Model answer - Duty of Care PDF

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In order to prove negligence, C must establish four requirements: a duty of care, a breach of that duty, the breach must cause the duty and and the damage complained of cannot be too remote at law. ! There are three tests to establish a duty of care. ! The Caparo test per Lord Bridge in Caparo v Dickman. Firstly, the harm to C must be actually foreseen or reasonably foreseeable by D. Secondly, there must be a requisite degree of proximity or neighbourhood between C and D. Finally, there must be no legal or public policy reason that precludes a duty of care. The court will refer to whether it is fair, just and reasonable to impose a duty of care. ! The voluntary assumption of responsibility can be test. This was established in Hedley Byrne v Heller and it applies where D possessed a special skill and undertook to apply that skill for the assistance of C who relied upon it. There must be a reciprocal reliance by D in so conducting himself. ! The incremental test is used where there is a new duty of care scenario that is analogous with an established category, per Lord Bridge in Caparo. Incremental test: The incremental test is used where the scenario is analogous to an existing category or case. The courts will hug the coastline of established cases. Some duties are distinct and recognisable, according to Lord Bridge in Caparo. These scenarios are often where C is so closely affected by D’s actions that D ought reasonably to have him in mind as being so affected. ! This includes employer/employee relationships. White v Chief Constable of South Yorkshire Police! A healthcare practitioner to a patient will always a duty of care, Sidaway v Bethlem Royal Hospital. A teacher to a pupil will always owe a duty of care, especially if young, per Lewis v Carmarthenshire CC. Teenage students are owed a duty of care unless third parties do the harm, X (Minor) v Bedfordshire CC. Road users will owe other road users a duty of care, per Lord Hope in Mitchell v Glasglow. Transport drivers will owe passengers a duty of care. Silverlink Trains v Collins-Williamson ! Custodians owe a duty of care to prisoners, Ellis v Home Office. Occupiers owe a duty of care to lawful visitors. There are two scenarios however, where a duty of care will not be owed. In so far as sterilisation is concerned, a doctors’ duty is not to avoid or minimise all risks or consequences flowing from a failed sterilisation per MacFarlane v Tayside Health Board. Furthermore, the employee/employer relationship only applies to physical injury suffered by C and psychiatric injury that is suffered is subject to certain rules. In Hatton v Sutherland the court held these were 1) the injury must be more than the usual stresses of a job 2) the employer must know 3) the claim must be reasonably foreseeable and 4) the claim must be due to the employers’ breach. ! Caparo test:

Firstly, there must be reasonable foreseeability of harm. No reasonable D could take precautionary steps or modify his conduct to avoid a risk that he does not know, or foresee, could occur and the law does not expect that of him either. ! The test is an objective one and is at its widest at this stage. The question of whether some type of harm was reasonably foreseeable is asked. D must have either actually foreseen the harm or would have reasonably foreseen it. It must be more than a mere risk or possibility. In Smith v Littlewoods the appeal was missed, there was no duty as the D’s were not aware of any previous attempts of vandals to start fires. ! It must be a real risk not one that a reasonable person would brush aside as “far fetched” per Overseas Tankship v Miller. In Bolton v Stone the risk of hitting an individual with a cricket ball was so small that a reasonable cricket club was justified in disregarding it. The risk must be foreseeable to a class of individuals or an individual rather than the whole world.! If C is particularly susceptible to the risk, the test is met if there is reasonable foreseeability of harm or damage to a C, even with a particular susceptibility. In Haley v London Electricity Board the House of Lords found that 1 in 500 people were blind and so the test of foreseeability was met. ! The second part of the test requires proximity. There must be a degree of closeness between C and C. This is proven via temporal, relational, geographical and causal proximity, per Stovin v Wise. In Geary v JD Wetherspoon there was geographical proximity as she injured herself in their building however no sufficient relational proximity whatsoever. ! Finally, legal and public policy factors must not preclude a duty of care. This requires an assessment as to whether it is fair, just and reasonable to impose a duty of care on the D. ! Very young children do not owe a duty of care, per Carmarthenshire CC v Lewis. Police do not owe a duty of care to individual victims of crime, per Hill. This is due to the floodgates argument as well as the diversion of resources and the fact that this could lead to defensive practises. In Robinson however the police did owe a duty of care. This was a SC case. The SC justices agreed on the conclusion but they had different reasonings. The majority, Lady Hale and Lords Reed and Hodge felt that there should be great emphasis on the pure omission reasoning whereas Lord Hughes argued that policy reasons were the biggest factors. Van Colle no duty was found. ! Pre-identified victims are not owed a duty of care either, per Michael v CC of South Wales. However, Lady Hale and Lord Carr dissented strongly arguing that they should. ! The bad samaritan does not owe a duty of care either. In Gibson v Chief Constable Lord Hamilton gave the example of a blind man waiting to cross the road and a bystander not doing anything about this. The bystander would owe no duty of care. This is for several policy reasons, the fact that it could lead to indeterminate liability, it would require the bystander to put themselves in danger and also there would be great causation issues. In Baker v TE Hopkins the CoA held that it would be repugnant to find CN against a man who tried to save someone’s life. ! The assumption of responsibility: This case’s origins can be found in Hedley Byrne v Heller. There must be an undertaking by the D to exercise reasonable care, judgemental or skill in providing goods or services. Furthermore, C must rely on this to their detriment. !

C must act, or not act, based on the reliance of D’s undertaking. There must therefore be a detrimental reliance as in Kent v Griffiths where a woman died having relied on the ambulance’s assurance that they would arrive soon. Unborn claimants and Mother’s immunity: The Congenital Disabilities (Civil Liability) Act 1976 applies to scenarios where a child is injured in utero. Parliament decided that a child injured in utero is owed a duty of care. There are four triggers for the Act to apply.! The first trigger is that the child must be born alive. Child who are stillborn will have no claim.! Secondly, the child must be damaged or disabled by some act or omission by the D. ! There must be an occurrence. This connotes a “degree of unity in relation of cause, locality, time and if initiated by human action, the circumstances and purposes of the persons available” per FAC Group Litigation.! Finally, the duty of care must have been owed to the mother by D and the child will derive the duty under statute. ! In McCoy v East Midlands C failed to prove that the misreading by D is what caused his damage. ! Mother’s are also immune from owing a duty of care to their children. This covers a wide variety of circumstances, including where the mother has consumed large amounts of alcohol. In CP v First Tier Tribunal a mother could not be guilty of causing fatal alcohol syndrome by consuming alcohol during her pregnancy. ! The reasons for this immunity are because it could be used in a custody dispute, it would lead to a redistribution of wealth in a family and it could also destroy the family unit if children could sue their mothers. ! The immunity is however, lost where the child is damaged in utero via negligent driving however the mother must be aware of the pregnancy and she must be the driver rather than the passenger. This is due to insurance. ! Doctor’s failure to warn: Doctors have four duties. These are the duty to diagnose, the duty to warn of risks associated to treatment, the duty to treat and a duty to refer where a problem arises outside of their expertise. ! A failure to warn of a risk will result in a cause of action in negligence. Doctors must warn patients of significant or material risks. ! Old law was based on the Bolam test that doctors should disclose risks which their peers would. Therefore, the question of whether a risk should be disclosed is one of peer professional opinion.! The Bolitho test was also used, whereby logic can be used to disregard peer professional opinion. ! English law prefers the Montgomery test, which is the reasonable patient test. If a reasonable patient would have wanted to know, there will be liability. The courts will therefore look at the gravity of injury that could occur, the probability of injury arising and also peer professional opinion. The court could also refer to their own experiences and also literature about the risks. ! If the risk is subjectively significant, where it matters to the particular patient at hand, the court will find a duty based on the factors at play. In Chester v Afshar the House of Lords stated that C wanted to avoid the surgery, she had also asked if she could be paralysed and was only taking

the surgery for employment purposes. In Rogers v Whitakar, the Court also held there was a subjectively significant risk that should have been disclosed as she asked several questions about the impact the surgery would have on her good eye. Pure Omissions and exceptions: Pure omissions do not give rise to a duty of care. However, there are exceptions to this, in occupiers’ liability and where there is in fact a duty to control or supervise or detain third parties that could cause harm to C. ! In Home Office v Dorset Yacht Co the Home Office ran a program and took some young prisoners for activities. They were left unsupervised one night and destroyed C’s yacht. The House of Lords held a duty of care was owed, they had a high degree of control and there was knowledge of the propensities.! In Carmarthenshire CC v Lewis the House of Lords held there was a systemic and direct duty of care owed to the young child who left the kindergarten unsupervised. ! In Palmer v Tees Health Authority however the Court of Appeal held there was no duty of care owed. This is for several reasons, D was not under the control of Tees. There was also little temporal proximity as the killing occurred a year after he had been released. ! Factors that are important include the knowledge of propensities, the degree of control exercised, and temporal proximity....