TORT II TUTO DUTY OF CARE PDF

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(a) How does the duty test in Caparo Industries plc v Dickman differ from the test in Donoghue v Stevenson? Why did the courts abandon the two-stage test? In Caparo Industries plc v Dickman, the plaintiff needs to establish the duty of care arises in his situation because it accords with existing po...

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(a) How does the duty test in Caparo Industries plc v Dickman differ from the test in Donoghue v Stevenson? Why did the courts abandon the two-stage test? In Caparo Industries plc v Dickman, the plaintiff needs to establish the duty of care arises in his situation because it accords with existing policy and decisions in analogous cases. The chances of a plaintiff succeeding in establishing the existence of a duty of care depends on the kind of harm he has suffered. A duty of care may be held to exist when 3 factors are fulfilled which are the damage is reasonably foreseeable, there is close and direct relationship between plaintiff and defendant and fair, just and reasonable to impose a duty on one party for the benefit of the other. CAPARO INDUSTRIES

DONOGHUE V STEVENSON

3 Part Test that is created to see if there is a duty owed and if it is fair.

A neighbour test where they need to establish foreseeability of harm and proximity of relationship. It created the duty of care and the neighbour principle.

- There is an assumption that there is a duty of care and that harm was foreseeable unless there is a good reason to judge otherwise. - The assumption is that no duty is owed unless the criteria of 3 stages is satisfied which are foreseeability, proximity and whether it is fair to impose a duty.

In the case of Anns v Merton London Borough Council, the plaintiff bought a house from a developer in 1962. In 1970, cracks appeared in the walls of the house and the floor became uneven. These defects were due to a defect in the foundation of the house. The plaintiff sued the builders and the local authority for negligence, for its failure to properly inspect the foundation of the house and for its negligence in failing to detect the defect when conducting examination of the foundation. The local authority stated that they were not under any duty to inspect the foundation and if they could not be liable for failure to inspect, they could not be liable for any negligent inspection. His Lordship created two-stage test as follows: 1. It must be determined whether there is a sufficient relationship of proximity or neighbourhood between the alleged tortfeasor and the person who has suffered loss. If it can be ascertained that the tortfeasor should have foreseen the carelessness on his part may cause damage to the other party, prima facie, a duty of care would be established.

2. If the answer to the above is in the affirmative, the court then has to examine whether there are any considerations that may negate, reduce or limit the scope of the duty, or the group of persons to whom the duty will be imposed. The two stage approach in essence means that once it is reasonably foreseeable that the defendant’s act or omission may cause damage to the plaintiff, there is a presumption of the existence of a duty of care. This duty will only be reduced or negatived if there are policy factors which require the reduction or negation of that duty. This two-stage approach was referred as the Anns test, which application led to the expansion of the boundaries of liability for psychiatric harm but particularly in allowing claims for pure economic loss. The application of the Anns test can be seen in Junior Books Ltd v Veitchi Co Ltd. The defendants were found liable to the plaintiffs for the costs incurred by the plaintiffs in reflooring their factory due to defendants’ initial negligence in laying an uneven floor. The Court held that the defendants were experts and they should have known that the plaintiffs would rely on their advice and expertise; further it was clear and obvious that it was reasonably foreseeable that the plaintiffs would suffer some damage or loss if the defendant were negligent.

The court abandons the two-stage test because it is inadequate to deal with the diverse range of fact situation. It is also too broad and it is more of in favour to the plaintiff. (b) Is the three-stage test an improvement? Identify weaknesses and strengths of the three part test. There are three main weakness in applying the Caparo tests. - In respect of the tripartite test, Caparo does not really make a great improvement to the Anns in terms of legal certainty. It does not provide definitions to the terms such as ‘foreseeability’ and ‘proximity’. In Anns, these two terms are treated as synonyms; by breaking them into two categories, it may appear that Caparo treats them as conceptually distinct. In actuality, it is acknowledged by the House of Lords that these terms are not ‘precise definitions’. They are ‘but labels or phrases descriptive’ of the situation and in most cases ‘merely facets of the same thing.’ It may not be necessary to separate proximity and foreseeability when they together comprise the neighbourhood principle. These terms become convenient expressions that describe rather than define. ‘Proximity’ does not necessarily add a hurdle in the way of a successful tort claim since it is ‘not legal shorthand for a concept with its own, objectively identifiable characteristics.’ In other words, if damage is reasonably foreseeable and it is fair, just, and reasonable to impose a duty, it should logically follow that it is proximate enough to justify a special relationship. Such interpretation

of the tripartite test tends to suggest it is not really meant by the House of Lords to be a test at all, and the application of such labels is an inductive process such that these labels are to justify a made conclusion. If such is the case, the tripartite test is of not any more help than the two-stage test set out in Anns. - The second weakness concerns the incremental and by analogy approach. According to Lord Bridge and Lord Brennan, a duty of care should be recognised where there is some previous decision which also recognises a duty on analogous facts. - The last weakness is the confusion in determining the relationship between the two Caparo tests. It is not made clear whether they are cumulative or alternative. Returning to Anns seems like a good idea as it removes such confusion. Most claims against the police would fail at the fair, just and reasonable stage because it would not be fair to impose a duty on the police because the courts have concluded that the interest of the public will not be best served by imposing a duty to individuals. The strength of three stage test is the Caparo test narrows Anns test by improving and implementing an additional limb to the two-stage test. - The tripartite test comprises requirements of reasonably foreseeable harm, a relationship of proximity and that for the imposition of a duty to be fair just and reasonable. Not only has Caparo addressed the lack of clarity in Anns for not having separate categories for foreseeability of damage and proximity (whether this is necessary will be addressed below), with its third stage it removes the presumption of duty in Anns and effectively moves the onus to invoke policy reasons to the claimant, so that no duty exists unless proven that it should. The concept of proximity, on the other hand, does build on Lord Wilberforce’s judgement in Anns, which can be traced ultimately back to Lord Atkin’s neighbourhood principle. An important distinction between Caparo and Anns is that Caparo seems to go retrogressive by inducing the crucial qualification of the ‘incremental and by analogy’ approach. In a novel situation, according to Caparo, a duty of care should only be recognised where there is an analogous situation such that incremental extension go the duty of care is justified.

3. Asiya was driving home on the Bawang Merah Bawang Putih (BMBP) highway a few days ago. This is her normal route home from work for the past two years. She works as a grooming consultant with a private firm in Kuala Lumpur. On that

particular afternoon, two of BMBP workers, Siska and Rika were doing some repair works on the road. They had closed part of a lane on the highway and had placed red cones near the closure and they had also informed the road-users about the closure by putting a message up on the electronic message board (EMB). Rika had arranged the red cones to form a diagonal line which closed the lane in a gradual manner. Siska had forgotten to close the circuit wiring after setting the EMB. On that particular day, the rain had made the roads wet. Upon approaching the EMB, water from the wheels of Asiya’s car splashed onto the EMB and conducted electricity to her car causing her car to come to an abrupt halt. The electronic system in Asiya’s Mercedes was short-circuited resulting in costs of repair totaling RM 4000, a sum much higher than what would have been incurred if the car was any of the Japanesemanufactured cars (between RM 600-RM 2500). Asiya was taken to the hospital and her pelvis was found to be located due to the very sudden halt. This caused her to have difficulty in sitting up. Dr Ferdi conducted an operation on Asiya to correct her pelvis. After the operation, Asiya discovered that she could not get up at all because her pelvis was now permanently deformed. Dr Ferdi did not inform Asiya that there was a risk of this occurring as a result of the surgery. However, many medical practitioners are of the view that because the risk of permanent deformity occurring was only 5%, informing the patient was not critical and would only frighten the patient unnecessarily. Asiya was also hoping to do some part-time modeling for a giant cosmetics industry and she was already short-listed for the final interview when the accident occurred. However when the company found out about her physical impairment, they called her up to say she has been struck off the shortlist. (a) Identify Asiya’s losses. - Asiya has suffered financial loss- (consequential economic loss) as her car’s electronic system was short-circuited resulting in costs of repair totaling RM 4000. - She had also suffered financial loss due to the operation to correct her dislocated pelvis. - Asiya has suffered physical injury because her pelvis was dislocated due to the sudden halt. – dislocated so consequential economic loss because it was caused by the accident. - it was only a short-listed interview, not an offer. It is not secure, just an opportunity. Therefore, it is consequential economic loss. - She is a grooming consultant. – Consequential economic loss as she is not able to work anymore. Duty of care principles: 1. Reasonable man can foreseeability of harm could be caused due to the activity that was carried out.

2. Who could be harm if this activity was carried out irresponsibly? (NEIGHBOUR PRINCIPLE) End-test has been overruled by Murphy. It is still something that we see as a background but not used as a test. Caparo – Highland Towers case for pure economic loss. Consequential economic loss case – Caparo Whatever harm you can foresee is physical, it would be physical Psychiatric harm: -primary victim -proximity/injury Secondary -mcloughin & alcock These principles arose since Donoghue. Before the Donoghue, there were pigeon holes. - contractuary relations. if none of the pigeon holes fit, look at these: 1. Type of damage 2. The way harm was inflicted. Was it through a negligent act or omission? If it was omission, talk about Smith and the exceptions, not Caparo and Donoghue. Discuss the issues arising in each type of loss. (b) How do you determine who is at fault for each loss? For the financial loss for the repairment of Asiya’s car, Siska is at fault. Siska had forgotten to close the circuit wiring after seting the EMB. The rain made the roads wet and caused Asiya’s car to be electrocuted and made it stop functioning. Siska is also at fault for causing Asiya’s physical injury. As for the psychiatric damage, Dr.Ferdi may be liable as he did not inform Asiya that the operation may cause deformity. However, according to the case of Bolam v Friern Hospital Management, specialists shall not be judged according to the reasonable man principle.Specialists will be judged according to the practices of their professional field. (c) How does the law decide on the extent of the defendant’s duty of care towards Asiya? (Be specific about which defendant you are referring to)

1. I: Whether Rika and Siska owed a duty of care to Asiya? -

Donoghue v Stevenson

L: Neighbour principle - Foreseeability harm (physical damage) Whether a reasonable man can foresee harm - Proximity and relationship, the contemplation (foresight) of the reasonable man a negligent act that can cause harm to plaintiff A: It is foreseeable that Siska’s act where she forgot to close the circuit wiring of EMB could cause harm to any reasonable man. There was also an omission where Rika and Siska did not do their final check before leaving the site. C: Rika and Siska do owe a duty of care to Asiya. I: Whether BMP owes duty to Asiya to ensure her safety on the highway? L: According to Neighbour principle in Donoghue v Stevenson, one’s act is foreseeable by a reasonable man. Haley v Electricity Board – 2. I: Whether Dr Ferdi owed a duty of care which caused the deformity to Asiya? L: - The neighbour principle (physical damage) - Caparo principle (involve important and professional parties like government and agencies) - Foreseeability harm (physical damage) whether a reasonable man can foresee harm -H - Proximity and relationship A: Dr Ferdi is a specialised party where he is made to treat Asiya for the dislocated pelvis. He was doing his work to correct it. However, it was said to be foreseeable that such operation can cause permanent deformity to patient. Therefore, Dr. Ferdi should have informed Asiya first regarding the risk of getting the operation. There is close proximity and relationship between them as doctor and patient. C: In conclusion, Dr Ferdi does owe a duty of care to Asiya....