variation of parent BUT cannot claim as many reasons why parenthood could be difficult.
AWARDED mother for loss of autonomy in being out of control of her reproductive glands.
award for recoginition of wrong done: 15k
NOT compensatory: Per Lord Bingham.
McFarlane V Tayside
HL argued this is contary to public policy. Parents had 4 children, took steps to prevent more thus H had vasectomy which they were told effective: not, child born.
HELD: could sue for damages of pain in childbirth and pregnancy but not for the upbringing of the child.
economic loss:
damage to plaintiff’s property
results directly from personal injury or property damage
pure economic loss
financial damage suffered as the result of the negligent act of another party which is not accompained by any physical damage to a person OR property
consequential financial loss
damage to C personal property
Hedley Burn V Hedler
P were advertising agents, wanted to know if they could give credit to a firm called EP as they booked advertising on their behalf
asked bankers to get EP credit from bankers
in phone convo and by letter said EP was respectably constituted and worth what they had argued.
EP collapsed and C sued in negligence
HL: could bankers be sued for negligence? NO
BCOS: in giving credit references bank disclamed responsibility.
HL discuss a DOC could be owed, meaning if NO disclaimer, there could in principle be a DOC.
relational economic loss:
financial loss that occurs only due to the relationship of claimant and someone else that suffers physical damage to herself or their property.
Relay. that other person suffers damage, causes a relational financial loss to claimant.
OCCURS… pure economic loss which is consequential to a third party or their property
Cattle V Stockton Waterworks.
Cattle V Stockton Waterworks
Concerns a contractor building a tunnel on someone else’s land. The water work company negligently damaged the land, causing it to become flooded. The contractor couldn’t do the work while the tunnel was flooded, but it wasn’t the contractors land. This was held to be a relational loss which he could recover.
not making any money on the job.
THUS, the person tries to get damages : statutory duty doesn’t equate to negligence, if the harm is not of interest.
recoverability of economic loss
CL says generally that one cannot sue in respect of a relational loss
MOST claims fail…
Kapfunde V Abbey National Plc
concerned a doctor retrained by company to carry outa pre-employer medical assessment for a prospective employee
Q: whether doctor owed a duty to prospective employee
CA argued he DID NOT owe a DOC
he did do it negligently, didn’t employ even though it wasn’t true.
IMPORTANT RELAY: Abbey National and doctor, not kapfund, not contractual.
if doctor acting negligently… DOC owed if a patient.
NOT if a third party.
