Lecture 2 - Duty of Care PDF

LECTURE 2: DUTY OF CARE Meryl Dickinson This session will be recorded for the purposes of this module. Please do NOT share materials or recordings with anyone outside of this module. Polleverywhere Quiz Ways to access: U...

LECTURE 2: DUTY OF CARE Meryl Dickinson This session will be recorded for the purposes of this module. Please do NOT share materials or recordings with anyone outside of this module. Polleverywhere Quiz Ways to access: Usingthe App enter meryldickins587 Go to www.pollev.com and enter meryldickins587 This Photo by Unknown Author is licensed under CC BY-SA-NC  Different methods of establishing a duty of care Is there an existing statutory duty that determines whether a duty of care is owed? Is there analogous judicial precedent that suggests a duty of care should be imposed (or not imposed) through the incremental categories? Is there sufficient evidence to prove that the defendant has assumed responsibility over the claimant? Arethe circumstances such that the three elements of the Caparo tripartite test can be satisfied? As amended by Robinson v Chief Constable of West Yorkshire UKSC 4  Robinson v Chief Constable or West Yorkshire UKSC 4 Public Authority Liability case: covered in depth under police liability In most cases a duty of care can be found to exist through prior case law (incremental category); meaning most relationships which may evoke negligence have already been considered by the courts Criticises courts for being too shy in recognising a duty of care, rather than acknowledging it as the first hurdle to a complex serious of requirements (i.e. breach; causation; and the recognition of claimable harm) Caparo should only be used in novel situations where the courts have yet to consider whether a duty of care exists Foreseeability Note: It is worth noting that foreseeability and remoteness are like two sides of the same coin. One looks at harm that is foreseeable and the other looks at when harm is so remote that it is unforeseeable. The old view Re Polemis and Furness Withy & Co KB 560 The Charterer (Furness Withy) of a ship employed stevedores to help unload the ship. Whilst unloading the ship one of these stevedores knocked down a plank which created a spark. This ignited petrol vapour in the hold causing a rush of flames that destroyed the ship. It was held that the defendants were liable for all harm caused by their negligence despite the fact that the spark was not reasonably a foreseeable consequence of the board falling.  Foreseeability The Wagon Mound Litigation: The defendant was repairing a ship whilst docked at Sydney Harbour. Welding equipment was being used for this purpose. Another ship was discharging gasoline products and taking on board bunkering oil. A large quantity of bunkering oil was carelessly spilt into the bay and spread across the bay. This ship left soon after. The defendant ceased work to talk to the manager of the wharf about concerns as to the safety of using welding equipment in light of the oil discharge. The result was the continuation of work with a warning that all safety measures were to be adhered to (believing the oil to be inflammable). The end result was that the oil caught light, the fire spread rapidly and caused considerable damage to the wharf and equipment on it. It was held that the defendants were liable but that liability was restricted to foreseeable damage. The essential factor was found to be whether the damage is of such a kind as the reasonable man  What is foreseeability? The way in which the type of harm occurred: Hughes v Lord Advocates AC 837 It was held that the accident was caused by a known danger therefore the fact that the way the accident was caused was not foreseeable was no form of defence. The type of harm was foreseeable and that was sufficient. Jolley v Sutton LBC 1 WLR 1082 It was held foreseeable that the children in the case would ‘meddle with the boat at the risk of some physical injury’ therefore the council was liable for the harm caused. Note: Sutton LBC did concede a duty of care but argued the issue of remoteness of damage. Remoteness and foreseeability are two sides of the same coin.  Foreseeability: some identity problems Skilled claimants Roles v. Nathan 2 All ER 908 per Denning LJ but see Ogwo v. Taylor 3 WLR 1145 Sensitive claimants Haley v. London Electricity Board AC 778 Contrast with Robinson v. Kilvert (1889) 41 Ch D 88 Children ®Taylor v. Glasgow CC AC 44 Can D rely on C exercising basic common-sense? ®Tomlinson v. Congleton BC 1 AC 46 This Photo by Unknown Author is licensed under  The ‘egg shell skull’ rule Smith v Leech Brain & Co Ltd 2 QB 405 The victim worked for the defendant as a galvaniser. This involved moving equipment with the aid of a crane and depositing them into a tank of molten metal. Whilst undertaking these duties he was burnt on the lip by a splash of molten metal. The victim suffered from a pre-malignant condition and this burn ultimately acted as the prompting agent triggering the development of cancer. It was held that the defendant must take the victim as they find them. This means that liability extends to the development of any pre-conditions suffered. The victim’s widow was therefore successfully able to claim for the full extent of damage however unforeseeable this may be.  Extension beyond physical injury Page v Smith 1 AC 155 It was held that the true question was whether the defendant could reasonably foresee that their conduct risked exposing the claimant to any personal harm. Furthermore, that the term ‘personal harm’ was to be extended to all physical and psychiatric harm. However Grieves v FT Everard 1 AC 281 It was held that no damages were available as the claimant was only apprehensive about the possibility of the foreseeable event occurring. There was no evidential basis to support the finding that the risk of an asbestos related disease would foreseeably cause psychiatric illness to a person of reasonable fortitude. The facts therefore lacked “immediacy.”  Summary 1. Foreseeability refers to what would be reasonably foreseeable. 2. There is a direct link between foreseeability and remoteness of damage but the two are treated separately 3. It is the type of harm/danger that must be foreseeable rather than the way this is caused 4. It is assumed that children are more likely to create mischief 5. It is evident that the courts may be willing to look at small distinctions in the type of harm when considering foreseeability 6. The type of harm has been included to cover more than physical harm  What is proximity? Tort lawyers refer to the requirement of ‘neighbourhood’ or ‘closeness’ as the requirement of proximity between D and C. Note that all these notions (neighbourhood, proximity etc) are metaphorical D carelessly launches missile from the UK, destroying a town in NZ Proximity or ‘neighbourliness’ need not involve spatial closeness. So what does the metaphor mean? 12  Stovin v Wise AC 923 Lord Nichols: ‘The Caparo tripartite test elevates proximity to the dignity of a separate heading. This formulation tends to suggest that proximity is a separate ingredient, distinct from fairness and reasonableness, and capable of being identified by some other criteria. This is not so. Proximity is a slippery word. Proximity is not legal shorthand for a concept with its own, objectively identifiable characteristics. Proximity is convenient shorthand for a relationship between two parties which makes it fair, just and reasonable that one should owe the other a duty of care. This is only another way of saying that when assessing the requirements of fairness and reasonableness regard must be had to the relationship between the parties.’ 13  Case Law  Bourhill v. Young AC 92  D crashes and gets killed. C, a pregnant woman, is nearby; hears the crash, sees blood at the scene. C’s baby is later stillborn. She claims from D.  Hedley Byrne v. Heller AC 465  D, a bank, supplies carelessly researched evidence of X’s creditworthiness to C. C loses money when X proves insolvent. C claims from D  What if C had read in the papers a statement by D saying that X is creditworthy?  Calvert v. William Hill EWCA Civ 1427  C has a gambling addiction, registers under D’s self-exclusion policy. D’s agents lose C’s information and allow C to continue betting. C loses more money in bets. He later claims against D. 14 Marc Rich and Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) AC 211 Repairs inspected by the defendants, a shipping classification society Shipverified as seaworthy with a warning to stop and deal with the repairs as soon as possible Wielding failed a few days later – ship sank, cargo lost Courts considered the tripartite test Failed on the third prong of the test, whether it would be fair, just and reasonable to impose a duty of care Defendant – independent non-profit organisation which fulfilled a public duty  Watson v British Boxing Board of Control Ltd QB 1134 A boxer suffered brain damage after being seriously injured in a boxing match Claim made – insufficient medical equipment at the side of the ring The courts applied the tripartite test – liability was imposed Amateur sports could expect the same medical precautions to be taken as professionals See also: Vowles v Evans EXCA Civ 318 This Photo by Unknown Author is licensed under CC BY-NC-ND  Hill v Chief Constable of West Yorkshire AC 53 Claimant - mother of the final murder victim of the serial killer Peter Sutcliffe (the ‘Yorkshire Ripper’) - sued the police for their failure to catch Peter Sutcliffe earlier Thecourts applied the tripartite test – failure to fulfil the third prong Policy considerations included: Public Policy The Floodgates argument Proportionality Clashes with Statutory interpretation Conflicts with other legal principles (e.g. contract) Creating defensive actions (public services)  Robinson v Chief Constable or West Yorkshire UKSC 4 76 year old knocked over by police officer whilst making an arrest The courts considered whether the Caparo test should always be applied or whether there is are core police duties that are automatically subject to a duty of care; and Whether these core duties can be distinguished through positive acts and omissions Caparoshould only be used in novel situations where omissions are concerned  Omission The general rule in negligence is that there is no liability for an omission (complete absences of action). A person is not liable for a pure omission which is unrelated to a course of conduct.  Why pick on me? Stovin v Wise 3 All ER 801 Lord Hoffmann stated: There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some positive activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties or natural causes. Gorringe v Calderdale Metropolitan Borough Council 2 All ER 326)  why pick on me? Stovin v Wise 3 All ER 801 Quote  Smith v Littlewoods Ltd 1 All ER 710 Facts: The defendants owned a disused cinema which they were intending to demolish. Before they could do so, people began to break into the property and several times, unknown to the defendants, attempted to start fires in piles of rubbish which had accumulated. A fire was started which spread to and damaged adjoining properties. The owners of those properties sued the defendants in negligence for their failure to adequately secure the premises. The damage was done by the arsonists (who would not be worth suing), so instead the claimants sought compensation from Littlewoods, who were no doubt well insured!  Mitchell v Glasgow City Council UKHL 11 A duty of care will not exist even where a potential victim is known to the defendant unless a specific undertaking has been given. Facts: The deceased and his neighbour, D, were tenants of the appellant local authority. D’s anti-social behaviour and propensity towards violence, particularly aimed at the deceased, were well documented by the local authority. Onone occasion, D, armed with an iron bar, smashed the windows and door of the deceased’s council home. Thefinal and fatal incident of violence occurred following a meeting between local authority officials and D at which the latter was informed that a notice of proceedings to recover possession of his council dwelling would be served on him. Thefamily argued that the defendants knew about the threats and should have warned the family about the meeting.  Mitchell v Glasgow City Council UKHL 11 Common law action Foreseeability of harm was not of itself enough for the imposition of a duty of care. The proximity and fair, just and reasonable tests had also to be passed. The law did not normally impose a positive duty on a person to protect others. The common law did not impose liability for what, without more, might be called pure omissions. The law did not impose a duty to prevent a person from being harmed by the criminal act of a third party based simply upon foreseeability. (Smith v Littlewoods Ltd 1 All ER 710 applied.) The question of whether it was fair, just and reasonable that the local authority should be held liable in damages for the omission to warn the deceased was one of fairness and public policy. Exceptions Exceptions Defendant in a Defendant Defendant position of assumes creates the responsibility responsibility danger (Control)  The defendant assumes responsibility for the claimant Barrett v Ministry of Defence 3 All ER 87 an off-duty pilot at an RAF base in Norway drank himself into a coma on cheap alcohol and collapsed. He was taken to his room but later choked on his vomit and died. Held (CA): there was no duty to stop an adult drinking alcohol. However, once the defendant found the pilot unconscious they assumed responsibility for him and should have called for medical help. The defendant was negligent but the dead pilot was found to be 25% contributory negligent.  Costello v Chief Constable of Northumbria Police CA A female police constable was attacked by a prisoner in a cell. Despite her calls for help, a police inspector in the vicinity did not come to her aid. Costello alleged that the police inspector owed a duty to assist a fellow officer when in trouble. TheCourt of Appeal agreed. Police officers assume a responsibility to one another to ‘watch each other’s back’. Wherea police officer’s omission might lead to avoidable harm being suffered by a fellow officer, a positive duty to act would be imposed. Thus,in failing to act, the police inspector had breached that duty and the Chief Constable was vicariously liable. The defendant is in a position of responsibility (Control)- SPECIAL RELATIONSHIP parent and doctor and captain and teacher and child patient passenger pupil the police lifeguard employer have a duty and and to help a swimmer employee prisoner  L committed suicide while being held in police custody. His partner claimed that the police had owed him a duty to prevent this from Reeves v happening. Commission Previous case law (Kirkham v Chief Constable er of Police of Greater Manchester ) had established that a duty of care was owed in for the respect of suicide attempts of prisoners known to be mentally ill, but a doctor had Metropolis found L to be of sound mind. The police, argued that they owed him no 1 AC duty of care in respect of his suicide because he was not mentally ill, and had deliberately 360 taken his own life, even though the opportunity for him to do so had only arisen from their own carelessness. Reeves v Commission HOL (majority) disagreed, holding that er of Police the police’s duty to prisoners in custody did extend to a positive duty to for the take reasonable steps to assess the suicide risk of all prisoners. Metropolis This was justified by the degree of 1 AC control exercised over prisoners in 360 custody and the known (high) risk of suicide, even among those without a known mental illness.  Orange v Chief Constable of West Yorkshire Police EWCA Civ 611 a man committed suicide by hanging himself with his belt while on police custody for being drunk and disorderly. His widow argued that the police had owed a duty to take away any means of suicide from him, such as his belt, and that they should have watched him more carefully. TheCourt of Appeal held that the duty from Reeves was only to take reasonable steps to assess whether a prisoner posed a suicide risk, and to act accordingly. Asthe police had no real reason to think that this particular prisoner would attempt suicide, the duty did not arise in this case. See also Savage v South Essex Partnership NHS Trust 2  The defendant creates the danger Ifthe defendant creates the danger or makes the situation worse the defendant is under a duty to act to help the claimant. Capital & Counties plc v Hampshire County Council 2 All ER 865 - the defendants attended a fire in a factory. The senior fire officer ordered the sprinkler system to be turned off and as a result the factory burned down. The defendants were liable in negligence because they made the situation worse. See also Goldman v Hargrave 1 AC 645 Liability for the acts of third parties There is no liability for harm caused by a third party. Perl v London Borough of Camden QB 342 the defendant owned a block of flats and the claimant rented one for his business. The flat next door was empty and there was no lock on the front door. Burglars went into the empty flat, knocked a hole in the wall and stole clothes from the claimant’s business. Held (CA): although the risk of burglary was foreseeable the defendant had no control over the burglars and was not liable  Exceptions: Smith v Littlewoods Organisation Ltd AC 241 Where there was Where there was Where the defendant Where the defendant a special a special knew or had means of negligently causes or relationship relationship knowledge that a third permits a source of between the between the party was creating a danger to be created danger on his property parties such as a defendant and which is then and failed to take contractual the third party interfered with by third reasonable steps to abate relationship (Home Office v parties (Haynes v it (Goldman v Hargrave (Stansbie v Dorset Yacht Co Harwood 1 KB 2 All ER 989). Troman 1 Ltd 2 All 146). All ER 599). ER 294).  special relationship (proximity) If the defendant has control over the third party this may create a relationship of proximity if it is also foreseeable that the claimant will suffer harm. Proximate relationships - where there is a degree of control exercised over the third party by the defendant, or where it can be said that the defendant has ‘assumed responsibility’ for the third party’s actions Home Office v Dorset Yacht Co 2 All ER 294  Some young offenders (boys) were camping on Brownsea Island under the supervision of three prison officers. The officers went to bed leaving the boys Home unsupervised. The boys stole a yacht and crashed into the claimant’s yacht. Office v The Home Office argued it could not be liable for the acts of third parties. Dorset Held (HOL): it was foreseeable that if they Yacht Co escaped the boys would take a yacht. The officers had ignored instructions by leaving 2 the boys unsupervised, they were responsible for controlling the boys All ER 294 and the Home Office The supervisory was nature of negligent. the relationship created the requisite degree of proximity between the defendants and the third parties.  Rescuers: Duty Owed by Rescuers There is no general duty to rescue someone in danger. Thecourts are slow to find rescuers negligent or contributory negligent. Tolleyv Carr C’s negligent driving resulted in her car stopping sideways across the outside lane of a motorway, creating a danger to other road users. T checked to see the road was clear but was injured trying to move the car. C admitted liability for negligence and it was held that T had acted reasonably in going to the rescue and was not contributory negligent.  Rescuers: Duty Owed to Rescuers QUERY: If a defendant puts someone or some property in danger and a rescuer goes to help and is injured, is the defendant liable to the rescuer? If it is foreseeable that someone will go to the rescue the defendant owes a separate duty of care to the rescuer. Haynes v Harwood Chadwick v British Railways Board a duty was owed to a rescuer who lived near a railway line, went to help after a train crash and suffered psychiatric harm. Ogwo v Taylor a duty was owed 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 the defendant will owe a duty of care to the rescuer as long as the rescuer is not acting in a foolhardy way. Baker v Hopkins 3 All ER 225 The claimant doctor went down a well to help two of D’s employees but he too was overcome by the fumes and all three died. The Court of Appeal said that if the employees were in trouble someone would help them so a duty of care was owed to the doctor. The doctor’s actions were not foolhardy as he was trying to save lives. Neither had he consented. The defendant was negligent. QUERY? Does a rescuer assume responsibility by helping? There is no clear answer from the cases. Capital Counties v Hampshire CC 3 WLR 331 Kent v Griffiths QB 36  Social Action, Responsibility and Hero Act 2015 (SARAH) s. 2 – Social Action - acting for the benefit of society or any of its members. s.3- Responsible approach towards protecting the safety or other interests of others s.4- ‘heroism’ - when the person was acting heroically by intervening in an emergency to assist an individual in danger. Is it effective? Could it be improved?