Tort of Negligence: Duty of Care Flashcards
Elements of a cause of action in negligence
- D must owe C a duty of care
- D must have breached the duty of care
- The breach must have caused damage that is not too remote
The tort of negligence sometimes deals with relationships between strangers
Duty of care (conceptual framework)
Winterbottom v Wright (1842)
In earlier days, the original tendency was to limit C to a claim under his contract and to rule out any attempt to rely on an obligation arising under a contract to which C is not party (The Privity of Contract Fallacy)
C contracted with PG to drive a coach, which was supplied by D to PG another contract which provided that the coach was to be kept in a fit state. C argued that D negligently conducted himself that he was injured when the coach collapsed.
Held: the only safe rule is to confine the right to recover to those who enter into the contract; if we go one step beyond that, there is no reason why we should not go fifty… if C can sue, then every passenger, or even any person passing along the road who was injured by the upsetting of the coach, may bring a similar action! C should fail (the floodgate argument)
Donoghue v Stevenson [1932]
C’s friend purchased a bottle of ginger beer for C’s consumption. The dark green colour of the bottle made it impossible to see its contents. C discovered the partly decomposed remains of a snail in the bottle and claimed that she suffered shock and severe gastro-enteritis as a result. D (café drink manufacturer) argued that C had no cause of action.
Lord Atkin: The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘who is my neighbour?’ receives a restricted reply. The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question (neighbour principle).
Lord Macmillan: the fact that there is a contractual relationship between the parties does not exclude the co-existence of a right founded on negligence as between the same parties which is independent of the contract. An injured railway passenger can sue the railway company either for breach of the contract of safe carriage or for negligence in carrying him. This type of case is a special instance of negligence – by reason of the very fact that D places himself in a relationship with all potential consumers of his commodities, and that relationship he assumes and desires for his own ends imposes upon him a duty to take care to avoid injuring them.
Lord Buckmaster (dissenting): if one step, why not fifty?
Commentary: three different interpretations are possible:
1) Narrow view: it simply overturned previous case laws that a manufacturer does not owe any duty to a consumer
2) Middle-way view: there is not one single way to negligence. Negligence arises in categories, which are not closed.
3) Broad view: the Atkinian view
Grant v Australian Knitting Mills Ltd [1936]
C bought long underwear from a retail shop. D(manufacturer) supplied the goods to the retailer. There was presence of chemicals in the goods which made C in bed for 17 weeks and a further 3 months in hospital after a relapse. Held (PC): D was liable to C. The question of the possibility of intermediate examination is a question of causation, not duty.
What is the importance of establishing a duty of care?
Commentary by:
- Howart,
- Buckland,
- Oliphant
• In modern tort law, fault, causation and damage will all be irrelevant if it cannot be proved that D owes a duty of care to C.
- Howarth: Duty of care cases are really about giving D an immunity against liability in negligence
- Buckland: the duty of care is an ‘unnecessary fifth wheel on the coach, incapable of sound analysis and possibly productive of injustice’
- Oliphant: the duty of care is a ‘control device’ for determining when D will be placed under a generalised duty to exercise reasonable care in respect of their conduct, and held liable in damages for breach, as opposed to giving specific advice to D as to how they should have acted in a given situation.
should common law jettison DOC?
D v East Berkshire Community Health NHS Trust [2005]
- Lord Nicholls
- Lord Rogers
- commentary on function of DOC
- response to Lord Rogers
- Lord Nicholls: the idea that the common law should jettison the concept of duty of care is attractive, but is likely to lead to an unnecessary period of uncertainty because there are types of cases where a person’s acts do not render him liable in negligence even though his loss may be foreseeable. Unless replaced by a control mechanism which recognises this limitation, this is unlikely to clarify the law.
- Lord Roger: the world is full of harm for which the law furnishes no remedy. A trader can destroy his rival’s business and owes him no duty of care – competition is regarded as operating to the overall good of the society.
Commentary: the function of DOC is to determine whether or not C has suffered loss that is recognised by law. It allows not just a distinction between actionable and non-actionable damage, but also for an intermediate category of damage actionable in some cases. Whether or not a DOC arises also depends on other ‘complexities (e.g. how the loss was caused, who caused it, is there a public law dimension, fairness, justice and reasonableness etc).
Not sure that I agree with Lord Rogers - it is a matter of degree - competition can lead to toxic cultures whereby competitors, rather than working in flourishing, cooperative networks,
Not beneficial to consumers (may distrust advice given), not beneficial to financial wellbeing of distributing wealth or even mental wellbeing of employees.
- though could such extremes be caught by different mechanisms i.e. malpractice? Arguably, the case law provides such a code of conduct thus we can dispense with the taxing task of writing up such a code.
Additional requirements have been developed for the existence of a duty of care
Anns v Merton LBC [1978]
C was suing the Council for approving dodgy building work - foundations of the house were too shallow. Did D owe C a duty of care in respect of the way the regulatory tasks were carried out?
Held: the defendant did owe a duty of care to ensure the foundations were of the correct depth.
Lord Wilberforce: The two stage test for determining a duty:
1) Is there a sufficient relationship of proximity or neighbourhood such that C is in D’s reasonable contemplation?
2) Are there any reasons which suggest that there is no duty of care? (The defendant may put forward policy considerations to negate liability)
Additional requirements have been developed for the existence of a duty of care
Caparo Industries plc v Dickman [1990]
C purchased shares in Fidelity Plc in reliance of the accounts which stated that the company had made a pre-tax profit of £1.3M. In fact Fidelity had made a loss of over £400,000. Caparo brought an action against the auditors (D) claiming they were negligent in certifying the accounts. Held: No duty was owed due to insufficient proximity. Lord Bridge: The law has moved on, the Anns approach might lead to the failure to weigh all relevant considerations in considering whether a DOC should be imposed. There should not be a simple formula as a test of liability. The law should be developed incrementally, Three stage test:
- That harm was reasonably foreseeable
- That there was a relationship of proximity
- That itisfair, just and reasonable to impose a duty of care (onus is no longer on D)
The most important concern in the third limb is the ‘floodgates argument’. The ‘overkill’ concern is that the imposition of a DOC might encourage detrimental practice by potential Ds.
Policy factors have thus to be considered and may sometimes influence the finding of a DOC. Police immunity is common:
Hill v Chief Constable of South Yorkshire [1989]
C’s daughter is the victim of a serial killer (Yorkshire Ripper). C argued that if the police had conducted the investigation properly her daughter would have been alive. D argued that there is no duty of care in respect of the detection of crime.
Held: D did not owe C a duty of care - D had immunity: the police owes no legal duty of care to individuals affected The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. Insome instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime.
Commentary:
the courts indeed do not have the adequate empirical evidence or expertise to evaluate claims with any degree of scientific rigour, but is it questionable whether the weighing of competing policy is something best left to Parliament.
Beever: if judges insist on making policy choices, the legislature should seize control of the common law of negligence and replace it with statute and supplant judges with democratically accountable officials.
Policy factors have thus to be considered and may sometimes influence the finding of a DOC. Police immunity is common:
Osman v Ferguson [[1993]; Osman v UK[1999]
The teacher stalked and killed the child’s father and injured the child. The child (C) brought a personal injury claim he suffered as a result of the police force’s failure to apprehend the teacher earlier or to provide adequate protection. The police argued that they owed no DOC to C. EWCA
Held: Although the Court was satisfied that it was reasonably foreseeable that harm would result and that there was a sufficient closeness of proximity, the case of Hill v CC of Yorkshire had laid down, as a matter of public policy, a blanket immunity on the police from such actions (the Hill immunity).
ECtHR: The Court found there had been a violation of Art 6 .The blanket immunity provided by Hill v. CC Yorkshire constituted a disproportionate restriction on the applicant’s right of access to a court or tribunal.
Policy factors have thus to be considered and may sometimes influence the finding of a DOC. Police immunity is common:
Smith v Chief Constable of Sussex Police [2009]
C (victim of violent assault) suffered serious physical injuries as a result. C had been in contact with the police about the death threats but the police did not look at any of the messages and took no steps other than tracing the source of the messages. Would a claim in negligence be struck out?
HL Held: the core principle (the Hill immunity) is that the discharge of the function the police owes no legal duty of care to individuals affected (affirmed in Brooks v CPM). Imposition of the liability principle upon the police would induce in them a detrimentally defensive frame of mind. Same logic as Hill. Remedy is therefore denied.
Commentary:
it is important to note that the police immunity is NOT blanket immunity. Where the police have assumed responsibility to C, a DOC might still be owed: Swinney v CCN. This falls outside the Hill immunity.
Policy factors have thus to be considered and may sometimes influence the finding of a DOC. Police immunity is common:
Z v UK [2001]
A local authority failed to separate four children from their mother even though it was clear that the children were being subjected to an unacceptable level of abuse and neglect over a four-year period.
Held: the authority had a positive obligation to remove the children as soon as they became aware of abuse that might amount to inhuman or degrading treatment.
Other types of immunity (policy factor)
Hall v Simons [2002]
ϖ abolished the immunities enjoyed by barristers and solicitors in respect of their conduct of litigation.
Held: There would be benefits to be gained from the ending of immunity. First, and most importantly, it will bring to an end an anomalous exception to the basic premise that there should be a remedy for a wrong. There is no reason to fear a flood of negligence suits against barristers. The mere doing of his duty to the court by the advocate to the detriment of his client could never be called negligent. Indeed if the advocate’s conduct was bona fide dictated by his perception of his duty to the court there would be no possibility of the court holding him to be negligent. Moreover, when such claims are made courts will take into account the difficult decisions faced daily by barristers working in demanding situations to tight timetables.
Other types of immunity (policy factor)
Jones v Kaney[2011]
ϖ — expert witnesses instructed by a party to litigation can no longer enjoy immunity against actions in negligence brought by the party.
There was a prolonged discussion of the ‘chilling effect’: if an expert witness is at risk of claims of negligence, he will be reluctant to be witness and be reluctant to give evidence contrary to their client’s interests.
SC: immunity is removed, arguing using the Hall v Simons reasoning. No immunity is necessary to ensure that the expert will fulfill his duty to the court.
Dissenting: policy arguments should not be used to justify this maverick decision. Judges do not know whether insurance is available – the judges should maintain the status quo and let Parliament make any necessary changes to a well-established immunity.
Other types of immunity (policy factor)
Smith v MOD [2013]
ϖ C got friendly-fried and argued that the MOD had negligently failed to provide them with adequate protective equipment (e.g. training).
Held: There is a long-standing policy that, in real or preparatory combat situations, soldiers owe no duty to take steps to protect their colleagues from the risk of friendly fire as the threat of liability might take soldiers’ minds off the task in hand. However, in this case, there is no immunity outside combat situations – MOD may owe the soldiers a DOC. The case is not struck out and has to go to trial.
Commentary: DOC takes into account policy reasons – fairness, justice and reasonableness.
Other types of public/legal policy factors in ‘fairness’, justice and reasonableness’
XA v YA [2011]
C (32) argued that when he was a child (18), his mother owed him a DOC to take reasonable steps to stop his father’s beatings. The special allegations of negligence were that the mother failed to get injunctive relief, in failing to leave the family home with the child, and in failing to take him to care.
CA: a mother does not owe a child a DOC in respect of the violence of the father. When C is arguing for a novel DOC, the courts should be very cautious about finding a DOC, taking into account into policy issues. It is doubtful that the imposition of the DOC would improve the lives of children. Imposing DOC on the mother will make it more difficult for the family
Other types of public/legal policy factors in ‘fairness’, justice and reasonableness’
McFarlane v Tayside [2000]
ϖ C was to undergo a vasectomy.
C acted on the professional advice of D but C became pregnant and delivered a child. C claimed damages associated with the pregnancy and birth and claimed the costs of rearing an unwanted child.
Held: the mother would only be entitled to damages in respect of the pain and inconvenience of pregnancy and childbirth. She could not recover the costs of raising the child as the doctors do not accept responsibility for these economic losses. Such costs can only be recovered under an appropriate contract. On the grounds of distributive justice, such costs, if awarded, will not satisfy the requirement of being fair, just and reasonable. (legal policy)
Other types of public/legal policy factors in ‘fairness’, justice and reasonableness’
Parkinson v St James [2002]
ϖ CA Held: although parents were not able to recover the costs of upbringing and caring for a normal, healthy child from the health authority or doctor, since such claims did not satisfy the requirements of being fair, just and reasonable, they might be entitled to an award of compensation for the extra expenses associated with bringing up a child with a significant disability, since the birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon’s negligence.
My commentary:
This is not fair, just and reasonable! Hale notes that notwithstanding the risk of inadvertently sending a message that a disabled child amounts to a possible claim in tort, whereas a healthy child does not, the economic reality for parents is that a disabled child DOES cost more, and to deny a claim may impede the parents from providing to the child’s specialist (and expensive) needs. The issue, however, is why not take this further? Practically speaking, rich parents may be able to support single disabled child whereas a poorer parent of 5 may not, hence their decision to have a vasectomy. Thus, in the latter case, the needs of the newborn child and its siblings is more severely inhibited by not granting a remedy. Theoretically, the infringement to autonomy is almost equivalent. Even healthy children may impose a burden
– nb see medical law articles on this
Other types of public/legal policy factors in ‘fairness’, justice and reasonableness’
Rees v Darlington[2004]
C (blind) did not want the burden of raising a child. She went through a negligently performed sterilisation operation and gave birth to a healthy child whose father wanted no part in its upbringing.
Held: no duty was owed in respect of the upbringing of the baby. The additional costs of upbringing arising from C’s blindness are also not recoverable. Yet, C, as a sufferer of a wrong, should be awarded a conventional sum of 15,000 GBP as a measure of recognition of the wrong.
Other types of public/legal policy factors in ‘fairness’, justice and reasonableness’
Re Pleural Plaques Litigation [2007]
asbestos case: C suffered from pleural plaques (symptomless thicknesses of the membrane of the lung) – indication that one is exposed to asbestos. Did the pleural plaques constitute damage for the purpose of a negligence claim? The understanding was that they are.
HL: symptomless changes to the body do not constitute the damage to found negligence.
- Lord Hoffman: the ‘appreciably worse-off’ test.
(see details of his judgment) - Lord Scott: not sufficient damage to sustain a tort action
Duty of care (psychiatric illness)
McLoughlin v O’Brian [1983]
C suffered nervous shock after a car crash caused by D’s negligent driving in which her husband and children were seriously injured. C had been at home at the time of the accident and arrived at the hospital only two hours after the accident. There, C witnessed scenes of her family which were ‘distressing in the extreme’. C claimed to have suffered severe shock, organic depression and a change of personality. Did D owe C a DOC in respect of C’s psychiatric harm?
Held:
Lord Wilberforce: foreseeability of nervous shock was NOT enough to establish liability of D. An extension of the law here may i) lead to a proliferation of claims ii) be unfair to D as imposing damages out of proportion to the negligent conduct complained of iii) greatly increase evidentiary difficulties and tend to lengthen litigation iv) only be made by the legislature. In ‘aftermath’ cases, where there is not immediate presence, account must be taken of the possibility of alterations in the circumstances… a strict test of proximity by sight or hearing should be applied by the courts, in addition to proximity of space and time.
Lord Bridge: the ‘floodgate’ argument has been greatly exaggerated [by Lord Wilberforce]. Any attempt to define the limit of liability by requiring, in addition to reasonable foreseeability, that C should have witnessed the relevant accident and come upon its aftermath and thus have had some direct perception of it, will impose a large arbitrary limit of liability.
Duty of care (psychiatric illness)
General requirements
- Recognised psychiatric injury
For all types of DOC in respect to psychiatric illness to arise, the psychiatric illness must be a recognised psychiatric illness (RPI), but not free-standing mental injuries such as grief, distress, anxiety or shock
ϖ Alcock v Chief Constable of South Yorkshire [1992] — In the Hillsborough football stadium tragedy, 96 people died and hundreds more were injured due to the negligence of the police. Friends and families of V (some were at the scene, some were at home) claimed to have suffered post-traumatic stress disorder (PTSD) as a result of their various experiences (some witnessed the events unfold, some saw live TV coverage, some identified the bodies). D admitted negligence to V only, and not to V’s friends and families.
Held: C must establish a recognised psychiatric illness, if C’s physical harm is not suffered by psychiatric means (i.e. the psychiatric illness is unaccompanied by physical harm). The court will defer to medical evidence.
Commentary: Mulheron: the distinction between compensatable and non compensatable conditions seems rather fine in some cases. A lower threshold of ‘grievous mental harm’ should be adopted.
ϖ Page v Smith [1996] — chronic fatigue syndrome is a RPI
Duty of care (psychiatric illness)
- what is the significance of being classified as either primary or secondary victim
- e.g. case - Held
- what elements have to be shown to be a SV?
- Different requirements of proof follow
ϖ Alcock v Chief Constable of South Yorkshire [1992] — Lord Oliver:
A primary victim is one involved mediately or immediately as a participant. To show that D owes a primary victim a DOC, only reasonable foreseeability has to be shown!
A secondary victim is one who is no more than a passive and unwilling witness of injury to others. Here, the friends and families are not in the zone of danger, and therefore they are only secondary victims.
- Held: D does not owe C a DOC due to the lack of proximity in time and space even though C traveled to the mortuary to find their love ones, for to show that D owes a secondary victim (SV) a DOC, these all have to be shown:
- i) Proximity of relationship: a close tie of love and affection to a primary victim
ii) Proximity in time and space: proximity to the event or its immediate aftermath
iii) Proximity of perception: witnessing the event with their own unaided senses
iv) Caused by shock: the psychiatric injury must be caused by a shocking event
Duty of care (psychiatric illness)
Primary victim (PV)
- Definition
- must there be physical injury for the PV to recover? - Alcock v CCSY [1992]
- different types of participants - McFarlane v EE Caledonia [1994]
- facts
- held
- Stuart Smith re class of PV
- Objective approach - commentary
- PVs are those involved immediately as participants in the traumatic event, who are within the range of foreseeable physical injury.
- PVs who suffer PI due to reasonable fear of injury, even if not in fact imperilled, can also recover. - Lord Oliver: there are a few types of participants. Sometimes a PV is one who is physically imperiled by D’s negligence and suffers PI as a result, a PV can also be a rescuer or innocent agents of traumatic events.
- C (employed as a painter on an oil rig of D). C was off duty and witnessed a series of massive explosions and destruction occurring on the rig (Piper Alpha fire disaster). The closest C came to the fire to render assistance was 100m. C claimed damages for PI.
- Held: C could recover for nervous shock caused by reasonable fear of death of physical injury even if not in fact imperilled. However, in this case, it was not established that C had really been in fear for his own safety. Hence, C was a SV.
- Stuart-Smith LJ: the class of participant (PV) includes those who are ‘in the actual area of danger created by the event, but escapes physical injury by chance or good fortune’ as well as those who ‘are not actually in danger, but because of the sudden and unexpected nature of the event, reasonably thinks that he is’. But for PV to succeed, the requirement that D should have reasonably foreseen that in person in the position of C might suffer some physical injury is still present. An objective approach is to be used to determine whether C is actually in the zone of danger, which will enable him to claim that he is a PV/participant. - Commentary: this objective approach varies in different cases, and so the consistency of judicial rulings on foreseeability cannot be assessed.
- NB different rules apply (possibly) if D knew of C’s vulnerability!
Duty of care (psychiatric illness)
- What must PV of PI have to show?
- Page v Smith [1996]
- facts
- held
- difference between fortitude of SV vs PV?
- what must be shown for PV to recover damages?
- does it matter whether physical or psychiatric injury was foreseen?
1.
(a) D has reasonably foreseen that he might suffer some personal injury (which will suffice to establish a DOC owed to PV in respect of his PI)
(b) PV was in the zone of danger
- D negligently crashed into C’s car. C felt exhausted and the exhaustion continued and he never recovered. In the following 8 years C had not yet returned to work as he suffered ME.
- Held: C was well within the range of foreseeable physical injury and was therefore a PV. The distinction between primary and secondary victim is to create a control mechanism, otherwise a negligent D might find himself being made liable to the whole world! For SVs, there are control mechanisms of proximity and objective foreseeability by D of shock to a person of normal fortitude or ‘ordinary phlegm’. However, none of these above mechanisms apply to a PV, where D takes V as he finds him even if an ordinary person would not have incurred PV’s injury: eggshell skull rule.
Nevertheless, to hold that PV can recover damages for a PI, these things have to be shown:
1) D must have reasonably foreseen that PV might suffer personal injury: if there is no such foreseeability, D owed PV no DOC. Hence, provided some kind of personal injury was foreseeable, it did not matter whether the injury was physical or psychiatric, as D would be under a DOC to avoid causing personal injury to C. But there is no need to ask whether there is foreseeability of injury shock, and it is irrelevant that PV did not in fact suffer any external physical injury. The illogical distinction between physical and psychiatric injury has been abolished!
2) PV is in within the range of foreseeable physical injury (zone of danger)
Duty of care (psychiatric illness)
- Commentary by Law Commission re distinction between PV and SC?
- Who held that the categories of PV and SV is not closed?
- commentary by Oliphant
- Lord Goff in White v CC South Yorkshire re Page
- using foreseeability
- Commentary: Law Commission says that the distinction between PV and SV is ‘more of a hindrance than a help’ and there is confusing inconsistency as to how the line should be drawn.
- This is a response to W v ECC where Lord Slynn held that the categorization of claimants as PV and SV is not finally closed! If the PV category is enlarged, this might undermine the proximity requirements for SVs under Alcock.
- Oliphant: the scope of the zone of danger is unclear: if everyone on the street thinks momentarily that a disabled plane might come down on them, will they be termed as being ‘under a zone of danger’ (within the range of foreseeable physical injury) even though the plane goes away? If yes, then there will be a large number of claims arising out of a single incident.
- Lord Goff (in White v Chief Constable of South Yorkshire): the decision dethroned foreseeability of PI from its central position as the unifying feature of this branch of law by making a distinction between PV and SV. Only for SVs was it still necessary for C to establish foreseeability of PI where the PV only had to show the foreseeability of injury, whether physical or psychiatric – there has been no previous support for any such approach. The eggshell skull rule has been misunderstood…the maxim only applies where liability has been established.
JY: what if C’s PTSD is caused more by genetic makeup? If C suffers personal injury and then develop PTSD, it is unfair to make D liable! What if the SV line of cases be united by ‘foreseeability’? The court is obsessed by the PV/SV element. Foreseeability removes this whole distinction and looks into the culpability of the act.
Duty of care (psychiatric illness)
Young v Charles Church [1997]
ϖ C’s workmate was electrocuted, dying instantly. On hearing a loud bang, C looked behind and saw the dead man and the flames around him. C ran to the security office to summon help and returned to the scene. He suffered PI and claimed damages as a PV of D’s negligence. Held: D was liable and C was indeed the PV. C was within the area of physical danger, even though C seems to have been unaware of the physical danger until after the accident had occurred. Commentary: dispensing with any requirement that PI should result from fear for one’s physical safety blurs the distinction between PV and SV and is likely to result in anomalies.
Duty of care (psychiatric illness)
Corr v IBC Vehicles [2008]
- facts
- held
- Lord walker
- C’s husband (H) sustained physical injury in an industrial accident, developed depression and committed suicide 6 years later.
- Held: Applying Page v Smith, the suicide was a manifestation of depression H suffered consequent upon a head injury sustained as a result of D’s negligence. It did not matter whether H’s psychiatric harm was foreseeable as a result of D’s negligence as long as some kind of personal injury (physical or psychiatric) was foreseeable. In this case, D conceded that H’s PI was reasonably foreseeable.
- Lord Walker: Page v Smith provides a much simpler test for judges…even if it sometimes results in compensation for damage in the form of psychiatric squeal which might not have been reasonably foreseeable.
Duty of care (psychiatric illness)
Where PI is developed with regard to a future event…
- does page apply?
- authority?
- facts
- held
- Page does not apply!
- Grieves v Everard &Ors[2008]
- C suffered clinical depression after knowing that he was at risk of suffering asbestos-related illness in the future as a result of his negligent exposure to asbestos dust in the workplace. C developed symptomless pleural plagues, and the knowledge of triggered C’s PI.C sued his employer D.
- Held: affirmed the correctness of Page v Smith. However, even though physical harm was a foreseeable consequence of D’s negligence, C could not claim damages because Page did not apply to a case where PI was triggered by fear of something that might happen in future rather than an immediate response to a past event.
Duty of care (psychiatric illness)
Is the category of PV closed?
- authority
- facts - authority
No
- W v Essex County Council [2001]
- C were foster parents who had young children of their own. C told the Council that they would not adopt children with sexual abuse history, but the Council negligently gave them a child with a history of sexual abuse, who caused C and C’s children PI.Held: did not strike out the case. The law regarding psychiatric injury was still developing and the categories of primary victims are not closed. It was arguable that the claimants may be primary victims based on a feeling of responsibility in unwittingly bringing the abuser in to the house. Furthermore the concept of the ‘immediate aftermath of the incident’ has to be assessed on the particular factual situation. Therefore the issues should go to trial. Commentary: is there really proximity of time and space? This contradicts other decisions. - Re Organ Retention Group Litigation [2005]
ϖ C in a group action were all parents of deceased children on whom post mortems had been conducted by doctors to establish the causes of death. C alleged that, although they had consented to the post mortems, the organs of the children had been removed, retained and subsequently disposed of without their knowledge. C suffered from PI. Held: D had a duty to consult the C. C was a PV.
Duty of care (psychiatric illness)
Secondary victim (SV)
A SV has to satisfy all these conditions
6 elements
(i) reasonable foreseeability that SV would suffer psychiatric illness specifically (objective)
(ii) proximity of relationship
(iii) proximity in time and space
(iv) proximity of perception
(v) caused by shock
(vi) person of customary phlegm
Duty of care (psychiatric illness)
(i) reasonable foreseeability that SV would suffer psychiatric illness specifically (objective)
1. King v Phillips[1953] —
2. Bourhill v Young[1943] —
3. Alcock v Chief Constable of South Yorkshire —
Has to show that reasonable foreseeability that the SV would suffer psychiatric illness specifically (objective test: would a reasonable person in the defendant’s position have foreseen that someone in the claimant’s position might be injured?)
- Lord Denning: there can be no doubt since Bourhill v Young that the test of liability for shock is foreseeability of injury by shock. But this test is by no means easy to apply. The test is not what the negligent party himself could reasonably have foreseen, for he rarely has time to foresee anything. The test is what a “hypothetical reasonable observer could reasonably have foreseen”: see Bourhill v. Young, 66 per Lord Wright
- I cannot accept that D could reasonably have foreseen, or, more correctly, the reasonable hypothetical observer could reasonably have foreseen, the likelihood that anyone placed as the appellant was, could be affected in the manner in which she was.
- the test of reasonable foreseeability is whether the hypothetical reasonable man in the position of the defendant, viewing the position ex post facto, would say that the shock-induced psychiatric illness was reasonably foreseeable
Duty of care (psychiatric illness)
(ii) Proximity of Relationship
- The SV must have a ‘close tie of love and affection’ to the PV
- Presumed proximal relationships: parent and child, spouses, engaged to be married couples
- For all other relationships, C must evidentially rebut the prior presumption that ‘there is NO close tie of love and affection’ between he and the primary victim (PV). Sibling relationships, for example, can be very varied!
- Exception
¬ Alcock v Chief Constable of South Yorkshire — (Lords Ackner and Keith)Held: there might be liability of D in respect of a bystander SV if the accident witnessed by the SV is ‘particularly horrific’
(i.e. air-balloon crashes but live TV (rather than stream) such that akin to being there)
- Weir: this requirement is messy in practice and risks causing ‘perplexity to advisers and embarrassment to litigants’
- Oliphant: this requirement ‘closes the door’ for bystanders such as rescuers who have no relationship with the PV.
Duty of care (psychiatric illness)
(iii) Proximity in Time and Space
1. McLoughlin v O’Brian [1983] —
2. Taylorson v Shieldness Produce Ltd [1994] —
3. W v Essex County Council [2000] —
4. Galli-Atkinson v Segha l[2003] —
5. Taylor v Novo [2013] —
• The SV must be ‘proximal to the event or its immediate aftermath’
- The ‘aftermath’ of an accident extends not only temporally forward from the accident, but also spatially away from the scene (to the hospital for example) during the period of immediate post-accident treatment. Lord Wilberforce: a two-hour delay period was at the margin of the time span for recovery. Commentary: arbitrary timescale!
- PV was taken to hospital after a serious accident and was transferred to the intensive care unit. C (parent of PV) was not allowed to visit him whilst PV was receiving treatment. C was later allowed to do so, and claimed that D owed him a DOC in respect of their PI.Held: C, although in attendance at the hospital when he arrived, saw little of their son PV until several hours later when he had been stabilised. The psychiatric injury suffered, according to medical evidence, grew out of a whole sequence of events extending over an appreciable period of time and could not be attributed to one shocking event.
- the concept of the ‘immediate aftermath of the incident’ has to be assessed on the particular factual situation. Lord Slynn: it is not certain that the parents would have to come across the abused or abuse immediately after the sexual event. Commentary: this is a very strange proposition of law!
- C’s daughter was killed by a car which dangerously mounted the pavement. C went looking for her at the cordoned area and was told V was dead. C then went to the mortuary and saw her daughter’s disfigured body. Held: this constituted an uninterrupted sequence of events. The ‘aftermath’ extended to the moment at which C left the mortuary. Commentary: this is inconsistent with Alcock, where C did exactly the same thing – they went to the mortuary to identify the bodies but were denied the aftermath doctrine!
- D was negligent, which lead to a workplace accident in which PV was injured and died from the injury 3 weeks later. C (SV) is PV’s daughter, and developed post-traumatic stress disorder and sued D. Was C (SV) sufficiently proximate to the accident or its ‘immediate aftermath’? Held: No, D was too distant from the accident. Proximity was not made out in this case as the C was not present at the accident at work or anything which could sensibly be considered as its immediate aftermath.
Duty of care (psychiatric illness)
(iv) Proximity of Perception
1. Alcock v CCSW [1991] —
2. Palmer v Tees Health Authority [2000] —
3. W v Essex County Council [2001] —
• The SV must ‘witness the event through their own unaided senses’ i.e. their own, and direct, sight and hearing
- watching the event on live TV was NOT equivalent to direct perception. Commentary: 1) what is the rationale behind the distinction? Why isn’t it enough for someone to see on TV that his relative has been severely injured? 2) How much perception is required? Is witnessing a generalized chaos as good as witnessing the actual injury of the relative? 3) What if PV was not injured but still gave SV PI? Would SV still be able to recover damages?
- C’s daughter was abducted and her body was found 4 days after her abduction, during which period C suffered from visions and nightmares. C later saw the body. Held: C, whatever she feared, had had no sudden appreciation by sight or sound of the horrifying event. It was irrelevant that her fears were subsequently confirmed by events.
- parents were only told of the abuse of their child, without actually witnessing it or its immediate aftermath. Held: their claim was not struck out. Commentary: this is inconsistent with the requirement of proximity of perception
Duty of care (psychiatric illness)
(v) Caused by shock
1. North Glamorgan NHS Trust v Walters [2002]
2. Galli-Atkinson v Segal[2003] —
• The SV’s PI must have been caused by a shocking event, ‘the sudden appreciation by sight or sound [of which] violently agitates the mind’ (per Lord Ackner in Alcock)
- C (SV)’s son was in hospital suffering from liver failure which was the result of D’s admitted negligence in failing to diagnose his condition. When C knew that the son was suffering from serious brain damage, she agreed to his life support system being turned off and he died. It was agreed that C had suffered shock and a RPI, namely pathological grief reaction, as a result of what she had witnessed and experienced over a period of some 36 hours between her son’s seizure and his death. Held: there was shock which violently agitated the mind. In this case there was a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for the claimant was undoubtedly one drawn-out experience. Accordingly, the 36-hour period constituted one entire event, albeit made up of discreet events.
- C (SV) went looking for her daughter and found a road cordoned off by police. C was then told her daughter had been killed by a car. She went to the mortuary and saw her daughter’s disfigured body. Held: this series of events was sufficiently linked in time and space to allow C to recover compensation.
Duty of care (psychiatric illness)
(vi) Only if D ought to have foreseen injury by shock to a person of ‘customary phlegm’(objective test again)
1. Page v Smith
2. Bourhill v Young [1943]
- this requirement is further control mechanism
- It is here, as elsewhere, a question of what the hypothetical reasonable man, viewing the position, I suppose ex post facto, would say it was proper to foresee. What danger of particular infirmity that would include must depend on all the circumstances, but generally, I think, a reasonably normal condition, if medical evidence is capable of defining it, would be the standard… The driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may from time to time be expected to occur in them, including the noise of a collision and the sight of injury to others, and is not to be considered negligent towards one who does not possess the customary phlegm
Duty of care (psychiatric illness)
Does a PV owe a duty of care to a SC in relation to self-inflicted harm?
- Greatorex v Greatorex [2000] —
• A PV does not owe a duty of careto a SV in relation to self-inflicted harm. As a matter of policy there was no liability in negligence where the PV was the negligent D himself and the shock to C arose from witnessing the D’s self-inflicted injury
- C (fire officer) was called to the scene of a car accident in which his son had been injured through his own negligence. C sued his son for damages for the PTSD he consequently sustained.
Cazelet J: D who imperilled/injured himself owed no duty to C who suffered PI as a result. This is based on the policy reason not to create a further limitation upon an individual’s freedom of action. To allow family member B to sue family member A suffered as a result of B having been present when injury was sustained upon A will open up the possibility of a particularly undesirable type of litigation within the family. It will be productive of acute family strife!
Duty of care (psychiatric illness)
Rescuers
- facts of white v CC South Yorkshire?
- Held (Lord Hoffmann)
(i) should the employment relationship be a reason for allowing C to recover damages for PI in circumstances in which he would otherwise be a SV and not satisfy the Alcock control mechanisms?
(ii) is there any authority for the special status of rescuers? - Why shouldn’t rescuers be treated specially? (2 reasons)
- Lord Griffiths (dissenting on the rescuer question):
No special treatment is given to regard rescuers as a distinct category of PVs.
White v Chief Constable of South Yorkshire [1999]
- police officers sued D in respect of the PTSD they suffered as PV after the Hillsborough football stadium disaster where they witnessed chaotic and gruesome scenes and actively rendered assistance as ‘rescuers’, who, it was said, always qualify as PVs. D denied he owed a DOC to the officers.
- Held (Lord Hoffman):
(i) No, this is not a relevant distinction and it would be unfair to give C the right to a larger claim merely because the disaster was caused by the negligence of other policemen.
(ii) There is no authority which decides that a rescuer is in any special position in relation to liability for PI. Hence, there is no logical reason why rescuers should be given special treatment as PV when they were not within the range of foreseeable physical injury and their psychiatric injury was caused by witnessing or participating in the aftermath of accidents which caused injury to others. - Rescuers are not to be treated as PVs because
(i) this will blur the line between bystanders (such as that in Alcock who also gave assistance) and PVs, and
(ii) even if the increase in claims is modest, the extension would be unacceptable as it would offend his notions of distributive justice. He would think it unfair that policemen should have a right to compensation while the bereaved relatives are sent away with nothing. - it would be a very artificial control to say that rescuers can only recover if they were in fact in physical danger. The public would not find it offensive that those who suffered disabling PI as a result of their efforts to rescue V should receive compensation.
Duty of care (psychiatric illness)
Unwitting agents
- Dooley v Cammell Laird [1951] —
- Hunter v British Coal [1999] —
- commentary
• Unwitting agents of misfortune (those who believe they are the cause of another’s’ death and develop PI as a result)
- C (crane operator) suffered an aggravation of a RPI when the rope carrying his load suddenly broke as a result of D’s negligence and fell down. C felt so wretched afterwards, thinking that someone would be injured, that he was unable to return to work as a crane operator. Held: C was entitled to damages, as C’s PI was a foreseeable consequence of D’s failure.
- C (vehicle driver) accidently struck a water hydrant whilst manoeuvring his vehicle, causing water to flow out. C went off to find a hose-pipe, leaving X at the scene. When he was 30m away from the scene, the hydrant burst and was told that X was dead. C thought he was responsible and subsequently suffered clinical depression. The accident in fact occurred due to D’s negligence in failing to maintain the vehicle clearances at the site. Held: C was NOT entitled to damages. There was no sufficient proximity in time and space or perception for C to be properly described as an unwitting participant. As a SV therefore, he could not satisfy the Alcock proximity tests.
According to Alcock, a PV can be (i) those who are caused to fear physical injury to themselves; (ii) those who believe that they are about to be, or have been, the involuntary cause of another’s death or injury (unwitting agents), as they all are ‘mediate or immediate participants in the traumatic event’
Commentary: this represents an attempt to limit the category of liability to unwitting agents of misfortune.
Duty of care (psychiatric illness)
Stress/special relationship cases
• To recover for PI in relationship cases, C only has to show that his psychiatric injury could be reasonably foreseen. This dispenses with theAlcock requirements.
Duty of care (psychiatric illness)
Stress/special relationship cases
Frost v Chief Constable of South Yorkshire [1999]
where the employer’s negligence creates a sudden, shocking event, employees who suffer a psychiatric reaction from observing that event must satisfy the criteria for a ‘secondary victim’ under Alcock, and could
Duty of care (psychiatric illness)
Stress/special relationship cases
McLoughlin v Jones [2002]
- facts
- held
- Elias J
- there was an allegation that C was a bad landlord, threatening and beating up tenants to get their rent from them in cash. C was charged for a criminal offence and sentenced to prison. C claimed that his solicitors (D) had acted without the evidence, especially the witness-statement of a person who knew that C was not present when the beatings allegedly took place. It soon became apparent that C was actually an upstanding member of society and C suffered psychiatric injury as a result of the imprisonment and loss of reputation due to D’s negligence.
- Held: solicitors have a pre-existing duty of care towards their clients. There was a contractual relationship between C and D which allowed C to recover damages.
- Elias J: on the evidence that the claimant suffered from a major depressive disorder as a result of his conviction and imprisonment. However, he held that this was not a foreseeable consequence and struck out the claim. The question was whether, with hindsight, it could be said to be reasonably foreseeable that the defendant’s failures in two particular respects – to advertise and to engage an inquiry agent – would lead a person of ordinary fortitude, in the circumstances of the case, to suffer an identifiable psychiatric illness!
Duty of care (psychiatric illness)
Stress/special relationship cases
Hatton v Sutherland [2002]
- facts
- held (Hale)
- Hale, relevant factors
- rule
- Lord Walker
- Commentary
- C (teacher) suffers a RPI brought about by the stress of workload. C tried to talk to her employers on many occasions.
- Held: Hale LJ: All employers have a duty to take reasonable care for the safety of their employees. The test is whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned, and such reaction relating to injury to health which is attributable to stress at work.
Some factors are relevant -
(i) they include the nature and extent of the work being done by the employee,
(ii) whether others are working under harmful stress level.
(iii) Harm is reasonably foreseeable if the employer is putting pressure on the employee which is in all circumstances of the case unreasonable.
(iv) The signs of the employee himself are important, e.g. frequent absence from work.
(v) Unless he knows of some particular problem, an employer is usually entitled to assume that his employee is up to the normal pressures of the job. Generally he is entitled to take what he is told by or on behalf of the employee at face value.
(vi) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
4. Rule: even in the absence of a risk of foreseeable physical harm if the claimant is classified as a ‘primary victim’ he does not have to demonstrate that he is of ‘ordinary fortitude’, merely that the psychiatric harm was foreseeable in him.
5. Lord Walker: the judgment should not be read as having anything like statutory force, every case will depend on its own facts.
Commentary: employer’s liability is in a complicated state after this. The rules are:
1) Occupational stress: the employer owes a DOC if the injury was foreseeable(Hatton)
2) Shock from witnessing injury: no DOC in the absence of proximity of relationship
3) Foreseeable risk of physical harm: this is the case where C is the PV (Donachie)
Duty of care (psychiatric illness)
Summary of claims for psychiatric injury in Hatton
In summary, therefore, claims for psychiatric injury fall into four different categories.
(1) Tortious claims by primary victims, usually those within the foreseeable scope of physical injury, for example, the road accident victim in Page v Smith; some primary victims may not be at risk of physical harm, but at risk of foreseeable psychiatric harm because the circumstances are akin to those of primary victims in contract (see (3) below).
(2) Tortious claims by secondary victims: those outside that zone who suffer as a result of harm to others, for example the witnesses of the Hillsborough disaster in Alcock’scase.
(3) Contractual claims by primary victims: where the harm is the reasonably foreseeable product of specific breaches of a contractual duty of care towards a victim whose identity is known in advance, for example the solicitors’ clients in Cook v S [1967] All ER 299 . . . or the employees in the cases of Petch, Walker and Garrett, and in all the cases before us.
(4) Contractual claims by secondary victims: where the harm is suffered as a result of harm to others, in the same way as secondary victims in tort, butthere is also a contractual relationship with the defendant, as with the police officers in White’s case.
Duty of care (psychiatric illness)
Stress/special relationship cases
Daw v Intel Incorporation Ltd [2007]
ϖ Pill LJ: The reference to counselling services in Hatton does not make such services a panacea by which employers can discharge their DOC in all cases
Duty of care (psychiatric illness)
Melville v Home Office [2005]
C (health care officer at D’s prison) had to recover bodies of prisoners who had committed suicide. He attended 8 suicides and developed a stress-related illness. Held: psychiatric injury was reasonably foreseeable in the circumstances. This was sufficient to ground a DOC.As far as occupational stress is concerned, cases of shock would be covered as well and C would not have to prove proximity of relationship. Commentary: can this be reconciled with White?
Duty of care (psychiatric illness)
Barber v Somerset CC [2004]
ϖ if the employee has, under the employment contract, undertaken an agreed amount of work, can the employer nonetheless breach the DOC by requiring the employee to perform that work? Held: the tortious DOC does not sit easily with such contractual arrangements, nor does it seem likely to promote efficiency within the enterprise. The overall test of an employer’s duty of care was that of the conduct of the reasonable and prudent employer, taking positive thought for the safety of his employees in the light of what he knew or ought to have known
Duty of care (psychiatric illness)
Grieves v Everard &Ors[2008]
Hatton was followed in respect of employer’s liability for causing PI to PV. The test is the reasonable foreseeability of PI test. On the facts, D had no special knowledge of how C might react to his discovery of his disease, and were therefore entitled to assume that C was a person of ordinary fortitude. Hence, there was no evidence from which it could be concluded that C might reasonably foreseeably suffer PI in consequence of their negligence. Hence, C’s action should fail!
Duty of care (psychiatric illness)
Stress/special relationship but Beyond employment cases
Leach v Chief Constable of Gloucestershire Constabulary [1999]
ϖ C (volunteer worker on a youth homelessness project). The police needed an appropriate adult to be present in an interview to deal with people with mental disorder. A serial killer was interviewed, and C heard harrowing stories un-forewarned and was incorrectly told that she would not have to give evidence at trial. Did the police owe C a DOC in respect of conduct of interviews? Held: no. Operational effectiveness is more important. On whether C was owed a DOC after the interview, it is possible that a DOC was owed it. But it is a foreseeability question. However, there were well-established duties of care which the police undoubtedly owed to C just as they owed them to anyone else who was foreseeably at risk of personal injury C’s claim would be allowed to proceed to trial on the issue of failure to provide counselling services but the particulars of claim so far as they related to the duty of care towards C as an appropriate adult would remain struck out. C won
Duty of care (psychiatric illness)
Stress/special relationship but beyond employment
Butchart v Home Office [2006]
prisoner sued D in respect of his PI. C was depressed and suicidal and was placed in a cell with a cellmate known to have a risk of suicide. Cellmate committed suicide and C discovered the body and claimed he suffered PI. C avoided blaming the cellmate and blamed D (to keep out of the Alcock line of case law). CA Held: the Alcock cases are irrelevant, where the main harm and main duty is owed to someone else, not C. D ought to have known or knew C’s condition, and so the duty owed includes the duty to take reasonable steps to minimise psychiatric harm.
Duty of care (Omissions)
General rule
- The general rule is that there is no duty to assist another person who is at risk of injury. This general rule is, of course, qualified.
- There is no duty to be a Good Samaritan in general.
Duty of care (Omissions)
Yuen Kun Yeu v AG of Hong Kong [1988]
ϖ Lord Keith: there is no liability ‘in negligence on the part of one who sees another about to walk over a cliff with his head in the air and forbears to shout a warning’
Duty of care (Omissions)
Capital and Counties v Hampshire CC [1997
ϖ doctor was at the scene of the accident but was under NO duty to help, but only under a duty not to make the situation worse!
Duty of care (Omissions)
Stovin v Wise [1996
ϖ Lord Hoffman:
1) In political terms, it is less of an invasion of an individual’s freedom for the law to require him to consider the safety of others in his actions than to impose a duty on him to rescue or protect (=it is a serious infringement of personal liberty to impose such a duty)
2) In moral terms, the point is ‘why pick on me?’. A duty to prevent harm to others or to render assistance to someone in danger may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be liable instead of all of them?
3) In economic terms, the efficient allocation of resources usually requires an activity should bear its own cost. If we impose some of its cost on others (by requiring them to act), the market is distorted because the activity appears cheaper than it really is.
Lord Nicholls: the classic example of the absence of a legal duty to take positive action is where a grown person stands by while a young child drowns in a shallow pool. Something more is required than being a bystander…there must be some additional reason why it is fair and reasonable that one person should have legal obligations in that regard. When this additional reason exists, there is said to be sufficient proximity.
Commentary: Prosser & Keeton: ‘revolting to any moral sense…the remedy in such cases left to the higher law and the voice of conscience’. Bender: the no duty to rescue rule is a consequence of a legal system devoid of care and responsiveness to the safety of others. Weinrib: initially supported the duty to rescue in cases of emergency where the rescuer can act without prejudice to himself. Retracted as thus blurs the distinction between misfeasance and nonfeasance inherent in the correlative structure of tort law.
Williams: the 2nd argument is no more than evidential uncertainty. The 3rd argument is also dubious, as it seems that social cost will be less when timely treatment is provided rather than not. A more forceful reason is that a stranger may find himself endangered if he helps. Providing emergency treatment is not risk free (e.g. if the patient carries diseases). Also, when assistance is offered it is unclear for how long the rescuer must continue to look after V in order not to attract legal liability.
Duty of care (Omissions)
Sutradhar v National Environmental Research Council [2006]
ϖ the government commissioned the BGS to test the performance of irrigation wells. BGS failed to detect the presence of arsenic which D did not consider to be a potential problem. Millions of inhabitants were at risk. C, for one, developed symptoms of arsenic poisoning and sued D for breaching its positive duty to test for arsenic. HL Held: the claim is hopeless. The fact that D had expert knowledge does NOT itself create a duty to the whole world to apply that knowledge to solving its problems! D can only be liable for thing they did, not for what they did not do.
Duty of care (Omissions)
Distinction between Acts and Omissions
Hart & Honore
Oliphant
Mitchell
• The distinction does not reflect any philosophical subdivision of human conduct into two types. This is because a medical man who diagnoses a case of measles as a case of scarlet fever may be said to have omitted to make a correct diagnosis! An omission is also not referring to a person’s bodily movement as we can only set things in motion by ourselves making movements.
the distinction concerns whether X is ‘making things worse’ or ‘failing to make things better’. Liability for the latter results in far greater restrictions on liberty of action than does liability for the former.
simply put, omission is the failure of D to act to prevent harm directed to C from another source
Duty of care (Omissions)
Distinction between Acts and Omissions
Harnett v Bond [1924]
Airedale NHS Trust v Bland [1993]
a medical man who diagnoses a case of measles as a case of scarlet fever may be said to have omitted to make a correct diagnosis; he may equally well be said to have made an incorrect diagnosis!
withdrawal of V’s life support can be an omission as the treatment was considered ‘futile’
Duty of care (Omissions)
Exceptions to the general rule
• Honore: the cases ‘do not fall into any neat pattern’. Some cases purported to use a test of reasonable foreseeability as the criterion for imposing liability for a culpable omission.
• Lunney: But this approach is hopelessly vague and does not account for the general rule stated above.
• Mitchell: this test focuses only on the first limb of the Caparo test and neglects the rest. The focus seems to be the assumption of responsibility!
• Oliphant: a number of loosely-defined circumstances giving rise to duties of affirmative action:
1) D created the source of danger, even if entirely with fault
2) D has undertaken the responsibility for C’s welfare
3) D’s occupation of an office/position of responsibility
• ZCT: if we look at the criminal law, the above circumstances almost represent the whole law on negligence. 1): R v Evans 2) R v Stone and Dobinson 3) R v Singh; R v Sinclair, Johnson & Smith
Duty of care (Omissions)
Exception where D has voluntarily assumed responsibility for C’s welfare
Capital and Counties v Hampshire CC [1997
ϖ In Hampshire, D (fire brigade) attended the fire on C’s premises. Then the fire officer ordered C’s sprinkler system to be turned off, which made the fire spread rapidly and destroy the entire building. In London, D arrived at the scene and were later satisfied that the fire had been extinguished and left without inspecting C’s premises in which fire broke out later on. In West Yorkshire, D failed to extinguish the fire as D failed to maintain their fire hydrants. CA Held: the fire brigade is under not duty to answer the call for help and are under no duty to take care to do so. If they fail to turn up in time, they are not liable. There are exceptions to this.
Stuart-Smith LJ:
1) Where the rescue service itself by negligence creates a danger which caused C’s injury, there is no doubt that C can recover. This is the case for Hampshire.
2) There is only assumption of responsibility and a sufficient relationship of proximity if someone possessed of special skill undertakes to apply that skill for the assistance of another person who relies upon such skill and there is direct and substantial reliance by C on D’s skill. This may exist among doctors and patients. Here, the duty of the fire service is owed to the public at large, and on the present facts, there is insufficient proximity of relationship and no assumption of responsibility.
Commentary: Mitchell: emergency services are funded by the government and so elbow room has to be given to the public service. Otherwise there would be a chilling effect on these services. Rebuttal: does imposing a duty not enhance public service efficiency instead?
Duty of care (Omissions)
Exception where D has voluntarily assumed responsibility for C’s welfare
East Suffolk Rivers Catchment Board v Kent [1941
ϖ D, exercising statutory powers, undertook the repair of a breached sea wall which caused flood to C’s land. D carried out the work so inefficiently that the repairs was protracted for 134 days, prolonging the period during which C’s land was under water. HL Held: D did NOT assume any responsibility to C beyond its undoubted duty not to cause additional damage. Lord Porter: the damage was not caused by any positive act of D, but would have occurred to the like extent if D had taken no steps at all, the loss of C was not due to D’s breach, it was due to the original breach. D’s duty was to avoid causing damage, but not prevent future damage due to causes for which they were not responsible.
Duty of care (Omissions)
Exception where D has voluntarily assumed responsibility for C’s welfare
Goldman v Hargrave [1967]
ϖ C (owner of land adjacent to that of D’s)’s tree began to burn after being hit by lightning. C asked for a tree-feller to be sent, and the tree was cut down. C however then decided to let the tree burn itself out and took no further steps to stop the fire from spreading. Strong winds caused the fire to revive and spread to D’s property, causing extensive damage. PC Held: Lord Wilberforce: the case concerns whether C, faced with hazard accidentally arising on his land, fails to act with reasonable prudence so as to remove the hazard. In Sedleigh-Denfield v O’Callaghan, the occupier is liable with regard to a hazard created on his land by a trespasser, of which he has knowledge, when he fails to take reasonable steps to remove it. Similarly, in the case, C’s liability lies not in the use of the land, but in the neglect of action in the face of something which may damage his neighbour. C owes a DOC to his neighbours.
Duty of care (Omissions)
Exception where D has voluntarily assumed responsibility for C’s welfare
Barrett v MOD [1995]
ϖ a serving naval airman got himself exceedingly drunk at the bars on the Royal Navy base, which sells drinks at an ‘astonishingly cheap’ price. V choked on his vomit and died. Does the Royal Navy owe V a DOC? Held: Until the deceased became unconscious, he alone carried the legal responsibility for his own actions. However, once the senior officer assumed a responsibility for him by ordering the Petty Officer to look after him a duty of care did arise. He was in breach of duty by failing to ensure the deceased received the appropriate supervision. Hence, there was a DOC, but it was not established based on the supply to V of the dangerous quantities of drink. Commentary: hence, the result would have been the same had the drinks come from another source. The courts were afraid that imposing liability purely on the basis of the purveyor’s supply of alcohol would undesirably dilute individual responsibility. Contra the Canadian case Jordan House v Menow.
Misfeasance = negligent/improper performance of a legal act. Nonfeasance = failure to carry out a duty imposed by the law
Duty of care (Omissions)
Exception where D has voluntarily assumed responsibility for C’s welfare
Kent v Griffiths [2001]
ϖ C’s call for an ambulance was accepted by D, but for unknown reasons, the ambulance took some 40 mins to arrive where it should have arrived 14 mins earlier. While the ambulance was on its way, C suffered a respiratory arrest, resulting in permanent brain damage. It was suggested if the ambulance had arrived earlier, the arrest might have been averted. Held: Lord Woolf: the activities of the ambulance services are subject to a statutory framework. The ambulance service includes transporting patients to and from the hospital, and these services are different from police/fire services, whose primary obligation is to the public at large (maintaining public order/preventing spread of fires to other places). The ambulance service, however, when called by C, was only to help C alone who is adversely affected. Say the ambulance is required to attend to a scene of an accident in which a limited number of people need to be transported to the hospital, the result might not necessarily be different because the numbers involved would be limited. Here, there is obviously a duty of care owed by the ambulance.
Commentary: Lord Woolf is saying that the fire service, when responding to a call, is acting in pursuance of a public duty whereas the ambulance service typically is not. Mitchell: if it is truly a matter of numbers, what if there are 1000 injured persons in an accident, will the ambulance now owe a public duty? If not, why does a fire service owe a public duty where there is only a small fire? ZCT: Should the fire service be said to be owing a non-public duty where the fire is so small that it has no potential to spread, or where someone is stranded in the lift? The fire service should not be seen as uniformly burdened with a public duty - it really depends on what the nature of the work is in the particular case. Winefield& Jolowicz: there is some tension with Capital and Counties, the fire service is primarily concerned with saving property and that imposing liability would tend to inure for the benefit of subrogated fire insurers who have taken a premium to cover the risk, though that would hardly justify a different result where life was at risk from the fire!Lunney: but the courts have been hostile to the idea of considering the availability of insurance when deciding on liability! The decision could be defended if we argued that the ambulance service has already assumed responsibility when it picks up the phone call and accepts to help.
Williams: this seems to be an exception to the Yuen Kun Yew rule based on voluntary acceptance of public law duty. Lord Woolf regarded proximity as having been made out as soon as the 999 was initially accepted. There is no resource allocation problems and is justiciable. This makes Capital and Counties unconvincing. Art 2 ECHR may impose positive obligations on states to guarantee right to life.
Duty of care (Omissions)
Exception where D has voluntarily assumed responsibility for C’s welfare
Gorringe v Calderdale Metropolitan Borough Council [2004]
ϖ (English case) C called 999 after being assaulted. The operator replied that a local officer would call her shortly, but by mistake the call was not flagged as requiring immediate response. Meanwhile, C was stabbed to death. CA Held: the operator’s response was NOT an assumption of responsibility for C’s safety or to ensure that C was even called.Commentary: this conflicts with CA’s finding in Kent v Griffiths that the operator assumed responsibility when he accepted the call! Distinguished from Kent because operator didn’t say anything.
Duty of care (Omissions)
Exception where D has voluntarily assumed responsibility for C’s welfare
Michael v CCSW [2012]
(English case) C called 999 after being assaulted. The operator replied that a local officer would call her shortly, but by mistake the call was not flagged as requiring immediate response. Meanwhile, C was stabbed to death. CA Held: the operator’s response was NOT an assumption of responsibility for C’s safety or to ensure that C was even called.Commentary: this conflicts with CA’s finding in Kent v Griffiths that the operator assumed responsibility when he accepted the call! Distinguished from Kent because operator didn’t say anything.
Duty of care (Omissions)
Exception where there is a special or contractual relationships
- A duty of care is generally thought to be owned by a doctor to a patient, a parent to a child (custodian duty; however, see the Australian counter-proposition in Hahn v Conley)
- Duties of affirmative can also be undertaken by contract. A contractual undertaking may be sufficient to generate a duty of affirmative action towards X.
Duty of care (Omissions)
Exception where there is a special or contractual relationships
Johnstone v Bloomsbury HA [1992
the duty to take affirmative action is present because contract law is already providing the employee with certain things
Duty of care (Omissions)
Exception where there is a special or contractual relationships
Barnett v Chelsea & Kensington Hospital MC [1969]
ϖ Held: a staff in a hospital casualty department assumed a DOC by helping or advising a person who is seeking attention and drank arsenic tea. There was breach of DOC, but no causation.
Duty of care (Omissions)
Exception where there is a special or contractual relationships
ϖ CA: it is absurd to suggest that the BGS, by undertaking testing of the well, had assumed responsibility to the Bangladeshi population in relation to the safety of its water!
Duty of care (Omissions)
Exception where there is a special or contractual relationships
SSHD v Robb [1995]
ϖ the prison authorities have NO right to stop a prisoner from committing suicide by starving himself to death
Duty of care (Omissions)
Exception where there is a special or contractual relationships
Reeves v Commissioner of Police for the Metropolis [2000]
ϖ police owed a duty to prevent prisoners with suicidal risk from harming themselves. They had a duty to take reasonable steps to assess the prisoner and prevent self-harm.
Duty of care (Omissions)
Exception where D is in control of the acts or circumstances produced by the third party
- This is where C is injured by acts committed by X (third party), where X is controlled by D.
- The general rule is that D is not liable for X’s injury to C.
Duty of care (Omissions)
Exception where D is in control of the acts or circumstances produced by the third party
Weld-Blundell v Stephens [1920]
ϖ Lord Sumner: ‘in general … even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do. Though A may have given the occasion for B’s mischievous activity, B then becomes a new and independent cause’.Commentary (Mitchell): the claim that scientific tests of causation can be used are confusing, because it is always policy considerations which drive most court judgments. Courts appear innocent by saying they apply the causal tests.
Duty of care (Omissions)
Exception where D is in control of the acts or circumstances produced by the third party
• But there are exceptions to this general rule in Weld-Blundell v Stephens
Carmarthenshire CC v Lewis [1955]
ϖ driver lost his life when he was forced to swerve his vehicle in an effort to avoid a small boy and drove into a lamp post. The boy, aged 4, had strayed onto the busy main road from the grounds of a nursery school maintained by the CC. The driver’s widow sued the CC. Held: the CC was liable for negligence of the teacher to prevent the child escaping. Lord Reid: (focused on the foreseeability approach in Dorset Yacht)Commentary: the modern approach is to limit the scope of any DOC by reference to proximity and policy factors. This case can be viewed as resting on the school authority’s assumption of responsibility for control of the child, which created a relationship of proximity with those who were foreseeably endangered by him.
Duty of care (Omissions)
Exception where there is a special or contractual relationships
• But there are exceptions to this general rule in Weld-Blundell v Stephens
Home Office v Dorset Yacht Co [1970]
ϖ Some young offenders (D) were doing some supervised work on Brown Sea Island under the Borstal regime. One night the Borstal officers retired for the evening, leaving the boys unsupervised. Seven of them escaped and stole a boat which collided with a Yacht owned by C. Held: The Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party (sufficient proximity) who caused the damage and it was foreseeable that harm would result from their inaction.
Lord Reid: this is an issue of causation. Considerations of foreseeability determines whether the causal chain could be traced through the deliberate conduct of D. It would have to be shown that the commission of the offence was the natural and probable, as distinct from merely a foreseeable, result of the release. Compare K v SSHD [2002], where C was raped by criminal detainee X who had been released by the Home Office for unexplained reason, and the court held that there was no sufficient proximity between C and the Home Office such as would create a DOC on the Home Office. D’s mere knowledge that X would pose a grave risk of harm to the public at large was NOT sufficient to create the necessary proximity: D does not become the world’s insurer against the grave danger posed by a third agency which he might control by virtue only of the fact that he appreciates the danger exists!
Lords Pearson and Diplock: rely on considerations of proximity, which provides a mechanism for limiting D’s liability
Lord Morris: the focus is the foreseeability of the risk
Commentary: McIvor: the sufficient proximity (control) requirement implies a strong relationship to be had between the responsible D and the irresponsible X.
Duty of care (Omissions)
Exception where there is a special or contractual relationships
• But there are exceptions to this general rule in Weld-Blundell v Stephens
Hill v Chief Constable of West Yorks[1989]
ϖ Lord Keith: the court has to consider whether the individual members of a police force, in the course of carrying out their function of controlling…the incidence of crime, owe a DOC to individual members of the public who may suffer injury…through the activities of criminals, such as to result in liability in damages on the ground of negligence…Here, there is no close proximity, and the Yorkshire Ripper was never in the custody of the police force!
Duty of care (Omissions)
Exception where there is a special or contractual relationships
But there are exceptions to this general rule in Weld-Blundell v Stephens
Smith v Littlewoods Organisation [1987]
ϖ D owned a disused cinema and wished to replace it with a supermarket. D hired contractors to work on the foundations, but thereafter the cinema was left unattended by D. Within a few weeks, the building was being regularly entered by unauthorised persons. Debris accumulated outside the cinema. Someone started a fire in the cinema and damaged the adjoining properties. C sued D and claimed damages. HL Held: D were not liable. Whilst they did owe a duty of care they were not in breach of duty. They were not required to provide 24 hour surveillance and were unaware of the previous incidents. The law is unwilling to impose liability for the deliberate act of a third party see Lamb v Camden London Borough Council [1981] QB 625 but will do so in appropriate cases (Dorset Yacht v Home Office [1970] AC 1004). The general rule relating to omissions is that no liability arises for a pure omissions but there exist exceptions to this where
a) there is a special relationship
b) an assumption of responsibility
c) where the defendant is in control of a 3rd party that causes the damage
d) where the defendant is in control of land or dangerous thing.
Lords Brandon: there was a DOC owed to C by D, but there wasn’t a breach. There are two questions to be asked: 1) is there a general duty owed to C by D to ensure that the premises did not become a source of danger? 2) does the general duty encompass the specific duty to exercise reasonable care to prevent young persons obtaining unlawful access to the site and unlawfully setting fire on it? D owed to C a duty to exercise reasonable care to ensure that the cinema did not become a source of danger to neighbouring buildings owned by C. However, since D did not know of the behaviours of those young persons, the occurrence of the behaviour in question was NOT reasonably foreseeable by D. Hence, the general DOC owed by D did not encompass the specific duty referred to above.
Lord Griffiths: D owed C a DOC to take reasonable care that the condition of the premises they occupied was not a source of danger to neighbouring property. However, it would be a tremendous burden to D if the law required them to mount 24-hour guards on an empty premises, save in the most exceptional circumstances.
Lord MacKay: where the only possible source of the type of damage is agency of a human being for whom D has no responsibility, it may not be easy to find that as a reasonable person D was bound to anticipate that type of damage as a consequence of D’s act or omission. The more unpredictable the conduct in question, the less easy to affirm that any particular result from it is probably…the result can only be reasonably foreseeable if, in the circumstances, it was highly likely. Here, there is a mere possibility only - C has not established probability that the vacant property would be set on fire with the present consequences.
Lord Goff (dissenting on the point on DOC): imposing a general DOC on owners/occupiers of land would result in an unreasonable burden on ordinary householders. Also, the loss is generally covered by insurance. One thing is clear - liability in negligence cannot be founded simply on foreseeability that the pursuer will suffer loss or damage. There are exceptional circumstances in which liability will arise:
i) Relationship between the parties giving rise to an imposition or assumption of responsibility, which may be arising from contract (Stansbie v Troman) or not.
ii) Vicarious liability.
iii) Nuisance
iv) ***Where D negligentlycauses or permits to be created a source of danger, and it is reasonably foreseeable that X may interfere with it and, sparking off the danger, thereby causes damage to C. (Haynes v Harwood).
v) ***where D has knowledge or means of knowledge that X has created or is creating a risk of fire, or indeed has started a fire, on his premises, then fails to take such steps as are reasonably open to him (in the limited sense: Goldman) to prevent any such fire from damaging neighbour property.
In the present case, D does not fall into either 4 or 5 as i) the empty cinema could not properly be described as an unusual danger in the nature of a fire hazard ii) D did not fail to take reasonable steps to abate a fire risk created by X without their fault and means of knowledge that the fire risk existed. The existence of such risk was not established. Hence, no DOC arose in this case.
Commentary: Oliphant: (re Lord Goff) 1) if having a ‘means of knowledge’ means ‘D ought to know’, and if what ‘ought to know’ is defined by what is reasonably foreseeable, might this not undermine Lord Goff’s assertion that there is no general DOC to prevent X from causing damage to others, even though there is a high degree of foresight that this may occur? 2) Goff argued that ordinary items in daily life would not be regarded as posing a special danger, even though it might be foreseeable that their use would involve the risk of harm. Markesinis: Lord Brandon’s specific duty conception is whether there is a ‘careless breach of the duty’
Duty of care (Omissions)
Exception where there is a special or contractual relationships
But there are exceptions to this general rule in Weld-Blundell v Stephens
Haynes v Harwood [1935]
The Defendant left a horse-drawn van unattended in a crowded street. The horse bolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and children who were in the path of the bolting horses. The police officer was injured. Held: the Defendant owed a duty of care as he had created a source of danger by leaving his horses unattended in a busy street
Duty of care (Omissions)
Exception where there is a special or contractual relationships
But there are exceptions to this general rule in Weld-Blundell v Stephens
Mitchell v Glasgow CC [2009]
ϖ M was a violent and anti-social man who was summoned by the council to warn him that he could face eviction. M lost his temper and killed V. The council was sued for not informing V of the meeting, or warning V that he was at risk, or alerting the police. HL Held: The council owed V no duty. Lord Hope: a duty by D to warn someone he is at risk of loss, injury or damage as a result of the criminal act of X will arise only when D has by his words or conduct assumed responsibility for the safety of the person who is at risk. This is not present on the facts. Lord Brown: D is generally not liable to V who is the subject of intentional attacks from X unless:
1) D creates the source of danger or permits the danger to be created himself (e.g. giving an unreliable man a gun: AG of British Virgin Island v Hartwell)
2) D assumed responsibility to C which lies in the scope of the duty (Amin v SSHD)
3) D is under an obligation to supervise X: Dorset Yacht
4) There is vicarious liability
Nolan summary of situations a PA is found to owe a duty of care to C
(a) Where by D’spositive conduct it caused the claimant additional damage (e.g. leaving C in a worse position (Capital and Counties)than C would have been in had D not intervened at all (East Suffolk);dissuading or preventing the third party from coming to C’s assistance (Kent v Griffiths)
(b) Where the claimant has relied to his or her detriment on an express or implied representation by the defendant that a benefit will be conferred on him or her (e.g. reasonable expectation that the duty would be carried out (Gorringe); entrapment by painting and not repainting the white lines (Bird v Pearce)
(c) Where D undertook or assumed responsibility
Duty of care (Public Authorities)
The different cases of actions that could be relied upon against a public body
Introduction • There are three different causes of action that could be relied upon against a public body: (per Lord Browne-Wilkinson in X v Bedfordshire CC) 1. Common law negligence 2. Breach of statutory duty 3. Misfeasance in public office
• Now, two more actions are possible:
- Breach of EU law amounting to Euro-tort
- Violation of specific obligations placed on public authorities (PA) by the s.6 HRA
