Liability for omissions
A) misfeasance/ non feasance distinction- there is a difference between making things worse and simply failing to make things better. See Stovin and Wise 1996.
There is no duty to rescue- Capital and Counties Plc v Hampshire County Council 1997 (fire service) and OLL v Sec of State for Transport (coastguard.) 1997
Contrast- Kent v Griffiths 2000 (ambulance service)
B) existing categories of exception to the no-duty-for-ommissions rule:
i) the defendants creation of a source of danger- Haynes v Harwood 1935
ii) the defendants undertaking of responsibility for the claimants welfare- Watson v BBBC 2001 and Kent v Griffiths 2000.
iii) defendants occupation of an office or position of responsibility- parents/children- Perry v Harris 2008, teachers/pupils- Carmanthenshire CC v Lewis 1955, drs/patients- Barnett v Chelsea and Kensington 1969, and property owners- Goldman v Hargrave 1967.
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C- The position of rescuers as victims (claimants)-
Danger invites rescue- Haynes v Harwood 1935, Baker v TE Hopkins 1959 and Videan v British Transport Commission 1963.
Exceptional duty of care- third party liability
Third party liability- ordinary fault based liability ie liability triggered by the conduct of the defendant. Defendant being held to account for own personal failings. Regards degree of directness between conduct of defendant and harm complained of- in third party cases defendant not the one who actually inflicts the hamr, involved rather as outside player. Generally targeted on basis of failure to prevent harm.
If you can establish the existence of an exceptional duty to control the acts of another, you still need to establish breach and causation before you have liability.
Founding principles of ordingary fault based third party liability-
Home Office v Dorset Yacht 1970- authority for the existence of duty were i) there is a very strong relationship of authority and control between the defendants and the perpetrator. ii) that the claimant comes within a narrowly defined class of potential victims and iii) that hte harm causing conduct of the third party was at least something that was very likley to occur in the circumstances.
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Possible applications of Dorset Yacht duty: a) relationship between prison authorities and inmates giving rise to obligation on part of prison authorities to prevent inmates from harming each other. Ellis v Home Office 1953, D'Arcy v Prison Commissioners 1955 and Palmer v Home Office 1988.
Duty is based on the existence of two special relationships of proximity- one as between the defendant and the third party harm doer, and another as between the defendant and the victim.
Extension of such liability to cover acts of self harm by prisoners who are known to have such tendencies- Kirkham v Chief Constable of Greater Manchester Police 1990, Reeves v Commissioner for the Police of the Metropolis 1999 and Orange v Chief Constable of West Yorkshire Police.
b) relationship between health authorities and psychiatric patients- Holgate v Lancashire Mental Hospitals Board 1937 and Palmer v Tees AHA 1999. Again 2 special relationships of proximity required. Actions by pyshciatric patients of failure to prevent them doing criminal acts will fail as a matter of policy- Clunis v Camden and Islington Health Authority 1998. Also Gray v Thames Trains.
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c) Parent/child relationship- policy considerations making it difficult to establish the liability of parents for acts of their children. Case law indicates that an affirmative duty on part of parents to prevent their children from harming others will only arise where the parents themselves have somehow actively contributed to the risk of harm eg buying their child a gun. - Newton v Edgerley.
But in contrast someone exercising a significant degree of care and control over a child may come under this duty- Carmanthenshire County Council v Lewis 1955. But see Perry v Harris 2008 re breach issue. Moreover it seems that parents are not even under an automatic duty to their own children to protect them from foreseeable harm- Surtees v Kingston upon Thames Borough Council 1991, McCallion v Dodd 1966 and Hahn v Conley 1971.
Other existing categories- i) liability in respect of the intoxicated- Barret v Ministry of Defence 1995- liability based on an assumption of responsibility. ii) Third party liability in sport- Smolden v Whitworth 1996- need two special relationships of proximity. iii) liability of property owners- P Perl v Camden LBC 1984 and King v Liverpool Council 1986.
Exception DoC- public authorities
1) no general duty to affirmative action- Stovin v Wise 1996 and Gorringe v Calderdale Metropolitan BC.
2) significance of policy arguments- X (a minor) v Bedfordshire County Council 1995- five appeals involving abuse and education.
Lord Browne Wilkinsons approach- 1) Will the inquiry into the defendant authoritys conduct involve a consideration of any high level of policy matters? If so court cannot intervene and claim fails straight away on the grounds that it is not judiciable. 2) has the defendant authority acted wholly outside the ambit of its statutorily conferred discretion? 3) application of the Caparo test for duty. At the fair, just and reasonable stage further policy considerations will be taken into account.
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Why did X v Bedfordshire fail?
1) a common law duty of care would cut across the whole statutory system set up for the protection of children.
2) the task of the local authority in dealing with such children is 'extraordinarily difficult'.
3) the spectre of liabilty would perhaps cause local authorities to adopt a more cautious and defensive approach to their duties.
4) the uneasy relationship between the public authority employee and the child parents would become a breeding ground for hopeless litigation.
5) there were alternative remedies available in the form of the statutory complaints procedures or an investigation by the local government ombudsmen.
Further consideration- will the imposition of the common law duty of care give rise to a conflict with the defendants statutory obligations? Jain v Trent Strategic Authority.
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3) Blind application of policy based reasoning: Osman v Ferguson 1993, Hill v Chief Constable of West Yorkshire Police 1988
4) The confusing period between the ECHR decisions in Osman v UK and Z v UK- Osman v UK 1999, Barrett v Enfield LBC 1999, W v Essex County Council 1998 and Z v UK 2001.
5) the impact of the human rights act 1998 on the common law negligence action against public authorities and the singling out of child protection workers- JD v East Berks 2005 and Merthyr Tydfil CBC v C 2010. Note that defensive practise argument was rejected.
6) special treatment of police defendants- Brooks v Commissioner for Police of the Metropolis 2005 and Smith v Chief Constable of Sussex Police 2008.
7) alternative action under s7 of HRA for breach of s6 duty to uphold ECHR rights- Van Colle v Chief Constable of Hertfordshire 2008 and Savage v South Essex 2008.
Other points to consider on hand out. Child protection workers- policy based immunity partially removed, police- policy based immunity largely intact.
duty of care psychiatric harm
1) Background- Victoria Railway Commissioners v Coultas 1888, Dulieu v White 1901, Hambrook v Stokes 1925 and McLoughlin v O'Brien 1983.
2) the current duty of care test: the primary/secondary distinction- Alcock v Chief Constable of South Yorkshire 1992- specific control mechanisms re secondary victims. Page v Smith 1996 - clarified the position of primary victims. White v Chief Constable of South Yorkshire 1999- clarified the position of rescuers. Greatorex v Greatorex 2000- dont owe a duty of care to third parties in self inflicted injury. Rothwell v Chemical and Insulating Co 2007.
3) problems with the primary/secondary victim distinction- when not shocking/in harms way. W v Essex County Council 2001, Farrell v Avon 2001, Hatton v Sutherland 2002, and Barber v Somerset 2004.
Exceptional duty of care- economic loss.
1) background- i) basic position in negligence- no recovery for pure economic loss- Spartan Steel.
ii) contrast the tort of deceit- Derry v Peek 1889
iii) distinction between pure economic loss and property damage- Anns v Merton London BC 1978, D and F Estates v Church Commissioners for England 1988, and Murphy v Brentwood DC 1990.
2) exception to the no duty rule- Hedley Byrne v Heller 1964- special relationship consisting of an assumption of responsibility and reasonable reliance. Mutual Life v Evatt 1971, Esso Petroleum v Mardon 1975, Chaudhry v Prabhakar 1988 and Caparo v Dickman 1990.
3) extensions of the Hedley Byrne principal- i) Henderson v Merrett Syndicate 1994- pure economic loss caused via the negligent provision of service. ii) Spring v Guardian Assurance 1994- negligent references. iii) White v Jones 1995 and Gorham v BT 2000- the wills cases-disappointed third party beneficiaries.