Lecture 6 PDF

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Lecture 6: Duty of care  Introduction o Sufficiently close relationship between D and P that justifies the imposition of legal responsibility for a failure to take reasonable care o D under legal obligation to take reasonable care  Requirement 1: Foreseeability of harm o Case: Donoghue v Stevenson  Foreseeability of harm should the D have reasonable foreseen harm to the plaintiff?  If yes, there will be a duty of care o Sufficient of foreseeability of harm  Neighbour principle: including reference to neighbours  Someone who is so closely affected by defendants and need to bear in mind in carrying actions  May not always be sufficient  Requirement 2: Proximity o Requirement when harm is inflicted by the d on the plaintiff is not inflicted by d but through a third party o Additional requirement restricting the duty of care  A response to the liberal effects of the neighbor principle as it was being applied by the judges  Keep within controllable bounds o Concept of neighbor: Sufficiently close connection between d and p beyond reasonable foreseeability of harm o Case: Yuen Kun Yeu v AG of HK  Facts: deposit-taking company (bank) operated fraudulently by the company’s directors, depositors (plaintiffs) lose their money  Q: Does the Government (Commissioner for Deposit-taking companies) owe a duty to plaintiffs in tort to monitor and even de-register company to protect depositors?  Require very close relationship  Arguments in favour of duty: o Such loss is reasonable foreseeable (harm economic loss)  Against o Distance relationship of commissioner’s relationship o No day-to-day control over company and its management o No assumption responsibility by the commissioner to depositors and prospective depositors  Not sufficient, plaintiff need to show closer proximity between the parties

 No duty of care o Case: Hill v Chief Constable  Personal injury and death concern  Facts: 1970s and 80s, a serial murder rapist at large; careless police investigation fails to catch him; P’s daughter (deceased) raped and murdered; P sues on behalf of deceased  Q: did police owe duty of care to deceased, to conduct investigation with reasonable care to prevent this rape/ murder?  In favour o Another rape/ murder was reasonably foreseeable if police did not take reasonable care in investigation  Against o Proximity was not established police only have rough idea who the killer was o No day to day control of rapist o D’s relationship with deceased too distant o Even have evidence, no actual identification  Held: no duty owed  Reasonably foreseeability is not sufficient  Duty also requires proximity: some extra characteristic linking defendant and victim lacking here  Geographic area was wide and potential victims not particularized o Case: Home office v Dorset yacht  Property damage  Young boys convicted of minor crimes and taken care by the government  Camping trip to island and the boys try to escape by stealing plaintiff boat and crashed the boat and caused damage  Was reasonable foreseeability of property damage of the authority did not take reasonable care of the boys and they escape  Was close connection between the authority who bring the boys and the boat owners  If the authority was careless in supervision of the boys and they escape, naturally they will escape by stealing a boat  Closer particularized relationship between the boat owners and authority  Requirement 3: Justice and reasonableness (focus on relationship of D and P) o open-ended indetermined o Arise only in certain line of cases o More complex than the typical direct case o Case: Marc Rich

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Facts: ship was about to sail with cargo and there were defects in the ship and require inspections by ship surveyors; after certain repairs and safe for sailing; ship owners began journey with the cargo on board; negligently, the ship was not safe for sailing and the ship sank with all plaintiffs cargo Q: Was a duty of care owed by defendant to P’s whose property lost at sea?  In favour: o Reasonable foreseeability of damage o Proximity- court prepared to assume this (defendant linked to the plaintiffs as owners of goods being shipped)  Against: o Not sufficient to owe a duty of care o Not ‘just and reasonable’ to impose duty o International shipping law (Hague visibly rule) o Main responsibility should be the ship owner o Contractual relations: P can sue ship-owners o Insurance arrangement  If ship surveyors are responsible for the loss of cargo, the new form of responsibility will have an effect on the way that the various parties in international shipping will arrange their affairs  Defendants don’t have insurance in such activity, that will require surveyors will take out more money  Restrict that kind of service to limit own liability  Preserve the existing legal parties in international shipping, fair and reasonable not to impose duty on ship surveyors  NO duty of care

 Public policy considerations (long-term consequences and society wide) o Hill v Chief Constable  Further reason for no duty:  Public policy:  need for police to be free of worries about being sued, so as not to be distracted in their crime-prevention work  Police already under onerous duty  Have many crimes to investigate and limited resources  Need to avoid diversion of police resources:  From tax payers and government  Priority of police and not good for society  Not in public interest to impose a duty o Dorset Yacht  If impose a duty on prison authority, either not accept boys for camping or another way of conducting camp with the boys  When is the plaintiff required to establish in addition to reasonable foreseeability and proximity and reasonableness

o Will be required in non-straight forward cases o In straight forward cases, only 1st requirement needed o Straight forward case:  Direct infliction of injury arising from D conduct  If the victim is careless, reasonable foreseeability of injury  Relationship:  Car driver and passenger  Doctor and patient  School and young children (pupils)  Employer and employees  D assumed responsibility of the injury of plaintiff  Requires only reasonable foreseeability of harm o Non-straight forward case  Dorset yacht, marc rich, Hill  Personal injury or death not inflicted by defendant  Third party intervener  But defendant responsible for the conduct of third party  Look for more to support duty of care  Marc Rich  Inflicted by third-party  Lord Lloyd o Case of direct inflictions by defendant surveyors gave negligent advise and effective cause  Relationship of duty of care 1. Criminal suspect (P) with known suicidal tendencies in Police (D) custody commits suicide  Harm inflicted by the deceased 2. Ambulance (D) responding to P’s emergency call arrives late, P dies  Could be straight forward 3. Public housing landlord threatens TP with eviction for persistent intimidating conduct of which P complained. D attacks and kills P. 4. P’s employer requires him to attend to D’s factory to help repair D’s machine; P’s employer uses risky work practices known to D; P injured as a result 5. P student at D university attacked by a classmate known to D to be a disturbed student with a history of abnormal behavior  Incremental extension only o Case: Caparo  Duty of care cannot be decided on he basis of general principle alone  No extensions of duty of care into new categories  Reminded the lower courts, when facts are new, then any extensions should only be done incrementally (small)  Is analogous with an existing recognized category  Careful in extending duty of care because of precedent value o Court has consider to extend the meanings o Create precedents and binding on courts

o Need to justify new areas o Mitchell case  No case precedent  Small steps extension  Should be analogy...