WS1 Case Law & more - Law of Tort / Duty of Care (general negligence)

Question 1

6-step claim structure in negligence

Answer 1

1. Loss or damage; 2. duty; 3. breach; 4. causation; 5. remoteness; 6. defences

Question 2

4 key criteria to determine if duty of care is owed

Answer 2

1. Precedent; 2. loss is reasonably foreseen; 3. proximity; 4. Fair, just and reasonable (policy)

Question 3

Fitzgerald v Lane & Patel

Answer 3

Precedent: drivers owe pedestrians a duty of care

Question 4

Imposition of a positive duty: 6 exceptions to the general rule that there is no duty to avoid omissions (failure to act):

Answer 4

1. Statutory duty; 2. Contractual duty; 3. D has sufficient control; 4. D voluntarily assumes responsibility; 5. D creates the risk; 6. Where the omission is a failure to prevent a Third Party from causing harm AND (4 potential factors)

Question 5

4 situations in which the law imposes a positive duty to avoid omission where the the omission is a failure to preventing a Third Party (TP) causing harm &:

(general rule being there is no duty to prevent harm to a third party):

Answer 5

1. There is sufficient proximity between D & C; and/or 2. sufficient proximity between D & TP who cause harm and/or; 3. D created the danger; 4. The risk was on D’s premises (D may owe positive duty to eradicate or diminish that danger).

Question 6

Legal maxim espoused by Lord Atkinson in Donoghue v Stevenson [1932]

Answer 6

‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour’

Meaning: General rule that the law of tort imposes liability on those who cause injury or damage to another.
There is no obligation to ‘love’ one’s neighbour, however.

Question 7

Donoghue v Stevenson [1932]

Answer 7

Facts: C accompanied a friend to a café. The friend ordered & paid for ginger beer for the C. The beer came in an opaque bottle, which, when poured out, was found to contain the decomposed remains of a snail. C claimed she had been made ill by this but was unable to sue the café owner, as there was no contract between them (her friend had bought the ginger beer). Instead, C sued the manufacturer.

Points of law:
1. Established the objective test of foreseeability in determining duty of care (what a reasonable person could have foreseen)

Judicial comment: ‘“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

Effects:

1. Established first test to determine duty of care;
2. Test of objective foreseeability was expansive and opened flood gates that burdened courts with negligence claims

Test changed in the following HOL ruling Caparo v Dickman [1990]

Question 8

Caparo Industries v Dickman [1990]

Answer 8

Building on from Donoghue v Stevenson:

Points of law: Established new test for determining whether duty is owed. The following found to be necessary:

1. Foreseeability of damage
2. ‘Proximity’ of D to C;
3. Fair, just and reasonable that a duty is imposed
4. ‘Proximity’ and ‘fairness’ purposefully not defined as must be determined ‘on detailed examination of all the circumstances’

Judicial comment: Proximity & fairness ‘little more than convenient labels to attach to the features of different specific situations.’

This approach is explained in Robinson v Chief Constable of West Yorkshire Police [2018]

Question 9

Robinson v Chief Constable of West Yorkshire Police [2018]

Answer 9

FACTS: Robinson suffered personal injury during an arrest made by West Yorkshire police of an alleged drug dealer (the officers ended up falling onto / into the woman).

Issue: Do police owe duty of care to general public when making arrests?

Held:
1. Where there is no clear precedent to establish duty of care, this question should be approached by analogy with established authority where the analogy bears ‘legally significant features of the situations with which the earlier authorities were concerned.’

Significance of case:
Built on the Caparo approach: where there is no clear precedent, the question of whether to impose a duty should be approach by analogy with established precedent.

Also held:

2. It was ‘reasonably foreseeable’ that the arrestee was likely to resist arrest & thus reasonably foreseeable the arrest in the given situation (a busy high-street) might cause injury.
3. The reasonably foreseeable risk of injury imposed on the police a duty of care.

Question 10

Poole BC v GN [2019]

Answer 10

In relation to proximity, courts will look at legally significant features of the situations with which the earlier authorities were concerned. In many cases the significant features are connected with the relationship between the claimant and the defendant – i.e. their proximity. This focus on the relationship between the claimant and defendant will therefore remain important as a result of the use of principles established in earlier authorities.

Question 11

Nettleship v Weston [1971]

Answer 11

Injury via careless driving.

Point of law: Established road users owe a duty of care not to cause physical injury by careless driving.

Question 12

Baker v T.E. Hopkins & Son [1959]

Answer 12

Rescue attempt during dangerous situation

Facts: Doctor knowingly descended into a mine containing poisonous fumes to attempt rescue of trapped miners & died from fumes.

Point of law: CoA held Dr Baker was owed a duty of care as it was reasonably foreseeable that someone would seek to rescue the workers who were in danger.

Question 13

Cassidy v Ministry of Health [1951]

Answer 13

Medical negligence

Established that medical professionals owe a duty of care to patients which they have accepted for treatment

Question 14

Watson v British Boxing Board of Control [2001]

Answer 14

Example of case establishing duty of care where no clear precedent exists:

Facts: Boxer (D) sustained brain damage during a supervised fight at C. Boxer claimed immediate medical attention should have been available

Held:

1. Brain injury was foreseeable;
2. D has assumed responsibility (derived from case law) for determining the nature of medical facilities & assistance provided to boxers by making regulations setting out what medical care should be available
3. It was fair, just and reasonable to impose a duty
4. No policy considerations why a duty could not / should not be imposed (ruling limited in scope to boxing).

Question 15

Reeves v commissioner of Police for the Metropolis [1999]

An example of…

Answer 15

…imposition of positive duty on D due to degree of control held by D. Applicable in some situations, even to the point of preventing C from physically harming themselves.

FACTS:
Martin Lynch committed suicide in a police cell - he had attempted this previously at magistrates & on other occasions. Doctor had ruled him a suicide risk. He was found having used his shirt as a ligature secured by a hatch left open by police.

HELD: Due to the high degree of control the police held over the prisoner, they were under a duty to protect his health and prevent his suicide.

Important to some cases may fall under either / or a.) assuming responsibility or b.) possessing sufficient control.

Question 16

Smith v Littlewoods Organisation Lrd [1987]

Answer 16

General rule with regard to damage caused by a TP:

The law does not recognise a general duty of care to prevent others from suffering loss or damage caused by the deliberate wrongdoing of third parties.

The law of tort imposes liability on those who cause injury or damage to another; there is no such duty is imposed on a mere failure to act - an omission.

To establish a duty, there must be sufficient proximity between D and wrongdoer (TP) to establish a duty.

See: Home Office v Dorset Yacht Co

Question 17

Process to ascertain if a duty is owed:

Answer 17

1. Existing authorities / precedent;
2. If so, apply. If not:
3. Consider if a duty is owed by drawing analogies with existing cases. The aim when doing this is to develop the law incrementally, so you should consider:
4. A. Forseeability; B. Proximity; C. Fair, just and reasonable (when drawing analogies).

Question 18

Occupiers’ Liability Act [1957&84]

An example of…

Answer 18

…a positive duty imposed by statute.

Both the Occupiers Liability Acts of 1957 and 1984 impose an obligation on occupiers rather than land owners.

‘The common duty of care is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.’

Question 19

Barrett v Ministry of Defence [1995]

Example of….

Answer 19

…defendant assuming responsibility (an omission)

FACTS:
A fellow officer started to help Barrett at instruction of senior officer when he got drunk - to the point of unconsciousness - but then the petty officer left him unattended for a length of time and Barrett choked to death on his own vomit.

HELD:
Although the MOD were not liable for Barrett, the naval pilot, getting drunk, they assumed responsibility for him once a senior officer had taken action (instructed a petty officer take him to his dorm) and therefore a duty of care was assumed.

D was in breach of duty by failing to ensure the deceased received appropriate supervision.

Question 20

Goldman v Hargrave [1967]

An example of…

Answer 20

…defendant creating the risk (an omission).

FACTS
Lightning struck a tree on D’s land & started a fire. D extinguished the fire but failed to extinguish the embers. Wind reignited fire & caused damage to C’s land.

HELD:
D was liable for a naturally occurring fire where he knew or ought to have known of the danger (the risk) and failed to take reasonable steps to mitigate the danger.

D had the physical ability and financial means to douse the embers in water. Not doing so created the risk of fire & was held liable for failing to take reasonable steps.

Question 21

Capital & Counties v Hampshire County Council [1997]

Principle authority with regards to firebrigade and DoC.

General rule in relation to omissions applied to emergency services

Answer 21

FACTS
Fire at C’s building, fire brigade arrived and turned off sprinkler system. Then could not locate seat of fire & then burned out of control. When they had, fire had spread and to other buildings C owned & all buildings were destroyed at $16m cost. Had sprinklers not been turned off, two buildings would have been saved.

ISSUE:
In what circumstances do firefighters owe a duty of care to those who need them; was it negligent for them to turn off sprinkler system.

HELD

1. The fire brigade is not under a positive duty to attend a fire
2. Fire brigade does not have sufficient proximity with owners or occupiers to have duty of care by merely attending a fire (under not duty to fight fire with care)
3. However, if the fire brigade does attend a fire, they owe a duty of care not to make the situation worse through a positive act (in this case the positive act was turning off the sprinkler system).

Question 22

Alexandrou v Oxford [1993]

Authority with regards to police & DoC

Answer 22

FACTS:
C owned a retail shop in which he installed burglar alarm system which if activated would automatically call his local police station. Shop was burgled but police failed to secure the property

HELD:
1. Police not liable under negligence as under no duty of care to respond to emergency calls

Policy considerations:
Did not consider police to owe duty of care due to exposure of police to potential actions for negligence at the suit of every dissatisfied 999 caller.

Question 23

Kent v Griffiths & Others [2000]

Exception to the general rule applying to emergency services, it’s the principle authority on…

Answer 23

…the ambulance service.

In contrast to Capital & Counties v Hampshire County Council & Alexandrou v Oxford, the ambulance service was regarded as part of the health service which owes a duty of care to its patients; but not as a rescue service.

HELD:

1. The acceptance of a 999 call by ambulance service established a duty of care to respond within a reasonable time unless:
   a. ) there was a reason why the ambulance should not be provided; b.) Ambulance service used discretion to attend a more pressing emergeny)
2. The acceptance of the call establishes proximity between the parties

Question 24

Stansbie v Troman [1948]

An example of…

Answer 24

Duty of care arising as a result of a contractual relationship (proximity), from a failure to prevent (omission) a third-party from causing harm.

Also example of D creating the risk.

FACTS:
A decorator, D, failed to lock C’s building, which he had attended as per their contract. It was subsequently burgled.

HELD:
D owed a duty of care to a property owner having allowed burglars into the property by failing to secure the building.
The duty was owed to lock the property when leaving to prevent a burglary by a third-party - this could be characterised as one in which the defendant created the risk.

Question 25

Palmer v Trees Health Authority [1999]

Answer 25

``` FACTS: Psychiatric patient (A), diagnosed with personality disorder, had confessed sexual feelings towards children during admission in 1993. After being discharged, whilst being treated as an outpatient, he sexually assaulted and murdered a child who lived in the same street. ``` Points Arising: The proximity required for a duty of care as between a hospital and the victim of a patient only arises if the victim is a member of an identifiable at risk group. HELD: 1. There was not sufficient proximity between the parties (A) and the child whom was sexually assaulted and murdered Child's mother brought action in negligence) for a duty to exist. The daughter was not a identifiable potential victim and there was nothing D could have reasonably done to prevent the incident occurring. In this case there was no special relationship between the parties. See Home Office v Dorset Yacht Club for proximity case.

Question 26

Home Office v Dorset Yacht Co [1970] Note: come back to this and fill in missing info.

Answer 26

FACTS: Borstal boys were left unsupervised by their supervisors and subsequently attempted escape. The borstal boys had a history of escape and the only way they could escape the island was by using the claimant’s yachts. ISSUES: Was there sufficient proximity between D and the TP that caused harm to establish if a duty was owed. Was it reasonably forseeable that escape would be attempted via yachts and that damage could occur? Is it fair, just and reasonable to impose duty HELD: 1. There was sufficient proximity between the TP that cause harm and D. The supervisory relationship created the proximity between D and the borstal boys. 2. Damage to the yachts was reasonably foreseeable given that the boys had a history of escape and the yachts were the only means by which to leave the island. 3. Lord Diplock stated that he would only impose liability in respect of harm caused in the course of escape, at roughly the same time and in the vicinity. Policy considerations No policy reasons not to impose a duty Importance: 1. Marked the start of a rapid expansion in the scope of negligence by widening the circumstances in which a court was likely to find a duty of care. i. ) Prison authorities might therefore be held responsible for harm caused by one inmate to another while in custody, or even for harm caused to those in the vicinity in the course of an escape from custody.

Question 27

Hill v Chief Constable of West Yorkshire [1989] Contrast this case with Swinney v Chief Constable of Northumbria

Answer 27

FACTS: Mother of last victim of Peter Sutcliffe "Yorkshire Ripper" sued police for negligently failing to apprehend Sutcliffe earlier. He had been interviewed 9 times before he was arrested. ISSUES: 1. Was personal injury reasonably foreseeable? 2. Was there sufficient proximity to establish duty of care between police and victims? HELD: (struck out) 1. The police owed no specific duty of care to a member of the general public, and (ii) on public policy grounds. 2. HoL held that personal injury was reasonably foreseeable (if police failed to apprehend killer, it was foreseeable he would kill again). 3. However, the HoL refused to impose a duty of care as there was insufficient proximity between any woman as a potential victim of crime and the police. Policy considerations: Imposing a duty of care would lead to defensive policing and diversion of time and resources from suppressing crime.

Question 28

Swinney v Chief Constable of Northumbria (No.2)

Answer 28

Contrasted with Hill v Chief Constable W. Yorkshire. FACTS C was a pub landlady who had provided police with information concerning a suspect involved in the death of a police officer. She had made it an absolute condition that she remained anonymous. Nevertheless, a police file containing her details was left unattended in a police car and was stolen, eventually reaching the criminal against whom she had given evidence. As a result she was harassed, causing her to suffer from psychiatric illness and to give up her job. ISSUES 1. Was there sufficient proximity between D and the police (C) to establish duty of care? (Previous precedent would suggest no). HELD 1. CoA held there was sufficient proximity. i. ) Informers should not be considered like other members of the public; they had a special relationship (proximity) with the police, which created sufficient proximity 2. That should police negligence - allowing the informants details / identity to become compromised to the criminal gang - there was a reasonably foreseeable change personal injury might result. 3. Police had assumed responsibility to protect claimant against criminal gang she gave evidence against. Importance: 1. CoA made clear police do not have 'blanket immunity'. 2. Created existence of precedent in which police owe duty of care in particular scenario.

Question 29

Smith v Constable of Sussex Police [2008] Applied policy reasoning from Hill case.

Answer 29

FACTS C suffered injuries during attack by former boyfriend. C had informed police of a series of violent and threatening telephone, internet and text messages, including death threats. Police treated it as a domestic matter and declined to look at the messages or to take any steps to protect the claimant. ISSUES HELD Lack of sufficient proximity between parties Police had not assume responsibility for C's welfare Dissenting opinion: Lord Bingham believed ‘liability principle’ should be applied (where the evidence is credible and the threat is specific and imminent, reasonable steps must be taken to assess the threat and if necessary do something about it). ``` Policy considerations (from Hill): Imposing a duty of care would lead to defensive policing and diversion of time and resources from suppressing crime. ```

Question 30

Mitchell v Glasgow City Council [2009]

Answer 30

FACTS ISSUES HELD 1. The local authority was under no duty to warn a tenant that his neighbour might resort to violence after being informed (by the council) that he risked being evicted 2. There was not sufficient proximity between the claimant and the defendant. i. ) A duty to warn someone that they might be at risk of injury/loss as a result of the criminal act of a third party would arise only where the person ostensibly under the duty had assumed responsibility for the victim. I ii. ) Nothing in the words or conduct of the council suggested that they had assumed responsibility for the claimant’s safety 3. the courts did not think it was fair, just and reasonable to impose a duty of care Policy considerations: Imposing a duty could trigger local authorities to use their powers defensively (for example, being overly cautious about who they grant tenancy to).

Question 31

When are courts more likely to find a duty in cases where the defendant is a public authority / body?

Answer 31

Where the failure to find a duty is operational rather than policy related. In Rigby v Chief Constable of Northamptonshire, this is seen. In Rigby the police fired CS gas without considering the fire risk it posed, and a fire resulted. The court held that the decision to equip the police with CS gas (rather than a non-flammable alternative) was a policy decision with which the court could not interfere. However, the negligent way in which that gas was then used was an operational matter which could amount to a breach of duty.