#15587 - General Negligence - GDL Tort Law

Tort Law : General Negligence

Structure for a general neg claim

• Claimant & Defendant

• Loss

• DoC

• Breach

• Causation

• Remoteness (reasonably foreseeable)

• Defences

Duty of Care (DoC)

• ‘Neighbour Principle’ (Lord Atkin, Donoghue v Stevenson).

• Home Office v Dorset Yacht: can owe duty for tort committed by 3^rd party.

• Hedley Byrne v Heller: DoC re economic loss by negligent misstatement.

• Caparo v Dickman (1990) Caparo test:

  • (1) look for precedent.

  • If no precedent, apply 3-stage test:

  • (1) damage to C reasonably foreseeable (objective)?

  • (2) Relationship of sufficient proximity between C and D.

  • (3) is it ‘fair, just & reasonable’ to impose duty (policy).

    • Floodgates of litigation

    • Insurance

    • Crushing liability/loss allocation

    • Deterrence/maintaining high standards

    • Defensive practices

    • Justice

• Egs of use of Caparo, extension:

  • Watson v British Boxing Board of Control: held: DoC found: injury foreseeable; boxing licensing system meant proximity; fair, just & reasonable.

  • Law Society v KPMG Peat Marwick: firm of auditors owed DoC to Law Society in preparing reports.

  • Spring v Guardian Assurance: D owed DoC to give careful job references.

  • White v Jones: solicitor owed DoC to beneficiary of a will.

• Incremental approach

Recognised categories—always an automatic DoC

• Manufacturer/consumer, Donoghue v Stevenson

• Road users, Nettleship v Weston, Fitzgerald v Patel.

• Doctor/patient, Cassidy v Ministry of Health

• Employer/employee, Wilson v English

• Employees to each other, ICI v Shatwell

• Referee/competitor: Vowles v Evans

• Participants in sporting events: Condon v Basi

EMERGENCY SERVICES

• Police, no duty

  • Alexandrou v Oxford: no DoC for police to respond to an emergency call. Re local police ignored message from burglar alarm.

    • NO duty on proximity & public policy grounds.

• Fire Brigade, no duty

  • Capital & Counties v Hampshire County Council

    • Fire Brigade does not owe a DoC to attend scene of fire-

    • But, if they do attend, DoC not to make situation worse through a positive act

    • [[had ordered sprinkler system to be turned off operational decision, no public policy immunity]].

  • Church of Jesus Christ of the Latter-Day Saints: fire service failed to ensure an adequate supply of water available; no DoC.

  • Policy concern-insurance: individual should insure himself against fire.

• Coastguard, no duty

  • OLL v SoS Transport, no DoC, unless caused greater injury than would have occurred if not involved.

• Ambulance, yes duty

  • Kent v Griffiths: DoC to respond, and respond in reasonable time.

    • Acceptance of 999 call establishes proximity.

    • Rationale: ambulance part of NHS, not a rescue service same policy arguments for police & fire don’t apply.

  • But, eg, DoC might be excluded if ambulance had properly exercised discretion to attend a more pressing emergency first; or choice about allocation of resources.

  • Again, operational/policy distinction.

PROBLEM CATEGORIES, apply always Caparo

(1) Lawyers

• Arthur Hall v Simons: ended advocacy immunity. civil and criminal.

• Barristers:

  • Criminal cases, Hunter v Chief Constable West Midlands Police: appropriate challenge to conviction = appeal. If accused still convicted after appeal, negligence action against advocate will generally fail.

  • But, if conviction set aside on appeal could be a negligence claim against advocate.

  • Civil cases: can bring action for negligence; high burden of proof, need to show better standard of work would produce different outcome.

• Jones v Kaney: no immunity for paid expert witnesses in court.

(2) Police—always apply Caparo

• Rigby v Chief Constable of Northamptonshire: operational/policy divide

  • Police threw canister into building; caused fire an operational mistake, imposed liability.

• If policy failing, probably no DOC (see Hill).

• No DoC to respond to emergency: Alexandrou v Oxford

• Duty to informants:

  • Swinney v Chief Constable of Northumbria: informant anonymity, her file was stolen; received threates/psychiatric injury. DoC. Policy: encourage informants.

  • An Informer v A Chief Constable: no DoC of police re economic loss, but would owe DoC re informer’s physical safety.

    • Proximity: yes, between police & informants.

    • Policy: want to encourage informants to come forward, if police not careful then discourages informants coming forward. Need to protect informants in public interest > protecting police from lawsuits.

• DoC to safety of those in police custody:

  • Reeves v Met Police Commissioner: DoC found, re mentally ill prisoner who committed suicide in police custody.

    • Proximity: Police had high degree of control over victim.

• DoC between police colleagues:

  • Costello v Chief Constable of Northumbria: C attacked in cell; colleague didn’t help. DoC existed.

    • Policy: maintain high standards.

    • [[note: employees owed DoC to each other, ICI v Shatwell]].

  • Waters v Commissioner of Police Metropolis: C raped and bullied by colleagues. Police authorities failed to deal with her complaint properly?

    • Found DoC, scales fell for claimant (actually an employers’ liability claim).

    • The protection given to police against owing a DoC didn’t apply here—she was not suing as a member of the public.

• NO DoC, re apprehending criminals/preventing crimes

  • Hill v Chief Constable of West Yorkshire, no proximity, not fair/just/R

    • Mother of victim of Yorkshire Ripper; police had questioned Peter Sutcliffe, released him, he murdered again.

    • No general DoC owed to individual members of public to identify and apprehend an unknown criminal.

    • (1) Foreseeable? Yes, foreseeability.

    • (2) But Insufficient proximity between the woman, as potential victim of crime, and police.

      • (a) Between D and the 3^rd party: Distinguished from Dorset Yacht—Sutcliffe was not under police custody (cf Dorset Yacht), so not in police control.

      • (b) Between D and C: wide pool of potential victims: Couldn’t predict who he would kill, not identifiable victim, CF Dorset Yacht, particular risk to the yacht owners.

    • (3) ‘fair, just, reasonable’: policy reasons:

      • defensive practices, if police could be sued they would lock up loads of people. Could give police a ‘detrimentally defensive’ frame of mind.

      • Floodgates: number of claims re police failing to catch criminals fast enough.

      • Would cause courts to have to make decisions as to how police should do inquiries.

      • Divert police resources, time & money, into preparation of defences against claims—at expense of their core function, suppressing crime.

    • Courts will not impose DoC in respect of a policy failing. Policy considerations why: floodgates; defensive practices; diversion of limited resources; tax payer.

    • Cost & time of police having to defend litigations brought against them, floodgates, diverting resources away from their proper role in suppressing crime.

  • Duwayne Brooks v Commissioner of Police Metropolis: re friend of murdered Stephen Lawrence, suffered PTSD. Followed policy reasoning in Hill.

  • Osman v Ferguson, yes proximity (identified victim) but not fair/just/R: re stalking teacher, family told police of threat to pupil’s life; shot pupil; killed father.

    • (1) Foreseeable: Yes

    • (2) Proximity: YES, because victim identified (CF Hill).

    • (3) Fair, just, reasonable? NO—police cannot be responsible for all repeated crimes committed by criminals, would lead to defensive practices, police would keep everyone locked up.

    • So Osman shows: yes, foreseeable risk of PI; yes, proximity, victim identified; but even then, no DoC, on policy grounds.

• No DoC

  • To lay witness: Leach v Chief Const Gloucester: C a lay witness to a police interview; suffered PTSD.

    • No DoC.

    • Policy, not fair, just & reasonable: sort of person who could be lay witness very wide, would be too onerous to impose burden on police to psychologically test every person.

    • Also don’t want conflict, police cannot owed a DoC to both C and D.

  • To someone who reported incidents, Smith v Chief Constable of Sussex:

    • C reported incidents about threats to him by his former lover; was then attacked.

    • NO proximate relationship just because reported incidents to police—police have not assumed responsibility for your welfare.

    • Policy: too many cases reported to police, can’t hold them responsible.

    • Used Hill policy reasoning.

  • Desmond v Chief Const Nottinghamshire:

    • Police denied his CRB check no DoC (would conflict with statutory purpose of protecting vulnerable young people).

• Phone call to emergency services does not create DoC (Michael v Chief Constable South Wales).

• ECHR cases, re ‘blanket immunity’ for police

  • Osman v UK: ECHR—immunity given to police (re DoC) was disproportionate cf the infringement of C’s human rights. UK’s domestic law, following Hill—incompatible with Art 6 by affording blanket immunity to police.

  • Article 2(1) ECHR may imposed a duty on a PA to take all reasonable steps to protect a person from a ‘real and immediate risk’ to life if an ‘identified’ victim—if PA ‘knew, or ought to have known’,r of risk.

  • Somewhat softened by Z v UK: ECHR said they misunderstood English tort law; and difference between a substantive legal right and procedural legal right. There was no procedural bar.

  • Van Colle v UK: instead of negligence claim, brought an HRA breach of Article 2 claim. Claim failed, unable to satisfy Osman test that police ‘knew or ought to have known’ of ‘real and immediate’ threat to life of an ‘identified individual’.

(3) Local authorities & public bodies—always apply Caparo

• NOTE: if successful claim against local authorities taxpayer pays the damages.

• Stovin v Wise, policy grounds re discretionary powers and authorities [[also good case...