Negligence Law and Duty of Care

Lecture 2: Duty of Care

• This session is recorded for module use only. Do not share materials or recordings.

Polleverywhere Quiz

• Access the quiz using the App, enter meryldickins587
• Or go to www.pollev.com and enter meryldickins587

Different methods of establishing a duty of care

• Existing statutory duty determining if a duty of care is owed?
• Analogous judicial precedent; incremental categories?
• Sufficient evidence of defendant assuming responsibility over the claimant?
• Can the three elements of the Caparo tripartite test be satisfied? (amended by [2018] UKSC 4 Robinson v Chief Constable of West Yorkshire.)

Robinson v Chief Constable or West Yorkshire [2018] UKSC 4

• Public Authority Liability case; covered thoroughly in police liability.
• Prior case law (incremental category) often establishes a duty of care, covering many relationships.
• Courts should avoid hesitation in finding a duty of care; rather, focus on the series of requirements (breach, causation, recognition of claimable harm).
• Caparo should only be used in novel situations where courts haven't established a duty of care. This applies specifically to police omissions.

Foreseeability

• Foreseeability and remoteness are two sides of the same coin.

• Harm that is foreseeable is considered. When is harm so remote it isn't foreseeable. (Old view)

• Re Polemis and Furness Withy & Co [1921] KB 560: A spark caused a fire that destroyed a ship; the defendants were liable, even if the direct cause of the fire from the board falling wasn't foreseeable.

• The Wagon Mound Litigation: Damage due to oil caught fire. Liability is restricted to foreseeable damage. What is a reasonable expectation for the defendant?

• Hughes v Lord Advocates [1963] AC 837: Foreseeable that an accident might happen; the specific way the accident occurred wasn't the issue.

• Jolley v Sutton LBC [2000] 1 WLR 1082: Foreseeable that children would meddle with the boat; therefore a duty of care was owed.

Foreseeability: Some Identity Problems

• Skilled claimants (Roles v. Nathan [1963], Ogwo v. Taylor [1987]).
• Sensitive claimants (Haley v. London Electricity Board [1965], Robinson v. Kilvert [1889]).
• Children (Taylor v. Glasgow CC [1922])

The 'egg shell skull' rule

• Smith v Leech Brain & Co Ltd [1962] 2 QB 405: A pre-existing condition combined with an injury, the defendant still takes the victim as they find them. Liability still exists for the full extent of damage (foreseeable or unforeseeable).

Extension beyond Physical Injury

• Page v Smith [1966] 1 AC 155: The duty expands to all forms of personal harm, including psychological harm.

• Grieves v FT Everard [2008] 1 AC 281: Damages limited unless a foreseeable event was immediately linked to the risk.

Summary

• Foreseeability refers to reasonably foreseeable harm; separate from but connected to remoteness of harm.
• The type of harm, not the exact cause, is important.
• Assumed children are more likely to act mischievously.
• Courts are willing to consider distinctions in harm types regarding foreseeability.
• Harm is not restricted solely to physical harm.

What is Proximity?

• Tort law concepts of 'neighbourhood' or 'closeness' in a D and C relationship.
• Several, metaphorical notions, including neighbourhood, closeness, are used conceptually.
• (D) carelessly releasing a projectile could cause extensive damage (C).
• Spatial closeness does not always need to be involved in 'proximity'

Stovin v Wise [1996] AC 923

• Proximity is not a separate ingredient, distinct from fairness, and reasonability.
• Proximity identifies a relationship between parties where it is fair, just and reasonable to determine a duty of care.

Case Law

• Details relevant case law examples (Bourhill v Young, Hedley Byrne v Heller, Calvert v William Hill, Marc Rich, Watson).

Marc Rich and Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) [1996] AC 211

• Defendant (shipping classification society) inspected repairs of a ship.
• Ship declared seaworthy with a warning; failed a few days later; sank with cargo lost.
• Didn't meet the fairness, justice, and reasonability requirement of the tripartite test for a duty of care.
• Defendant (independent non-profit organisation) working in a public role. Did not have enough accountability for a duty of care.

Watson v British Boxing Board of Control Ltd [2001] QB 1134

• Boxer suffered brain damage.
• Insufficient medical equipment at the side of the ring.
• Courts imposed liability, applied tripartite test.
• Amateur sports have the same expectation for the medical standard as professionals.

Hill v Chief Constable of West Yorkshire [1989] AC 53

• Mother of the serial killer victim (Yorkshire Ripper) sued police (failure to catch the killer earlier).
• Courts applied tripartite test; failed the required third prong.
• Policy considerations: public policy, floodgates argument, proportionality, clashes with statutory interpretation, and creating defensive action (public services).

Robinson v Chief Constable or West Yorkshire [2018] UKSC 4

• 76-year-old knocked over by a police officer.
• Courts considered whether the Caparo test applies to all police duties.
• Established that Caparo should only be used in novel situations involving police omissions.

Omission

• General rule: no liability for an omission (absence of action).
• Not liable for a pure omission unrelated to a course of conduct.

Why pick on me?

• Stovin v Wise [1996]: sound reasons for treating omissions differently than positive actions.
• The law distinguishes between a positive act that is liable for the harm created or escalated and an omission that is not the clear cause of harm. (actions of third parties or natural causes)

Smith v Littlewoods Ltd [1987] 1 All ER.710

• Defendants owned disused cinema; intended to demolish, but unknown arsonists damaged adjoining property.
• Owners sued defendants for negligence.
• Defendants were not liable as they didn't cause the damage.

Mitchell v Glasgow City Council [2009] UKHL 11

• Deceased and neighbour (D) were tenants of the council.
• Neighbour (D), had a history of anti-social behaviour and violence towards claimant (specifically).
• Damaged deceased's home with an iron bar.
• Deceased's family argued the council should have protected claimant.
• Court said foreseeability alone didn't create a legal duty.

Mitchell v Glasgow City Council [2009] UKHL 11

• Foreseeability of harm wasn't enough for imposing a duty of care.
• Proximity, fair justifiable behaviour, and reasonability test must be met.
• Common law doesn't require a positive duty to prevent harm by a third party just based on foreseeability.
• The responsibility of the local authority (to prevent the harm of a deceased) is an issue of fairness and policy (that foreseeability was not enough).

Exceptions

• Defendant assumes responsibility
• Defendant in a position of responsibility (control)
• Defendant creates the danger
• Social Action, Responsibility and Hero Act 2015 (SARAH): Sections 2, 3, and 4 provide specific rules regarding a defendant's actions benefiting society in a responsible way, protecting others, or performing heroically in emergency situations.

Barrett v Ministry of Defence [1995] 3 All ER 87

• Off-duty pilot drank excessively, collapsed, and died from choking on his vomit.
• Court found that failure to ensure medical aid, after the pilot was unconscious, was a breach.
• However, the deceased pilot was also 25% responsible.

Costello v Chief Constable of Northumbria Police [1999] СА

• Female police constable attacked by a prisoner.
• Did not receive help, despite calls; another officer was present.
• Court of Appeal agreed that a positive duty of care is imposed on police officers to help each other.

The defendant is in a position of responsibility

• Examples regarding parent-child, doctor-patient, captain-passenger, teacher-pupil, lifeguard-swimmer, employer-employee, police-prisoner relationships.

Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360

• Prisoner in police custody committed suicide.
• Court said that the police had a duty of care; didn't prevent the suicide.

Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360

• Police's duty extends to taking reasonable steps to assess suicide risk for prisoners in custody.
• Justification based on police's control over prisoners and high risk of suicide, even for those without a known mental illness.

Orange v Chief Constable of West Yorkshire Police [2001] EWCA Civ 611

• Man in police custody committed suicide.
• Widow argued the police should have taken measures to prevent the suicide attempt.
• Court found a duty of care, though not enough to hold police liable in this case. Police did not have a duty because it was not foreseeable in this case.

The defendant creates the danger

• If the defendant has created or increased danger, there is a duty to act.
• Capital & Counties plc v Hampshire County Council [1997]: Defendants were negligent; the fire officer ordered the sprinkler to be turned off; the factory burned down.

Liability for the acts of third parties

• No liability for harm caused by third parties in general.
• Perl v London Borough of Camden [1984]: Defendant didn't have control, so couldn't be liable for this particular third-party act of harm.

Exceptions: Smith v Littlewoods Organisation Ltd [1987] AC 241

• Exceptions to the general rule regarding liability for harm caused by third parties.
• Special relationships: where a relationship exists between the defendant/third party (contractual, etc.).

Special relationship (proximity)

• Defendant control over third-party's actions creates proximity if foreseeable harm exists for the claimant.
• Examples of proximate relationships include "parent-child", "doctor-patient", or other close relationships, as well as situations where assuming responsibility (control.)
• Home Office v Dorset Yacht Co [1970]: Supervisory liability due to a special relationship.

Home Office V Dorset Yacht Co [1970] 2 All ER 294

• Young offenders escaped from a camp, damaged claimant's yacht; it was foreseeable that if they escaped the boys would take a yacht and cause incident and harm. The officers had ignored instructions by leaving the boys unsupervised, and were responsible for controlling the boys.

Rescuers: Duty Owed by Rescuers

• No general duty to rescue someone in danger.
• Courts hesitate to find rescuers negligent, or contributory negligent.
• Tolley v Carr [2010]: Negligent driving caused a hazard; rescuer injured in trying to move the car. Rescuer reasonably acted.

Rescuers: Duty Owed to Rescuers

• If defendant creates danger, owes duty of care to rescuer (if foreseeable).
• Haynes v Harwood [1935]: Rescuer injured after a runaway horse incident related to negligent acts of a defendant.
• Chadwick v British Railways Board [1967]: Rescuer suffered psychiatric harm after a train crash. Defendant owed a duty.
• *Ogwo v Taylor [1988]: Duty of care to a fire officer who was injured putting out a fire in the defendant’s house.

Rescuers: Defendant puts themselves in danger

• If the defendant negligently puts themselves in danger, a duty of care may be owed to rescuers (if rescuer acts reasonably).
• Baker v Hopkins [1959]: Several individuals injured while trying to help others who were also in danger; imposed liability.

Social Action, Responsibility and Hero Act 2015 (SARAH)

• Social Action, acting for the benefit of society or members.
• Responsible approach.
• Heroism- when acting heroically during emergency to help an individual in danger.