Duty of Care in Law - PDF

When is a duty of care owed ? duty owed by & duty owed to : Duty of care: obligation owed by. road users : Williams v Holland (1833) 10 Bing 112, 131 ER 848 => not injury by negligence D to the C to lake care to avoid Employer-employee: Smith v Baker...

When is a duty of care owed ? duty owed by & duty owed to : Duty of care: obligation owed by. road users : Williams v Holland (1833) 10 Bing 112, 131 ER 848 => not injury by negligence D to the C to lake care to avoid Employer-employee: Smith v Baker AC 325 => employer must ensure security of their employees causing the C injury loss Doctor-patient: Slater v Baker (1767) 2 Wils 359,95 ER 860 (implicitly, common calling or profession)= > surgeon have certain duties they need to care for their patient Manufacturer-consumer: Donoghue v Stevenson AC 562 => neighbour principle Occupier-visitor : fully recognised only by Occupier's Liability Act 1957 (statutory!) => Failing care of preparation Reasonable foresight : Occupier-trespasser: 1972 (British Railways Herrington AC 1877), then OLA 1984 Recognised liability to premises : the defendant's failure to => avoid harming consumers take care could cause. Lecturer-student damage to the claimant. Dentist-patient —> common law established duties (previous law apply..) relationship of proximity: How courts know when duty of care is owed ? (ie, some connection) a. incrementally &analogy between the claimant and the —> looking to precedents defendant b.Caparo three-stage test 1. Reasonable foresight It is fair, just and reasonable : 2. relationship of proximity the law should recognise the 3. fair, just, reasonable defendant's duty to take reasonable care not to cause Example: caparo test harm to the plaintiff. 1. probable risks by the d’s actions A pregnant pedestrian suffers a shock and gives birth to a stillborn child after seeing the aftermath of a bicycle accident. It was not reasonably foreseeable that all persons present on the street where the negligent driver was traveling would be injured. Bourhill v Young AC 92 2. Connection btw the parties A surveyor employed by a business owner (Maison Blanc) failed to inform the landlords who rented the shop that the sign above the shop was defective. When the sign fell and injured the plaintiff, the surveyors were not liable. There was not sufficient proximity between the surveyor and Maison Blanc (the shop owner), or between the surveyor and the general public, to establish a duty of care. Harrison v Technical Sign Co Ltd and Active Commercial Interiors v Cluttons EWCA Civ 156 3.prevent “flood” of claims It was fair and reasonable to impose on a rugby referee in an adult amateur match a duty of care to minimise danger to players, because the safety of the players depended on the application of the laws of the game. Vowles v Evans 1 WLR 1607  Special duty of care The courts have developed these ‘special duty’ problem areas by modifying the Caparo test in certain situations. What omissions : failing to act follows is a consideration of these special areas. Omissions Mental injury requirements of a real psychiatric condition: Primary Victims : person impose obligations for omissions where recognising conditions (clinical depression, injured the accident , there is an established relationship. Pathological grief disorder, Post-traumatic stress “more privileged”, disorder (PTSD)) = pure mental health, no just little Control: mental injuries D ex. control Over C No general duties for anxiety or stress Ex: Physical injury: example : miscarriage after an council => liable bc allow child go on road and cause accident (=> psychiatric trauma (must be that)) Secondary victims : the death driver witness about the accident Carmarthenshire County Council v Lewis AC 549 (HL) Primary (real mental injury) (=> connect to the accident), bc chock capable Assumptions of responsibility & secondary victims D has ass. resp. for c’s safety/wellbeing. of affecting -proximity: relationship: parents & child, couples, prove Ex : failure to have someone stationed to watch him with the love affection whilst the drunk pilot slept. - foreseeability : duty and remoteness of damage : Barrett v Ministry of Defence 1 WLR 1217 (CA suffer psychiatric injury -time and space: Creating/adopting risks See the accident D creates dangerous situations = + duty to act to At the scene at the time deal with the danger Or coming upon the immediate aftermath Ex: The ‘moveable’ aftermath: McLoughlin v The landowner: omitting to take any further steps to O’Brian (1983) => car accident m (Dcp aftermath..) prevent the fire from spreading he had adopted the risk of it spreading and was liable when it did. Goldman v Hargrave 1 AC 645 (PC) Contract duty of care When someone has specific terms of what he should do or should not do Specific relationship: child & parents  Breach of duty standard of care & breach of duty? Who or what is the - duty to take reasonable care to ind. 'reasonable person? - If a person fail to care enough (bare minimum), the breach occurs because it’s was below the standards of care. ⁃ an imaginary - Courts look how individuals should act depending on different context and what duty of care individuals owed. character employed for the How do the courts establish the standard of care? purposes of setting and ⁃ an objective test measure what the defendant has done compared to what a 'reasonable person' would have done. communicating the law's —> building an argument about what is reasonable, in the circumstances, by reference to the factors. —> Blyth Birmingham requirements and expectations across a wide range of How do the courts establish breach of that standard? contexts. general standard of care : ⁃ 'reasonable man' —> The reasonable person is —> If the defendant's actions reflect those actions of a reasonable person then they will not have breached their duty of care. the average person, neither too —> If the defendant's actions do not reflect those of a reasonable person they will have breached their duty of care. => Their actions will have fallen below the standard of care. cautious nor too brave. What factors are relevant on the standard breach analysis (just for the general standard of care) ? - Cost of precautions: —> taking low-cost precautions : breached their duty to the claimant. - Social utility: lower standard of care : the defendant's behaviour is in society's interest. Bolam test : - Foreseeable Likelihood of harm : ⁃ see how doctors the probability of the injury occurring. - Magnitude (Seriousness of injury): would act and what are The more serious the injury the more likelihood that the court will find that the defendant has fallen below the required standard of care. they opinions In what situations might we approach standard and breach differently; why and how do we do this? ⁃ As long we show that it’s exactable = not professional standard of care ⁃ Defendants purporting to possess a skill or profession will be judged by a reasonable person with that same skill or trained in the same liable if 3 approches are profession. different ⁃ A DOCTOR’S DUTY TO INFORM (Not the bolam test) Special dynamic in a doctor-patient relationship and the importance, only recently recognised by tort law here, of patient autonomy in relation to decision-making by the patient/consent to treatment special standard of care ⁃ Children are judged by the standard of those of a similar age. Not necessarily developed as adults are. Mullin v Richards (1998) ⁃ Sporting activities : Duty only where there is a reckless disregard for safety.Can involve fast-paced action, artificially quick decision-making under pressure, and in competition. Wooldridge v Sumner ⁃ Unskilled defendant : Judged to a reasonably competent standard. not below if u do not have enough skills Imagine if someone make an accident, he owe a duty if care for the road users, and can be liable.Nettleship v Weston (1971) ⁃ illness : The defendant suffered a stroke as his journey began but carried on driving and had three collisions. He was liable as he should have stopped the moment he felt ill. Roberts v Ramsbottom 1WLR 823 ⁃ Emergency situations : The duty is to exercise such care and skill as was reasonable in all the circumstances. Marshall v Osmand 3 WLR 13 ⁃ State of knowledge : Judged at the time of the incident. Roe v Minister of Health 2 QB66 (CA) —> modified to take into account the different standard expected  ▪ Causation Damage : Cause in law ◦ issue of causation ◦ To get past the cause in law test, the full extent of Recovery will be denied when a harm is considered to be too remote a the damage has not to be consequence of the defendant’s negligence foreseeable But for test : Factual causation ◦ description: but for the d’s negligence, the damage would no have occurred but-for test : C must show that without the negligence of D, ◦ purpose : to determine what fact caused the the damage would not have occurred injury Step to causation : Barnett v Chelsea and Kensington Hospital Management 1. Factual causation ; ◦ Committee 1 QB 428 but for ◦ Example : Barnett v Chelsea and Kensington How to prove ? balance of probabilities Hospital Management Committee 1 QB 428 d = negligent but not liable ◦ ≥ 50 % : d is likely to not be liable bc not cause c’s death : hospital ◦ 2. Remoteness : About what fact foreseeable? Hotson v. berkshire AHA : Judy case : 30% chance to live = false -d = not liable c fails to establish that he had more that 50% chances of recovery Legal causation: -Loss of chance Thin skull rule : relate to The defendant's actions must be a proximate cause of the the physical or psychological vulnerability harm, meaning it is closely related to the result. of c  ▪ Material Contribution to Injury it is not necessary for the plaintiff to show that he would not have suffered the injury “but for” of the d’s breach : industrial disease cases, where issues of medical science are most complex the defendant is held liable for having part-caused the claimant’s injury : Invisible ◦ Bonnington Castings Ltd v Wardlaw AC 613 Material Increase in Risk This analysis is only applied where : there are multiple potential sources of the risk which has eventuated in the claimant’s damage (Divisible) there is a single agent responsible for that risk there exists a ‘rock of uncertainty’ such that causation is impossible to prove in principle. ◦ This analysis does not apply where causation is theoretically possible to prove, but where evidence is not available in a particular case. If this breach increase the conditions of c, d liable McGhee v National Coal Board 3 All ER 1008 Fairchild v Glenhaven Funeral Services UKHL 22 Novus actus interveniens : Any act or event which breaks the causal link between a wrong/damage committed the defendant and subsequent occurrence —> discharges the defendant from liability for those occurrences. In tort, the chain of causation : ◦ can be broken by the plaintiff (McKew v Holland 3 A11 ER 1621 (HL), ◦ by natural events (Carslogie Steamship Co Ltd v Royal Norwegian Government AC 292 (HL), ◦ by a third party (Knightley v Johns 1 WLR 349 (CA). Remoteness of damage If the loss was not reasonably foreseeable, the defendant will not be held liable and the loss is said to be too remote. The basic test is : ◦ The Wagon Mound (No 1) AC 388 Liable for oil damage but but for the fire The only thing that can be foreseeable is the pollution, not the fire so no liability as c sue for fire What is meant by reasonably foreseeable “type”? ◦ Page v Smith AC 155 ◦ Corr v IBC Vehicles AC 884  Defences Contributory negligence : Partial defence Requirements : ◦ Negligence for one’s own safety/interests which contributes (causally) to the damage not the accident ◦ Increase the accident suffered Eg: not wearing seatbelts : But cause the damage - D need to prove that c= negligence —> burden of proof - Cannot be 100%: ‘Share’ precludes 100% reduction in the damages: Anderson v Newham College (2003) ◦ If c more responsible that d ( c : small percentage) Law Reform (Contributory Negligence) Act 1945 1. where the damage results partly from the claimant's fault and partly from the defendant's 2.Claim shall not be defeated 3.The damages shall be reduced - d must be in breach of duty, the c's fault is not itself a breach of duty. - legal response : Apportionment of liability - relevant factor for a court when calculating the appropriate reduction in the damages to make : blameworthiness (Comparative fault) causative potency Volenti non fit injuria : Requirements : ◦ knowledge of the risk (sciens) need to actual know the risk (Eg : White v Blackmore (1972)) capable of appreciating the risk (Eg : d drunk but can still capable of appreciating the risk —> Morris v Morrey (1991)) voluntary exposure to the risk (volens) Was it voluntary? So can complain about the risk A lack of compulsion to expose oneself to the risk that eventuates (Eg : Haynes v Harwood (1935) —> Moral compensation so no voluntary ; duty of the police is to intervene) a legally-effective assumption of that risk Treat as assumed the risk It must be fair to conclude that they should lose their right to claim damages for harm caused by the defendant’s breach of duty (Eg: Express or implied waiver/consent: cf. Nettleship v Weston (1971) Agreement to the conduct constituting the negligence: ICI v Shatwell (1965) ◦ the 2 brothers agree to adopt a unsafe method An extreme reckless disregard of personal safety: Morris v Murray (1990)) negative form if they acted under compulsion (physical, moral or social) if they demonstrated the intention to preserve their right to sue if the risk should materialis  ▪ ▪ Illegality defence : past illegal conduct ◦ eg : Gray case : narrow : criminal punishment that has been given bring tort to have a compensation wide : just criminal conduct or link to the situation (btw criminal conduct and the accident) Requirements: ◦ Moral or criminal act of the claimant ◦ Sufficient link ◦ Policy reasons : The need for consistency between criminal and civil law so as to maintain the coherence of the legal system (Patel v Mirza UKSC 42, AC 467 and Henderson v Dorset Healthcare University NHS Foundation Trust UKSC 43) the Supreme Court rejected the argument that the defence was about punishment or based on the claimant's reliance on their illegal act. even if the defence applies, it is clear that the claimant does not therefore become an outlaw. —> Their legal rights are otherwise unaffected.  Key Negligence Case Law Duty of care : - Donoghue v Stevenson AC 562 : neighbour principle - David Topp v London County Bus (South West) Limited EWCA Civ 15 : third party - Home Office v Dorset Yacht Co Ltd AC 1004 : foreseeable - caparo : proximity Breach of duty - Nettleship v Weston 3 WLR 370 : unskilled - bolam: professional - Montgomery : duty to inform - bolitho : illogical —> bolam test so d liable - Hall v Brooklands Auto-Racing Club 1 KB 205 : reasonably foreseeable - Bolton v Stone AC 850 : likehood - dabon v maggio : cost of precautions - Scout Association v Barnes EWCA Civ 1 : social utility -magnitude : Paris v Stepney borough council - Mullin v Richard : children - Wooldrige v sumner : sport - emergency: Marshall v osmand - Robert: illness - Vaughan v menlove : objective test - Res ipsa loquitur : Scott v London & St Katherine Docks Causation ⁃ Multiple causes - material contributions to injury Bonnington v Wardlaw Casting (dust) ⁃ liability for somebody else's actions - Jobling v Associated Dairies ⁃ Material increase risk - Fairchild v Glenhaven Funeral Services (asbestos) ; McGhee v National Coal Board (brick dust). ⁃ Balance of probabilities (51% chance that the breach caused the injury) - Hotson v Berkshire Area Health Authority (child - 25%) ; Wilsher v Essex Area Health Authority (baby developed RLF) ; Gregg v Scott (below 51%) ⁃ Factual causation : Barnett v Kensington ; McWilliams v Sir William Arrol (harness) ⁃ Compensation Act 2006 s. 3. (asbestos-related injuries - the Fairchild case) —> c only needs to make a claim against one employer, allowing them to recover all costs from that employer, regardless of the solvency of other employers (—> baker) ⁃ SUPERVENING EVENTS - Baker v Willoughby (The driver of the car was found to have caused the second injury) ⁃ proportional damages approach - Barker v Corus (for asbestos exposure) ⁃ Remoteness- Wagon mound no 1