Negligence Lecture Notes: Actionable Damage And Duty Of Care PDF

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Taught by Dr. Claire McIvor...

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Negligence: Actionable Damage and Duty of Care Negligence  What is the most common form of negligence claim? Road accidents and harm suffered in the workplace. Why? o Because they all have insurance o In negligence, you only get damages as a compensation, so that’s why you need to know that there is a solvent purse somewhere that can be used to pay for the damages  Protected interests in tort law o Harm to body o Harm to mind o Harm to property Legal Elements of Negligence What are the legal requirements to sue under negligence? ALL FIVE MUST EXIST TO SUE! 1. Damage as the gist of the action  Definition: the opposite of the actionable per say requirement (you don’t have to show any damages to sue) o Wilkinson case: it requires actionable damage (same as negligence)  Damage to you or your property – this is the right type of harm that you can sue for  Harm needs to be personal injury or property damage, but that you can recover from some types of psychological harm o Psychological harm is a form of personal injury, but is not regarded as an equal of physical bodily harm o Hinz v Berry [1970] 2 QB 40 Case Facts Ratio  Hinz was hit by the defendant who lost control Psychological harm only Hinz v of his car. Hinz died as a result. constitutes damage if it amounts to  Hinz’s wife witnessed the horrible scene and Berry a recognised psychological injury became morbidly depressed A doctor needs to examine you and  She brought a claim for psychiatric harm and grief and sorrow give a written note that establishes  Court said she was entitled to recover damages that you indeed have a medically for psychiatric harm, but not for the grief or recognised condition. There’s a list sorrow, because it’s not a recognised that entails all the different injuries psychiatric condition o Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39 Case Facts Ratio  Many years’ ago, employees had been The court said because the illness Rothwell v exposed to asbestos dust is symptomless, the illness is not  They had subsequently developed pleural serious enough to be considered an Chemical & plaques (harmless proof of exposure to actionable damage Insulating asbestos dust, not indicative of asbestosis) Co Ltd  They all feared for developing asbestosis, You cannot claim recovery for mental injury to varying degrees future illnesses.

2 o AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46 Facts  The appellants had written employers’ liability insurance AXA policies. General  They appealed against rejection of their challenge to the 2009 Insurance Act which provided that asymptomatic pleural plaques, pleural Ltd v Lord thickening and asbestosis should constitute actionable harm for Advocate the purposes of an action of damages for personal injury Case

Ratio Court held reversed the decision in Rothwell.

2. Existence of a Duty of care  The defendant must owe the claimant a legal duty not to cause him/her the harm complained of 3. Breach of duty  The defendant has failed to meet this duty (i.e. he is at fault) 4. Causation  This breach of duty must have resulted in the harm complained of.  Must be between breach and actionable damage.  Did the breach of damage actually cause the actionable damage?  1. Factual causation  2. Legal causation: rules of remoteness 5. Defenses  In order for there to be liability in negligence, you need to prove that there are no defences. The Duty of Care  Legal requirement for negligence used to confine negligence as possible  Concept: the same concept that crated the tort of negligence as a discrete area of tort law (in 1942) from Stevenson case o This case opens up the ability to sue under negligence in more cases o You need to show a relationship between the defendant and claimant  Must show claimant has a duty of care owed to them by the defendant  Prior to 1942, it was only very specific cases that would apply in negligence  When it was created from Stevenson, it was presented as a neighbouring principle of reasonable foreseeable of the claimant as a victim of the defendant’s action o Claimant must prove that they were a victim of the defendant’s actions for not taking necessary steps to not have faulty conduct Original/Old Rule for Duty of Care Original but subsequently overruled version of the duty of care principle: was the claimant a foreseeable victim of the actionable damage?  Original, overruled case: Donoghue v Stevenson [1932] AC 562 o Lord Atkin: “….in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances”.  Nowadays, the illness she sustained would probably not make past the actionable damage o Donoghue couldn’t sue in contract, because she didn’t actually buy the ginger beer (her friend did), so she didn’t have a claim in contract  This case established for the first time: o Individual consumer of a product could sue the manufacturer in negligence, because it was argued that manufacturers owe duty of care to all of their consumers o The more people who are invested in your business, the more people you owe a duty of care to o You can argue that a victim was not the foreseeable user in some cases  A friend makes homebrew beer, and gives it to you to drink in the future. Another friend comes over and you offer them the homebrew beer, instead of you drinking it. They get

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sick from the beer, and try to sue the original friend who made the beer. That homebrew friend can argue that they do not have a duty of care towards your other friend because they weren’t a foreseeable user of the beer (because the beer was given to you to drink!) The ‘neighbourhood principle’: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question”. o It’s not a geographical principle but based on the notion on reasonable foreseeability, in relation to the claimant

Current Rule for Duty of Care  Caparo Industries v Dickman Plc [1990] 2 AC 605  Foreseeable test in this case: neighbourhood principle, therefore the reasonable foreseeability is the claimant as the victim Case Facts Ratio  Caparo, a small investor purchased shares in a company, The claim failed Caparo relying on the accounts by Dickman because court said there  However, Dickman didn’t know Caparo was using the Industries v was no duty of care Dickman accounts, because they could be found online so anyone owed by Dickman. Plc could use them  Therefore, there was no contractual relationship between The court held that there the two parties was a lack of proximity.  Caparo lost money due to the accounts being negligently prepared Caparo Test and Requirements for the Test for Duty: 1. Foreseeability – Bhamra v Dubb (t/a Lucky Caterers) [2010] Case Facts Ratio  The claimant went to Sikh wedding, where he was It was held that Mr. Bhamra v assured that there were no eggs in the food (he was Dubb did owe the Dubb deathly allergic!) claimant a duty of care  Turns out there were eggs, and he suffered an through the Caparo test anaphylactic allergy and died  His widow brought a claim against Mr. Dubb (caterer owner) 2. Proximity  It is the same as the reasonable foreseeability test  It’s very difficult to pin own an actual definition of proximity  It is always satisfied if you are able to satisfy the reasonable foreseeability test  Never do an essay on proximity! 3. Fairness, justice and reasonableness (policy considerations) – MacFarlane v Tayside health Board [2000] Case Facts Ratio  Mr. MacFarlane underwent a The court held that a doctor does undertake a duty MacFarlan vasectomy by the defendant in of care in regard to the prevention for the e v Tayside order to not have any other pregnancy and the physical pain the mother must health children undergo, but NOT for the costs associated with  They became pregnant shortly bearing a child. Board after. They brought a claim for Claim #1: They were granted a compensation for two instances: this claim o 1. Emotional and physical pain for Claim #2: The courts didn’t want the society to having another child. see that by having a child, they could get a

4 They were granted a compensation for this claim o 2. The financial cost associated with bringing up another child. 

compensation Having a child is a beautiful gift and because of policy reasons, they claim for financial benefits was rejected.

What sort of policy arguments are the courts most likely to argue? o ‘Flood gates’ is a common policy  If the courts know that the case they are dealing with is a very common one, then they will fail a claim because then all the other cases will also fail

Why the Caparo Test?  It is default test for determining whether a duty of care exists in an individual negligence action.  It covers standard types of negligence claims, that is: where an ordinary defendant actively inflicts physical harm (personal bodily harm or property damage) on the claimant.  Where the claim deviates in some way from the standard form, extra restrictions come into play. Either they supplant the Caparo test altogether, or they take one or more of the three stages of Caparo and give it new meaning, one which is more difficult to satisfy.  Common ways in which claims deviate from standard form and thereby invoke special, more defendantfriendly, duty of care requirements (failing to do something and make the situation better): o 1. Harm arises from nonfeasance rather than misfeasance – omission liability, third party liability o 2. The defendant has special protected status in negligence - some public authorities o 3. Potentially indeterminate forms of harm – psychiatric/psychological injury and pure economic loss Defensive Practices  Most common in claims against the medical profession o If doctors can be sued too easily, it will result them taking longer to diagnose in order to cover all basis and making sure they made the right decision o Can inhibit innovation in medicine in fear of making mistakes and adopting new techniques  Ex: Bhamra v Dubb  see above Robertson, ‘Policy-based reasoning in duty of care cases’ Argument of this paper  Whether duty of care cases are determined by policy depends on: o What is meant by ‘policy’ o What jurisdiction is being referred to o What level within the court hierarchy is being referred to Duty of Care 

A person is liable for the consequences of careless conduct only if he or she owed a relevant duty of care to the person harmed o Determined in Caparo, the existence of a duty of care ‘is determined entirely by policy’

Policy 

Policy plays a role in the determination of a duty of care cases, but there are two problems to understand the extent of that role: o Problem #1 – the word ‘policy’ is used to refer to a wide range of different considerations o Problem #2 – because there are so many cases on duty of care questions, it is difficult to develop a clear sense of the overall significance of any particular type of consideration in the day-to-day

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determination of duty questions 1. Justice factors o The two considerations that fall on the justice side:  Foreseeability  A basic requirement of interpersonal justice which goes to the defendant’s culpability or blameworthiness  Proximity  The obligation to take care arises only where the claimant was so closely and directly affected by the defendant’s conduct that the defendant ought to have had the claimant in contemplation 2. Justiciability o Can be understood as either a consideration of community welfare or whether the dispute is suitable for judicial resolution o The denial of a duty can be characterised as a matter of community welfare 3. Community welfare factors o Concerns:  1. The effect of recognising a duty on the legal system  2. The effect of recognising a duty on the defendant or a class of persons including the defendant  3. Recognising a particular duty might create an inefficient allocation of risk, by shifting it from a party who is best placed to avoid it or insure against it.  4. Adverse behavioural effects of the recognition of duty, such as encouraging undesirable conduct like defensive practices or excessive record keeping by public authorities, or discouraging socially desirable conduct such as rescue. 4. The conflict of duties o The conflict of duties exemplifies the need to distinguish between justice and welfare considerations because it can be understood as either a justice concern or a welfare concern, and the way in which it is understood has potential to affect the outcome of cases.

Duty of Care: Exceptional Duty of Care Scenarios Exceptional negligence scenarios in which special duty of care ‘tests’ apply  1. Liability for omissions  2. Liability for the acts of third parties  3. Public authority liability  4. Liability for negligently inflicted psychiatric harm  5. Liability for negligently inflicted economic loss

1. Liability for Omissions Omission Liability  There is no duty of care owed when dealing with an omission claim  Suing the defendant not for actively making the situation worse, but rather for failing to make your situation better  They didn’t do enough to make your situation better  No duty exists in omission  If you want to sue a defendant because they didn’t improve your situation, they can say that they didn’t have a duty in respect of an omission  Therefore, you are not required to rescue anyone  Parents don’t even have a duty of care towards their child

6 A. Misfeasance and Nonfeasance (Omission) Distinction  Difference between making things worse (misfeasance) and simply failing to make things better (omission) o Misfeasance (commission): a positive act which made the situation worse than the original situation o Nonfeasance (omission): not acting in a situation which does not make the situation better  Stovin v Wise [1996] 3 All ER 801 Case

Stovin v Wise

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Capital & Counties Plc v Hampshire County Council

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Ratio Court said the public authority did not put the obstruction there, so there wasn’t a responsibility to remove it No duty of omission. What if the obstruction was on public land, but was put there by someone else? o Public or private land makes no difference! o All that matters is whether the highway authorities put the obstruction there

Capital & Counties Plc v Hampshire County Council [1997] 2 All ER 865 (fire service) o Leading case which says that no one has a duty of care or responsibility to save anyone

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Facts  There was an obstruction of land on a junction on private land, which meant people coming a certain direction couldn’t see the oncoming traffic  If the highway authorities had done their job, then claimant would have seen the oncoming traffic and wouldn’t have gotten into an accident  What if you want to argue an exception? If there’s no duty of omission, then you look at the ordinary assumptions of an omission! o You could argue that they assumed responsibility when she called them up prior to the accident and told them about the obstruction and they said: “leave it with us, we will definitely take care of it”.  Their response is an assumed responsibility

Facts  A fire broke out in the building owned by the claimant.  The fire brigade arrived and turned off the sprinkler system, but had trouble with their equipment  In the event the entire building was completely destroyed causing loss of £16M  Had the sprinklers not been switched off it is likely more of the building would have been saved

Ratio A case of misfeasance Court held that the fire service did have a duty of care under a misfeasance because the order to turn off sprinkler made the situation worse and the damage would have been less

OLL v Secretary of State for Transport [1997] 3 All ER 897 (coastguard) o Case of nonfeasance

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OLL v Secretary of State for Transport

Facts  8 children with a teacher and 2 instructors went on a canoe trip. They got into difficulties at sea.  The canoes capsized and sank. Some tried to swim ashore.  They were all eventually rescued, but 4 kids died and the other members of the party suffered severe hypothermia and shock.  The claimants brought a claim against the coastguard (defendants)

Ratio Court held that a coastguard owed no duty of care to those in distress even in giving a negligent misdirection to nonemployees.

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Alexandrou v Oxford [1993] 4 All ER 328 (police) Case

Alexandrou v Oxford

Facts  The claimant owned a clothing retail shop in which he had installed a burglar alarm system which if activated would raise the alarm at his local police station through an automated 999 call.  The shop was burgled but the police failed to secure the property.  The Claimant brought an action in negligence against the Chief Constable.

Ratio In the absence of a direct contractual relationship with the Chief Constable, no duty of care was owed.

But in contrast: Kent v Griffiths [2000] 2 All ER 474 (ambulance service) Case

Kent v Griffiths

Facts  The claimant had an ambulance called upon suffering an asthma attack  The ambulance did not arrive for 40 minutes, by which time the claimant had suffered respiratory arrest  A claim was brought against the ambulance service

Ratio Court held that the ambulance service did have a duty of care.  Why? Ambulance services always involve personal injury, rather than property If the ambulance services accept the 999 call, then that means they assume responsibility and have duty of care  One way to distinguish the ambulance services from all other: if you knew the ambulance wasn’t coming, you could arrange other medical assistance vs. if the firemen can’t assist/help you, then there isn’t another way to extinguish a fire

B. Existing Categories of Exception to the No-Duty-for-Omissions Rule 1. The defendant’s creation of a source of danger and you don’t do anything about it  Haynes v Harwood [1935] Case

Facts Ratio It was held that the defendant owed a duty  The defendant left a horse-drawn van unattended in a crowded street. of care as he had created a source of Haynes v danger by leaving his horses unattended in  The horses Harwood bolted when a boy threw a stone at them. a busy street  A police officer tried to stop the horses to save a woman and children who were in The actions of the defendant caused a the path of the bolting horses. dangerous situation, which created consequences.  The police officer was injured. 2. The defendant’s undertaking of responsibility for the claimant’s welfare  You need to show the defendant had said they were indeed taking responsibility of the victim  Watson v BBBC [2001] 2 WLR 1256

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Facts  BBBC had often explicitly publicly announced that their first priority was the welfare of their boxers  During a fight, Watson was hit in the head and sustained a massive brain injury  Watson wanted to sue the other fighter directly, but that claim wasn’t viable, so he turned to BBBC Watson v  The other fighter was actually quite wealthy, but he BBBC ultimately didn’t do anything wrong – he acted as the reasonable boxer would have acted  If they had actually protected their boxers properly, then they would have had medical assistance at the scene ready, but Watson had to go to the hospital instead to get medical help  If you do have the medical equipment needed and a boxer is injured, then the boxer is likely to have a much better likely of getting better faster  Kent v Gr...