Law of Tort 8.04.29 PM PDF

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Law of Tort September 23rd lecture 1 What is a Tort? - It is a wrong and law here is seeking to correct the wrong and its damage centric - A civil wrong giving rise to an action for damages September 30th lecture 2 Tort of Negligence: Duty of care 2 - Is the duty of care issue covered by existing precedent? And apply the precedent that there is or is not a duty of care There are core duties and also ones that are weighted more or less How proximity applies in duty and there are specific rational ways in which they attack the areas such as: - Psychiatric damage - Economic loss - Liability for omissions - Police liability Core elements - Act or omission---- that causes….

- Damage ---- to a protected interest of c - By the fault of D ---- Burden of proof is on C - Standard of proof is on the balance of probabilities (reasonable man standard) and what do you expect from that person Protected interest - An individual’s interest in their personal security - Personal property - An individual’s economic interests - An individual’s interest in their reputation/ privacy

The primary aim of torts is to put C back into the position they were in before the tort was committed Loss distribution - wher Consider:

o Lack of clarity of proximity and foreseeability (the More Foreseeable the damage = the More Likely the Relationship is to be “proximate”) they have to be two distinct things o Have to prove the three boxes of caparo o Fair, Just & Reasonable’ = policy considerations? o Note the indeterminate nature of these concepts: Interdependence or interrelated: - Foreseeability o Bourhill v Young HoL [1943] AC 92  Road traffic accident and a women who doesn’t see the impact of the accident and she is within the walking distance of it but she does see the after math and sees blood on the road, she suffers from nervous shockthe question that is raised is unforeseeable and rationally contemplate seeing the result of the road and if we were to apply that to foreseeability there would be a lot of people coming forward and what would have to be enough- see is too far away from his contemplation so NO CLAIM o the unforeseeable claimant. o D MUST have foreseen some damage to C as a result of their negligence: o Bourhill v Young [1943] AC 92 o Lord Russell: “a duty only arises towards those individuals of whom it may be reasonably anticipated that they will be affected by the act which constitutes the alleged breach” - Proximity o Relationship of legal significance- it’s not about closeness it’s about where law should place duty- “we need to protect this and its significant because….” o Label that describes a relationship between C and D that the law recognises as significant: o ‘... an expression used not necessarily as indicating literally ‘closeness’ in a physical or metaphorical sense but merely ... a convenient label to describe circumstances from which the law will attribute a duty of care’ (per Lord Oliver in Caparo) - if you see foreseeability proximity should be well established and policy should be The ‘Caparo Principle’ in operation (fairness, justice and reasonableness/’policy’ factor - Many of the ‘fair, just and reasonable’ cases are ‘strike out’ applications where D argues that the C has no reasonable prospects of success under Civil Procedure Rules 3.4(2). - Lord Reed in Robinson (para 26 ) Noted: o Where the existence or non-existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of a duty is fair, just and reasonable... Nor, a fortiori, can justice and reasonableness constitute a basis for

discarding established principles and deciding each case according to what the court might regard as its broader merits. o Such an approach would be a recipe for inconsistency and uncertainty .... It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. 2 - Policy then, is most appropriately invoked as a consideration in novel circumstances, that is circumstances for which there is no precedent. - Equally, policy may be invoked in inviting the Supreme Court to depart from a previous decision. - The other ingredients of "the test", foreseeability of harm and proximity, remain arguable in every case as the circumstances permit since these are the established principles inherent in the question of duty. POLICY IS PERSUASION: Examples in Case Law - Police and the defensive practice argument o Did the police owe a duty of care to protect members of the public from the criminal acts of third parties? o READ: P.N. 2005, 21(3), 201-207 o Hill involved the mother of the Yorkshire Ripper's last victim suing the police in negligence for failing to catch the serial killer before he had a chance to kill her daughter. o POLICY RATIO IN HILL  Claim was struck out by the House of Lords on two separate grounds: Proximity & Public Policy  Principles set out under both headings were Directly Linked to the precise nature of the allegations set out in the claim and the particular duties that were argued.  The Principles Relate to the Situation of an Omission  More specifically to a Failure to Control the Conduct of a Third party.  Public Policy Considerations by Lord Keith in Hill, essentially a concern about Defensive Practice and Floodgates, were also geared specifically towards the alleged affirmative duty to prevent crime.  Given the absence of any special relationship of close proximity between the parties, the affirmative duty in that case was clearly presented as a very general duty owed to all members of the public.  Unknown claimant in proximity- don’t know the killer  How could they protect the public if they didn’t know him  Go from Hill to Michael to Robinson o Fighting the Floodgates ?  Note the different starting point of the same court in Phelps v Hillingdon London Borough Council [2000] (although in a slightly different context – failure of local authority employed psychologist to identify C’s dyslexia).

‘I am not persuaded that the recognition of a liability upon employees of the education authority for damages for negligence in education would lead to a flood of claims...  Nor should it inspire some peculiarly defensive attitude in the performance of their professional responsibilities. On the contrary it may have the healthy effect of securing that high standards are sought and secured’ (per Lord Clyde). o Be better and expect far more of the authority and never questioning their authority o Local Authorities and children under their care – the conflicting duties argument  Is it just, fair and reasonable to impose a duty of care on the local authority to protect children from the risk of abuse and/or neglect?  See D v East Berkshire Community Health NHS Trust - was a duty of care owed to parents falsely accused of abusing their children?  Medical professional task in investigating abuse of a child if that person in good faith but carelessly to the point that a decision is made that negativity effects the parents that causes them harm does that duty of care extend to the parents.  Policy connects and becomes the core between proximity and foreseeability if those two are conflicting o CONFLICTING DUTY  For another example of a duty of care being denied because of its potential to undermine a conflicting and more important duty to the vulnerable, see Jain v Trent Strategic Health Authority [2009]  ‘…the imposition of such a duty would or might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, thereby putting at risk the achievement of their statutory purpose.’ Per Lord Scott). o DISTRIBUTIVE JUSTICE  Distributive justice arguments are potentially of general application but have arisen specifically in the context of what are often known as ‘unintended children’/’wrongful conception’ cases:  McFarlane v Tayside Health Board [1999] Was it just, fair and reasonable for D to owe a duty of care in respect of the financial loss incurred in an ‘unintended pregnancy’ case? o A man after 4 children gets a vasectomy and can’t afford another one and they negligently tell him its successful but he has another one o His argument was that I went to a medical profession and it was not successful and he wanted payment for the upbringing of the child but 

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o Lord styne says to a certain extend you can get damages for loss allocation and how much is a portion which is enough and has to be a rational o Lord Steyn – citing the principle of ‘distributive justice’ decided the case should be resolved by asking how commuters on the London Underground would respond if they were asked should parents who were not informed of the risk of pregnancy after a vasectomy be able to recover full damages from the NHS?  “in my view it is legitimate in the present case to take into account considerations of Distributive Justice. That does NOT mean that I would decide the case on grounds of public policy. On the contrary, I would avoid those quick sands.  Relying on principles of Distributive Justice I am persuaded that our tort law does NOT permit parents of healthy unwanted child to claim the costs of bringing up the child from a health authority or a doctor. If it were necessary to do so, I would say that the claim does not satisfy the requirements of being fair, just and reasonable. DUTY OF CARE AND LIABILITY FOR OMISSIONS o Exemptions & Exceptions in Duty  Tort of Negligence does NOT usually impose a positive obligation to confer a benefit on others. (want to tighten it up)  The full lack of action is so broad  The common law long taken the view that it would be too great a burden to impose liability for pure omission  This general rule is sometimes expressed as there is no duty to rescue/ there is generally no liability for an omission or there is generally no liability for failing to prevent a third party causing harm … o Smith v Littlewoods Organisation Ltd [1987] AC 241  They were part of NHS group and they bought a building and tear it down and build a store, they had no knowledge of issues of vandalism and burglary but there is a trespass and start a fire and they were no way aware of issues and in terms of pure omission they didn’t have anything to go off of and no knowledge of history and how could they foresee this if they had no info about this and the appeal of this was dismissed because if there is no knowledge can there be a relationship of controlyou can only act on omissions if you know  Did D owe a duty of care to prevent third parties causing damage to neighbouring properties (e.g. by better securing his premises or engaging a 24 hour security patrol?)

‘the common law does not impose liability for what are called “pure omissions”.’ Per Lord Goff at 271  For cases on similar facts see:  Lamb v Camden LBC [1981]  Perl (Exporters) Ltd v Camden LBC EXCEPTIONS TO THE “PURE OMISSIONS’ RULE  You have a set of security guards and have a cup of tea and become very ill and they attend A&E and they assume responsibility but they are not seen by the resident doctor because he is ill himself and looks at their symptoms and says go see a GP and they die even if they were see they would have died because the drink was poisoned but the assumption of responsibility was to look after to them. 

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A) Undertaking/ assumptions of responsibility a. Barnet v Chelsea & Kensington HMC [1969] – i. Man is drunk and the police laid him in his bed and the man choked on his vomit because he got sick and died from that so they’re somewhat to blame- if you take it on you assume responsibility ii. casualty departments assume responsibility towards patients stepping over the threshold. Duty is obvious iii. If a hospital accepts a patient, it MUST exercise reasonable care, iv. A duty which can be discharged by referring him to a proper person; v. But no hospital is under a duty to accept a patient and take responsibility for him. vi. On the evidence, however, it was clear that even if the deceased had been taken *433 into hospital, he could not have survived. vii. [Reference was made to Bolam v. Friern Hospital Management Committee. b. Barrett v Ministry of Defence [1995] 1 WLR 1217 i. D conceded they had assumed responsibility towards the drunken officer by their conduct. ii. Held the duty officer was liable as well as the MoD, for his failure to have someone stay with the officer iii. Responsibility was assumed by taking the deceased to his bed iv. However, the claimant did not recover in full due to the principle of Contributory Negligence 1. “The deceased involved the defendant in a situation in which it had to assume responsibility for his care and I would NOT regard it as just and equitable in such circumstances to be unduly critical of the Defendant’s Fault.

2. I consider a greater share of blame should rest upon the deceased than on the defendant and I would reduce the amount of the damages recoverable” (2/3rds To Defendant) c. Kent v Griffiths, Roberts and London Ambulance Service [2000] i. duty of care owed as soon as 999 call accepted. ii. The duty arose out of assumption of responsibility and detrimental reliance. d. Darnley v Croydon NHS Trust [2018] UKSC 50 i. NHS Trusts had a duty to take reasonable care not to cause physical injury to those who presented themselves at accident and emergency departments complaining of illness or injury. ii. IMPORTANTLY scope of that duty extended to taking reasonable care not to provide misleading information, whether given by medical or non-medical staff, about how long patients might have to wait before seeing a clinician. READ J.P.I. Law 2019, 1, C1-C4

B) Special relationship between claimant and defendant a. Charlton v Forrest Printing Ink Co. Ltd [1980] – employer/employee b. Carmarthenshire County Council v Lewis [1955] – child/parent

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Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360  Held, Allowing Appeal (Lord Hobhouse dissenting), that the amount of damages was reduced by 50 per cent to apportion fault equally  A deliberate act of suicide was not a novus actus interveniens negating the causal connection between the breach of duty and the death.  To hold as such would lead to the absurd result that the very act which the duty sought to prevent would be fatal to establishing a causative link..

C) Relationship between defendant and third party (control) a. It also recognises certain relationships characterised by A having ‘control’ of B as giving rise to a duty to prevent B from causing harm to C: b. Home Office v Dorset Yacht Co. Ltd [1970] UKHL 2 i. HELD Supervisory relationship, position of responsibility of the guards, high likelihood of boys escaping = all enough to establish a DoC ii. Minor and adult position and needed to make sure they were safe iii. “this case falls under the exception and NOT the rule, because there was a special relation. The Borstal boys were under the Control of D’s Officers, and control imports responsibility.”

c. Mitchell v Glasgow City Council [2009] - no duty of care owed by housing authority to warn their tenant of threats to his life by another tenant. relationship and control and the courts are delegate to this

D) Control of land/dangerous things a. Clark Fixing Ltd v Dudley MBC [2001] i. A local authority was liable in negligence for damage caused to premises adjoining an empty property which it had compulsorily acquired - authority was aware that the property was not secure and had been prone to instances of fire-setting by trespassers in the past. ii. Held, dismissing the appeal, that the local authority had had knowledge or the means of knowledge that third parties had been creating fires in the property, therefore the judge had been correct in her finding of liability, iii. Maloco v Littlewoods Organisation Ltd [1987] A.C. 241, [1987] 2 WLUK 73 applied. iv. Given such knowledge, the local authority should have carried out investigations into the presence of combustible materials within the property and removed all such materials that were easily removable. v. It was apparent that the risk of a fire spreading should have been obvious to any individual who was responsible for the carrying out of safety assessments, including the fire risks, for the building. LIABILITY OF THE POLICE- A SPECIAL CASE (VERY IMPORTANT CASE) - Positive acts - Robinson v CC for West Yorkshire [2018] UKSC 4 – treated the claim as one of a positive act: o What they didn’t do better and the relationship was obvious and there is a clear proximity and foreseeability also policy o ‘Her complaint is not that the police officers failed to protect her against the risk of being injured, but that their actions resulted in her being injured. In short, this case is concerned with a positive act, not an omission.’ - There was therefore an established duty of care here, ‘the ordinary common law duty of care to avoid causing reasonably foreseeable injury to persons and reasonably foreseeable damage to property’[48]. - The earlier case of Rigby was cited as an example of this. OMISSIONS- POLICE FAILURES TO PROTECT - Until recently, the starting point was the judgment of Lord Keith in: Hill v Chief Constable of West Yorkshire [1988] - However, the recent judgments of the Supreme Court in Michael and Robinson (below) seem to mark a departure from Hill, a dismantling of the immunity and a ‘return to orthodoxy’ (per Lord Reed)

- Michael v CC of South Wales Police [2015] – the Supreme Court approved the striking -

out of a negligence claim against the police but preferred not to talk in terms of ‘immunities’: ‘Lord Keith's use of the phrase was, with hindsight, not only unnecessary but unfortunate’ (at [44]). HILL TO MICHEAL TO ROBINSON

Michael v CC of South Wales Police - The Michaels’ claim was rejected because of the application of the ordinary rules of negligence on omissions. - Lord Toulson reiterated the general rule from Smith v Littlewoods that ‘English law does not as a general rule impose liability on a defendant for injury or damage to the person or property of a claimant caused by the conduct of a third party’ but there were two well known exceptions: o where D had control over the third party (as per Dorset Yacht (above)) or o where D had assumed responsibility towards C. Neither applied in the present case. Finding responsibility Against The Police o For cases where the police have been found to assume responsibility towards C, see the cases of: o Swinney v CC of Northumbria [1997]– duty owed to protect police informer from third party criminals. o Sherratt v CC for Greater Manchester Police [2018]– found police owed a duty of care due to an assumption of responsibility based on:  i) the assurance to the mother that her daughter would be visited promptly and;  ii) detrimental reliance by the mother. Robinson v CC for West Yorkshire [2018] - The case of Hill is not, therefore, authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime.’ (per Lord Reed at [55]). - Lord Reed’s leading judgment involved a careful reinterpretation of Hill and associated cases - its tone was very much against ‘special rules’ for the police where either acts or omissions are concerned. - Cf the dissenting judgments of Lord Mance and Lord Hughes in Robinson. October 7th Duty of Care Psychiatric Injury

- Clearly define what constitutes psychiatric harm/injury; - Identify when a defendant will owe a claimant a duty of care to avoid causing psychiatric harm.

- Be able to distinguish the difference between “primary” and “secondary” victims, &; - Illustrate the requirements a claimant must meet before they will be classed as either a “primary” or “secondary” victim. - Understand the importance and rational of distingu...