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docEstablished duty: There must be a duty of care ,because one party is in control of the safety of the other. i. Manufacturer to consumer (Donoghue v Steveson [1932]) ii driver and passenger/road user (Nettleship v Weston [1971]) iii. Doctor to patient (McFarlane v Tayside Health Board) Doctors hav...

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Established duty: There must be a duty of care ,because one party is in control of the safety of the other. i. Manufacturer to consumer (Donoghue v Steveson [1932]) ii.Car driver and passenger/road user (Nettleship v Weston [1971]) iii. Doctor to patient (McFarlane v Tayside Health Board) Doctors have a duty to treat patients with care, but as far as sterilization is concerned iv. Occupiers to visitors (The OLO provides that an occupier owes a common duty of care) Neighbour principle Lord Atkin:“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who then in law is my neighbor? 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.” Caparo test: Direct physical loss: foreseeability is the only requirement the P must made. Indirect physical loss: all three requirements are necessary foreseeability Palsgraf v Long Island Railroad Co Railway employees caused a passenger to drop a box of fireworks, which exploded and overturned some heavy metal scales a few feet away, injuring the plaintiff General rule of omission：The defendant is under no obligation to take active action to prevent harm to others.Despite there is possible existence of foreseeability, normally absence of proximity. There is no foreseeability to be found in this case. Caparo Industries Plc v Dickman Proximity no day-to-day control; no assumption of responsibility; no (reasonable) reliance; a wide range of Ps Hill v Chief Constable of West Yorkshire The police will not generally owe a duty of care to the victims of crime since the potential pool of victims is large ( almost all the women in Yorkshire), so there is no proximity. Barrett v MOD assumption of responsibility Home Office v Dorset Yacht Co Ltd day-to-day control

Fair,just and reasonableness Marc Rich & Co v Bishop Rock Marine Co Ltd Policy considerations Hill v Chief Constable of West Yorkshire Floodgates Limited public resources Capital & Counties Plc v Hampshire City Council (fire) There was a fire in the building owned by C. The fire department arrived and shut down the sprinkler system, but there was a problem with the equipment. The entire building was completely destroyed, causing 16 million pounds in damage. If the sprinkler system had not been turned off, more buildings would probably have been saved. it was held that the fire service did have a duty because the order to turn off sprinkler made the situation worse Omission Pure omission does not give rise to liability, but there are exceptions where there is a special relationship and liability is assumed, where the defendant controls the third party who caused the damage, where the defendant controls the land or hazardous materials. Mitchell v Glasgow City Council ‘no duty to warn others whose safety may be in peril’ Palmer v Tees HA:The hospital released a pedophile with a history of violence and then harmed a child after his release, which do not have duty to the public Stovin v Wise 骑摩托车视线被一堆黄土挡住 A motorcycle rider was struck by a car pulling out of an intersection when his view was blocked by a pile of dirt.The failure of public authorities to take steps to prevent others from being harmed by the actions of third parties does not usually result in common law liability. Therefore, the defendant owes no duty of care to the plaintiff. As the judge said , “There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties or natural causes.” How omissions giving rise to duty of care Foreseeability of harm caused by omission Proximity – Special pre-existing relationship: Relationship between D and P: parent/child; school/pupil;doctor/patient;solicitor/client;custodian/prisoner;employer/employee.

Proximity – Assumption of responsibility:Kirkham v Chief Constable of the Greater Manchester Police .The officers who arrested P were well aware of his suicidal tendencies, but did not pass the information on to the prison authorities - so they took it upon themselves to pass on the information and P's trust Proximity – defendant controls the third party who caused the damage, where the defendant controls the land or hazardous materials Assumption of Responsibility Barrett v MOD The claimant's husband, who was in the Navy, was drinking with friends one evening in a bar provided by the Naval base. The claimant's husband, who had passed out drunk, was carried to a chair in the hall. A senior officer saw him and ordered him to be taken to his cabin to look after him. He was taken back and placed in his bunk, in his restored position. He was in a coma, but kept tossing and turning. The sergeant examined him twice, but he was found dead at 2.30 a.m The defendant was not liable for breach of duty of care to prevent his intoxication.Once a senior officer feels that he has ordered a non-commissioned officer to take care of his duty of care arises. He breached his duty by failing to ensure that the deceased were properly supervised. Stansbie v Troman 装修没锁门导致被盗 有先合同责任存在 The claimant left a decorator alone under the contract.The decorator went out to pick up wallpaper and left the door unlocked. While he was out, the thief stole the claimant's belongings from his home.Contractual relationships create obligations that are then breached by failure to secure property. The theft is due to this breach of contract. Special relationship Home Office v Dorset Yacht Co Ltd Some of the young offenders did supervised work on the island, and one night Borstal officials went to bed, leaving the children unattended. Seven of them escaped and stole a boat that collided with a yacht owned by the claimant.The Home Office was found to owe a duty of care for their omission, as they were in a day to day control over the 3rd party who caused the damage. Hudson v Ridge Manufacturing Co Ltd 工人恶作剧 One worker continued to indulge in pranks such as tripping over other workers, ignoring the foreman's reprimands.If a worker is likely to prove the source of danger to his co-workers due to his habitual behavior, it is the employer's responsibility to fairly and clearly eliminate the source of the danger, if necessary through dismissal. A mere reprimand coupled with the threat of dismissal is not enough.

Control of land or dangerous thing Haynes v Harwood 乱停马车，小孩拿石头打马 The defendant parked a horse-drawn van unattended in a crowded street. When a boy threw a rock at the horses, the horses escaped. A police officer tried to stop the horses to save a woman and child. The policeman was injured as a result.Defendant owed a duty of care due to creating a source of danger by leaving his horses unattended in a busy street. Carmarthenshire CC v Lewis 小孩因学校疏忽跑到马路上去 The inexplicable fact that, in the absence of a teacher, a four-year-old might have walked from the school premises to the road and passed through a door that was either open or easily opened was considered an oversight by the school. The teacher in charge of direct supervision of the child is not responsible because she was called to deal with an emergency elsewhere. A driver fatally injured himself after crashing his car into a telegraph booth to avoid hitting children.The school is responsible for the child and have a duty to take reasonable care to prevent him from causing harm to others. Acts of third parties There are no general duty of care relating to third parties unless there is a special relationship with them. However, the defendant may be liable if the following "exceptional circumstances" arise. According to Lord Goff: i) There was a ‘special relationship’ between claimant and defendant ii) The defendant negligently created a source of danger and it was reasonably foreseeable that a third party would interfere. iii) The defendant either knew or was capable of knowing that a third party had created a danger or a risk of danger and had failed to take reasonable steps to abate it. Lam Tam Luen v ATV.there is no foreseeability of harm caused by third party because defendant was unaware of the delusional disorder of killer. Smith v Littlewoods Organisation Ltd 废弃电影院着火 D owns an abandoned movie theater that was damaged by a vandal who started a fire that caused damage to the adjacent property. The question is whether the owner of the cinema has a duty to prevent vandals from illegally entering the cinema and whether the owner of the cinema could have reasonably foreseen the damage from the fire. The court held that cinema owners are not liable. There is no general duty of care when a third party's intentional misconduct causes damage to the claimant or its property. The cinema owners had no knowledge of previous vandalism and the fire was not reasonably foreseeable by the cinema owners.

Stansbie v Troman A decorator was commissioned to hold the keys to the house he was painting. He failed to secure the house and the water pipe was stolen. There is a duty of care.‘The act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that in fact happened’ Hedley Byrne Principle:1.The information was provided by D with special skill/ knowledge 2.P relied on the information and suffered pure economic loss;3 Such reliance was reasonable in the circumstances;4.D knew or ought to have known P’s reliance and assumed responsibility No assumption of responsibility Formosa Taffeta Co Ltd v Banque Indosuez 台湾投资 P is a Taiwanese company and an experienced investor. Through D's sales manager, I purchased 10 bills of exchange, worth usd 10 million, drawn on a listed company in Thailand from D Bank. The investment in this Thai company is not reasonable.D’s sale manager was merely a data provider and not a financial advisor. Thus no assumption of responsibility Smith v Eric S Bush 购房抵押与测量师 P is a homebuyer who wants to borrow money from a building society by mortgaging his home. The association hires a firm of surveyors to inspect and prepare a valuation report. Their fees are paid by the buyer. Both the building society and the surveyor know that P relies on their report. The surveyor's report is negligently prepared and inaccurate. Based on this report, P buys the house. Although the purchaser did not pay the surveyor directly for the consideration, their relationship was still considered to be contractual because the surveyor knew that their fees were being paid by the purchaser to the building society. The defendant knew that the building society required them to submit a report for the purposes of a particular transaction and that P would rely on this report. Therefore, despite this, he was liable When a statement communicated by D to C through a third person causes C to suffer a loss, D's negligent misrepresentation remains sufficiently close to liability as long as a special relationship exists between D and C Spring v Guardian Assurance 雇主介绍信 His new employer asked for a reference, and his former employer gave him an unsatisfactory one, and as a result he was unable to find a job for several years and

had his insurance registration canceled.Employers have been negligent in providing reference advice to prospective employers which relied upon allegations above that had not been properly investigated. White v Jones 改遗嘱 Mr. White asked his attorney, Jones, to change his will to benefit his two daughters. Jones took a significant time to respond to this request.During Mr. White's death, the two daughters did not benefit from Mr. White's will and therefore sought compensation from Jones for their losses. The caparo test was satisfied by the existence of a special relationship, because the loss was foreseeable, there was a proximate relationship between the client and the beneficiary of the will, and there was no reason not to assume fair, just and reasonable liability.

Psychiatric injury Recognized condition: Page v Smith‘it means a reaction to an immediate and horrifying impact, resulting in some recognizable psychiatric illness. There must be some serious mental disturbance outside the range of normal human experience, not merely the ordinary emotions of anxiety, grief or fear.’ personality disorder (Chadwick v British Transport Commission [1967]) PTSD (Leach v Chief Constable of Gloucestershire Constabulary [1999]) Miscarriage (Bourhill v Young [1942])woman who had a miscarriage as a result of witnessing the aftermath of a terrible road accident. Pathological grief (Kraly v Mcgrath [1986]) Shock (Alcock v Chief Constable of the South Yorkshire Police [1992]) Non-Recognized condition Distress (Vernon v Bosley(no 1) [1997]) Fear (Hicks v Chief Constable of the South Yorkshire Police [1992]) Simple grief (Vernon v Bosley No 1) Pv Page v Smith:The leading modern case on primary victims who are exposed to the risk of injury, but not actually physically hurt.身体未受伤+心灵受伤 担心即时安 危 A man who was involved in a car accident but was not physically injured later suffered a recurrence and worsening of myomyelitis (ME), also known as chronic fatigue syndrome, due to shock.If it can reasonably be foreseen that the defendant's actions will expose the plaintiff to the risk of physical injury, then it is a duty to take

care of any harm to the plaintiff, including psychiatric injury. psychiatric injury itself is not necessarily foreseeable. Simmons v British Steel 身体＋心灵都受伤 The claimant was physically injured in an accident at work and developed a severe skin disease as a result of shock and anger at his treatment.This led to him taking a lot of time off work and suffering from depression.the court held that employers are responsible for skin diseases and depression as well as the initial injury. They had exposed him to a foreseeable risk of physical injury, and they were therefore liable for all injuries resulting from that risk. Although a claimant may claim for mental harm caused by fear for his or her own safety even if no personal injury has actually occurred, such fear must be justified. McLoughlin v Jones 由于治疗不当导致的伤害

担心未来的危害，不能用 page v Smith Grieves v FT Everard & Sons Ltd P was inadvertently exposed to asbestos dust in the workplace and suffered pleurisy, which was a signal of asbestos fibers in the lungs. P was worried that he would have life-threatening diseases in the future and developed clinical depression Exception: 1. If someone has a reasonable fear of physical injury, even if he is not in fact imperiled (reasonable but false fear), it is likely that he will not be considered a primary victim. McFarlane v EE Caledonia 合理但错误的恐惧 The claimant was a painter who painted on a ship near a burning oil rig. The ship is on its way to assist the rig, approaching 50 meters from the rig. The claimant feared for his life and suffered mental injuries as a result, as well as the shock of seeing someone jump from a burning rig. The claimant was in virtually no danger at any time.The claim is not successful. 2.In the case of work-related stress, the employer has a duty not to cause psychiatric injury to the employee, but only in the case of foreseeable harm Barber v Somerset County Council 工作压力 A teacher is seeking compensation from his employer after suffering a breakdown under work-related stress.He shall be liable for compensation. The employer could have examined him during his sick absence and given him support, but he did not 2.P can be primary victim if he was objectively exposed to danger though without

fear for own safety Chief Constable of West Yorkshire Police v Schofield A police officer found a gun during a search and was entitled to compensation for the damage caused by the unexpected and illegal firing of one of his colleague.

SV Control mechanism Foreseeability McLoughlin v O’Brian The claimant's husband and children were involved in a serious car accident, which was caused by negligence of the defendant. One of her daughters was killed and her husband and two other children were seriously injured. The claimant was not with her family at the time of the accident but was informed immediately afterwards and was taken to hospital. There, she saw her surviving family members covered in dust and oil, and her severely injured son screaming in fear and pain.She suffered psychiatric injury as a result.The court held that it was an extreme form of suffering that could have an impact far beyond grief and grief.what she had seen was sufficiently to be treated as equivalent to presence at the scene Bourhill v Young defendant(D) negligently ride his motorcycle and was fatally injured in the collision with a car. Mrs. Bourhill heard the crash as she was fifty feet away when it happened. She walked up to it and saw it happen. She was eight months pregnant at the time of the incident and later gave birth to a stillborn child. Bourhill later sued D, claiming that she had suffered a mental shock as a result of D's negligence.D shall not bear any responsibility for the psychiatric injury that Bourhill may suffer due to accident. The mental injury suffered by Bourhill is unforeseeable, and Bourhill is not close enough to the scene of the accident itself. Therefore, D has no duty of care to Bourhill.

Alcock v Chief Constable of South Yorkshire Claimants who suffered psychiatric illness as a result of witnessing the shock, but were not physically injured or at risk of physical harm, are only obliged to take care of them if: their mental harm was caused by sudden shock; They have a close enough emotional connection with their primary victims; They are close in space and time to shock events. Dearness McFarlane v EE Caledonia Nearness at the scene, or immediate aftermath(a rough equivalence to being present at the accident) McLoughlin v O'Brian

live broadcast usually does not have sufficient proximity Alcock v Chief Constable of South Yorkshire Hearness:by own sense of sight and hearing (third party communication excluded) Galli-Atkinson v Seghal 一段合理时间内仍然可以视为精神损害 P goes to find her daughter. She walks through the police cordon around the scene of the accident and is told that her daughter is dead. 2 hours later,She went to the morgue and saw her body clean but bruised. this event is an uninterrupted sequences of events and the accident’s immediate aftermath extended to the moment at which P left the mortuary. Sion v Hampstead Health Authority 超过合理时间 Those who suffer psychiatric injury as a result of the long term process cannot claim for damages.The claim was filed by the father of a young man who was injured in a motorcycle accident. The father spent 14 days at his son's bedside, watched his health deteriorate, fell into a coma, and then died Attia v British Gas Plc 财产损失导致精神损害 In some cases, the shock of seeing property damaged or destroyed can be recoverable." D's employees caused a fire in P's house through negligence. P Was startled to see his house and its contents on fire. Stolen property and management: if there is a high degree of foreseeability of the theft and implied assumption of responsibility based on a concurrent contractual/fiduciary relationship between P and D D knew or ought to know that third parties were creating a danger on his premise and failed to take reasonable steps to abate that danger: Clark Fixing Ltd and another v Dudley Metropolitan Borough Council [2001] All ER 149 (different from Smith v Littlewoods？)

Rescuer Rescuer are the primary victims only if they endanger themselves in the process Chadwick v British Transport Commission A serious railroad accident was caused by the negligence of d. The accident occurred near P's house. Shortly after the accident, P went to help the victims. He climbed into the carriage to give first aid and helped free them from the carriage. He worked for 12 hours among the dead and injured. The incident affected him deeply and caused him to develop a psychoneur...