#4652 - Negligence And The Test For A Duty Of Care - GDL Tort Law

Winfield – ‘the breach of a legal duty to take care which results in damage, undesired by the defendant, to the claimant’

Elements required for negligence:

1. The existence of a duty of care owed by the defendant to the claimant

2. Breach of that duty by the defendant

3. That the claimant suffers some damage

Must also ask:

1. Whether the breach caused the damage (causation)

2. Whether the damage suffered was reasonably foreseeable (Remoteness)

The existence of a duty of care

• Cannot be liable unless the law requires them to be careful in the first place

The Search for a Universal Test:

1. The Neighbour Test

Not until 1932 that an acceptable general statement of principle was formulated Donoghue v Stevenson:

• Sued the manufacturer – before this manufacturers only liable to consumers in limited situations

• Lord Atkin’s speech – developed the ‘neighbour’ principle:

‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’

• Who counts as neighbour – ‘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’

• Test of foreseeability = OBJECTIVE – not whether the defendant actually foresaw

  • Ginger beer manufacturers didn’t have to foresee Mrs D would have drunk their product, just that anyone might

  • Sowed seeds for general test for establishing a duty of care – became widely accepted and applied

• Home Office v Dorset Yacht Co: Home Office’s liability for the carelessness of prison officers who allowed juvenile delinquents to escape and cause damage to boats and property in Poole Harbour – found that the Home Office did owe a duty of care – Lord Reid said that Lord Atkin’s well-known speech ‘should be regarded as a statement of principle’

2. Expansion and the two-stage test

• in Anns v London Borough of Merton: local authority’s liability for the negligent inspection of building works

• Lord Wilberforce:

  • asked firstly if the parties satisfied requirements of the neighbour test, and if yes, if there were any policy considerations which dictated no duty existed (if society benefited as a whole)

• Led to period of massive expansion of liability – test generally favoured claimants because could establish first that a duty arose, and only then consider whether policy should limit it

• Peak of expansion – Junior Books v Veitchi

3. A period of contraction

• Reservation with Anns approach voiced by Australian judge Brennan J in Sutherland Shire Council v Heyman – ‘it is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories’

• Picked up in other cases:

  • Governors of the Peabody Donation Fund v Sir Linday Parkinson & Co and others

4. The incremental Approach or the Three Stage Test

• 2 cases - Caparo Industries plc v Dickman (1990) and Murphy v Brentwood (1991)

  • Recent authority – Sutradhar v Natural Environment Research Council

In Caparo:

• Acknowledgement that the Anns test was obsolete – criticised expansion of liability

• Need for cautious, incremental approach based on existing authority: need to examine the facts on an incremental approach rather than using a ‘set test’

But now known as the three stage test to establish duty of care:

1. Foreseeability

2. Proximity

3. Whether it is fair, just and reasonable to recognise a duty in the circumstances

Murphy v Brentwood – decision in Anns finally overruled

• Watson v British Boxing Board of Control:boxer’s claim that immediate medical attention should have been available at the ringside was upheld – injury was foreseeable, the boxing licensing system meant there was close proximity, and it was fair, just and reasonable to impose a duty

• Law Society v KPMG Peat Marwick: CA stated that a firm of authors did owe a duty of care to the Law Society to prepare accurate reports for a solicitors practice as required under the professional code of conduct

• Whilst appearing to present a more –pre-Anns approach – next 2 cases have found scope for further development:

  • Spring v Guardian Assurance plc & Others :illustrated difficulties in formulating a common approach to determining existence of DOC – identified DOC to give careful job references about the plaintiff

  • White v Jones – did a solicitor owe DOC to the proposed beneficiary of a will – it WAS found to exist – claimed they had used the incremental approach but also stressed need to find practical justice

Restricted Duty Situations

• Lawyers

• Previously had immunity – Rondel v Worsely

• But landmark decision – Hall v Simmons:

  • Unanimously decided that immunity no longer stood for civil case OR criminal cases

• The Police

• Liable for operational but NOT policy:

• Rigby v Chief Constable of Northhamptonshire: police had negligently fired a canister of CS gas into the plaintiff’s shop which was under siege – didn’t take precautions – negligent operational act

• But in Hill v Chief Constable of West Yorkshire – mother of the last victim of Sutcliffe – sued police for negligently failing to capture the Yorkshire Ripper – HofL refused to impose a DOC: policy issue

  • Confirmed recently in appeal concerning the friend of the murdered Stephen Lawrence – Duwayne Brooks v Commissioner of Police for the Metropolis

• Alexandrou v Oxford – plaintiff’s actions failed – local police owed no DOC to check his property or respond to message from burglar alarm

• Leach v Chief Constable of Gloucester – plaintiff was lay witness and suffered post-traumatic stress – no DOC – would impose too onerous burden on police to psychologically test every potential person for position

But – NO BLANKET IMMUNITY FOR POLICE

• Swinney v Chief Constable of Northumbria (no. 2):pub landlady had provided info on the basis that she has anonymity, but police file was left unattended and stolen – she then suffered psychological illness when she found out – police argued there was no proximity: CA disagreed – said they DID have a duty of care – but the D still won as no breach was found

• Reeves v Metropolitan Police Commissioner: police found to hold a DOC to a mentally ill prisoner who committed suicide whilst in custody due to the high degree of control they possessed over the prisoner

• Waters v Commissioner of Police of the Metropolis(2000): C suffered psychiatric injury having been raped by fellow police officer and bullied by colleagues – she argued that authorities had failed to deal with her complaint properly

  • HL :on deciding if immunity existed – consideration to the primary role of the police (to deter crime) and to the public interest issue of ensuring the police service is run efficiently + as a responsible employer

  • The C won

• Discussion of ‘blanket immunity’ – Osman v Ferguson and in Z v UK (2001)

  • In Osman v Ferguson: pupil shot and father killed by a stalking teacher – immunity given to the police on basis of policy reasoning – but this was held by the ECHR to be disproportionate in comparison to the infringement of the claimant’s human rights – upheld complaint that there had been a breach of Article 6 (right to fair trial)

  • But this has to an extent been nullified by Z v UK – concerning liability of the local authority in failing to prevent the neglect of 4 children by their parents – ECHR admitted they had misunderstood English tort law in Osman v Ferguson: had misunderstood the difference btw a substantive legal right and a procedural one – it wouldn’t have been fair, just and reasonable to impose a duty (substantive law issue)

• The Emergency Services

Fire Brigade: attendance at the scene of a fire does not in itself give rise to the requisite degree of proximity (in the following 3 cases (heard together in CA): there was insufficient proximity

AND it follows that there is no general duty to attend the fires in the first place:

Capital and Counties plc v Hampshire County Council: alleged negligence of a fire fighter ordering a sprinkler to be turned off

John Munroe v London Fire and Civil Defence Authority: Fire brigade left the scene before ensuring fire was properly extinguished

Church of Jesus Christ v West Yorkshire FCDA: failed to ensure an adequate supply of water at the scene

BUT: there is a duty not to make the situation worse:

Capital and Counties plc v Hampshire County Council:– if the fire brigade attended and actually aggravated the situation then the claim could succeed – doing something to make the situation worse could result in DOC being owed – ‘his only duty as a matter of law is not to make the victim’s condition worse’

Ambulance service – Kent v Griffiths & Others – ambulance as part of health service and not the rescue services – and so policy arguments applicable to the police and fire brigade have no general application

• Acceptance of a 999 call accepted duty: established proximity between the parties

• Although situations where DOC could be excluded

• Local Authorities and Public Bodies

• Policy issues: tax payer pays in successful actions – and fear of litigation may restrict public services from performing their operations

2 problems:

1. ‘Justiciability’

• Whether a particular activity, often political in nature, should be open to examination by the courts

2) Whether both foreseeability and proximity can be established

• Statutes often give power to act at their discretion: Stovin v Wise – Parliament had granted a power to act but not mandatory duty

• Reluctance of the courts to impose duties: D v East Berkshire Community...