Tort Law - Duty of Care

Question 1

How do we determine if there is a DOC?

Answer 1

Robinson - established precedent. If not, can we find analogous duties of care via the Caparo Test?
1. Harm was reasonably foreseeable?
2. Relationship / proximity between the parties?
3. Is it fair, just and reasonable to impose a DOC
[Policy - despite having the same starting point as private individuals, it is very rare to impose DOC on local authorities or emergency services, especially where the DOC would conflict with the local authority’s statutory powers]

Question 2

Generally, there is no DOC for pure omissions (e.g. a mere failure to act and save a drowning person), but what are the exceptions)?

Answer 2

• Statutory duty
• Contractual duty
• D assumes responsibility for C (Barrett - officer lets drunk pilot choke to death)
• D has sufficient control over C (Reeves - police lets suicidal man in custody die); teachers with children
• D has created a risk through his omission, even accidentally (Golden v Hargreaves - a naturally occurring fire caused damage but the harm was reasonably foreseeable and D did not act). This includes a DOC to rescuers.

Question 3

Generally, there is no DOC to protect C from a third party (TP), but what are the exceptions?

Answer 3

1. Sufficient proximity between D and C
   - contractual relationship - Stansbie, where home decorator did not secure C’s home against burglary
   - if Cs were identifiable victims at greater risk of harm than rest of the public (Yacht owners when Borstal boys had a history of escape / property damage)
   - Police assuming responsibility to protect C from the criminal she accuses (Swinney)
   - Cannot impose DOC where murder victim was part of a larger unidentifiable group of potential victims (Hill)
2. Sufficient proximity between D and TP
   RECENT CASE LAW SUGGESTS BEING AN IDENTIFIABLE VICTIM IS NOT ENOUGH - D must give words or actions to assume a responsibility to safeguard C.
   - Example: Mitchell - tenant attacked because he made complaint about his neighbour, who was informed.
   - Example: Poole - Even if the local authority had the power to take the children into a care home, this would not create a DOC because the local council did not assume responsibility for the children.
   - Supervisory relationship (Borstal boys case)
3. D creates a danger
4. The risk created by TP occurs on D’s land, and D should have known, and mitigated that danger

Question 4

What is the difference between consequential economic loss and pure economic loss?

Answer 4

Consequential economic loss stems directly from personal injury (lost wages) or property damage (factory closure) but pure economic loss does not.

Question 5

Give some common examples of where a DOC arises.

Answer 5

• Road users owe a duty to other road users (Nettleship v Weston)
• Medical professionals (Cassidy v Ministry of Health)
• Employers to employees for
• Teachers to supervise children
• Where D puts victims in danger, it is reasonably foreseeable that C might come to rescue them and C is owed a DOC and it is NOT a risk that breaks causation, NOR a self-taken risk (volenti non fit injuria) (Baker v TE Hopkins)
• Police owe the public a DOC to protect them from reasonably foreseeable harm when making arrests
• D owes a duty to rescuers when D has created a risk or danger (Alcock / White)
• Police to (suicidal) inmates in custody
• Local authority owed child DOC re. educational services in respect of undiagnosed dyslexia
• Where naval officer assumed responsibility for drunk pilot who choked to death in his sleep
• Where D creates a danger, even accidentally (e.g. creates fire on C’s property, or turns the water sprinklers off)
• Architect, assisting her friend for free, owes a DOC re. her services (Burgess v Lejonvarn)

Question 6

What are the DOCs, if any, owed by the 3 emergency services?

Answer 6

Ambulance - must respond to 999 calls within a reasonable time, but can exercise discretion when dealing with more urgent cases.

Fire Brigade - no duty to attend a fire, but if they do, they cannot make it worse through positive acts (e.g. turning off water sprinklers).

Police - no duty to respond to emergency calls, but owe duties, for example, if assumed or by control over the C (e.g. Reeves, the suicidal inmate where D failed to pick up an emergency call and Reeves died).

Question 7

If D puts victims in danger and someone comes as a rescuer to assist them, does D owe the rescuer a DOC?

Answer 7

The rescuer (C) is owed a DOC and it is NOT a risk that breaks causation, NOR a self-taken risk (volenti non fit injuria) (Baker v TE Hopkins)