Tort Law Supervision 3 Notes PDF

Tort Law Supervision 3 Notes Winfield & Jolowicz =================== Duty of Care: General Principles -------------------------------- - The elements of the tort of negligence overlap with each other, and in a factual pattern, judges can arrive at the same outcome of liability/non-liabi...

Tort Law Supervision 3 Notes Winfield & Jolowicz =================== Duty of Care: General Principles -------------------------------- - The elements of the tort of negligence overlap with each other, and in a factual pattern, judges can arrive at the same outcome of liability/non-liability but with different analyses: D jostles X causing X to drop something that and this sets of a very expected train of events which causes injury to C, standing many feet away. This case is brought before three different judges who all hold that D was not liable to C: J1 states that D owed C no duty of care because he could not foresee injury to him; J2 states that D owed a duty of care to C, but had not breached it because he could not foresee that his conduct would cause C harm; J3 states that D owed C a duty of care, and had breached it, but the damage was not legally attributable to D because no one could have foreseen it. All are plausible, and this possibility exists partly due to the role played by the concept of foreseeability. - Some have argued that the duty requirement is redundant. **Buckland famously described** it as an "[unnecessary fifth wheel on the coach], incapable of sound analysis and possibly productive of injustice". The main argument against the duty element is that most issues that are presently dealt with at that stage could be attributed to other elements of the tort: e.g. rather than stating that the police do not owe a duty of care to victims of crime in investigating criminal behaviour (which raises questions as to the purpose and role of the police in the first place), just reallocating it to the causation element, where it could instead be stated that the act of the criminal that injures the victim is an intervening cause. ### Intro to duty - "*A man is entitled to be as negligent as he pleases to the whole world if he howes no duty to them*." -- Lord Esher MR, ***Le Lievre v Gould \[1893\]*** 1 Q.B. 491 at 497. - The duty of care must be owed specifically to the claimant. - A duty of care is a right *against* D for D to not act unreasonably with respect to C's interests in a way that causes C damage. C has no right good against D unless and until D acts unreasonably with respect to C's interests and that unreasonable conduct causes C damage. It has therefore been argued that a duty of care is therefore not really a (ex-ante) duty at all. - Duty is the primary "control device" that allows the courts to keep liability for negligence within what they regard as acceptable limits. - The duty of care element fulfils two functions: - It asks the question, "did *this* defendant owe a duty of care to *this* claimant?" - It asks whether, and if so how far, the law of negligence should operate in a particular situation. - The court is not only concerned with doing justice as between the parties in a particular case, but in all cases of the type -- so that future cases can follow their direction. - DoC used by courts as a mechanism for disposing claims without a full trial -- striking them down or ordering summary judgment of claims bound to fail. - **DoC generally arises in cases of physical damage caused directly by a positive act**. Liability for negligence would be akin to small islands in a sea of non liability. - **Many DoCs are long established**. Others are newer and still developing (e.g. the duty of a person who has "assumed responsibility" for a task). - Below discusses four fundamental periods in the history of the law concerning this: ### 1^st^ Period: The law prior to ***Anns v Merton*** - The most important formulation of a general principle is that of Lord Atkin in ***Donoghue v Stevenson*** -- the neighbour principle. This was important because it allowed a tort to be found where previously, the doctrine of privity of contract would have prevented C bringing a claim founded upon breach of contract of sale. "*At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of \"culpa,\" is no doubt **based upon a general public sentiment of moral wrongdoing for which the offender must pay**. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer\'s question, Who is my neighbour? receives a restricted reply. **You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour**. Who, then, in law is my neighbour? The answer seems to be - **persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation** as being so affected when I am directing my mind to the acts or omissions which are called in question*." - Even after this, for a long time there was judicial reluctance to accept that the neighbour principle had much relevance to determining whether a duty of care might exist in other areas of activity. For example, there continued to be no duty of care in respect of making statements or in disposing of tumbledown houses -- words were not like deeds and a dwelling was different from a ginger situation. Little reliance was initially placed upon this generalised concept. - Although, new duty situations continued to be recognised. As Lord Macmillan said in ***Donoghue*** "*the categories of negligence are never closed*." ### 2^nd^ Period: The law as stated in ***Anns v Merton*** - **The *Anns* test**: In ***Home Office v Dorset Yacht Co Ltd***, Lord Reid suggested that the "neighbour" principle should be regarded as applicable in all cases where there was no justification or valid explanation for its exclusion. This was taken up by the HoL in ***Anns v Merton LBC***, where Lord Wilberforce gave two stages in which the matter should be approached: - Was there a sufficient relationship of "proximity or neighbourhood" between C and D that, in D's reasonable contemplation, carelessness on his part might cause damage to C. If so, a prima facie (at first sight) DoC arose. - Were there any considerations that ought to "negative, or to reduce or limit" that duty? - This test was used to attack previously well-entrenched principles of non-liability, such as in ***Junior Books Ltd v Veichi Co Ltd***, where HoL majority, dealing with a pure economic loss case, imposed a liability on D that went against well-established principles. ### 3^rd^ Period: the ***Caparo*** test - The demise of the ***Anns*** test: In the 1980s, significant doubt was cast on the ***Anns*** test in several cases. - HoL dealt the ***Anns*** test a fatal blow in ***Murphy v Brentwood DC***. In this case, D (a council) had negligently signed off on flawed plans for the construction of a house. C, who had purchased the defective house from its builders sued D, claiming damages in respect of a diminution of the house's value once the defects came to light. HoL held that no duty of care was owed in respect of such economic loss (My first impression of this is to disagree), and expressly overruled ***Anns*** and all other authorities in which ***Anns*** had been followed, largely on the basis that the ***Anns*** test was incompatible with the principles that had been established in ***Donoghue v Stevenson***. Although, HoL was also influenced by several other factors, including criticism of ***Anns*** by the High Court of Australia, legislative developments regarding the liability of builders that provided for liability that was significantly more restrictive than what the ***Anns*** test would allow, and concerns about the ***Anns*** test's potential to expose public authorities to "*a large new area of responsibility... in respect of defective buildings*." - In rejecting the ***Anns*** test, the ***Caparo*** test was embraced. In that case, the issue was whether a company auditor owed a duty of care to investors who suffered losses as a result of investing in the company. HoL held that no duty of care was owed and the decision was subsequently regarded as having given rise to a tripartite test for existence of a DoC in a novel case: - C was a type of person who may foreseeably be injured by negligence on the part of D - There was sufficient proximity between the parties - The imposition of a duty of care would be "fair, just and reasonable". (Is this not circular? Is an imposition of a DoC not meant to be like this anyway?) - This approach became very influential. It applied "to all claims in the modern law of negligence" ***Robinson v Chief Constable of West Yorkshire Police \[2014\]*** EWCA Civ 15 at \[40\] per Hallett LJ. Lord Bingham even said it was "the most favoured test". #### Stages of the Caparo test - Foreseeability: It had to have been reasonably foreseeable that someone such as the claimant might be injured if D failed to exercise reasonable care. Lord Russell of Killowen: a DoC would only arise "towards those individuals of whom it may reasonably be anticipated that they will be affected by the act which constitutes the alleged breach". This stage was rarely an issue due to being exceptionally easy to satisfy. [It was unnecessary that the harm to the claimant itself be reasonably foreseeable. Rather, it was sufficient that the claimant was a member of a class that could foreseeably be injured as a result of negligence on the part of the defendant]. This test was done objectively. - Proximity: The concept of "nearness" was not, as per Lord Atkin in ***Donoghue***, "confined to mere physical proximity", even though it was sometimes treated as important. This wasn't a problem to establish when D directly caused physical harm to C or his property by an act. Where there was a failure to act or the loss was purely economic or mental trauma or some other reason, the law would insist on a substantially closer relationship between the parties or deny liability completely. - Fair, just and reasonable: Even if the first two stages were satisfied, a DoC could still be denied if, in the court's view, it was not fair, just and reasonable to recognise a duty. Note that the judges take into account what the implications of their judgments will be for the area of law as a whole, not just how it applies to these specific parties. Seen in ***Robinson v Chief Constable of West Yorkshire Police***, where the CoA held that \"*claims against the police in negligence for their acts or omissions in the course of investigating and suppressing crime and apprehending offenders will fail the third stage of the Caparo test*\". Police work would be undermined because police resources would not even be spent on policing but paying compensation claims, meeting litigation costs and implementing measures that were aimed at avoiding liability; also, police would not be able to do their job properly. A similar situation in ***Smith v Ministry of Defence*** where claim from servicemen injured in military operations in Iraq failed so that work of armed services in the sake of national interest wasn't impeded. Also, DoC could be vitiated due if the result was inconsistent with statute as in ***CBS Songs Ltd v Amstrad Consumer Electrics Plc***. ### 4^th^ Period: the current law - The Caparo test suffered from overwhelming objections. Firstly, the concept of proximity was essentially empty and therefore meaningless. It was defined by the Privy Council in ***Yen Kun Yeu*** as "the whole concept of necessary relationship between the plaintiff and defendant." There is no indication as to how to gauge the scope of what is a proximate relationship in this definition. Like I thought earlier, "fair, just and reasonable" was also thought to be redundant. It was also criticised on the basis that it required judges to evaluate considerations of public policy in circumstances where they "*were not well equipped \[to do so\] in a convincing fashion*" per Lord Reed. Judges basically had too much discretion to deny a duty of care on spurious policy grounds including where doing so was contrary to authority that established the parties' relationship likely established a duty. In short, it caused too much uncertainty, derogating from the principle of stare decisis. - UKSC decision in ***Michael v Chief Constable of South Wales*** was a milestone in the demise of the ***Caparo*** test. A woman, fearing that her former partner would attack her, telephoned the police seeking assistance before her partner arrived at her house. The call was wrongly classified by call handler as not requiring an immediate response. Therefore, by the time police reached her hose she had been murdered by former partner. UKSC majority held that police did not owe the woman a duty of care. Lord Toulson, in delivering the majority reasons, criticised the view that the ***Caparo*** test had established a general existence of a duty of care. He stated that the test should not have been used as a blueprint for deciding cases, and that Lord Bridge intended to highlight that there was not one practical test that could be applied to every situation to determine whether a DoC is owed. Rather, precedent should be adhered to closely and the law should be developed incrementally. - This decision was followed in ***Robinson v Chief Constable of West Yorkshire Police***, where the ***Caparo*** test was categorically rejected as an approach to determining the DoC issue. Lord Reed emphasised that the understanding of the "tripartite test" as a blueprint was mistaken. He also emphasised that, where a case falls within a category in which precedent establishes that a duty is/isn't owed, it is impermissible (subject to rules regarding circumstances in which authority can be overruled) to make a novel decision by reference to policy considerations instead. In novel cases, the proper approach to deciding DoC is to reason "*incrementally and by analogy with established authority*". Discussion of policy considerations are \"*not a routine aspect of deciding cases in the law of negligence, and are unnecessary when existing principles provide a clear basis for the decision, as in the present appeal*\". Although, they still do have a place, at least where established principles did not provide a clear answer to the duty question when asking whether a novel DoC existed. - The emphasis on incrementalism represented a return to a more traditional approach as courts historically stuck to analogy to existing authority rather than making giant extensions to the circumstances in which DoC is owed. It is a general principle of common law that judges should develop law only by effecting modest accretions to it. Dramatic modifications should be left to the legislature. In principle, the incremental approach brings enhanced certainty to this area of tort law by anchoring the DoC enquiry in its existing authority. However, it encourages litigants to search through the vast depths of case law to find a case that matches theirs even if the case is novel, which would drive up the cost of determining whether a DoC exists in such a case. Duty of Care: Specific Problems ------------------------------- ### Omissions - General principle that there is no duty to act for the benefit of others. D must not harm his neighbour (misfeasance), but D is not required to save him from some peril (nonfeasance). It has been stressed that the omissions doctrine applies to public bodies and to holders of public office as well as to private persons alike as seen in ***Glaister v Appleby-in-Westmorland Town Council*** (horse fair, D had no duty to protect C from getting injured by T). - In ***Stovin v Wise***, Lord Hoffman states the rationale for this rule: - In political terms it is less an invasion of freedom for the law to require D to consider the safety of others in his actions, rather than to have an extended duty to rescue or protect, putting others before himself and his own needs. - In a situation where multiple people could have saved someone or could have done something to help, to what extent should they be held liable? - Omissions doctrine is not as significant in practice for two main reasons: Conduct which may from one point of view seem to be nonfeasance may be treated as misfeasance in the law. Also, there are several exceptions to the doctrine. ### Cases where there is not a true omission - An omission in the course of a wider activity may be regarded as an act, due to being interpreted as an item in a chain of active conduct. For example, a driver's failure to pull the brakes at a junction would not be seem as a mere omission. However, starting something does not itself impose a legal duty to finish it, as seen in ***Stovin v Wise***. ### Relationships - Even where there is a "true" omission the law may impose a duty to act. - An example is a DoC where C is under the care or control of D and is incapable of protecting himself -- claims against schools for failing to safeguard pupils from injury have succeeded, as have claims against police and hospitals for failing to protect mentally disturbed persons in their custody from self-inflicted harm. In ***Reeves v Metropolitan Police Commissioner***, the police were held liable for negligently failing to prevent the suicide of a sane person in custody in their cells. In fact, the existence of a DoC was never challenged in this case, rather the issue of whether the act of the sane person was a novus actus. - A duty to prevent others of full age and capacity of harming themselves will be rare. - A duty to act may be imposed on D if he benefits or stands to benefit from his relationship with the claimant. That is why an employer must take proper steps to secure safety in the workplace and also look after a worker who is injured or falls ill at work even if the employer is not responsible for the emergency. This also applies to carriers with regard to their passengers. - An occupier is required to take reasonable care to ensure that his premises are reasonably safe for the purposes which his visitor enters, and may also owe a duty to trespassers (what does this mean?) Both of these duties may require positive steps to be taken, like carrying out repairs. - A **relationship between D and the person who harmed the claimant may lead to liability**. A school authority was liable for letting a small child out of school in circumstances where it was foreseeable that he would cause an accident in which a driver was killed trying to avoid him, ***Cannarthenshire CC v Lewis \[1955\]*** A.C. 549. A parent company may also have a DoC to take reasonable steps to prevent one of its subsidiaries from causing damage. Critical issue is usually the extent to which the parent company intervened in the management of the subsidiary company. - A relationship between D and the person who harmed C may result in a duty being imposed on D to take reasonable care to prevent even wilful wrongdoing. Seen in ***Home Office v Dorset Yacht Co Ltd***. Where D has control over both C and the immediate wrongdoer (for example a fellow inmate assaults a prisoner), it is particularly likely that DoC will be imposed as in ***Ellis v Home Office***. There may be DoC imposed on police where there is a duty of supervision. - An occupier is not under any duty to his visitors but may be obliged to take steps to remove a hazard on his land that threatens neighbouring property even though it stemmed from an act of nature or a third party. This can extend to taking steps to prevent t gaining access to the property and using it to inflict damage on C, however in practice this is rare. That's why the Ds in ***Smith v Littlewoods Organisation Ltd*** were not liable when vandals entered an empty cinema scheduled for redevelopment and caused a fire which spread to adjacent properties. LORD GRIFFITHS said: \"*So far as Littlewoods knew, there was nothing significantly different about these empty premises from tens of thousands of others up and down the country. People do not mount 24-hour guards on empty properties and **the law would impose an intolerable burden if it required them to do so save in the most exceptional circumstances***.\" ### Dangerous situation created by the defendant - A D who, with/without wrongdoing, creates a source of danger comes under a DoC to take reasonable steps to safeguard others against it. E.g. if D's car breaks down on the highway he must take steps to prevent it from endangering traffic; if a police force allows an unstable and volatile officer access to a loaded gun, a duty will arise to prevent him from using the weapon to injure others, as seen in ***Attorney General of the British Virgin Islands v Hartwell \[2004\]***. - Sensible limits must be placed on this principle argues W&J, and it has traditionally been confined, especially in cases which the immediate cause of harm to C was T. W&J argue that unless it is appropriately restricted, there is a clear risk that the creation of danger principle will erode the fundamental rule that there is no liability for failure to control third parties to an unacceptable extend, and therefore DoC would be placed on D who was involved only in a purely peripheral/historical way in the causation chain. Tort law, in order to be understood as a system of personal responsibility, must only place liability -- except in exceptional circumstances -- only on immediate wrongdoers as opposed to Ds whose actions merely enable or facilitate wrongdoing by others. Psychiatric Injury ------------------ - It is necessary for C to suffer a recognised psychiatric injury ### Distinction between primary and secondary victims - If C can establish that he has suffered a recognised psychiatric injury, the next step is to ask whether C is a primary or secondary victim. - Cases involving primary victims are those "in which the injured plaintiff was involved, either mediately or immediately, as a participant" in what happened, as per ***Alcock***. Secondary victims are claimants who are "no more than a passive and unwilling witness of injury caused to others" or its immediate aftermath. In other words, primary victims are persons win the foreseeable "zone of danger", while secondary victims are not. **A person can be in the zone of danger even if D did not mean to put him in the zone of danger**. - There can be difficulty applying the distinction. If D drives furiously down a crowded street, large numbers of people may be foreseeably imperilled but would they all be treated as primary victims in the "zone of danger"? - C will be regarded as a primary victim if he is in the zone of danger even if the mental injury is triggered by seeing others suffer injury. In ***Chadwick v British transport Commission***, C was a volunteer helper at the scene of a rail disaster and suffered mental trauma as a result. For many years this case was regarded resting on the basis that a duty was owed to him as a rescuer. However, the existence of a separate category of rescuers for this purpose was rejected in ***Frost V Chief Constable of South Yorkshire*** and ***Chadwick*** was held to have been decided correctly on the basis that C had been in physical danger from the collapse of the wreckage even though the judge found that it was the horrific nature of the experience rather than C's fear for himself which had affected him. The rationale behind this is that it may be extremely difficult to determine whether/how far C suffered shock from fear for himself or for what happened to others so the court operates in the c's favour. ### Primary victims - Primary victims are treated significantly more generously than secondary. The rationale behind this is that the potential number of primary victims of an act of negligence is much more limited while it could cause mental injury to any number of secondary victims (even people that see it on the news etc.) so it is fairer to limit the scope of D's liability. - Rule that governs the recoverability of damage by primary victims was established in ***Page v Smith***. - The simplest case where a primary victim can recover damages is when C suffers shock due to a reasonable fear for his own safety caused by D's negligence -- highlighted in ***Dulieu v White***, where C succeeded in a claim for shock, resulting in a miscarriage, when a horse-drawn van was negligently driven into the bar of the public house where she was working. It is not necessary that C should actually be in danger as long as he reasonably believes that he is. However, if the fear is not reasonably entertained (e.g. if C is a hyper-sensitive person who suffers from shock from the noise of a collision on the other side of the street) there is no action, as per ***McFarlane v EE Caledonia Ltd \[1994\]*** 2 All E.R. 1 at 11, although on the facts the Court of Appeal took the view that C was not in fact in fear for his own safety at the time. - In ***Rothwell v Chemical & Insulating Co Ltd***, one of the Cs had been exposed to asbestos and developed asymptomatic pleural plaques which did not interfere with his physical health in any way nor would they lead to any illness. C had discovered this when told by a doctor over 30 years after the exposure, though he had been concerned about the risk of developing an asbestos-related disease for years before that, this confirmed that asbestos had penetrated the body and there was an increased risk of developing a condition. This led to C worrying so much that he developed a clinical depressive condition. It was held that there was no evidence that a person of reasonable fortitude would react so strongly as to become mentally ill, therefore the HoL held that ***Page*** could not be extended to this situation. Also, the long gap between being in the zone of danger and the mental consequences of it. "it would be an unwarranted extension of \[Page\] to apply it to psychiatric illness caused by apprehension of the possibility of an unfavourable event which had not actually happened", as per LORD HOFFMAN. ### Secondary victims - The leading case regarding secondary victims is ***Alcock v Chief Constable of South Yorkshire***. All appeals of the Cs failed and there was a limitation placed in regards to psychiatric injury by secondary victims: - There must have been close ties of love and affection between C and the person endangered. - C must have been in proximity to the event. - C must have perceived the event or its immediate aftermath by his unaided senses. - CLOSE TIES: spousal, parental, and also \"*\[T\]he kinds of relationship which may involve close ties of love and affection are numerous, and it is the existence of such ties which leads to mental disturbance when the loved one suffers a catastrophe. They may be present in family relationships or those of close friendship, and may be stronger in the case of engaged couples than in that of persons who have been married to each other for many years*.\" - In ***McFarlane v EE Caledonia Ltd***, a case concerning the result of the Piper Alpha oil rig disaster, the extension that an unrelated bystander could have a claim if the accident was unusually horrific was rejected on the grounds that it ran counter to the general thrust of ***Alcock*** and would present practical problems since reactions to horrific events are subjective and variable. - PROXIMITY: this can be satisfied is C establishes sufficient proximity to the "immediate aftermath" of the event as per ***McLoughlin v O'Brien*** -- a road accident cause by D's negligence killed C's young daughter and caused injuries of varying severity to other of her children and to her husband. At the time, C was at home two miles away. An hour later the accident was reported to C by a friend who drove C to a hospital at which C was told of the death and saw the injured members of her family in circumstances which were found to be "*distressing in the extreme and were capable of producing the effect going well beyond that of grief and sorrow*". C suffered severe shock resulting in psychiatric illness. HoL held that this qualified as the "immediate aftermath" of the accident, and therefore the proximity requirement was satisfied and the claim upheld. Shock brought about by communication by a third party is not compensable. LORD BRIDGE used only the foreseeability aspect of the requirements while LORD WILBERFORCE used all 3 aspects. I can see the justification for holding D liable for the psychiatric injury of the loved one of someone that he injured negligently to truly acknowledge the breadth of his fault. ***McLoughlin*** was distinguished from ***Alcock***, where a number of the Cs had seen the bodies of their loved ones in a temporary morgue set up at the stadium in the aftermath of the disaster. However, ***McLoughlin*** was distinguished because the interval between the accident and the sight of the bodies by Cs was longer in ***Alcock*** (9 hours). This seems like a rather arbitrary distinction. - SIGHT OR HEARING: this requires that the illness must have been caused by the "sudden appreciation by sight or sound of a horrifying event which violently agitated the mind", as per ***Alcock v Chief Constable of South Yorkshire \[1992\]*** l A.C. 310 at 401 by LORD ACKNER. However, the HoL did not rule out the possibility of liability where the mental injury was induced by contemporaneous television transmission of the incident (live broadcast). Two judges referred to example given by NOLAN LJ in the CoA of a live TV broadcast of a ballooning event for children, watched by parents, in which the balloon bursts into flames. In ***Alcock*** itself, although the TV transmission showed the developing chaos in the stadium, it did not show the suffering of identifiable individuals and therefore lacked the immediacy needed. ### Participants other than mere bystanders - RESCUERS: HoL held in ***Frost*** that rescuers fell under the same requirements that apply to secondary victims, even the close ties requirement. - INVOLUNTARY PARTICIPANTS IN THE EVENT: There may be liability where the employer negligently causes the employee who is present at the scene of the accident to think that he was an instrument of death or injury, as seen in ***Dooley v Cammell Laird & Co Ltd***. C, a crane operator, suffered shock when, due to the negligence of his employers, the rope snapped and the load fell into the hold where the operator's colleagues were working. Lord Oliver in ***Alcock*** regarded this as a case where the negligent act of D had put C in the position of thinking he had been the involuntary instrument of death or injury to another and for that reason may not be subject to ***Alcock*** restrictions, as did Lord Hoffmann in ***Frost***. ### C shocked by D endangering himself - In ***Greatorex v Greatorex***, D was seriously injured in a road accident due to his own fault. C, a fire officer and D's father, attended the scene and argued that he suffered PTSD from seeing D's injuries. C fulfilled the ***Alcock*** requirement for a secondary victim but ***Cazalet J*** dismissed the claim on the ground that D did not owe a duty of care to others not to shock them by the self-infliction of his injuries. To admit a duty of care arising from domestic accidents or deliberate self-harm would open the possibility of numerous undesirable litigation between family members. Furthermore, a duty to take care of oneself in order not to shock others would impinge upon D's right of self-determination (This reasoning cannot explain why, if D negligently gets himself into danger and C is physically injured trying to rescue him, D may be liable to C: Harrison v British Railways Board \[1981\] 3 All E.R. 679). Cases ===== Duty of Care: General  ---------------------- #### Caparo v Dickman \[1990\] 2 AC 605 This case established the tripartite ***Caparo*** test in establishing DoC - **Facts**: C had bought shares in a company in a takeover only to discover fraud in their accounts. C sues D, the auditors of the company's accounts for negligence in its audit of the account and the writing of the audit report. C argued that the auditors, D, owe shareholders and potential investors a DoC in respect of the certification of accounts. First instance judge held that D did not owe C a DoC. C appealed and CoA said D *did* owe a duty. D appealed. - **Issues**: Did D owe a duty of care to C? - **Result**: D appeal allowed; D did not owe a duty. - **Judgment**: Audit reports from plcs are regularly carried out and this differs from reports carried out for specific purposes and for an identified audience. D owed no duty to the entire public who might or might not place reliace on the report when making financial decisions. The floodgates argument was also used to argue that limitations must be set when pure economic loss occurs in the absence of contractual agreements between parties -- i.e. it is confined to cases where advice is given for a specific purpose to a known recipient. - LORD BRIDGE - "*The inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and if so, what is its scope*.\[18\]" Duty of care consists of foreseeability of the damage, proximity by relationship and "fair, just and reasonable" assessment to impose a duty. However, he stressed that an incremental approach to finding DoC should be used rather than a general test, reinforcing the words of Lord Keith in ***Anns***. The ***Caparo*** test just seems like a reworded version of the ***Anns*** test; I can't seem to distinguish them. Both mention foreseeability and proximity, with a final factor that deals with any other considerations. #### \*Robinson v Chief Constable of West Yorkshire \[2018\] UKSC 4  This case reasserted the incremental approach to DoC that was highlighted in ***Caparo***. Ordinary principles of negligence, like the omissions rule and its exceptions, apply to public authorities -- police don't benefit from special immunity from liability based on public property. - **Facts**: Ds were policing officers apprehending T, a drug dealer. Ds knocked into C, an old lady, in their struggles which caused C to suffer injuries. Before the officers apprehended T, C was in their line of sight. C sued for damages in negligence of the officers. D argued that the police are immune from negligence liability when exercising their powers of investigation or crime prevention on the ground of public policy. CoA ruled that Ds weren't liable. - **Issues**: (1) Does the existence of a duty of care always depend on the application of "the Caparo test" to the facts of the particular case? (2) Is there a general rule that the police are not under any duty of care when discharging their function of investigating and preventing crime? Or are the police generally under a duty of care to avoid causing reasonably foreseeable personal injuries, when such a duty would arise in accordance with ordinary principles of the law of negligence? If the latter is the position, does the law distinguish between acts and omissions: in particular, between causing injury, and protecting individuals from injury caused by the conduct of others? (3) If the latter is the position, is this an omissions case, or a case of a positive act? (4) Did the police officers owe a duty of care to Mrs Robinson? (5) If so, was the Court of Appeal entitled to overturn the Recorder\'s finding that the officers failed in that duty? (6) If there was a breach of a duty of care owed to Mrs Robinson, were her injuries caused by that breach? - **Result**: Claim succeeded, Ds held liable for negligence. - **Judgment**: LORD REED -- He thinks that Lord Bridge applied the incremental approach rather than the tripartite test to the facts before him. He criticises the tripartite test, saying that the further consideration of "fair just and reasonable" is unnecessary because the existence (or not) of a DoC is established via considerations of justice and reasonableness already, which is why the principle is how it is. **This specific case is not novel in regards to DoC and therefore established principles should be applied**. Only in cases where the court is asked to go beyond the established categories of duty of care that it will be necessary to consider whether it would be fair, just and reasonable to impose such a duty. - The Caparo case achieves a balance between legal certainty and justice: When dealing with ordinary cases the courts will follow precedent. When dealing with novel cases, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence and weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable. - Public authorities generally under a DoC to avoid causing actionable harm in situations where a DoC would arise under ordinary principles of the law of negligence -- they are under no DoC to prevent occurrence of harm unless where omissions exceptions apply. Courts **will** take public policy considerations into account when determining DoC in a novel situation. As Lord Toulson held in ***Michael***, no DoC is owed by police to victims of crime due to the omissions rule; police do not have a general immunity when investigating. - Michael was an omissions case, where the police failed to respond to an emergency call in time. Barrett v Enfield involved an assumption of parental responsibilities by the public authority. Phelps v Hillingdon concerned a relationship between the public authority and claimants which involved an implied undertaking to exercise reasonable care, akin to the relationship between doctor and patient. - LORD MANCE -- "What I think emerges from this examination of past authority is **that it is not possible to state absolutely that policy considerations may not shape police or CPS liability** in a context where the conduct of the police may perfectly well be analysed as positive, rather than simply as involving some form of omission. It is at least clear that extended detention and psychiatric injury, due to the police\'s or CPS\'s positive acts or omissions, will be treated as outside any otherwise generally established category of liability for negligence.." #### Darnley v Croydon Health Services NHS Trust \[2018\] UKSC 50 The ***Caparo*** test is [not] to be applied in situations where a DoC is already established. A DoC to not provide misleading information regarding the time within which medical attention might be available applies to both medical professionals and administrative staff. - **Facts**: C went to D's A&E department after sustaining a head injury. He was misinformed by the receptionist about the waiting time -- 4 to 5 hours when it would have actually been within 30 mins. C told receptionist he could not wait that long and left home without treatment. His condition deteriorated; he was returned to hospital by ambulance but the delay in treatment led to permanent brain damage which would not have resulted had he remained at hospital. He sued for damages from D for negligence for breaching its DoC. First instance judge and CoA dismissed C's claim, holding that there was no duty to advise about waiting times, and C had broken chain of causation by leaving A&E. - **Issues**: Was D or the receptionist under a DoC to provide patients with accurate information as to the waiting time? Had a DoC been breached? - **Result**: C's appeal allowed; D held liable. - **Judgment**: LORD LLOYD-JONES -- This case is not a novel situation and falls within an established category of DoC. The duty is one owed by those who provide and run a casualty department to take reasonable care not to cause physical injury to the patient. As soon as C had attended the department and had been "booked in", he entered into a relationship with D. The scope of the duty extends to a duty to take reasonable care to not provide misleading information which may foreseeably cause physical injury. Medical professions and administrative staff are not distinguished in regards to liability for providing misleading info as to the time within which medical attention might be available. It is not unreasonable to require receptionists to take reasonable care to not provide misleading info as to the likely availability of medical assistance with a standard of an "*averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care*" - Also, **C's action to leave was not a novus actus interveniens** -- it was foreseeable he would leave based on the info given. ### Cases of historical significance #### Donoghue v Stevenson \[1932\] AC 562  This case established the modern tort of negligence and the concept of a DoC. - **Facts**: Facts: Donoghue (C) had drunk a bottle of ginger beer manufactured by Stevenson (D). D's friend had purchased the bottle from a retailer and given it to her. The bottle was made of opaque glass and contained the decomposed remains of a snail, which could not be detected until the majority of the bottle had been consumed. C suffered shock and severe gastro-enteritis as a result. - **Issues**: Was there a tort that D could be liable for? - **Result**: C made a claim for negligence against D, which was dismissed. C then appealed at HoL and the appeal was allowed. - **Judgment**: LORD ATKIN -- refer to 1^st^ Period for the speech of the neighbour principle, where he refers to Lord Esher in ***Heaven v Pender***. Proximity does not just refer to physical distance. - LORD MACMILLAN -- "*The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. Where there is room for diversity of view is in determining what circumstances will establish such a relationship between the parties as to give rise on the one side to a duty to take care and on the other side to a right to have care taken*." Food manufacturer owes a duty to those who intends and contemplates to consume his products, which is everyone. "*By reason of that very fact he places himself in a relationship with all the potential consumers of his commodities and that relationship which he assumes and desires for this own ends imposes upon him a duty to take care to avoid injuring them. He **owes them a duty not to convert by his own carelessness** an article which he issues to them as wholesome and innocent into an article which is dangerous to life and health*." #### Anns v Merton LBC \[1978\] AC 728  This case was overruled in Murphy, below. Negligence carries a **prima facie** DoC, as per Lord Wilberforce's ***Anns*** test. - **Facts**: Cs found that faulty foundations had resulted in cracks in their flats. Cs sued D for damages for the negligent exercise of its statutory powers by approving foundations that were not deep enough and failing to inspect them property. - **Issues**: Did D owe a DoC to the claimants in respect of the incorrect depth of the foundations laid by the third-party builder? In general, is a local authority under any DoC towards owners/occupiers of houses with defects constructed by builders in regards to inspection during the building process? - **Result**: D was liable in negligence. The cracks were regarded as physical damage to property and therefore actionable. - **Judgment**: LORD WILBERFORCE -- He lays out the ***Anns*** test: - DoC cannot be based on the neighbour principle alone or control as this would neglect the fact that the powers and duties are defined in public law. Statutory powers and duties contain policy areas, which the courts refer to as discretion, as well as operational areas, which involve practical execution. The more "operational" a power or duty may be, the easier it is to superimpose upon it a DoC in common law. In the current case it was heavily operational. #### Murphy v Brentwood DC \[1991\] 1 AC 398 (brief) Pure economic loss from defective property is non recoverable. ***Anns*** is overruled. - **Facts**: C was the purchaser of a pair of semi-detached homes. The foundations were faulty but were approved by D upon inspection. The foundation cracked when C was in occupation and caused extensive damage to the walls and pipes. C was unable to afford remedial work and sold the house at a loss. C sued D for negligence in carrying out its inspection. - **Issues**: - **Result**: D was not liable as C suffered pure economic loss. Liability for defective property only occurs where the defect was latent and caused damage to persons or other property. - **Judgment**: LORD KEITH -- ***Anns v Merton*** was incorrectly decided, it was wrongly characterised as physical damage by Lord Wilberforce when it was purely economic loss. Liability for pure economic loss does not extend beyond the situation of loss sustained through reliance on negligent misstatements as in ***Hedley Byrne***. If the avoidance of loss fell within the DoC of local authorities and builders, it would logically extend to defective chattels, opening up an exceedingly wide field of claims (floodgates argument). Duty of Care: Psychiatric Injury  --------------------------------- ### 'Primary victims':   #### Dulieu v White & Sons \[1901\] 2 KB 669  - **Facts**: - **Issues**: - **Result**: - **Judgment**: #### \*Page v Smith \[1996\] 1 AC 155  This case extended the rule stated in ***Smith v Leech Brain*** to include psychiatric injury. For remoteness purposes, no distinction should be drawn between physical and psychiatric injury; if a duty of care to avoid physical injury is broken and psychiatric injury is caused, whether with or without any physical injury being caused, the negligent defendant must accept liability for the psychiatric injury. This case has been severely criticised. - **Facts**: C was involved in a car collision caused by D's negligence which caused no physical injury. As a result of the accident, C suffered from chronic fatigue syndrome, which affected him on and off for 25 years but had become permanent. D argued that it is not foreseeable that a person of normal fortitude would suffer psychiatric injury. - **Issues**: In a claim brought in negligence for psychiatric damage caused by D, was it necessary to establish that this particular psychiatric type of harm was a foreseeable consequence of D's negligence, or would it suffice merely to say that some form of compensatory harm was foreseeable, like a physical injury. - **Result**: C's claim succeeded As C was the primary victim (involved in the accident), it did not matter that C's psychiatric injury was not reasonably foreseeable because the risk of C's physical injury was reasonably foreseeable, even though C did not suffer any physical injury. - **Judgment**: LORD LLOYD: For secondary victims, foreseeability of psychiatric injury is a crucial ingredient as they are almost always outside the area of physical impact and therefore range of foreseeable physical injury. The thin skull rule applies to primary victims only, which C is held to be in this case; there is "no difference between an eggshell skull and an eggshell personality". There is no justification for regarding physical and psychiatric injury as different kinds of injury -- D is under a duty of care to avoid causing "*personal injury*" to C. In the case of secondary victims, psychiatric injury must be foreseeable on a person of ordinary fortitude. In both cases, the injury must be a recognised psychiatric illness. - LORD BROWNE-WILKINSON -- "*I am therefore of opinion that any driver of a car should reasonably foresee that, if he drives carelessly**, he will be liable to cause injury, either physical or psychiatric or both**, to other users of the highway who become involved in an accident. Therefore he owes to such persons a duty of care to avoid such injury. In the present case the defendant could not foresee the exact type of psychiatric damage in fact suffered by the plaintiff who, due to his M.E., was \"an eggshell personality\". But that is of no significance since the defendant did owe a duty of care to prevent foreseeable damage, including psychiatric damage. Once such duty of care is established, the defendant must take the plaintiff as he finds him*." ##### Section 38(1) of the ***Limitation Act 1980***: \"\'Personal injuries\' includes any disease and any impairment of a person\'s physical or mental condition...\" ### On 'secondary victims':  #### McLoughlin v O'Brien \[1983\] 1 AC 410  Anns era of expansion. - **Facts**: a road accident cause by D's negligence killed C's young daughter and caused injuries of varying severity to other of her children and to her husband. At the time, C was at home two miles away. An hour later the accident was reported to C by a friend who drove C to a hospital at which C was told of the death and saw the injured members of her family in circumstances which were found to be "distressing in the extreme and were capable of producing the effect going well beyond that of grief and sorrow". C suffered severe shock resulting in psychiatric illness. HoL held that this qualified as the "immediate aftermath" of the accident, and therefore the proximity requirement was satisfied and the claim upheld. Shock brought about by communication by a third party is not compensable. LORD BRIDGE used only the foreseeability aspect of the requirements while LORD WILBERFORCE used all 3 aspects. I can see the justification for holding D liable for the psychiatric injury of the loved one of someone that he injured negligently to truly acknowledge the breadth of his fault. - **Issues**: - **Result**: - **Judgment**: #### \*Alcock v Chief Constable of South Yorkshire \[1992\] 1 AC 310  ***Murphy*** era of restriction Lord Wilberforce's 3 elements of psychiatric injury in ***McLoughlin*** must be applied to secondary victims. - **Facts**: Cs were loved ones who suffered psychiatric illness as a result of the Hillsborough accident, sued D, the police, for negligence. Some were there as well, some rushed down to ground when they heard to news, others saw the live TV coverage. - **Issues**: - **Result**: No DoC owed to [any] of the Cs. - **Judgment**: The ***Alcock*** test is as follows -- - First you need reasonable foreseeability  - Next, 4 hurdles need to be overcome before a DoC for secondary victim can be established.  - \(1) **Close tie of love and affection**:   - rebuttable presumption for (i) parents and children; (ii) spouses; (iii) fiancés. In other situations: e.g. siblings, close tie of love and affection has to be [proved]. (O'Sullivan says it is disgraceful, unedified and unnecessary, and it is why some appellants in this case failed.)  - \(2) **Proximity in time and space**:   - \- Either have to be physically at the event or the immediate aftermath.   - **Lord Jauncey**: Not satisfied on the basis of going to the mortuary nine hours later to identify body.  - "Immediate aftermath" extended to a "continuation of an interrupted sequence of events" ([Galli-Atkinson v Seghal)]  - \(3) **Means of perception**: Sight or hearing of the event.   - Watching TV broadcast does not fulfil this condition; **need to be able to identify specific individuals**.  - cf **Lord Ackner:** If you watch a hot air balloon which you know carries your children exploding in flames on TV - it may fulfil the condition of perception.   - \(4) **Sudden appreciation of the horrifying event, which violently agitates the mind**;   - "sudden assault on the nervous system." Cannot be a gradual assault.  - Slightly expanded in [Walters v North Glamorgan NHS Trust] single sudden shocking event not confined to one moment in time, can be so when **C's suffered one long drawn out experience and the events during this period was sudden.**  - cf [Liverpool Women's Hospital NHS Foundation Trust v Ronayne]*:* It would be different if it were a series of events that C could **expect.**   - As a result of the SC decision in ***Paul v Royal Wolverhampton NHS Trust***: the source of the shock must be an 'accident' (unexpected or unintended event that causes injury or risk of injury to the victim by external infliction), so doctors owe no duty of care to relatives of their patients - but **there is no longer a requirement that C experienced a 'sudden shock' or 'horrifying event'**. - LORD OLIVER -- D owes a DoC to those who are induced to go to the rescue of his direct victims and suffer an injury from it, psychiatric or physical. #### Greatorex v Greatorex \[2000\] 1 WLR 1970  - **Facts**: - **Issues**: - **Result**: - **Judgment**: #### Attia v British Gas \[1988\] QB 304  - **Facts**: C engaged D to install a new central heating system in her home but returned to find that her loft had caught fire. The house and its content suffered extensive damage, which C witnessed firsthand. The property damage claim against D was settled, as their breach of duty had caused the damage to C's house. C also sued to recover damage for nervous shock, incurred as a result of witnessing the destruction of her belongings. Claim was dismissed at first instance and C brought an appeal. - **Issues**: Were damages recoverable for recognised psychiatric harm where the harm in question was caused purely to property? - **Result**: Claim remitted to trial; DoC owed. - **Judgment**: It held that there is no need to consider the issue of duty of care with regard to psychiatric harm in this case since D owes a duty with regard to C's property. Therefore, it was an issue of legal causation (remoteness). But then why weren't the brothers treated with this same reasoning? They were already in the stands; if they died alongside their brothers a DoC would have been established, so why does this not extend to psychiatric harm? - WOOLF LJ -- In the words of Lord Wright in ***Bourhill v Young***, "*Every driver can and should foresee that, if he drives negligently, he may injure somebody in the vicinity in some way or other; and he must be responsible for all the injuries which he does in fact cause by his negligence to anyone in the vicinity, whether they are wounds, or shocks, unless they are too remote in law to be recovered. If he does by his negligence in fact cause injury by shock, then he should be liable for it unless he is exempted on the ground of remoteness*." The same should apply to negligently causing a fire. - LORD BINGHAM -- There was no doctrinal or policy reason to limit the recovery of damages to psychiatric harm arising as a result of damage to property. To limit such cases to personal injury would not be 'fair or convenient' ### Rescuers that end up suffering from psychiatric harm #### Chadwick v British Transport Commission \[1967\] 1 WLR 912  - **Facts**: C was informed of a train crash and made his way to the scene to provide assistance, remaining there throughout the night. C suffered serious psychiatric injury as a result of his experiences. - **Issues**: Does D owe a DoC to rescuers who might volunteer to assist at the scene of a disaster, regardless of whether the disaster itself was a product of negligence? - **Result**: C's claim succeeded; DoC owed. - **Judgment**: It was reasonably foreseeable that people, other than D's employees, might try to give assistance and might suffer personal injury as a result. A DoC was therefore owed. - **Rescuers are to be viewed as primary victims**. - NOTE: the existence of a separate category of rescuers for this purpose was rejected in Frost V Chief Constable of South Yorkshire and Chadwick was held to have been decided correctly on the basis that C had been in physical danger from the collapse of the wreckage even though the judge found that it was the horrific nature of the experience rather than C's fear for himself which had affected him. The rationale behind this is that it may be extremely difficult to determine whether/how far C suffered shock from fear for himself or for what happened to others so the court operates in the c's favour. Also, it follows from the decision in ***Page v Smith***, where C could recover for psychiatric harm for being in danger of physical harm also, as per Lord Griffiths. - Also, why should policemen be able to recover but not bereaved relatives? #### \*White v Chief Constable of the South Yorkshire Police \[1999\] 2 AC 455 (also known as Frost v Chief Constable of South Yorkshire) - **Facts**: Cs were police officers who suffered PTSD after trying unsuccessfully to give mouth to mouth resuscitation at Hillsborough. They sued their employer, arguing that their status as rescuers made them immune from the limitations set in ***Alcock*** as the risk of psychiatric injury was reasonably foreseeable even though they were never exposed to physical danger. - **Issues**: Did D owe a DoC? Who may recover in respect of pure psychiatric harm sustained as a rescuer? - **Result**: C's claim failed as they were neither primary nor secondary rescuers, under the ***Alcock*** test. - **Judgment**: LORD STEYN - In this case the rescuers were never at any time exposed to personal danger and none of them thought that they were so exposed, so they were not primary victims. An exception to the limitations in Alcock could not apply to rescuers, so they were not secondary victims. - "***A rescue attempt to save someone from danger will be regarded as foreseeable**. A duty of care to a rescuer may arise even if the defendant owed no duty to the primary victim, for example, because the latter was a trespasser. If a rescuer is injured in a rescue attempt, a plea of volenti non fit injuria will not avail a wrongdoer. A plea of contributory negligence will usually receive short shrift. A rescuer\'s act in endangering himself will not be treated as a novus actus interveniens*." - In order to contain the concept of rescuer in reasonable bounds for the purposes of the recovery of compensation for pure psychiatric harm the plaintiff must at least satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so. Without such a limitation, bereaved relatives would not be allowed to recover while "*ghoulishly curious spectators, who assisted in some peripheral way in the aftermath of a disaster*" would be allowed to. - LORD HOFFMAN -- in his obiter he talks about the danger of incrementalism in this kind of tort, where it would seem forward thinking to hold an employer liable for psychiatric harm just as he is liable for physical harm to the employee. ### 'Primary'/'secondary' victim categories are not always relevant:  #### Barrett v Enfield LBC \[2001\] 2 AC 550  - **Facts**: C was in the care of a local authority, D between 10 months and 18 years of age and was moved nine times between different foster placements. C alleged that he had developed psychiatric illness as a result of D's negligence. CoA dismissed the appeal, citing policy considerations of fairness, justice and reasonableness and that the fact that it was a policy decision. - **Issues**: - **Result**: C's appeal allowed, case should be heard. Public policy considerations did not exclude a duty of care. - **Judgment**: LORD SLYNN -- a duty of care was owed and was broken - LORD HUTTON -- "*Accordingly when the decisions taken by a local authority in respect of a child in its care are alleged to constitute negligence at common law, the trial judge, bearing in mind the room for differences of opinion as to the best course to adopt in a difficult field and that the discretion is to be exercised by the authority and its social workers and not by the court, must be satisfied that the conduct complained of went beyond mere errors of judgment in the exercise of a discretion and constituted conduct which can be regarded as negligent*." Wrongful birth, wrongful life  ------------------------------ #### MacFarlane v Tayside Health Board \[2000\] 2 AC 59  A claim for the costs of caring for a healthy, normal child is a claim for pure economic loss in respect of which it had to be shown that it was fair, just and reasonable to impose liability. - **Facts**: C's husband had a vasectomy to ensure they didn't have any more kids. D informed them that husband's sperm count was negative and contraceptive measures were no longer necessary. After following the advice, C became pregnant and gave birth. C brought a claim for the physical discomfort arising from her pregnancy, confinement, and delivery costs associated with this and both parents claimed for the financial costs of bringing up the child. - **Issues**: - **Result**: Claim partially succeeded; C was entitled to damages for the pain/suffering/inconvenience of pregnancy and childbirth and damages for extra medical expenses, clothing and loss of earnings associated with it. HoL unanimously refused to allow C to claim for the costs of raising the child. - **Judgment**: LORD SLYNN -- pain and suffering of childbirth, as well as extra medical expenses etc. can be thought of as "harm". He undertakes an *assumption of responsibility* test wherein D undertook a duty to prevent the pregnancy. It does not follow that the DoC includes avoiding the costs of raising a child if it is born and accepted into the family. "*I consider that it is not fair, just or reasonable to impose on the doctor or his employer liability for the consequential responsibilities, imposed on or accepted by the parents to bring up a child*." - LORD STEYN -- "*Relying on principles of distributive justice I am persuaded that our tort law does not permit parents of a healthy unwanted child to claim the costs of bringing up the child from a health authority or a doctor...I would say that the claim does not satisfy the requirement of being fair, just and reasonable*". #### Parkinson v St James and Seacroft University Hospital \[2001\] EWCA Civ 530, \[2002\] 2 QB 266  Parents cannot sue the health authority or doctor for the expenses of raising and caring for a normal, healthy child in cases of wrongful birth since such claims do not meet the standards of being fair, just, and reasonable. However, since the delivery of a child with congenital defects was a foreseeable outcome of the surgeon\'s negligence, parents may be entitled to an award of compensation for the additional costs associated with raising a kid with a substantial disability. - **Facts**: Ds carried out a sterilisation operation negligently on C and 10 months later she conceived a child. C was warned by a consultant at the hospital that the child might be born with a disability but she declined to terminate. C gave birth to a child with severe disabilities. First instance judge ruled that C was entitled to recover damages for costs of providing for her child's special needs relating to his disabilities but NOT for the basic costs of his maintenance. Ds appealed against the first direction and C appealed against the second direction. - **Issues**: Did D owe C a DoC for C not to have a disabled child, or even a child at all? - **Result**: Both appeals dismissed. No DoC owed. - **Judgment**: - BROOKE LJ - It is established that in some cases a court may choose to apply distributive rather than corrective justice. Five techniques to decide whether legally enforceable DoC exists: - Inquire whether the surgeon had assumed responsibility for the services he rendered so as to be liable for the foreseeable economic consequences if he performed those services negligently; - Inquire what the purpose of the operation was, so that again the surgeon might be liable for the foreseeable economic consequences of his carelessness when performing an operation with that purpose; - Adopt the incremental approach of looking for established categories of negligence and deciding whether it was legitimate to take the law forward one further step by analogy with those established categories; - Apply the now familiar three-stage test propounded by Lord Bridge in ***Caparo***; - Decide that reference to principles of distributive justice might provide a more just solution to the problem than an approach founded solely on principles of corrective justice. #### Rees v Darlington Memorial Hospital NHS Trust \[2003\] UKHL 52, \[2004\] 1 AC 309 \[Case note: 2004 CLJ 19\]  This case qualified ***McFarlane*** by holding that while in cases of wrongful birth, policy considerations deny the award of damages for the costs of bringing up a normal healthy child, the courts may provide a conventional award to the victim that is non-compensatory. - **Facts**: C, who was severely visually handicapped and feared that her lack of sight would prevent her from being able to care for a child, underwent a sterilisation operation which was negligently performed at a hospital managed by D. C subsequently conceived and gave birth to a healthy child whose father did not wish to be involved with his upbringing. CoA held that although damages could not be recovered in respect of costs arising from the birth of a healthy child it was, just as in the case of a child born with a disability, fair, just and reasonable for the parent who was disabled to recover by way of damages the additional costs attributable to her disability in bringing up the child; D appealed. - **Issues**: n/a - **Result**: No DoC owed. - **Judgment**: It was possible to recover damages for violation of a woman's reproductive autonomy. Did not compensate for birth of child (policy) but introduced sum of 15,000 for infringing on autonomy/ability to restrict family's size. No extra compensation if mother is herself disabled and hence incurs extra cost. #### Congenital Disabilities (Civil Liability) Act 1976  **Civil liability to child born disabled.** \(1) If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below, and a person (other than the child's own mother) is under this section answerable to the child in respect of the occurrence, the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child. \(2) An occurrence to which this section applies is one which--- \(3) Subject to the following subsections, a person (here referred to as "the defendant") is answerable to the child if he was liable in tort to the parent or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability. \(4) In the case of an occurrence preceding the time of conception, the defendant is not answerable to the child if at that time either or both of the parents knew the risk of their child being born disabled (that is to say, the particular risk created by the occurrence); but should it be the child's father who is the defendant, this subsection does not apply if he knew of the risk and the mother did not. **\[** (4A)In the case of a child who has a parent by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008, the reference in subsection (4) to the child\'s father includes a reference to the woman who is a parent by virtue of that section.**\]** \(5) The defendant is not answerable to the child, for anything he did or omitted to do when responsible in a professional capacity for treating or advising the parent, if he took reasonable care having due regard to then received professional opinion applicable to the particular class of case; but this does not mean that he is answerable only because he departed from received opinion. \(6) Liability to the child under this section may be treated as having been excluded or limited by contract made with the parent affected, to the same extent and subject to the same restrictions as liability in the parent's own case; and a contract term which could have been set up by the defendant in an action by the parent, so as to exclude or limit his liability to him or her, operates in the defendant's favour to the same, but no greater, extent in an action under this section by the child. \(7) If in the child's action under this section it is shown that the parent affected shared the responsibility for the child being born disabled, the damages are to be reduced to such extent as the court thinks just and equitable having regard to the extent of the parent's responsibility. Questions for discussion ======================== 1. The DoC argument focuses on whether a legal obligation exists between D and C to act in a certain way to prevent harm. It deals with whether it is appropriate to impose liability for a particular relationship, based on proximity, foreseeability, precedent and policy. It differs from a breach of duty argument, which deals with whether D's actions fell below the reasonable standard of care expected of them once the duty is established. DOC is about whether a legal relationship exists, while breach examines whether the defendant\'s conduct in that relationship was negligent. 2. H is liable in negligence for the death of M (duty to not collide with other drivers, breach of that duty, causal link established). a. E cannot bring a claim for psychiatric injury against H. She is a secondary victim, she suffered psychiatric harm as a result of death or personal injury to somebody else -- therefore, ***Alcock*** test must be applied to see if DoC exists. She does not satisfy the means of perception requirement as she heard the news from a third party, or the proximity requirement. b. E can bring a claim for physical injury caused by the initial crash against H. She cannot bring a claim for wrongful birth against H due to the causal link broken, and also a secondary victim must suffer as a result of the harm to someone else CAUSED by negligence. As E is not a primary victim, you cannot have a secondary victim in relation to a secondary victim. No DoC. c. S may be able to bring a claim for psychiatric injury against H. Using the ***Alcock*** test, close ties requirement satisfied as it is his son; proximity in time and space satisfied; means of perception satisfied, he at least heard the crash and saw the collision, assuming his son was inside the car. It could be that the sudden appreciation requirement is fulfilled if the shock was immediate upon seeing the crash occur. Probably DoC. d. J's case is most like ***Chadwick***, where DoC was found. However, in ***Frost***, the rationale for the decision was changed so that J would be regarded as a secondary victim subject to the ***Alcock*** test unless it is proven that he had been exposed to the danger of physical injury or reasonably believed himself to have been so exposed. Apply the ***Alcock*** test, he had no close ties to Marvin. No DoC.