Tort Law Lecture 2 PDF

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...

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? - Are the circumstances such that the three elements of the Caparo tripartite test can be satisfied? - As amended by ***Robinson v Chief Constable of West Yorkshire* \[2018\] UKSC 4** **Robinson v Chief Constable or West Yorkshire \[2018\] UKSC 4 -- Come Back** - 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 Police was making an arrest, and go through a risk assessment and figure out who could potentially be in harm's way. Elderly lady was knocked over during arrest, and figure out if police would have been liable for injury In previous cases the police would have been found not liable. Wouldn't have feen fair just and reasonable. Ultimately caused by person being arrested. They will only incur a duty to act when they already committing a positive act e.g. arrest they are bringing incremental categories those positions were similar cases decided there is a duty of care. Allows them to look at past cases to see if there... **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* \[1921\] 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. **You would be liable for any or damage as a result of action.** ***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 should have **foreseen**. **Foreseeability: Some identity problems** **[Skilled claimants]** - ***Roles v. Nathan* \[1963\] 2 All ER 908 per Denning LJ** - **but see *Ogwo v. Taylor* \[1987\] 3 WLR 1145** **[Sensitive claimants]** - ***Haley v. London Electricity Board* \[1965\] AC 778** - **Contrast with *Robinson v. Kilvert* (1889) 41 Ch D 88** **[Children ]** - **®*Taylor* *v. Glasgow CC* \[1922\] AC 44** **Can D rely on C exercising basic common-sense?** - **®*Tomlinson v. Congleton BC* \[2004\] 1 AC 46** **The 'egg shell skull' rule** ***Smith v Leech Brain & Co Ltd* \[1962\] 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. **What is foreseeability (type of harm rather than the way it happened... is it type of harm you would expect)** The way in which the type of harm occurred: ***Hughes v Lord Advocates* \[1963\] 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* \[2000\] 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. See also: ***Vacwell Engineering v BDH Chemicals* \[1971\] 1 QB 88** The defendant supplied chemicals in glass ampoules that reacted when an employee from the claimant company placed them in water. This caused a large explosion. It was held that because a small explosion was foreseeable that the damage caused by a large explosion was recoverable even though it could not have been anticipated. **Rational in supporting argument is it Huges or Wagon Mound. Talk about both, the Limitations.** **Extension beyond physical injury -- extended to personal harm and mental condition that could be affected from accident.** *Page v Smith* \[1966\] 1 AC 155 -MS  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* \[2008\] 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 **Actions directly affect someone else and if deemed to that's when you have a proximate relationship** **Stovin v Wise \[1996\] 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***. Proxi**mity 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.'* **Simply: That when assessing requirement of fairness and reasonableness regard must be had to relationship between the parties.** Case Law - *Bourhill v. Young* \[1943\] 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* \[1964\] 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? There would be liabilities due to negligence in statement - *Calvert v. William Hill* \[2008\] 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. **Marc Rich and Co AG v Bishop Rock Marine Co Ltd** (The Nicholas H -- In Exam write) \[1996\] AC 211 - Repairs inspected by the defendants, a shipping classification society - Ship verified 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 \[2001\] 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* \[2003\] EXCA Civ 318 -- Difference is about rules. Expect rules to be applied fairly. **Hill v Chief Constable of West Yorkshire \[1989\] 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 - The courts 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) It wouldn't be fair, just and reasonable to Impose that duty on one individual victim as there would have been 1000s. **Robinson v Chief Constable or West Yorkshire \[2018\] 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 - Caparo should only be used in novel situations where omissions are concerned **Omissions** - 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 (Complete absence of action) which is unrelated to a course of conduct. - **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* \[2004\] 2 All ER 326) - The political argument (infringement of our autonomy) Politics work to protect our autonomy, protect how we act etc - The moral argument ('Why pick me on me?') why do we hold out one individual more than others - The economic argument (incurring costs on a party not involved in the activity) Corrective justice told us cost fall between person who creates danger. person who causes accident and victim - **[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. - On one occasion, D, armed with an iron bar, smashed the windows and door of the deceased's council home. - The final 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. - The family argued that the defendants knew about the threats and should have warned the family about the meeting. - 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 \[1987\] 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]. - They positively acted to move him -- Defendant assumes responsibility - 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.  - The Court of Appeal agreed. [Police officers assume a responsibility to one another to 'watch each other's back'].  - **Where a 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 **Reeves v Commissioner of Police for the Metropolis \[2000\] 1 AC 360** 1. The police didn't take risk assessment serious and didn't go through steps to assess whether a person is a risk to themselves or to others. And a duty to place them on suicide watch if needed to **Orange v Chief Constable of West Yorkshire Police \[2001\] EWCA Civ 622** - 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. - The Court 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**. ] - As the police had no real reason to think that this particular prisoner would attempt suicide, the duty did not arise in this case. - Thoroughly conducted risk assessment, no previous illnesses. So when they took there life no liability imposed as did everything in their power. See also *Savage v South Essex Partnership NHS Trust* \[2008\] 2 WLR 115 Health Authority arguably professionals in the area so able to risk assess more effectively as they are more trained. Standard is higher Health authority have different level of resources as they're main aim is to look after patients. **The defendant creates the danger** **Giving CPR to baby and break a rib in child due to excessive force. Your are liable** - If the 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*** \[1997\] 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** \[1967\] 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 \[1984\] 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 for their actions. **Exceptions: Smith v Littlewoods Organisation Ltd \[1987\] AC 241** **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* \[1970\] 2 All ER 294 **Rescuers: Duty owed by Rescuers** - There is no general duty to rescue someone in danger. - The courts are slow to find rescuers negligent or contributory negligent. - **Tolley v Carr \[2010\]** 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** \[1935\]  - **Chadwick v British Railways Board** \[1967\] 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** \[1988\] 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* \[1959\] 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* \[1997\] 3 WLR 331 - *Kent v Griffiths* \[2001\] 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.