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Obligations II | Semester 1 | Negligence – Duty of care Reading: o R. Mulheron, Principles of Tort Law, Cambridge: Cambridge UP, 2016, pp. 37-169 (you can ignore sections 2 and 2 on pages 106-113); for public authorities, pp. 643-86 (focus on the duty of care aspect of public authority liability in ...

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Obligations II | Semester 1 | Negligence – Duty of care Reading: o

R. Mulheron, Principles of Tort Law, Cambridge: Cambridge UP, 2016, pp. 37-169 (you can ignore sections 2.28 and 2.29 on pages 106-113); for public authorities, pp. 643-86 (focus on the duty of care aspect of public authority liability in negligence for now).

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Alternatively: Witting, Street on Torts, 14th ed., Oxford, Oxford UP 2015, pp. 25-64 (up until part (C)); 78 (from Section 4)-80; 100-114.

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we explored the meaning of “negligence”. A claimant must have suffered damage in order to bring a cause of action in negligence. Then, in order to succeed in the cause of action, the claimant must establish the following elements 1. That the defendant owed the claimant a duty of care (DUTY) 2. That the defendant breached this duty (BREACH) 3. That the breach caused the damage (CAUSATION) 4. That the loss suffered was not too remote (REMOTENESS)

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If the cause of action is established, there may be applicable defences Remember, the focus now is on duty of care, but of course, when you come to study breach of duty and causation later in the semester you should think back to many of the cases and situations which we are exploring now. We will then – in the following weeks - move on to some more controversial duty of care situations - the duty to avoid pure psychiatric injury and pure economic loss. After that, we will consider breach and causation/remoteness. Separate outlines will be provided for these topics. The following provides an overview of the lectures on duty of care. – SKELETON OUTLINE OF LECTURES – Introduction to Negligence – The Duty of Care requirement – historical overview – The Modern Duty of Care analysis – Reasonable Foreseeability” of harm – “Proximity” – “Fair, Just and Reasonable – Positive Acts, Omissions and Third Parties – Is the imposition of a Duty of Care prohibited? – The Duty of Care in relation to Public Authorities – The Duty of Care in relation to Employers

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1.

INTRODUCTION TO NEGLIGENCE

We discussed this at the first lecture (last week, 6/10) so we will not revisit this in detail today (13/10), but here is a summary: Definition?

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“The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do” - Alderson B, Blyth v Birmingham Waterworks Co (1856).

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“The breach of a legal duty to take care, resulting in damage to the claimant which was not desired by the defendant” – Curzon, Dictionary of Law.

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“A culpable omission of a positive duty. It differs from heedlessness, in that heedlessness is the doing of an act in violation of a negative duty, without adverting to its possible consequences. In both cases there is inadvertence and there is a breach of duty.” – Mozeley and Whiteley’s Law Dictionary

What deeper issues/policies are involved? What interests are at stake? 

To what extent should liability be based on fault (as opposed to, e.g., intention, malice or strict liability)? What are the advantages and disadvantages of such a system?

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Other social and philosophical questions – e.g. to what extent should public bodies be liable for regulatory failures? Do the concepts in negligence (which is a very flexible tort) enable courts to reach principled decisions - are they too fluid?

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The role of the Court – how appropriate is judge-made law as a source of new developments? Should there be more parliamentary intervention?

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The impact of the ECHR and the HRA 1998 – sometimes an alternative course of action (not a tort action), but it has also influenced the law of negligence (as we will see when we talk about the special position of public authorities).

What “Damage” does Negligence seek to compensate against: An action in negligence (which, if successful, will lead to compensation), requires that damage has been sustained. Damage can take various forms: 

Personal injury

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Property damage

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Pure psychiatric injury*

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Pure economic loss*

* these are the more problematic areas, where the law does recognise a right to recovery in negligence, however in addition to the basic rules of negligence, there are extra, very special rules for establishing a duty of care in these situations. These will be considered in the course after our general introduction to the duty of care.

What are the elements of the cause of action in negligence? 

A Duty of Care owed by the defendant to the claimant

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Breach of that duty

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A causal link between the breach and the damage

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The damage suffered must not be too “remote”

All of these elements must be made out for there to be a successful action. The Defendant may, however be able to make use of a defence in order to reduce liability (the most common one being contributory negligence - considered at the end of this semester). 

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2.

THE DUTY OF CARE REQUIREMENT

The law of torts does not impose liability on all persons for all types of damage caused by negligent behaviour.

Hence, it follows that the law does not impose a duty of care on every person in every situation. We now have a test for establishing when a duty will be imposed, however tracking the duty of care’s development, it has waxed and waned over time. Thus, it is useful to have an historical overview (not to be considered in detail at the lecture, detailed below for your reference… we are going to focus on the main developments and the latest categorisation of the duty of care…):

Early 19th centur y

Strict recognised categories of negligence (e.g. ferry operators to passengers)

1842

Winterbottom v Wright (1842) 10 M&W 109 – “if we go one step beyond that, there is no reason why we should not go fifty”

1883

Heaven v Pender (1883) 11 QBD 503 [CA] – “whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense… would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” (Minority)

1929

Mullen v AG Barr [1929] Sess Cas 461 – in a case like the present where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. It is obvious that is such responsibility attached to the defenders, they might be called on to meet claims of damages which they could not possible investigate or insure.”

1932**

**Donoghue v Stevenson [1932] AC 562 (HL) – "The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. 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

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directly affected by my act 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 in question". 3 breakthroughs: 1. Creating a new category of DOC (the “narrow ratio”); 2. Establishing a single, universal requirement to take reasonable care of your legal neighbour, as articulated by Lord Atkin (not constrained by privity of contract); 3. Demonstrating that the categories of negligence liability are never closed 1970

Home Office v Dorset Yacht [1970] AC 1004 (HL) – Lord Reid – “when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles apply to it… I think that the time has come when we should say that a duty ought to apply unless there is some justification or valid explanation for its exclusion.”

1978**

Anns v Merton LBC [1978] AC 728 [HL] – Lord Wilberforce’s 2-stage test:

"The position has now been reached that in order to establish whether a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages.

1. Firstly one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises.

2. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise". A huge expansion of claims and liability followed Lord Wilberforce’s two stage test culminating in… 1983

Junior Brooks Ltd v Veitchi Co Ltd [1983] 1 AC 520 (HL) – high-point of application of wide test of duty

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1990**

Caparo v Dickman [1990] 2 AC 605 (HL) – Lord Bridge’s 3-stage test –

(i)

foreseeability;

(ii)

(ii) proximity; and

(iii)

public policy

This is now the overarching test in modern tort law for the proof of a duty of care 1990

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Murphy v Brentwood DC [1990]2 All ER 908 HL – overruled Anns

THE MODERN DUTY OF CARE ANALYSIS

Clearly, it is imperative for there to be a test in order to prove that the defendant owes the claimant a duty of care. This acts as a “vital control mechanism” in modern negligence law. As Lord Rodger stated in D v East Berkshire Community Health NHS Trust [2005] 2 AC 373 (HL), “the world is full of harm for which the law furnishes no remedy.” So, there are many situations where the defendant has acted recklessly, has caused harm, but yet there is no remedy in the law of negligence if there is no duty of care. As the historical overview has demonstrated, the law has waxed and waned, but we now need to focus on… THE CLASSIC 3-STAGE CAPARO TEST The Elements of the Test: Per Lord Bridge: 1. Reasonable Foreseeability 2. Proximity 3. That there is no public policy reason precluding a duty of care (i.e. it must be fair, just and reasonable for a duty to be imposed on the defendant in the particular scenario).

The Status of the Test? – Good law and still to be used This is now the main test to be used. The House of Lords confirmed this in in Customs and Excise Commissioners v Barclays Bank plc [2007] 1AC 181. Per Lord Mance: “there is no single common denominator… by which liability may be determined. In my view, the threefold test of foreseeability, proximity and fairness, justice and reasonableness provides a convenient general framework although it operates at a high level of abstraction.”

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However, in the same case, the House of Lords also noted the possibility of two other tests, in appropriate situations: i)

The “incremental” test… “the law should develop novel categories of negligence incrementally and by analogy with established categories…” Essentially, this test can be used in addition to Caparo, as a cross check – the court will try to find previously decided cases, as an analogy. (if a case is similar to a previous the law may imply it to create a duty of care)

ii)

The “assumption of responsibility” test – which is particularly used in pure economic loss cases (we will explore this when we cover this topic). (if D on facts of case, whether C assumed responsibility and claimant has relied)

Does a Claimant always need to prove a Duty of Care? In principle, yes. However, note that there will be certain categories of relationships where the existence of a duty of care is established and therefore presumed, e.g.: - employer-employee | doctor-patient | teacher-pupil (especially young children | road-users-other road users/pedestrians/passengers | transport operators- passengers | custodian-prisoner | occupiers-lawful visitors (next semester) However, even within these “established categories”, there may be limitations – e.g., as we will see, the Bor’s or the employer’s duty is not unlimited- so we need to be clear as well about the scope of the duty of care, about how far it extends. [For example, for doctors, the duty is (i) to diagnose, (ii) to treat and (iii) to warn (of risks of the treatment). Regarding (iii), it would be unfair to require the doctor to disclose all risks – just those that are objectively and subjectively significant – and “objectively significant” has been interpreted in a recent Supreme Court decision – Montgomery v Lanarkshire Health Board [2015] UKSC 11 – along the lines of a “reasonable patient” test.] Also, the House of Lords reminded us in Mitchell v Glasgow CC [2009] kUKHL 11 that the existence and scope of a duty of care is a question of law (not fact), so whether citing an established category, or applying the three limbs of Caparo, authority needs to be used.

We shall now examine the 3 limbs of the Caparo test in turn: 4. “REASONABLE FORESEEABILITY OF HARM”

The first precondition for establishing a duty of care. 

Essentially, it means that it is not far-fetched or fanciful that the claimant would suffer if the defendant was to be negligent. This is meant to be an objective test.

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However, this control mechanism is, in reality, a poor control mechanism – it usually is not difficult to establish reasonable foreseeability of harm. It has been found, however, in rare cases, such as:

1. Palsgraf v Long Island Railroad Co, 59 ALR 1253 (NY Ct App, 1928) – “easy to satisfy…but for a rare e.g. of lack of foreseeability”

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

D standing on platform purchasing ticket when train arrived, one of men running fell, in process package containing fireworks and it exploded as a result of explosion some scales fell as a result and hurt C – held if any wrong had been committed the D didn’t forsee what would happen.

2. Bourhill v Young [1943] AC 92 -

D pregnant lady, upon leaving tram went to college luggage, heard a crash and motorcycle died she saw blood and as a result suffered nervous shock and suffered stillborn delivery – no recovery had allowed her, here no foreseeable harm towards the D

So, although it is not sufficient in itself as the sole criterion, it is quite an undemanding test – even claimants with a particular susceptibility may be foreseeable, as in Haley v London Electricity Board [1965] AC 778 (HL 

Blind man fell into trench and hurt himself on a hammer, he was seen as a foreseeable claimant

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(a 1 in 500 chances of being blind – duty of care was owed and claimant’s presence on footpath was foreseeable – fell into trench).

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An interesting issue arises in relation to the unborn claimant, i.e. a foetus who suffers injury due to a negligent act whilst in its mother’s womb.

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Is it a foreseeable claimant? Does the defendant owe the foetus a duty of care?

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At common law, there were significant differences of opinion amongst the judiciary about the status of the unborn claimant. However, Parliament has intervened, and has, through statute –

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the Congenital Disabilities Act 1976 – created a foreseeable claimant. Look at s.1 of the Act – as long as certain conditions are met, it creates a right of action for the child to claim for damage in utero – it recognises a duty to the child (which crystallises only upon birth).

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Also, under s.2 of the Act, the mother is given extensive immunities (for example if the mother takes drugs during pregnancy and damages the child)  but this is just to highlight an unusual feature of the law on reasonable foreseeability – an example of Parliament creating a foreseeable claimant). “PROXIMITY”  The second element of the Caparo test.

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In contrast to reasonable foreseeability, undoubtedly, this criterion is much more active in restricting claims now.

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Essentially, it requires the court to examine whether there is a sufficient closeness or connection between the claimant and defendant. The duty is not owed to the world at large.

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There are various labels fixed to proximity, and they are quite fact-specific. In physical injury cases, especially, the following factors may be relevant -

geographical proximity between claimant (when damage suffered) and defendant (when breach occurred)

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temporal proximity between claimant (when damage suffered) and defendant (when breach occurred) -

relational proximity – e.g. was the claimant in a vulnerable position vis-à-vis the defendant? What degree of control did the defendant exercise over the circumstances in which the claimant was injured? o

Did the claimant and defendant have a pre-existing relationship in which claimant obviously relied upon the defendant to exercise reasonable care, or where the defendant plainly assumed responsibility to exercise care towards the claimant?

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if a third party is involved (and the third party – not the defendant – has injured the claimant)– what knowledge of and control over the third party did the defendant have?

Leading case examples: Home Office v Dorset Yacht Co [1970] AC 1004 (HL) (boarstal boys escaping) o Involves juvenile D, working on island in custody of 3 officers from home office, 7 escaped claimed that at time of escape officers went to bed leaving trainees alone, got onto a yacht and collided with another yacht C sued home office for damages o whether duty of care by home office to respondent – owners of crashed yacht o D weren’t liable, special controlling relationship, it wasn’t foreseen this would happen and they should’ve controlled them in a better way o boys were inmates of D so that’s why proximity established – boys criminal propensities were known Palmer v Tees HA (1998) 45 BMLR 88 (CA) (psychopathic psychiatric patient) o

Concerned murder of Rosie palmer, little girl 3 years old, abducted, raped and murdered by during an ice cream, partially mutilated, occupant of house was Armstrong. “tony the pervert”

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prior to her murder allegations were made that he would hurt someone – later convicted

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did council owe a duty of care to Rosie Palmer, mother brought case against the murderer

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insufficient proximity by local authorities and actions of 3 rd parties

Hill v Chief Constable of West Yorkshire Police [1989] AC 53 (HL) (victim of “Yorkshire Ripper”, confessed to police 2 months later) o

Yorkshire ripper murdered women, mother of his last victim sued police for negligence failing to apprehend him leading to errors in handling of investigation

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