2. Tort law & Negligence and duty of care PDF

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Detailed notes on the duty of care in negligence...

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NEGLIGENCE - DUTY OF CARE ELEMENTS OF TORT OF NEGLIGENCE -

1) Defendant (D) owes a duty of care 2) D was in breach of that duty 3) Claimant (C) suffered damages caused by the breach of duty which are not too remote 4) There are no defences available to D that would either defeat the claim or reduce the amount of damages

PROBLEMS – DOES D OWE C A DUTY OF CARE -

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A speeding car injures a pedestrian. Does the driver owe a duty of care? o Yes – Duty owed in road traffic A motorcyclist carelessly crushes into a streetcar and is killed. A person who comes to the scene later suffers a shock from seeing the scene of the accident. Does the motorcyclist owe a duty of care to the passer-by? o Doesn’t owe a duty to everyone so no o BUT – you can sue the estate of the deceased – not relevant but woah An elderly woman is caught up in a policy arrest of a drug dealer and is unintentionally injured by the police officers. Do the police owe a duty of care? o This prob echoes a case – which one tho? o Police do owe duty of care – bc officers of the Crown surely? A person is drowning in a river. A passer-by fails to stop and throw a readily-available safety-buoy to the drowning person. Does the passer-by owe a duty of care for injury/death to the drowning person? o In English law, we have no duty to positively act to save someone’s life  There is a moral duty not a legal one

WHAT DOES THE DUTY OF CARE CONCEPT DO? -

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Control mechanism to identify scenarios in which the courts are willing to accept negligence liability in principle with regard to particular type of harm (conditional upon proving all other elements) o In modern tort law ‘duty’ is a means to refuse imposing liability (Cane) o Courts often argue with policy considerations, e.g. floodgates of litigation, defensive practice Most duty scenarios are well-established: o Road users owe other road users a duty of care, Nettleship v Weston [1971] o Doctors owe patients duty of care, Pippin v Sheppard [1822]  Explaining medical risks  What about that crim case – Adomako? Opens up liability for things like negligent manslaughter eep If duty of care scenario is new or unclear, courts mostly apply the Caparo test o To understand this – we need to look at history of duty of care first…

1.DUTY OF CARE – NEIGHBOUR PRINCIPLE (ATKIN) -

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Donoghue v Stevenson [1932] “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. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? 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.” NB: Do not use D v S to establish duty of care in ‘problem questions’ – Use the CAPARO test

2.DUTY OF CARE – EXPANSION AND RESTRICTION OF LIABILITY -

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Lord Wilberforce’s two-stage test in Anns v Merton LBC [1978]: o 1) First one has to ask whether there is a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness may be likely to cause damages (prima facie duty of care) o 2) Unless there is some policy reason not to have a duty of care Expansion of liability, e.g. o McLoughlin v O’Brian [1982] (‘nervous shock’) o Hedley Byrne & Co Ltd v Heller and Partners [1963] (pure economic loss from negligent statement) Extending negligence liability became unpopular o Anns reopened issues thought to be settled and was conceptually problematic o Murphy v Brentwood District Council [1990] overruled Anns two-stage test.

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3.DUTY OF CARE – THE CURRENT APPROACH -

Caparo Industries Plc v Dickman [1990] o (0) No established category of liability; CHECK FOR PRECEDENT (or an analogous case) o (1) Reasonably foreseeable that D’s failure to take care could cause damage to C;

(2) Relationship of proximity between C and D; and (3) It is fair, just and reasonable that the law should recognise a duty on D to take reasonable care not to harm C Other tests (or established categories) o Alcock v Chief Constable of South Yorkshire Police [1992] (psychiatric injury) o Hedley Byrne & Co Ltd v Heller and Partners [1963] (pure economic loss) For general negliegence or unknown negligence – Caparo is used o BUT if there is negligence established – like psych injury then you used the test that that category propounds. o o

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SIGNIFICANCE OF CAPARO v DICKMAN -

Lord Bridge’s 3 part test (which he himself rejected as blueprint for analysis) is only applied if there are no established categories of liability Incremental development of duty of care A shift away from prima facie duty based on foreseeability o “fair, just and reasonable that the law should impose a duty of care” Proximity re-emerged as distinct element Results from Caparo test in truly novel duty scenarios can be unpredictable

SELECTED RELATIONSHIPS WHERE DUTY OF CARE IS ESTABLISHED -

Teacher towards children (Carmarthenshire CC v Lewis [1955] but see also X (Minors) v Bedfordshire CC [1995]) Road users towards other road users (Nettleship v Weston [1971]) Employers who causes physical injury to employees (Mitchell v Glasgow CC [2009]) Transport operator towards passenger (Silverlink Trains Ltd v Collins-Williamson [2009]) Healthcare practitioner (Sidaway v Board of Governors of the Bethlem Royal Hospital [1985]; redefining the duty Montgomery v Lanarkshire [2015] UKSC 11) In cases of personal injury, courts are often happy to accept a duty of care if injury was foreseeable

CAPARO: FORSEEABILITY -

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What does foreseeable mean – can st ever be really foreseeable? Defendant must have foreseen that claimant may suffer some damage at the time of the alleged negligence Bourhill v Young [1943] o Injury by shock foreseeable? o C within area of potential danger? Haley v London Electricity Board [1965] o Statistical & anecdotal evidence used to establish foreseeability Bhamra v Dubb [2010]

LIMITATIONS OF CAPARO -

Cooke: Is there a difference between proximity and fair, just and reasonable? Winfield: empty phrase; judges are phrasing policy Caparo is a framework rather than proper test Other tests to establish liability: o Hedley Byrne & Co Ltd v Heller and Partners [1963] :Voluntary assumption of responsibility, o D v East Berkshire Community NHS Trust [2005]...