#15675 - Duty Of Care - Tort Law

1. DUTY OF CARE

A duty of care will be assumed to exist in most cases where D’s act causes injury / property damage to C. It will be readily established by the existence of particular relationships —e.g. doctor/patient, patient/child, driver/accident victim, employer/employee.

CAPARO TEST

In novel cases, the Caparo [1990] test will be used to determine whether a duty of care exists:

1. The damage must be reasonably foreseeable

• This is an objective test —merely whether it as foreseeable that someone might come into the sphere of harm of D’s actions

• Haley v London Electric [1965]: duty extended to all persons reasonably to be expected to walk along, including blind men (not unforeseeable because they are a small number of the population).

2. There must be proximity in the relationship between D and C.

• Related to the factual nexus between parties and whether D ought to have had C in mind.

• Sutrahdar v Natural Environment Research Council [2006]: Lord Hoffmann set out a test for proximity: “there must be proximity in the sense of a measure of control over and responsibility for the potentially dangerous situation.”

• Michael [2015] Lord Kerr: in determining whether there is a relationship of proximity, it is necessary to balance C’s moral claim to compensation for unavoidable harm with D’s moral claim to protection from unduly burdensome legal duties.

• Goodwill v BPAS [1996]: doctor performing a vasectomy failed to warn of small risk of spontaneous reversal. Pregnancy resulted. D not liable to pregnant woman.

3. It must be fair, just, and reasonable for the court to impose a duty of care.

• This stage allows the court to bring policy considerations into the analysis:

• Phelps v Hillingdon [2000]: court held this stage includes consideration of public policy reasons for / against the imposition of a duty of care — e.g. floodgates, would liability lead to defensive conduct by public authorities.

• Marc Rich v Marine Bishop [1996]: duty of care not imposed since it might lead to surveyors refusing to survey high risk ships.

Lord Diplock was clear in Caparo that these are “convenient labels” rather than precise tests — the law should expand by analogy with decided cases in which a duty of care has been recognised rather than based on general principles.

LIABILITY FOR OMISSIONS

English law draws a strong line between acts and omissions, only the former generally attract liability

Nolan defines an omission as D failing to confer a benefit on C; D fails to make C better off but neither does D make anything worse.

Lord Goff in Smith v Littlewoods [1987] set out the exceptional circumstances in which a duty of care for omissions could exist:

1. There is a relationship between the parties which creates an assumption of responsibility on behalf of D for the safety of C.

• Barrett v MOD [1995]: no general duty to prevent MOD employee’s excessive drinking; however, once the deceased had fallen ill and a senior officer ordered a junior officer to look after him, they had assumed responsibility and were liable when the employee did not receive appropriate supervision and died.

2. There is a relationship of control between D and a third party who causes damage

• Carmathenshire CC v Lewis [1955]: teacher owed a duty of care to a driver who crashed when swerving to avoid a young child who had wandered into the road from a school. School should have prevented the child from entering the road.

• Home Office v Dorset Yacht [1970]: boys escaped from a borstal on an island, damaging C’s yacht. D was liable for the harm for two reasons: (i) the boys were under D’s control and “control imports responsibility”; and (ii) D had a relationship of proximity to C; C was one of few parties whose property could foreseeably have been damaged by an escape.

3. D creates / permits a source of danger to be created, which is interfered with by third parties

• Smith v Littlewoods: children repeatedly broke into D’s cinema. On one occasion they lit a fire, which damaged C’s adjacent property. D owed no duty to C in respect of the fire damage. While there is no general duty to prevent third parties causing damage (e.g. no duty to put out a fire), a duty can be found where D negligently causes / permits a source of danger to be created and it is reasonably foreseeable that X will interfere with it.

Everett shows that liability of acts of third parties cases will be resolved using the Caparo test, and that, even where a duty of care is imposed, it will often be of a narrow scope and not impose a very onerous standard of care.

• Everett v Comojo [2011]: C was a guest in D’s members-only nightclub and suffered injuries in a knife-attack by another guest. CA: Although there was a duty of care to protect patrons from the acts of other guests, D was not in breach of this duty. The members only nature of the club meant the risk of violence was low and D did not have to search bags / have security. He had taken appropriate steps to protect guests. The FJR limb of Caparo meant the standard of care imposed by the duty was low / the scope was narrow.

Justifications for the lack of omissions liability:

• Honore: C’s interests are more seriously threatened by D causing her harm than failing to help her. D’s positive acts threaten C’s security, whereas omissions threaten C’s expectation of improvement.

• “Why pick on me”? The law should not single out a particular D for failing to act when there were many others in the same position.

• Requiring D to confer a benefit on C is a much greater burden on D than requiring him to act carefully, so liability for omissions would threaten D’s autonomy.

• Stevens: Tort liability is concerned with the infringement of primary rights; C does not have a right against the whole world that others confer benefits on him.

LIABILITY OF PUBLIC AUTHORITIES

NB: in addition to negligence, a public body can also be liable under the separate tort of ‘Breach of Statutory Duty’ where they fail to comply with a statutory duty.

Courts are reluctant to impose liability on public authorities, and (generally) there is no liability for a public authority failing to confer a benefit in exercising its statutory responsibilities. This was justified in Gorringe v Calverdale:

• Substantial claims for compensation will lead to the taxpayers’ money being diverted away from general expenditure on public services.

• Policy issues are not justiciable; courts are not equipped to adjudicate on public bodies’ policy decisions to provide one service instead of another. This led to policy/operations distinction

• The danger of liability will lead to “defensive” practices; they may be over-cautious / not act for public benefit in order to minimise the risk of tort liability.

• Maladministration by public bodies can be remedied in other ways e.g. breach of statutory duty claims, complaints to the Parliamentary Ombudsman etc.

The Policy/Operations Distinction

Public body will have a duty of care (which can extend to omissions) in carrying out their day-to-day operations, but not in the broad formulation of their policy. E.g. Dorset Yacht: the authority was liable in negligence for allowing boys to escape (an operational failure), but could never have been liable for policy of allowing borstal boys to work on the island.

Rejected?

• In Stovin v Wise [1996] Lord Hoffmann held “the distinction between policy and operations is an inadequate tool with which to discover whether it is inappropriate to impose a duty of care” because the distinction is often illusive in practice.

• The distinction was subsequently revived by the HL in Barrett v Enfield [1999]. Lord Slynn: “The greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justifiable so no action in negligence can be brought”.

• Craig: The distinction now plays a relatively minor role in deciding whether a public authority owes a duty of care. It is just one factor in deciding whether a decision is justiciable. It is now more common to limit public authority liability on the basis of other factors —e.g. Caparo test.

It is clear authorities owe a duty of care in relation to their positive operational acts: e.g. Rigby v Chief Constable [1985]: police driver owned duty of care in relation to other road users / pedestrians.

Caparo test and public bodies

Gorringe: authorities are subject to the same test for a duty of care as private bodies (Caparo); the mere existence of a statutory power/duty to act cannot give rise to a duty of care in negligence.

• Gorringe v Calverdale [2004] C crashed and was seriously injured; claimed the council had breached its duty of care by failing to paint a ‘slow’ sign before a sharp crest in the road. HL: D was not liable for this failure. Lord Steyn: in considering whether a public body has failed to exercise a statutory power, the court should just consider the private law duty of care test; on this test D could not be liable for its failure to paint a slow sign.

Where the authority has assumed responsibility for C’s safety, they will generally be liable for omissions (foreseeability / proximity under Caparo are satisfied), but the court will still consider FJR:

• Barrett v Enfield [1999]: C was in the care of D council from the age of 10 months to 17 years. C sued in negligence for a number of omissions by D (e.g. failure to arrange adoption / monitor his placements / arrange psychiatric treatment) leading to C suffering psychiatric damage. HL: issue: should claim proceed to trial. Yes.

  • Lord Slynn: D had assumed responsibility for C in that D...