Duty of Care - Lecture notes on the Duty of Care (Tort Law) PDF

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Duty of CareDuty of care- Carelessness only gives rise to liability where there was a pre- existing duty in the first place - Need a mechanism for controlling liability – DoC constitutes an important control device - No liability in negligence if no DoC - Grant v The Australian Knitting Mills [1936]...

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Duty of Care Duty of care - Carelessness only gives rise to liability where there was a preexisting duty in the first place - Need a mechanism for controlling liability – DoC constitutes an important control device - No liability in negligence if no DoC - Grant v The Australian Knitting Mills [1936] - Best v Samuel Fox & Co Ltd [1952]

Donoghue v Stevenson [1932] - New approach where no other cause of action available – established tort of negligence - Negligence proved by satisfying three-part test o Duty of care o Breach of duty o Causation of damage - Duty of care = important control device

Neighbour Principle - Broadly based on idea of ‘foreseeability of harm’ o Bourhill v Young [1943] - In addition, idea of ‘proximity’ o Those who are ‘closely and directly affected’ by defendant’s conduct - So in addition to foreseeability of harm, you also have to show degree of proximity

Developing Duty of Care

- Lord Atkin’s neighbour principle could be interpreted very broadly and for this reason, over the years the test has been reformulated - Home Office v Dorset Yacht Co [1970] – extended ‘neighbour principle from Donoghue - Donoghue reformulated in Anns v Merton London Borough Council [1978] – Lord Wilberforce offered a ‘two-part test’ for whether or not defendant owed a DoC: o Should be established that there is sufficient proximity b/w D and C for damage to be a foreseeable possibility of any careless act or omission; o If this is established, then the court decides whether or not any policy considerations that might limit the scope of duty or remove it all together - Test had appeal of simplicity but flawed in creating presumption of a DoC - 1985-1991, courts in a no. cases indicated the problematic Anns test should be applied restrictively so that DoC is not too extensive o Yuen Kun Yeu v Attorney General of Hong Kong (1988) Lord Keith – ‘for the future it should be recognised that the twostage test in Anns is not to be regarded as in all the circumstances a suitable guide to the existence of a duty of care’

Caparo Industries v Dickman [1990] - Current test for DoC - Rejected articulating single general principle for existence of DoC & moved towards more traditional incremental approach: o C must point to a direct precedent or to a closely analogous precedent where a DoC has been imposed; or o In cases where no relevant authority exists (novel factual situations), courts should apply criteria (Caparo criteria) to determine DoC:  Damage must be foreseeable  Must be proximate relationship b/w parties

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 Must be ‘fair, just and reasonable’ to impose liability (policy consideration) - Lord Bingham Customs & Excise Commissioners v Barclays Bank (2007) – ‘the three-fold test itself provides no straightforward answer to the vexed question whether or not, in a novel situation, a party owes a duty of care’

Caparo criteria – must be reasonably foreseeable - Haley v London Electricity Board [1965] - Bhamra v Dubb (t/a ‘Lucky Caterers’) [2010]

Caparo criteria – must be proximate relationship - Goodwill v British pregnancy Advisory Service [1996]

Caparo criteria – fair, just and reasonable - Policy considerations most evidently emerge under this criterion - Lord Browne-Wilkinson A X (Minors) v Bedfordshire County Council [1995] o ‘the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter-considerations are required to override that policy’ - Examples of policy concerns: floodgates

Established duty situation or novel case? - Not always easy to determine when case falls within an established duty situation or analogous case or whether it’s a ‘novel situation’ (Caparo criteria would be applied) - Damley v Croydon Health Services NHS Trust [2018]

Caparo doesn’t give clear answers

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- Gives courts flexibility rather than providing single formula or clear test for determining when DoC will be owed - Lord Bridge – ‘The concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests’ - Lord Oliver – proximity and ‘fair, just and reasonable’ ‘merely facets of the same thing’ - Mullis & Oliphant (p23) – ‘Fairness is ‘raw’ policy’ proximity is policy ‘crystallised’ into legal principle’ - so, left w/ precedent and highly malleable principles

Problematic duty situations – Omissions Omissions - Liability for a failure to act? - General rule of no liability (subject to exceptions) - Reasons for common law reluctance set out in Stovin v Wise (1996) – political, moral and economic - General rule justified by: o Difficulty deciding who to blame – Lord Hoffman Stovin v Wise (1996) ‘Why pick on me?’ o Burdensome nature of positive duties (+ fear of defensive practices) General rule exceptions – Assumption of responsibility - Barret v Ministry of Defence [1995] – initially no duty of care (to stop B drinking). But once assumed responsibility for his care (taking him to bed), duty arose. (Though, damages reduced by two-thirds to reflect Barrett’s contribution) - Mitchell v Glasgow City Council (2009) – HoL did not find any assumption of responsibility. Significant here that D was public body, HoL felt it would not be ‘fair, just and reasonable’ to place such heavy burden on them.

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General rule exceptions – Acts of Third Parties - General rule: no duty to prevent other people from causing harm - Usual issue – insufficient proximity b/w defendant and claimant - But some exceptions e.g., o Where there is a special relationship b/w D and C o Where special relationship b/w D and 3rd party, such as relationship of control or supervision - Duty may arise if D has entered an undertaking or assumed responsibility towards the claimant - Stansbie v Troman [1948] - Mitchell v Glasgow City Council [2009] - Home Office v Dorset Yacht Co Ltd [1970] o (check lecture 2.2 for info on cases)

Duty of care – Public Bodies - Do not enjoy general immunity from suit in negligence, but courts traditionally reluctant to allow claims against public bodies - Concern that public bodies should not be treated the same as individuals or companies - When claim made against public body, courts consider whether it is justiciable (appropriate for court to deal w/ claim) - Police do not generally have a duty to protect members of the public from crime - Hill v Chief Constable of West Yorkshire [1989] - Robinson v Chief Constable of West Yorkshire Police [2018] o See lecture 2.3 for notes on lecture

Psychiatric injury vs purely psychiatric injury - Focus is on purely psychological / psychiatric harms – and not psychological harms which are a consequence of a physical injury - Initially, no liability for psychiatric harm in absence of physical damage – Victorian Railways Commissioners v Coultas (1888)

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- Now, courts draw distinctions b/w claims in respect of medically psychological injuries and those which can be described as mere grief, sorrow and distress o Not poss. to recover in negligence for mere grief, anxiety or distress – Hicks v Chief Constable of South Yorkshire Police (1992) o Alcock Lord Oliver – grief, sorrow, deprivation + necessity for caring for loved ones who have suffered injury are all necessary parts of life o Vernon v Bosley (No 1) (1994) – where father who watched his children drown was awarded damages, which did not distinguish b/w the aspects of his condition which were normal grief reaction and those which were pathological o Nicholls v Rushton (1992) – nervous reaction / shaken up following road accident o Reilly v Merseyside Regional Health Authority (1995) - Condition must be result of impact of a sudden event or its immediate aftermath o Sion v Hampstead Health Authority (1994) – effect on father spending 2 weeks sitting by bedside of dying son was no sufficient to claim o Liverpool Women’s Hospital NHS Foundation Trust v Ronayne (2015) – attempt by C to aggregate a series of upsetting events which occurred over no. of days was rejected by CoA o Walters v North Glamorgan NHS Trust (2003) – more generous approach - How claim is dealt w/ depends on circumstances by which harm arose and whether claimant is a primary victim or secondary victim o Page v Smith (1995) Lord Lloyd – primary victims = directly involved in accident and well within range of foreseeable physical injury. Secondary vctim = in position of spectator or bystander

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- Landmark case – Dulieu v White (1901) – turned tide. Innovative decision where C recovered compensation for psychiatric harm in negligence. Reasonable fear for her own safety

Primary victims - Foreseeability o For those in zone of danger, is it enough that physical injury is foreseeable, or must claimant prove that psychiatric harm was foreseeable? o Page v Smith [1996] – where it is reasonably foreseeable that defendant’s negligence may cause physical harm to claimant, they can also recover for the psychiatric harm they suffer. Also allow ‘egg shell skull’ rule to apply in primary victim cases - Zone of danger o Must one be within the zone of physical danger, or is it enough to believe that one is imperilled o Duty can arise if fear is genuine and reasonably foreseeable that a person of ordinary fortitude in C’s position would suffer psychiatric harm  McFarlane v EE Caledonia [1994] – not reasonably foreseeable that a man of ordinary fortitude and phlegm would be so affected by what he saw. C was not in the zone of physical danger despite his belief and therefore not a primary victim

Secondary victims - Suffers purely psychiatric injury as a result of witnessing someone else being harmed or endangered - Much more restrictive category o Subject to control mechanisms o Concern about floodgates - Reasonable foreseeability o Recovery in respect of SVs limited by control mechanisms, first is that the psychiatric injury suffered must be reasonably

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foreseeable in a person or ‘ordinary fortitude’ in the same circumstances  Bourhill v Young [1943] – C’s injuries not foreseeable; if SV suffers psychiatric harm in circumstances where person of ordinary fortitude would not, D will not be liable. However, once some psychiatric harm is foreseeable, the D will – on basis of think skull rule – be liable in full  Note—also in this case, court rationalised ordinary people could expect to withstand the rigours of witnessing injury to a stranger on road w/o suffering psychiatric illness - Modern approach o McLoughlin v O’Brian [1983] – HoL extended class of persons who would be considered proximate to the event to those who come within the immediate aftermath of the event (C did not witness accident, is told of it, arrives at hospital 2 hours after accident + sees husband and children in distress, before they had been ‘cleaned up’).  Lord Bridge suggested recovery should be determined by ordinary principles of reasonable foreseeability  Lord Wilberforce forwarded control mechanisms to restrict recovery:  class of persons whose claim should be recognised  proximity of such persons to the accident  means y which the psychiatric injury caused o Alcock v Chief Constable of South Yorkshire Police [1992]  The control mechanisms forwarded by Lord Wilberforce have remained important part of English law on recovering for psychiatric injury  Were adopted by HoL I this case - Hillsborough stadium disaster – two groups of psychiatric illness claims: o Relatives – Alcock o Police – White v Chief

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- Questions in Alcock o Apply reasoning of Lords Bridge and Scarman on basis of reasonable foreseeability or whether they should apply in addition to this, Lord Wilberforce’s control mechanisms o Case involved reps of friends + fam of victims of Hillsborough disaster. Claimants incl. grandparents, spouses, siblings etc who had been at ground or seen / heard on TV or radio – hadn’t been directly involved in disaster – so not in physical danger o Argued should be able to recover as secondary victims o HoL rejected claims – each claim failed to satisfy criteria they laid down for recovery by ‘secondary victims’ – the Alcock criteria - Alcock criteria o Not only does psychiatric harm have to be reasonably foreseeable to person of customary fortitude or ordinary phlegm but 3 additional control mechanisms need to be satisfied to demonstrate proximity o Known as Alcock criteria – as to when proximity would be established –  Proximity of relationship  Close ties of love and affection o Presumed: spouses, children, parents (but a rebuttable presumption) o But grandparents, siblings? These other relationships have to convince court  What about mere bystander? o Lord Ackner in Alcock gives example of a petrol tanker careering out of control into a school and bursting into flames. ‘I would not be prepared to rule out a potential claim by a passer-by so shocked by the scene as to suffer psychiatric illness…’ o McFarlane v EE Caledonia [1994]:

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 ‘Court should not extend duty to those who are mere bystanders or witness horrific events unless there is a sufficient degree of proximity, which requires both nearness in time and place and a close relationship of love and affection between plaintiff and victim…’  Proximity in time and space  Lord Jauncey (see lecture 2.4)  Gall-Atkinson v Seghal [2003] – broader interpretation of ‘immediate aftermath’ that bound together component part as a sequence of events mother’s visit to scene of accident up to seeing daughter’s disfigured face and injuries at the morgue)  Alcock – seeing bodies in a mortuary for purpose of identification not sufficiently proximate  Proximity of perception  Reaffirms that must result from sudden shock  McLoughlin v O’Brian – HoL allowed claim where shock came through direct sight or hearing accident or its aftermath, but left open qu of whether an equivalent such as viewing it on live TV would suffice  Alcock – many claimants not physically present at ground at time of disaster or aftermath, but viewed events on live TV. What is seen on TV or told by someone else is not immediate enough  Lord Ackner placed strong purchase on broadcasting Code of Practice – no identifiable individuals (see lecture 2.4 for quotes)  How far immediate aftermath will stretch is uncertain o Galli-Atkinson v Seghal (2003)

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Rescuers and Employees: Primary or Secondary? - Law traditionally showed generous approach to rescuers – ‘danger invites rescue’ - Where rescuer only suffers psychiatric harm – Chadwick v British Transport Commission [1967] - Similar line of thinking re. employees + claims for psychiatric illness – Dooley v Cammell Laird [1971] - White v Chief Constable of South Yorkshire Police o HoL – no special treatment to either employees or rescuers o All victims of psychiatric injury other than those within range of potential physical injury are secondary victims and must satisfy control mechanisms in Alcock o For rescuer to count as primary victim, must ‘satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so’ o Note – police officers here not in physical danger so cannot be primary victims and would fail Alcock criteria as secondary victims ** see lecture 2.4 for reform needed

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