Negligence Notes PDF

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Duty of CareTort of Negligence – Imposes an obligation to Pay compensation (Damages) on someone who caused damage to another by breaching a duty of care they owed to that other person.Tort covers private wrongdoings – repairs or corrects the wrongdoing – provides a remedy for the victim – Tort is a ...

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Law of Tort – Negligence - Notes Duty of Care Tort of Negligence – Imposes an obligation to Pay compensation (Damages) on someone who caused damage to another by breaching a duty of care they owed to that other person. Tort covers private wrongdoings – repairs or corrects the wrongdoing – provides a remedy for the victim – Tort is a civil wrong Types of Tort Trespass to the person – Assault/battery/false imprisonment Negligence – causing damage to another person breaching a duty of care – covers personal injury Personality tort – defamation Economic Torts – fraud/deceit Torts of Land – Trespassing/ nuisance Abuse of power – malicious prosecution Torts to goods – trespass to goods/conversion Elements of negligence – these are required for liability to be administered to the defendant (person being accused) Damage – did the claimant (Victim) suffer actionable damage Duty of Care – did the defendant (person being accused) owe a duty of care to that person Breach of Duty – did the defendant breach the duty of care Causation – Did the physical breach of duty cause the actionable damage experienced by the Claimant Defences – Can the defendant escape liability even with the following points being correct – was there contributory negligence from the claimant, had the claimant assumed the risk of injury or consented to injury *(Consent/assumption), or was the claimant involved in illegal actions. Gilliker Tort Textbook 7th edition) The tort of negligence has been usefully defined as: “… a breach of a legal duty to take care which results in damage to the claimant. 

The correct approach, then, is to focus on the type of interest which the claimant is trying to use the tort to protect (physical safety, the safety of property, financial well-being, or psychological well-being),

13:43, 8 October 2020 Studying Negligence, UKBC-TORTGIL 499580064 Darnley v Croydon Health Services NHS Trust

Law of Tort – Negligence - Notes

Actionable Damage – an element which determines whether the defendant can be held liable or not Hinz v Berry (1970) – Highlight kinds of loss/damage that may form the basis of a negligence claim Extremely shocked – developed morbid depression – wasn’t hurt from driving accident but developed this – was recognised as a psychiatric illness therefore suffering actionable damage Rothwell v Chemical and insulation Ltd – 2007 Diagnosed w pleural Plaques from being exposed Asbestos – could have developed something worse which could result in early death but didn’t but they had the risk of developing something which may cause harm – person must be worse off physically/financially to suffer actionable damage

Duty of Care – can only recover damages if defendant had a duty of care over claimant and then breached that duty of care – duty of care must be owed to a person or group

Lecture 3 – Bourhill v Young – 1943 – Pregnant woman(Bourhill) getting off a tram when a man speeding on a motorbike (Young) sped past – collided w a car by exceeding speed limit – this was 50ft away from the claimant (Bourhill) around the corner. Young was killed by impact – she heard the collision but was not directly impacted – she was shocked by the amount of blood seen and had to go to the hospital to receive a still born baby. – It was rules that no duty of care was owed to Bourhill as there wasn’t a sufficient proximity between her and the vehicle/defendant – she wasn’t a foreseeable victim because she was far away - this ruling came to be due to the definition of tort – breach of duty owed to a another person. Darnley v Croydon health services - https://www.stjohnschambers.co.uk/articles-publication/casesummary-on-the-recent-supreme-court-appeal-in-the-case-of-darnley-v-croydon-health-servicesnhs-trust-2018-uksc-50 - The appellant was struck on the head on 17 May 2010 and attended the Accident and Emergency Department at Mayday Hospital, Croydon at 20:26pm. The trial judge found that at the A&E reception, the appellant informed the receptionist that he thought he had a head injury and that he was feeling very unwell. The receptionist told the appellant that he would have to wait up to four to five hours before he could be seen by a clinician. The appellant told the receptionist he could not wait that long as he felt he was about to collapse. The usual practice when a person with a head injury asked about waiting times was either: (a) to say that patients could expect to be seen by a triage nurse within 30 minutes of arrival according to one receptionist; or (b) to say that the triage nurse would be informed and that patients would be seen as soon as possible according to a second receptionist. The appellant left after 19 minutes because he felt too unwell to remain and went to his mother’s home. He became distressed at 21:30pm and an ambulance was called. He was taken back to Mayday Hospital and a CT scan identified a large extradural haematoma with a marked midline shift. He was transferred to St George’s Hospital and underwent an operation at 01:00am. Unfortunately, the appellant suffered permanent brain damage in the form of a severe and very disabling left hemiplegia.

Law of Tort – Negligence - Notes The appellant brought proceedings against the respondent alleging a breach of duty by the reception staff concerning the information he was given about the time he would have to wait and the failure to assess the appellant for priority triage. The High Court dismissed the claim. The appellant appealed to the Court of Appeal. The appeal was dismissed by a majority on the grounds that: (i) neither the receptionist nor the Trust acting by the receptionist owed any duty to advise about waiting times; (ii) the damage was outside the scope of any duty owed; and (iii) there was no causal link between any breach of duty and the injury. The appellant appealed to the Supreme Court. Negligent breach of duty A receptionist in an A&E department is expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care [25]. Moreover, responding to requests for information as to the usual system of operation of the A&E department is well within the area of responsibility of receptionists [26]. The two receptionists on duty were aware of the standard procedure, but the appellant was told to sit down to wait for up to four to five hours. That information was incomplete and misleading. The trial judge made the finding that it was reasonably foreseeable that a person who believes it may be four to five hours before he will be seen may decide to leave. In light of that finding, the provision of such misleading information by a receptionist as to the time within which medical assistance might be available was negligent [27].

Causation The appellant’s decision to leave was reasonably foreseeable and was made, at least in part, on the basis of the misleading information [29]. The trial judge made further findings of fact that: (a) had the appellant been told he would be seen within 30 minutes he would have waited, been seen by a doctor and admitted; and (b) had the appellant suffered the collapse at 21:30 whilst at the Mayday Hospital, he would have undergone surgery earlier and he would have made a nearly full recovery [30]. Thus, the appellant’s departure did not break the chain of causation. “he refers to the ingredients of foreseeability of damage, proximity and fairness does not require a re-evaluation of whether those criteria are satisfied on every occasion on which an established category of duty is applied” – Darnely – Para 15

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English law hasn’t come up with a direct way to decide if a duty of care is owed – based on a situation basis. WHEN COMING TO A LEGAL CONCLUSION – TRY TO LINK IT TO A CASE WHERE THIS RULLING IS SIMILAR TO IT TO PROVE UR POINT#

Caparo industries plc v Dickman 1990 – explores the idea that there isn’t a direct way to establish whether a duty of care is owed/ Robinson v Chief Constable of West Yorkshire (2018) – says to” follow the precedents in cases where the question whether a duty of care arises has not previously been decided. The courts will consider the closest analogies in the existing law” to see if they can establish whether a duty of care is owed.

Law of Tort – Negligence - Notes

How to find a duty of care -

Establish whether a previous case (precedent) covers the situation – then if possible, apply the precedent

- If no precedent provides an answer – stick as close to the precedents as possible when considering whether it will be fair, just, and reasonable to develop the law by recognising a duty of care – as shown in Caparo v Dickman

Three crucial factors which determine whether a duty of care is owed: Gilliker Textbook 2-021 Type of harm suffered – physical, financial or psychiatric Whether the damage was caused by a positive act or by omission (non-feasance – failure to perform an act that is required by law) – explores how the damage came about Type of defendant who is being sued – Private, member of profession/group/public body – Precedents establish a role as they allow you to see how these different issues are dealt with in previous cases.

In Robinson v Chief Constable of West Yorkshire Police,- 38 the claimant (aged 76) had been knocked over by two police officers who were attempting to arrest a drug dealer in a shopping street. The officers had not noticed that she was nearby. The Court of Appeal treated the question as a novel case and applied the Caparo test (outlined below) finding that it would not be fair, just and reasonable to impose a duty of care on the police when apprehending offenders. This approach was rejected by the Supreme Court at [29]: 15:41, 10 October 2020 The modern approach: Robinson and Caparo, UKBC-TORTGIL 499580047

Lecture 4 UKSC reinterpretation of Caparo

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There is no formula or test covering all cases on how to determine a duty of care Search/apply the precedent covering this category of case If the case falls out of an established category, follow an incremental approach by sticking to precedents as close as possible Fairness, justice and reasonableness play a role only in certain cases

Donoghue v Stevenson 1932

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Donoghue went to a café w her friend and proceeded to order ginger beer in a dark brown opaque bottle, she discovered a snail in the drink

Law of Tort – Negligence - Notes

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She sued the company as she suffered gastro insulitis due to ingesting part of the snail – she wasn’t called upon to prove these facts though Lost the trial as there was no contract between Stevenson and Donoghue, however there could still be a duty of care without no contract and this case showed this Lord Atkin – argued there was a general conception of when a duty of care must be given you must take reasonable care to avoid acts or omissions which may likely injure your neighbour (The neighbour test) The final decision was that Stevenson owed a duty of care to Donoghue due to the fact that a manufacturer has a duty of care to not sell a product that will not result in injury to the consumers life or property – they owe that reasonable care Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk to others, but it isn’t sufficient enough to justify the imposition of liability upon someone – Gorringe V Calderdale metropolitan borough council 2004 Establishes a duty of manufactures to consumers, road users to each other, employers to employees

Anns v Merton London Borough 1978 – Showed public liability was possible regardless of suffering any physical damage, however, highlighted that you should not use a definitive formula to determine a duty of care

Duties of Care of Public authorities – Police Liability – Lecture 5 -

Determines whether public authorities owe a duty of care and explores the position of the police

Harm caused by public authorities - causing harm in an ordinary way creating risks of harm Causing harm through exercise of public powers (anns case ^) Failing to use their powers to protect against harm

Anns v Merton Anns v. Merton [1978] A.C. 728, 757, Lord Wilberforce infamously suggested that so long as there is sufficient proximity between the claimant and the defendant, a private law duty of care may exist, including when such proximity is derived from a general statutory duty. Anns indicated that when there is such proximity, a duty of care should only be denied when courts identify policy reasons that cut against such expansion of duty. Anns produced a confusing efflorescence regarding when public authorities might be liable for their careless acts at common law, andmay be the most heavily criticized tort case of the past half-century.

Law of Tort – Negligence - Notes

Hill v Chief Constable of West Yorkshire 1988 The plaintiff’s 20-year-old daughter was attacked at night in a city street and died from her injuries. The defendant was a chief constable of the area in which the street was located. The attacker was convicted of the murder of the daughter and had allegedly committed a number of offences of murder against young women in the same area over a period of years prior to the deceased’s murder. The plaintiff claimed damages against the defendant for negligence on grounds that having investigated the previous cases of murder in the area, the police had failed to apprehend the attacker and prevent the murder of her daughter. The Queen’s Bench struck out the writ and statement of claim as disclosing no cause of action. The Court of Appeal dismissed the plaintiff’s appeal.

Issues

(1) Do the police owe a general duty of care to apprehend an unknown criminal?

(2) Do the police owe a duty of care to individual members of the public who suffer injuries as a result of the activity of the criminal?

Held The appeal was dismissed. (1) The police could be liable in tort to persons who are injured as a direct result of their acts and omissions. (2) However, the police do not owe a general duty of care to apprehend an unknown criminal. (3) The police also do not owe a duty of care to individual members of the public who suffer as a result of the criminal’s activity. (4) The only exception to this rule is where the failure to apprehend the criminal creates an exceptional added risk, different from the general risk from criminal activity to the public large, so as to establish a sufficient proximity of relationship between the police officers and victims of crime.

Poorse Bourough Council v GN 2019 Para 65 - explains duty of care regarding police liability

Law of Tort – Negligence - Notes

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Public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with the legislation from which their duties or power came from Public authorities do not owe a duty of care at common law because they have statutory powers or duties and could prevent a person from suffering harm by exercising their duties Public authorities can come under a common law duty to protect from harm in circumstances where the principle applicable to private individuals or bodies would impose a duty

Michael v Chief Constable of South wales 2015 Joanna was killed by her Ex -

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It was believed that this murder could have been prevented if the police responded to this her 999 call – she told the handler that her EX boyfriend had turned up in the middle of the night, extremely aggressive after finding her in bed with someone else – he hit her – he took her car to take the man to his house and said that he was coming back to hit her again In the call she highlighted that her EX was going to be back any minute now - the call ended with handler explaining that she would pass information on to the police station who were responsible for the area where the claimant lived and the information was passed on but the handler DIDN’T EXPLAIN THAT THE EX PARTNER HAD THREATENDED TO KILL JOANNA RESULTING IN THE CALL NOT BEING REGARDED AS A HIGH PRIORITY SO THEY DIDN’T RESPOND IMMEDIATELY 13 MINS LATER – she called and was heard screaming and then the line went dead – they went to the house and found her dead – her family bought a case against the Police

Striking out application - procedural tactic whereby one party applies the court to strike out all or part of the other party’s statement of case because it shows no reasonable grounds for bringing or defending the action - it proceeds on assumed facts and saves time as there is no point examining all evidence if there’s no prospect of success -

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Police believed that it should have been struck out as from the facts it seemed that the police didn’t owe her a duty of care – they allowed the appeal that the police didn’t owe a duty of care to her due to the behaviour of her violent Ex. In 2008 the police had beforehand decided that the police didn’t owe a duty of care in a previous case very similar - where there we multiple reporting of stalking by an ex-partner and also asked the police for protecting (Smith v Chief Constable of Sussex Police 2008) 3-2 majority - police didn’t owe a duty of care – Lord Tulson 29-81/81-96 – judgements of him Reasoning for the decline of liability was that the common law does not generally impose liability for pure omissions (failure to act) – Police liability for damage caused by a third party

Law of Tort – Negligence - Notes

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English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T): Smith v Littlewoods Organisation Ltd [1987] In Caparo Plc v Dickman [1990] 2AC 605 Lord Bridge (with whom Lords Roskill, Ackner and Oliver of Aylmerton agreed) emphasised the inability of any single general principle to provide a practical test which could be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope. He said, at pp 617-618, that there must be not only foreseeability of damage, but there must also exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood”, and the situation should be one in which the court considers it fair, just and reasonable that the court should impose a duty of a given scope on one party for the benefit of the other.

It is also hard to see why it should be limited to particular potential victims. If the police fail through lack of care to catch a criminal before he shoots and injures his intended victim and also a bystander (or if he misses his intended target and hits someone else), is it right that one should be entitled to compensation but not the other, when the duty of the police is a general duty for the preservation of the Queen’s peace.

Hill v Chief of Constable of south wales Police 1998 –

Robinson v Chief Constable of West Yorkshire Police [2018] -

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She was knocked to the ground when the police were in pursuit of a suspect, they had failed to consider the position of passer-by in public She proceeded to then sue for the medical costs occurred due to the damage Applied the three-stage test from Caparo and concluded that it wouldn’t be fair to then place a duty of care onto the police while in pursuit of a criminal She appealed to the Supreme court who ruled that despite those cases that the police did ...