THE TORT EXAM 2020 - General Negligence copy PDF

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Negligence and the Test for Duty of Care Note – in the Study notes, it is all structured differently – but the same information!

You will find that most tort literature concentrates on negligence and some, such as Charlesworth and Percy, deals with nothing else. Although, legally speaking, a late developer, negligence has, in a space of about 80 years, almost developed a stranglehold on the law of civil obligations. Certainly the legal meaning of ‘negligence’ is clearly distinguishable from what a layperson might refer to as mere carelessness or recklessness. Negligence is the breach of a legal duty to take care by the defendant resulting in loss to the claimant. Negligence requires proof of a number of elements before a claim is successful. These are: 1.Loss or damage of a recognised kind sustained by the claimant; 2.The existence of a duty of care owed by the defendant to the claimant; 3.Breach of that duty by the defendant; 4.Proof that the breach caused the damage; 5.Proof that the damage suffered was reasonably foreseeable i.e. not too remote; and 6.Finally, defences: Does the defendant have one or more valid defences to the claim? We must look at each of these elements in turn. The first to be examined is the duty of care. (As to loss/damage, this element, which in practice should be considered first, will be considered in this chapter after an overview of duty, for ease of understanding. As we will see, ultimately the type of damage sustained determines the way in which the question of duty is decided.) APPLY AND CONCLUDE Was a duty of care owed to the claimant by the defendant? There are three routes you can take on the step of duty of care. After this, it is all the same for standard, breach, causation etc. i) General negligence ii) Nervous shock and psychiatric damage iii) Pure economic loss and negligent misstatement GENERAL NEGLIGENCE! THE EXISTENCE OF A DUTY OF CARE A defendant cannot be liable for carelessness unless the law requires them to be careful in the first place. The courts reflect this by using the concept of ‘a duty of care’. In this chapter we will examine the general principles as to when the courts will impose a duty of care. Later go on to examine specific instances where, for one reason or another, the courts have taken a different approach in determining whether a legal duty to take care can be imposed. As such, the duty of care is a judicial creation. In practice, common sense and logic will often point to the existence of a duty. This is the case in the vast majority of claims. However, in new or complex situations, it may be necessary to explore whether a duty can be imposed in law. APPLY AND CONCLUDE THE SEARCH FOR A UNIVERSAL TEST The Neighbour Test Prior to 1932, there were a large number of cases where a defendant had been held liable for his carelessness, but they were viewed as specific instances, dependent on their own facts. For example, doctors owe a duty of care to patients, employers to employees, teachers to pupils, etc.

The approach of the courts was to simply examine existing case law to see whether any new situation could be made to fit into an existing category. This was a limiting approach, making new circumstances difficult to deal with. The earliest attempt to create any sort of general principle came in 1883 in the case of Heaven v Pender in which Brett MR remarked (page 509): The proposition which these recognised cases suggest, and which is therefore to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care or skill in his own conduct with regard to those circumstances, he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger ... this proposition includes, I think, all the recognised cases of liability. It is the only proposition which covers them all. This attempt to create an all-encapsulating principle was generally either ignored or rejected in subsequent cases. It was not until 1932 that an acceptable general statement of principle was formulated, albeit in much the same form as the statement in Heaven v Pender. Donoghue v Stevenson. 

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The claimant had accompanied her friend for tea in a café. Whilst there, the friend had ordered and paid for some ginger beer for the claimant. The beer came in an opaque bottle, which, to the claimant’s horror, when poured out was found to contain the decomposed remains of a snail. The claimant claimed she had been made ill by this but was unable to sue the cafe owner, as there was no contract between them (her friend had bought the ginger beer). Instead, she sued the manufacturer. The House of Lords, by a narrow majority, allowed her to succeed. This was a decision of great importance, since, prior to this case, manufacturers had only been held liable to consumers in limited situations, none of which applied here. Of particular significance was the speech of Lord Atkin, in which he developed his now famous ‘neighbour’ principle: In English law there must be, and is, some general conception of relations giving rise to a duty of care ... 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 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.

Note that the test of foreseeability is objective. As such, the court is not concerned with what the defendant foresaw but what a reasonable person could have been expected to foresee. Lord Atkin’s judgment sowed the seeds of a general test for establishing a duty of care based on the concept of foresight of harm. Initially the case had a mixed reception but after a while it provided the basis for massive expansion and, effectively, gave birth to the law of negligence, as we know it today. By the 1970’s the case was widely accepted and applied. In fact, it was utilised to cover numerous situations not previously encountered. 

Home Office v Dorset Yacht Co - (note that the claimant was Dorset Yacht Co. Ltd and the defendant was the Home Office. However, the case is cited as Home Office v Dorset Yacht as the Home Office was the Appellant and Dorset Yacht Co. Ltd, the Respondent). Here the court had to determine if a person can owe a duty of care for a tort committed by a third party. The case concerned the Home Office’s liability for the carelessness of prison officers who allowed some juvenile delinquents in their care to escape and cause a great deal of damage to boats and property in Poole Harbour. The House of Lords held that the Home Office, through its officers (i.e. vicariously) did owe a duty of care.

Thus we begin to see the move towards a duty being owed where the defendant ought to have foreseen harm even if that harm is created by a third party. This trend was further defined in Anns v London Borough of Merton. APPLY AND CONCLUDE Expansion and The Two Stage Test Anns concerned a local authority’s liability for the negligent inspection of building works. Lord Wilberforce sitting in the House of Lords stated:

First 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 might be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or reduce or limit the scope of the duty or class of persons to whom it is owed or the damages to which a breach of it may give rise… Therefore, the court had to first establish that the parties satisfied the requirements of the neighbour test, and, if yes, second, whether there were any policy considerations which dictated that no duty should exist. The ‘policy considerations’ referred to enable the court to consider not just any legal concepts, etc., but also whether society benefits as a whole. The two-stage test had a profound effect on the way the neighbour test was applied. A period of massive expansion in liability followed, since the test generally favoured claimants. It effectively meant that a duty situation would arise unless there were policy considerations, which should exclude it. This expansion reached its peak in the ‘high water’ mark case of Junior Books v Veitchi, a pure economic loss case. However, after a while, misgivings began to be expressed about the decision (especially by Lord Keith in the House of Lords) which led to a general retreat away from the wide statement of principle it put forward. See Lord Keith’s comments in Yuen Kun Yeu v Att-Gen of Hong Kong. You should note that Anns was, in fact, overruled in 1990. However, we consider it here in order to understand its effect upon the development of the law generally. APPLY AND CONCLUDE A Period of Contraction The initial reservation with the Anns approach was voiced by the Australian judge Brennan J in Sutherland Shire Council v Heyman. In Sutherland Brennan J. stated: It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative or reduce or limit the scope of the duty or the class of person to whom it is owed. This viewpoint was picked up in a number of important decisions in the English courts during the 1980s. For example:  

Yuen Kun-Yeu v Attorney-General of Hong Kong (note Lord Keith’s criticisms on the use of the two-stage test; Rowling v Takaro Properties Ltd: confirmed: [A] too literal interpretation of the well-known observation of Lord Wilberforce in Anns…may be productive of a failure to have regard to, and to analyse and weigh, all the relevant considerations in considering whether it is appropriate that a duty of care should be imposed.

(Note that some of the cases above involve claims for pure economic loss and will be dealt with in more detail in later chapters.) APPLY AND CONCLUDE The Incremental Approach or The Three-Stage Test The coup de grace was finally administered to Anns in the two cases of Caparo Industries plc v Dickman and Murphy v Brentwood (see below Horsey and Rackley). In Caparo v Dickman the House of Lords acknowledged that the Anns test was obsolete, and criticised the expansion of liability it had provoked. It was suggested that it would be unwise to look for a magic formula for a general test for the existence of a duty of care. Instead a cautious, incremental approach based on existing authority was recommended. Lord Bridge stated: What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should 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 that the situation should be one in which the court considers it is fair, just, and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other. But it is implicit ... that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations, which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. The present situation would appear to be as follows. Firstly, the judge should consider whether there are any existing authorities which have already established a duty of care in the situation being considered. If there is no exact precedent, the judge should consider whether an analogous authority exists which can be expanded incrementally to encapsulate the situation being considered. If it is not possible to expand an existing precedent by analogy, the judge should only impose a duty of care if the following three-stage test is satisfied: 1. Was the damage to the claimant reasonably foreseeable? 

This is an objective test (would a reasonable person foresee that failure to take care could cause the general type of harm suffered by the claimant e.g. was personal injury reasonably foreseeable?). The claimant must fall within a class of individuals put at a foreseeable risk by the defendant’s actions (for example, a passenger in a

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road traffic accident). APPLY AND CONCLUDE

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Bourhill v Young - the defendant motorcyclist was travelling too fast and collided with a car a short distance from Mrs Bourhill who overheard but did not see the accident. She later brought a claim against Young’s Estate, alleging that hearing the impact and seeing the pool of blood afterwards had caused her to miscarry. The House of Lords held that Young could not have foreseen that anyone in Mrs

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Bourhill’s position could be affected. APPLY AND CONCLUDE

2. Was there a relationship of sufficient proximity between the claimant and the defendant? A certain type of relationship or connection must exist between the parties. APPLY AND CONCLUDE 3. Is it ‘fair, just and reasonable’ for the law to impose a duty of care in the situation? The courts balance the policy considerations for and against imposing a duty of care (see below) APPLY AND CONCLUDE The courts were instructed to impose a duty of care if they could find a suitable factual precedent to base it on. The three-stage test needs only be applied in novel cases or in the ‘problem’ categories set out below. As clarified by Lord Reed in Robinson v Chief Constable of West Yorkshire  It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Following Caparo, the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned. An example as to how the courts utilise the three-stage test can be seen in the decision: 

Watson v British Boxing Board of Control - Here a boxer’s claim that immediate medical attention should have been available at the ringside was upheld. The injury (brain damage) was foreseeable; there was sufficient proximity since the defendant had assumed responsibility for determining the nature of the medical facilities and assistance to be provided to boxers by making regulations setting out the details of the medical care which should be

available; and it was fair, just and reasonable to impose a duty. There were no policy reasons why a duty should not be imposed since the duty would not necessarily extend to other sporting organisations and the fact the defendant was a non-profit making body should not provide immunity in negligence. APPLY AND CONCLUDE THE EMERGENCY SERVICES The position with regard to the fire brigade in terms of duty of care can be found in three cases heard together in the Court of Appeal: Capital and Counties plc v Hampshire County Council. John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority. Church of Jesus Christ of the Latter-Day Saints (GB) v West Yorkshire Fire and Civil Defence Authority. In Capital and Counties v Hampshire County Council the alleged negligence consisted of a fire-fighter ordering that a sprinkler system, operating at the fire, should be turned off. In John Munroe it was alleged that the fire brigade left the scene before ensuring the fire was properly extinguished and in Church of Jesus Christ, the fire service failed to ensure that an adequate supply of water was available at the scene of the fire. It was held in all of these cases that the fire brigade’s attendance at the scene of a fire did not, in itself, give rise to the requisite degree of proximity and it, therefore, followed that the fire brigade was under no duty to attend to the fires in the first place. Here the court simply followed the reasoning in Alexandrou v Oxford (see below) i.e. no duty to respond to an emergency. However, from Capital and Counties, it was held that if the fire brigade did attend and actually aggravated the situation through a positive act, the claimant’s claim could succeed. Effectively, the fire service owe a duty of care not to make the situation worse through a positive act. As the court stated: If he [the defendant] volunteers his assistance, his only duty as a matter of law is not to make the victim’s condition worse. A similar position was taken by the court with regards to the activities of the coastguard service in OLL Ltd v Secretary of State for the Home Department. The principal authority with regards to the ambulance service is Kent v Griffiths & Others - Here, the ambulance service was regarded as part of the health service which owes a duty of care to its patients and not as a rescue service. The judgment of the court in Kent was that the acceptance of a 999 call by the ambulance service established a duty of care to respond within a reasonable time. The acceptance of the call established proximity between the parties. However, note that this duty of care might not have been breached (see breach) where the service had properly exercised its discretion to deal with a more pressing emergency before attending to the claimant or where it had made a choice about the allocation of resources. The court affirmed the distinction between operational and policy matters (see below), but believed these arguments would be more relevant to breach of duty than duty of care in relation to the ambulance service. APPLY AND CONCLUDE ‘PROBLEM’ CATEGORIES The court has policy concerns about imposing a duty of care in relation to the following ‘problem’ categories: • Omissions; • Failure to prevent a third party cause harm; and • Rescuers (where the ‘rescuer’ is the claimant) • Police (in relation to omissions/failure to prevent a third party causing harm) * • Local Authorities (in relation to omissions/failure to prevent a third party causing harm) *

*The Supreme Court Judgment in Robinson v Chief Constable of West Yorkshire Police (see below) clarified that the police and Local Authorities are not ‘problem’ categories. However, they have been included here as many cases against the police and local authorities arise out of omissions/ failures to prevent a third party causing harm (which are ‘problem’ categories). The court considers the issue of duty of care in relation to these categories on a case-by-case basis, applying the three-stage Caparo test and using similar cases for guidance when deciding whether or not to impose a duty of care. APPLY AND CONCLUDE Omissions As a general rule, the law of tort only imposes liability on those who cause injury or damage to another; no such duty is imposed on a mere failure to act, otherwise known as an omission (Yuen Ken Yeu v Attorney-General of Hong Kong). 

Smith v Littlewoods Organisation Ltd - Lord Goff stated that ‘the common law does not impose liability for what are called pure omissions.’ For example, if a person sees a child drowning, there is no legal obligation on that person to try to rescue, no matter how easy such a venture might be. As such, the law of tort only recognises a misfeasance, i.e. a positive wrongful act, rather than a non-feasance, i.e. a mere ...