Duty of care - Duty of care owed in negligence PDF

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Duty of care owed in negligence ...

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• While, in a survival action, the estate is prima facie entitled to the same damages as the deceased would have recovered in an action inter vivos, section 5 of the Survival of Actions Act specifically restricts the damages recoverable to those that resulted in actual financial loss to the deceased or the deceased’s estate. " • • Under the Fatal Accidents Act, therefore, it is not the deceased’s own cause of action which is caused to survive. Rather, it is a new action for the benefit of his or her statutory dependants.The spouse, parent or child of a person whose death was wrongfully caused may bring an action for their own benefit " The elements of negligence : " a) duty of care b) breach of duty (falling below the standard of reasonable care which the law demands) c) causation (claimant suffered damage as a result of that breach) d) remoteness (not too remote/unforeseeable) " Duty of care Claimant & defendant : a) ‘’distinct and recognisable situation’’" or " b) acc to principles developed by case law. (3-step test + incremental test)$ Claimant has to prove all four and defendant has to just disprove one. "

Heaven v Pender : too broad"

• Mullen v AG Barr :Mullen bought a bottle of beer & gave it to his children. A decomposed mouse came out of the bottle. The 2 children sued the manufacturer of the beer. No liability. ‘’It would seem little short of outrageous to make them responsible to members of the public for the condition for the conditions of the contents of every bottle which issues from their works’’

• Donoghue v Stevenson : Lord Atkin neighbour principle initially used to determine whether a duty of care existed between defendant and claimant.

- Facts : Partly decomposed snail came out of the bottle causing Mrs Donoghue—> gastroenteritis. Claimed for damages for psychiatric damages and for disease.

- Can a manufacturer owe a duty of care? Manufacturer and consumer were not a recognised category. Should the court broaden the concept of duty of care? Known as the narrow rule in Donoghue v Stevenson that a manufacturer of goods owes a duty of care to the ultimate consumer.

- Held : 3:2 : Donoghue could recover a duty of care, owed to her in negligence. 3 breakthroughs : - 1) concept of duty of care should not be constrained to a contractual relationship. Mrs Donoghue friend bought the beer, she played no part in the contractual relationship and hence could not make a claim in contract upon breach of warranty.

- 2) New category of duty created : manufacturer to consumer and no possibility of intermediate examination of the goods. A manufacturer of goods owes a duty of care to the ultimate consumer. 3) Lord Atkin + the ‘’neighbour principle’’ : those who are so directly affected should have compensation. Very broad statement and from here on it extended massively. Who is a neighbour? ‘’You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.. Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’’ And ‘’not confined to mere physical proximity; but be used.. to extend to such close and direct relations that the act complained of directly affect.’’ Duty of care concept become much wider. Lord Macmillan ‘’ the categories of negligence are never closed.’’The neighbour principle is not limited in its application. Courts can formulate new categories of negligence to reflect the current social view and make decisions based on consideration of public policy.

Home office v Dorset Yacht. Lord Reid + Wibelforce expanded the duty of care even further. I think that the time has come when we should say that a duty ought to apply unless there is some justification or valid explanation for its exclusion’ Very broad statement. Became a great concern for insurers.

Caparo Industries v Dickman. Lord Bridge proposed a 3 part test. Adds to neighbour principle : requirement that there must be a relationship of sufficient proximity and that the implosion of a duty of care must be fair, just and reasonable. 1) reasonable foreseeability of harm 2) degree of proximity/neighbourhood. Claimant must show that the defendant had a measure of control over and responsibility for the potential dangerous situation. 3) policy- fair just and reasonable. All three limbs must be met. Particularly for personal injury. It adds to the neighbour principle, by the imposition of a duty of care must be fair, just and reasonable. They operate at ‘a high level of abstraction’, per Customs & Excise Commrs v Barclays Bank plc 2 more tests applied more rarely than the Caparo test. a)

Voluntary assumption of responsibility/ reliance test. Special skill undertaken by D for the assistance of C who relied upon that skill. Pure economic loss context. Hedley Byrne v Heller & partners. Per Lord Morris

b)

The incremental test. Lord Bridge in Caparo : any new or novel duty of care should develop incrementally. Means in English law won’t see huge leaps, living in a different era. It should ‘’hug the coastline’’ of established scenarios of duties of care. Courts won’t make vast leaps.

Lord Hoffmann said in Customs and Excise that proximate, fair, just and reasonable and assumption of responsibility are to be used as slogans rather than practical guides as to whether a duty exists. Lord Bridge in Caparo said these were labels only not definitive but all relevant in an appropriate case.

Evaluation of test : •

only ‘labels’ — they operate at ‘a high level of abstraction’, per Customs & Excise Commrs v Barclays Bank plc [2007] 1 AC 181, [83]

• what is needed is to ‘flesh out’ these high-level factors with lower-level factors, having regard to the precise facts and circumstances as between C and D !

• !Caparo is the primary test, although the other two are sometimes used instead of, or in conjunction.Van Colle v CC of Hertfordshire : Caparo test ‘’most favoured test’’- Lord Bingham

Always check : Are these claimant and defendants in recognised category. Then if not —>caparo.

Duty of care under Caparo. In practice established by relying on a existing category ‘’distinct and recognisable situation’’ Lord Bridge in Caparo or 2) under the Carparo test (3 limbs) + incremental test. (Hope for it to fall under first category)

1.

Recognised categories : Carparo’s 3 part test is automatically satisfied. The 3 limbs are satisfied. In a problem question just say X owes B a duty of care under e.g employer-employee category. No need to go through them

- employer–employee. E.g physically injured in the workplace. Exception : psychiatric injury. - doctor–patient - occasional carve outs : McFarlane v Tayside Health Board. Sterilisation process duty is not to avoid or minimise all adverse consequences

- teacher–pupil (especially young pupils); - road users–other road users/pedestrians/passengers; transport operators–passengers; - custodian–prisoner- Most difficult. - occupiers–lawful visitors Note : •

employers owe a duty of care to employees, but not to avoid or minimise all psychiatric

illnesses which their employees may suffer: Hatton v Sutherland [2002] EWCA Civ 76, and on appeal: Barber v Somerset CC [2004] 1 WLR 1089 (HL) !

•

doctors owe duties to patients to perform medical treatment carefully, but insofar as sterilisation operations are concerned, their duty is not to avoid or minimise all adverse consequences flowing from a failed sterilisation: McFarlane v Tayside Health Board [2000] 2 AC 59 (HL) !

Reasonable Foreseeability Caparo #1

• Extremely wide. : Risk of some personal injury or property damage occurring to the claimant. Roe v Minister of Health.

• OBJECTIVE : Matter what a hypothetical and reasonable person would do in the defendants shoes.’’A real risk, and not a mere possibility’ Smith v Littlewoods Organisation Ltd . ‘’Not farfetched.’’

• In reality a poor ‘’control mechanism.’’ Rare for it to be not foreseeable. Very weak test to satisfy. • Duty of care not owed to whole world ( In caparo terms, would not be fair, just or reasonable) - but only to a individually foreseeable victim or a class of whom the victim is one. Nettleship v Weston : i.e passenger in seat and crash into pole. Driver reasonable foresee passenger as a victim. Make sure what you are alleging is that this particular victim or class.

Special Claimants and defendants

Claimant who is particularly susceptible : not shared with the rest of the demographic. Very undemanding. Haley v London Electricity Board. : Statistical evidence may assist to prove reasonable foreseeability.

- Facts : Hailey was blinded in an accident but regardless was working as a telephone operator. Fell over a hammer which was placed in the middle of the footpath to warn pedestrians not to fall into the ditch. The hammer gave adequate warning of the trench for normally sighted persons. Hailey acc to death report. Rendered death. Hailey sued the London Electricity Board in negligence.

- Went to HOL : Mr Hailey was owed a duty of care by the London elec board. WHY? 1) that hammer would have done the job of warning a sighted person with respect to the ditch. 2)Foreseeable that a blind person could be using the London pavements. 1/500 people was blind in London and that many of them were unaccompanied. on the facts, the punner hammer was not an adequate or sufficient warning for a blind person who was taking the usual precautions by use of his stick and accordingly appellant was entitled to recover damages at common law for negligence. They should have taken special precautions to guard against the risk that a blind person stick might miss a hammer. Unborn claimants:

• 1993 Burton v Islington Health Authority : Duty of care would be owed to an unborn claimant which becomes actionable on birth. This law is applicable to to persons born prior to 22 July 1976 when the Congenital Disabilities Act 1976 came into force. This act gave rise to the right of action to a child who is born alive and disabled in respect of the disability, if it is caused by an occurrence which affected the mother during pregnancy or the mother or child during labour, causing disabilities which would not have e otherwise been present. Little importance as Act passed.

• In contrast to Walker v Great Northern Railway. • Watt v Rama: Collision with mortocycle, mother of Sylvia watt who was pregnant-> rendered quadriplegic. Gave birth to daughter= brain damage + epilepsy. No duty of care owed. - Questions : (a) whether in the circumstances set out in the statement of claim the defendant owed a duty of care not to cause injury to the infant plaintiff who was then unborn; (b) whether in the circumstances set out in the statement of claim the defendant owed a duty of care to the infant plaintiff not to injure her mother; (c) whether in the circumstances set out in the statement of claim the damages sought to be recovered by the plaintiffs are in law too remote. Dichotomy in judicial opinion : law enacted- Parliament : clarify unclear area of law. Clarifies the common law. Congenital Disabilities (Civil Liability) Act 1976 — what it creates for the child under s 1(1) — the need for an ‘occurrence’ (not defined) - Occurrence is interpreted by case law. Most common occurrence : mother is injured whilst pregnant and that also injures the foetus whilst in utero. E.g negligent driving and D crashes into mothers car. Or when mother given medicine and it adversely

affects the foetus in utero. e.g injury to a baby during birth/deprived oxygen. It can be wider e.g preconception. Injured at the utero at the negligence of a defendant - must be foreseeable/owes a duty of care. • Rule : Congenital Act 1976 exception where do owe a duty/from immunity : drugs and alcohol. It is circumstantial. " !

4 triggers for a duty of care 1)

child must be born alive = a life which is separate from his or her mother. No matter how short it might be.

2)

Disability occurring to the unborn claimant must be negligently caused by the defendant. This Act does not cover naturally occurring disabilities. Must be act/omission

3)

Must be an occurrence

4)

Claimed by the child is derivative : the Defendant must have owed a duty of care to the mother herself. Must establish negligence caused the injurty. !

Restrictions : only applies to births after 1976. Only concerns duty of care. It says nothing for the rest of cause of action. Claimant has to prove the first limb of negligence. Case of McCoy. Proximity Caparo #2

•

Will bring down a duty of care far easier than duty of care. Stricter control mechanism

• 1) Geographical proximity (damage suffered and breach occurred timeframe) Physical • 2) temporal proximity - Closeness in time between between breach and damage • 3) Relational proximity. Unequal bargaining power? Pre-existing relationship? • 4) casual proximity. Could D prevent this from occurring Geary v JD Wetherspoon plc. Geary was very drunk. Fell backwards- huge economic loss and care cost— > tetraplegic. Was a duty of care owed? First element of negligence. In the light of the obvious risk that the claimant had ran, the principle of voluntary assumption of risk had been fatal to her claim. The claimant had freely chosen to do something which she had known to be dangerous. There had even been a degree of pre-planning. She knew that sliding down the banisters had not been permitted, but she chose to do it anyway. She had therefore been the author of her own misfortune. 1)

was it foreseeable - physical layout of premises

2)

No sufficient legal proximity. Held : physical proximity between Gerry and Wetherspoon and temporal : no gap. But no relational proximity. No duty to protect her from her own foolish actions. The defendant had owed no duty to protect her from such an obvious and inherent risk. She had made a genuine and informed choice and the risk that she chose to run had materialised with tragic consequences. In those circumstances, the claim failed.!

Policy factors Caparo 3rd limb

• Should the D be liable? The court has lots of discretion. Very pragmatic limb. Control mechanism. Causes the claimant to fail numerous times.

• Fluidity. -Richardson v Mellish (1824) 2 Bing 229: ‘a very unruly horse, and when once you get astride of it, you never know where it will carry you’

• Vast array pg 66-69 Mulheron Very young children

• Cannot owe a duty of care as a matter of public policy: Carmarthenshire CC v Lewis. The young child 3.5yrs. Wondered out from kinder garden to main road. Lewis driving a truck breaked and died. Deceased claimant. Mrs Lewis brought FAA claim. Think of two statutesFatal Accidents Act 1976. Law Reform (Miscellaneous Provisions) Act 1934

• Children as young as 12 suffice - Young v Kent CC [2005]

Police involved in criminal investigations

• Hill v Chief Constable of West Yorkshire. Hill was the thirteenth and final victim. Claim brought by her mother. She alleged had the police used reasonable care looking at the similarity of the murders and patterns they could have prevented this murder. Would have apprehended it earlier. Any damages would be paid to charity for victims of crime. Point was to seek to establish whether police owe a duty to victims. Held : Police do not owe a duty of care to victims of crime.

• Reasonable foreseeability was established under Carparo but proximity failed and public policy failed.

Public policy i. Floodgates- would give rise to indeterminate number of claims ii. defensive practices iii. diversion of resources. Divert resources away from the investigation and suppression of crime.

iv. the public good - fearlessly and without fear of negligence suits v. the ‘no-need’ factor- other torts that the police may be liable for. i.e false imprisonment vi. the ‘what would it achieve’ factor. Hol : general public duty for police to investigate and suppress crime would not be heightened or enhanced - duty of care.’’would not at the end of the day help anybody or punish anybody.’’ vii. potential conflicts viii. for the ballot box. If electorate has concerns about the polices efficiency= matter for the government and budget not a matter for the courts to find a duty of care. No duty of care as a matter of public policy : Osman v Ferguson [1993] 4 All ER 344 (CA)Osman v UK [1999] 1 FLR 193 (EctHR), Z v UK, Brooks v Commissioner of the Police for the Metropolis [2005] 1 WLR 1495 (HL) Chief Constable of the Hertfordshire Police v Van Colle [2008] UKHL 50 and for a good overview of the English authorities on the point, see: Rush v Chief Constable of the Police Service of Northern Ireland [2010] NI Master 6 Robinson v West Yorkshire Police [2014] EWCA Civ 15 – on appeal before the Supreme Court, heard July 2017, judgment currently reserved

• What if if C is a pre-identified victim? Michael v CC of South Wales Police [2015] Distinguishable from Hill because pre identified victim. Made a call saying ex bf threatened to return to kill her. Call was downgraded to 60 minutes in priority. She lodged another call which was answered and during the course of that call she was killed. FAA claim- mother of two young children. And Law Reform (Miscellaneous Provisions) Act 1934 for funeral expenses.Held 5:2 Hill principle case applies here. No duty of care. Once 999 call happened then a criminal investigation was on foot which brought it squarely with the Hill principle. Most of the policy reasons in Hill remain sound grounds. Dissents Lady Hale : pre-identified victim: means the Hill principle does not apply, duty of care can be owed. No blanket immunity from negligence for police. Can be liable where they create the danger Rigby v CC of Northamptonshire [1985]

• and Swinney v CC of Northumbria [1997] QB 464 (CA)Donachie v CC of the Greater Manchester Police [2004] EWCA Civ 405 - psychiatric injury

• the ECHR avenue. Ancillary claims. DSD v Commr of Police [2015] Claim under article 3.

The Bad Samaritan Perceives danger and fails to go to assist the person. No duty to rescue or to assist a person in need in UK law. Distinguish from civil law in Europe.

Gibson v Chief Constable- Lord Hamilton : suppose blind man waiting to cross and the bystander watches him. No duty of care to intervene. Contrast that to someone who nudges him into the traffic- then a duty of care is owed. But failure to intervene is not a scenario. Canadian case :light a cig while watch neighbour drown

Reasons: Compromise individual liberty Give rise to to mass liability. All people liable for a person drowning. Indeterminate liability i.e many ppl witnessed drowning. Or why pick out one person out of all of these people i.e richest Stovin v Wise- morally motivated. To convert it to a legal duty deprives it of a altruistic quality. Duty to rescue involves putting in rescuer in danger and monetary expenditure and neither of them is necessary. Any expenditure whether monetary i. compromise of individual liberty ii. indeterminate liability iii. the ‘why pick on me?’ argument iv. ‘altruistic quality’ v. imposing expenditure vi. causation difficulties - e.g swirling of car, blind man, and bystander not doing anything. All 3 contributed to blind mans death or injury and sorting this out is difficult compare with the position of the ‘Good Samaritan’= duty of care applies Duty imposed for omissions . Does a special relationship exist?

• Prison officers and prisoners, Home office v Dorset Yacht • Employer and employee • Occupier na visitor • Parent and child

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