Duty of care

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  • Created by: Nikki
  • Created on: 11-04-15 16:39

Duty of care tests

Lower courts only need tests if it's a novel case --> if not then follow case law --> less novel cases

UKSC might want to employ test --> focus its mind and give impression it is bound by rules

Heaven v Pender test and 'neighbour principle' --> common element (foreseeability of harm) not satisfactory in all cases

Anns test --> reaasonably foreseeable and no policy considerations weighing against it --> too easy to find duty of care owed and law too uncertain

Caparo test -->

  • still active today
  • duty of care if: reasonably foreseeable; relationship of proximity between D and C; it would be 'fair, just and reasoanble' to find a duty of care
  • in some cases 'f,j and r' satisfied by harm being reaosnably foreseeable, but in other special relationship or circumstances required
  • nothing more than instructions --> not really a test as doesn't provide concrete guidance
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Duty of care factors (1)

(1) Reasonable foreseeability of harm

(2) Reasonableness --> cannot be liable in negligence for acting reasonably --> Tomlinson v Congleton (2004)

(3) Acts and omissions --> distinction --> much harder to establish liability for omission 

(4) Seriousness of harm --> much easier ot prove physical injury or damage to property than pure economic loss or distress

(5) Fairness --> might refuse to find duty if would expose D to liability out of proportion to fault --> The Nicholas H (1996)

(6) Individual responsibility --> if finding duty owed might undermine people's sense of individual responsibility, this will weigh against finding duty

  • allow responsible adult to escape consequences of own follhardiness by allowing them to sue someone else for self-inflicted injuries --> Vellino (2002); Barrett (1995)
  • allow admitted wrongdoer to escape liability to compensate V of his wrong for th harm he did to her (Mitchell v Glasgow CC (2009) - neighbour from hell case)
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Duty of care factors (2)

(7) Parliament's intentions --> cannot find duty if doing so would undermine P's intentions in passing a particular piece of legislation

(8) Divided loyalties --> finding duty might cause public official not to do job properly in order to avoid litigation --> judges, military commanders; police; health and safety inspectors; social services (only duty to child in investigation of child abuse claims); councils

Divide loyalty argument dismissed in following cases --> doctors; referees; barristers; expert witnesses

(9) Waste of resources --> encourage lot of groundless litigation against a public body which would take up valuable time and resources

(10) Novelty --> more novel = less likely to be accepted --> support for incremental test --> but this is 'of little value as a test in itself' (Bingham) (Customs and Excise Commissioners v Barclays Bank plc (2007)

(11) Importance of remedying wrongs --> very backwards --> should not play any part in court's decision

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Duty skepticism

Skepticism about essentiality of the duty concept

  • (1) C shouldn't need to show duty because D will always have owed C a duty not to cause her to suffer foreseeable harm by acting carelessly
    • ony establish D acted carelessly and C suffered some kind of foreseeable harm
    • impossible --> plenty of time law allows people to be careless, even though doing so may foreseeably cause harm
  • (2) should not need to show duty because outcome should not depend on whether D did anything wrong to C ina ctin as he did
    • enough to show D was careless and C suffered as a result
    • destabilise society

Skepticism about reality fo duties of care in negligence

  • duty of care as a control device --> stop scope of claims for compensation getting out of control
  • but plenty fo evidence that courts mean what they say when they speak of duties of care
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Risk and harm

CPR view (conduct plus result-focused) --> D only owes C duty not to cause C harm

C view (conduct) --> D owed C duty not to act in careless way

May also owe CPR view on top of C view, but C view is the basis

CPR duty is untenable:

  • if D just narrowly avoids harming C, D has still done something morally wrong in taking risk of harming C
  • point of legal duties is to guid people's behaviour --> only C-focused can do this effectively
  • courts frequently find D breached duty owed to C but breach has not caused C any harm --> not possible if harm is precondition
  • Lord Atkin 'You must take reasonble care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour' (Donoghue v Stevenson)
  • uncertain cases --> court sometimes shold A liable for harm because they think A should be sanctioned for breach of duty; cases where normal causation rules suggest A's breach did not cause B harm but courts distort normal rules to ensure A's breach incurs some kind of sanction --> only explained by C-focused view
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Acts - the basics

duty of care must be geared to the appropriate harm

Page v Smith --> enough if C could establish D owed them a duty of care not to physically harm them

Rothwell v Chemical & Insulating Co Ltd (2007) --> limited Page v Smith --> cases where C suffered psychaiatric harm as an immediate result of D breaching duty of care owed to C geared towards protecting C from suffering physical injury

reasonably foreseeable --> important but not sufficient for some cases --> not 'far-fetched' but a real...risk'

  • Bhamra v Dubb (2010) --> Sikh wedding where guest ate an egg dish and died
  • reaosnable person endowed with superpowers of forethought, insight and knowledge --> danger of fixing people with duties of care they cannot reaosnably be expected to have know they had at time of acting --> unfairness --> mitigated by fact insurance company normally pays the bill
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Physical injury: the basic rule

A will noramlly owe B a duty ot take care not to do a positive act x, if it is reaonsbly foreseeable that A's doing x will rsult in someone like B suffering some kind of phsyical injury

(1) Normally --> 3 exceptions

  • volenti
  • reasonable conduct --> cannot be sued for acting reasonably --> 
    • Bolton v Stone (1951)
    • Miller v Jackson (1977)
    • weighing of costs and benefits
    • if Parliament has already legislated to make something illegal --> if reasonably foreseeable that B will be harmed, court readily find duty of care not to act that way
  • public policy --> Mulcahy v Ministy of Defence (1996) --> soldier whose ears damaged when gun commander fired gun in battle

(2) Positive act

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Physical injury (2)

(3) Reasonable foreseeability

  • if A knew his actions could harm B, requirement automaticall satisfied
  • if not, what reasonable person in A's position could be expected to see at time A acted
    • age --> Mullin v Richards (1998) --> 15 year olds fencing with rulers, one blinded
    • other frailties or imperfections --> no concessions --> not even for disability which means A has much lower mental age than physical age
  • at the time
    • Roe v Minister of Health (1954) --> injections which were contaminated and injected into patients' spines, paralysing them --> at time nobody realised possible that the injections might suffer from invisible cracks and become contaminated
    • Abouzaid v Mothercare (UK) Ltd (2001) --> 12 year old boy tryign to strap sleeping bag onto pushchair --> recoiled and blinded him --> at time shop sold bag reaosnable person would not have expected real risk of physical harm in strapping bag to pushchair

(4) Someone like --> particular feature of C that played a part in C's being injured as a result of D's actions

(5) Physical injury

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Physical injury: harm caused by TP

A does something unreasonable that has resulted in B's physicaly harming herself or a tp, C

If B = 'innocent agent' who wasn't responsible for harm she did --> if reasonably foreseeable that A's actions woul dhave result they did, then courts will readily find A had duty not to act as he did, with that duty either being owed to B or C --> Dixon v Bell (1816)

More difficult cases where B is not inncoent agent and was responsible for harm -->

  • E (a child) v Souls Garages (2001) --> petrol station manager could be sued for C's injuries 
  • Barret v Ministry of Defence (1995) --> CA rejected claim D owed S a duty to stop serving him alcohol when it became clear he had had too much

Enabling tort case --> A's unreasonble act contributes to B's harming C, adn B is responsible for what has happened to C

  • reasonably foreseeable --> very likely or probable
  • if A was accessory to B's tort --> but assisting someone to commit tort will not make you accessory to that tort
  • even if can overcome these hurdles, likely A only owe duty where B responsibility attenuated by some lack of capacity
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Harm to property (1)

D's positive act results in property being harm

C will have to show that -->

  • sufficient interest in P at time it was harmed as a result of D's act
  • reaosnably foreseeable that D's act would rsult in property like P being harmed

(1) Property --> tangible

(2) Sufficient interest --> 

  • until recently A's duty only have been owed to those who had legal interest in P, or were in possession of P at time it was harmed
  • BUT in Shell UK Ltd v Total UK Ltd (2010) CA ruled that:
    • A's duty will also have been owed to anyone for whom P was held on trus tat the time it was harmed
    • anyone for whom P was held on trust at time it was harmed will not be able to sue in their own right for losses suffered as a result of P being harmed unless they make legal owner of P at the time it was harmed a party to their claim
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Harm to property (2)

(3) Harm --> 'a physical change which renders [it] less useful or less valuable'

  • Hunter v Canary Wharf --> deposit of excess dust on carpet
  • Blue Circle Industries v Ministry of Defence --> intermingling of plutonium with soil so it could not be removed

(4) Time of harm --> sufficient interest at time of harm

  • cracked vase problem
  • if something defective since moment it came into being it hasn't been harmed, simply been made in imperfect way --> no claim for damage to property

(5) Differentiating property

  • E.G. 1 --> flawed beer bottles in fridge --> one item or two? --> Aswan Engineering v Lupdine (1987) --> 'provisional view' of Lloyd LJ that it is two items of property
  • E.G. 2 --> builder constructs house with defective wiring resulting in fire after owner buys house --> house burned down --> Murphy v Brentwood DC
    • Lord Keith - unrealistic to separate house and wiring; Bridge - two type of cases (not clear which side his opinion fell)
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Harm to property (3)

(6) Normally --> still exceptions to the formula

  • volenti
  • reasonable
  • public interest
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Omissions (1)

If A is in a position to save B from harm, A will not owe B a duty to rescue B unless there is some kidn of special relationship between A and B, or there exist some special circumstances that would warrant imposing duty on A to rescue B

Sutradhar v natrual Enrionment Research Council (2006)

Rule applies to public bodies as much as private persons

Capital & Countries plc v Hampshire CC (1997) --> firefighters failed ot deal effectively with fires that started on C's premises --> fires destroyed buildings --> CA dismissed claim - firefighters had not owed C duty to take reasonable steps to put fires out

Stovin v Wise (1996) --> S knocked off motorbike and severely injured when hit by oncoming car at a junction --> HL rejected claim D highway authority had owed S duty to take reasonable steps to flatten the bank

Gorringe v Calderdale MBC (2004) --> C driver argued D highway authority owed her duty to warn her to slow down when approaching curve in road --> avoid crashing --> HL rejected

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Omissions (2)

Some situations are more difficult to characterise as acts or omissions --> fallen sign problem

Haseldine v Daw (1941) --> engineers employed to service lift in block of flats --> failed to put component back in --> lift fell to bottom of shaft with --> C injured --> CA held engineers liable --> act case because not only failed to replace component but signalled lift ready to work again

Anns v Merton LBC (1978) --> block of flats constructed on inadequate foundations --> omisssions case --> HL created big exception --> found D local authority did owe C in Anns a duty of care, despite lack of special relationship or circumstances

Scope cut down in HL ruling in Murphy v Brentwood (1991) --> duty geared towards protecting people from suffering physical harm as result of building falling down, rather than protecting people likke C from suffering pure economic loss

In theory Anns-type situation --> building falls down and C injured as a result, C can sue both builder and local authority

In practice Stovin v Wise and Gorringe v Calderdale MBC (2004) make it likely that if such a cse came to court, Anns would finally and definitively be overruled 

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Omissions (3)

If act and omission have same consequence why should they not be regarded as equally culpable, and equally deserving of some legal sanction? In some cases an omission might be even omore culpable than act if we simply jduge consequences?

Trolley problem --> ordinary morality tells us to divert trolley (act) but we still hesitate over whether this is permissible --> shows acts occupy special place in our moral philosophy

What if only 1 person on each track? --> same consequences but omission seems less culpable

Even if there is common morality recognition for this is doens't explain exactly why there is such a distinction in law

Not legitimate for State to reinforce someone's moral duty to act in this case with a legal duty --> number of reasons why:

(1) Intrusiveness --> not free to do anything but x --> severe limits on freedom

(2) Certainty --> concern to avoid uncertainty or lack of clarity --> if you extend it, where do you draw the line?

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Omissions (4)

(3) Moral crowding out --> by making people act in a certain way you restrict their ability to choose to act in that way --> less space to engage in random acts of kindness that may result in development of positive relationships

(4) Preserving autonomy --> deprived of sense that lives were genuinely their own

(5) Deterring rescue --> A may be discouraged from helping B for fear that if he does try he will expose himself to risk fo a lawsuit if he is unsuccessful

(6) Unfairness --> why pick on me? --> cases of picking one person out of possible group; cases of the duties falling disproprotionately on public-spirited citizens (no reason why they should be disadvantaged)

(7) Public interest --> not the main reason but may strengthen court's stance

(8) Individual responsibility --> unwilling to recognise that a TP is under duty to save A from harm because doing so may end up allowing whoever was primarily responsible for putting A in harm's way to dilute his responsibility for what has happened

Despite this number of situations where duty to act is recognised --> link to criminal liability

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