Tort A - Duty of Care

This was a landmark House of Lords decision. The claimant's friend bought her a bottle of ginger beer which she discovered contained the remains of a snail and she was violently sick. She could not sue the cafe owner in contract because of contract privity so instead sued the manufacturer of the beer. It was held that the manufacturer owes a duty of care to the consumer and the manufacturer had been negligent allowing the snail to get into the bottle. 

This decision went against previous laissez-faire and individualist policy and set the precedent of owing a duty of care.

Lord Atkin in this case set out the NEIGHBOUR PRINCIPLE - take care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour - those who are closely and directly affected by an act that ought reasonably to be in contemplation as being affected.

A duty of care now arose - reasonable see that act or omission would affected a neightbour.  FORESEEABILITY AND PROXIMITY

Following this case, the tort of negligence expanded to cover new duties between defendendant and claimant. It was applied broadly 

The local authority approved plans of new houses to be built, but the wrong foundations were built and no inspections were made by the council, the houses became damages. Couldn't sue builder due to no contractual relation, and so they sued the local authority. The House of Lords held that there was a duty of care in this case. 

Lord Wilberforce created an enhanced version of the duty of care with a two-stage test. 

STEP 1 - is there a sufficient relationship of proximity?

 - IF YES - 

STEP 2 - Are there any considerations which should lead the court to deny a duty of care?

This two-step test was majorly flawed and was eventually abandoned. There was a specific reference to policy considerations, and it expanded the duty of care too much, with insufficient attention being given to INDETERMINATE AND CRUSHING LIABILITY. 

The decision in Anns was overturned by the House of Lords - the case had similar facts to Anns itself. 

The Anns test had been critixised as a test of foreseeability, which was not enough to form a duty of care. Proximity was needed also, and policy considerations could not be so openly regarded.

The court wished instead to follow the Australian approach which was 'incremental' - novel categories of negligence developed incremetally rather than under a general principle. 

The Caparo test has now replaced the Anns two-stage test. The House of Lords rejected the notion of a single general principle for the existence of a duty of care and concluded that in future, to establish a duty of care:

1. THE CLAIMANT MUST POINT TO A DIRECT PRECEDENT OR TO A CLOSELY ANALOGOUS PRECEDENT WHERE A DUTY OF CARE HAS BEEN IMPOSED

OR

2. IN CASES WHERE NO RELEVANT PRECEDENT EXISTS, THE COURT SHOULD APPLY THREE CRITERA TO DETERMINE WHETHER OR NOT THERE IS A DUTY OF CARE.

The three-stage Caparo test was therefore established for cases where no precedent exists:

FORESEEABILITY                    PROXIMITY                 FAIR, JUST AND REASONABLE

Damage must be foreseeable, there must be a sufficiently proximate relationship between the parties, it must be 'fair, just and reasonable' for the court to impose a duty of care in light of poloicy considerations.It is sometimes referred to as the three-fold test, considered ALL AT ONCE

The question is not what the defendant ACTUALLY foresaw, but what a REASONABLE PERSON IN THE CIRCUMSTANCES OF THE DEFENDANT OUGHT TO HAVE FORESEEN. 

It must be reasonably foreseeable that the conduct of the defendant will affected the particular claimant in the case - an OBJECTIVE test

A heavily pregnant woman was descending froma  tram when she heard a traffic accident caused by Young, the defendant's, negligence, speeding on his motorbike when he crashed into a car and was killed. Bourhill did not see theaccident but arrived at the scene and saw blood on the road. She suffered from nervous shock and suffered a miscarriage, and sued in negligence. 

The House of Lords said the claimant was too far removed from the scene of the accident to be reasonably foreseeable victim. It was not possible that Young would have reasonably foreseen that she would suffer, especially since he never even saw her.

A man ran towards a train pulling away, when a railway employee gave him a helpful push causing the man to drop a box of fireworks, which then exploded, knocking over some scales which fell onto the plaintiff. The New York Court of Appeal rejected her claim for damages, holding that she was not a foreseeable victim of the employee's negligence

The board dug a giant hole with no barriers outside a school for the blind. Haley fell down the hole causing him to go deaf. This eventuality was held to be reasonably foreseeable and a duty of care arose, as there were more visually impaired people living in the area. 

The stationmaster of a small station living next to a railway line left his garden gate open, and his small son got onto the tracks. The stationmaster tried to move the child, but the driver who was failing to pay attention hit them both, killing the stationmaster and severely injuring the child. It was held to be foreseeable that a member of staff may be present on the tracks, but not the young son, and so the duty of care was only owed to the stationmaster. 

Proximity referes to the closeness of the relationship between the defendant and the claimant - the degree of closeness which the law will require before imposing a duty of care, differing according to the type of damage. 

Eg, in economic loss and psychiatric injury, a close relationship is required, whereas in physical injury, the requirement of proximity is more easily satisfied. 

During a boxing match, Watson suffered brain damage. If a suitable doctor had been ringside the brain damage would have been prevented. A relationship of proximity was created and they were held to be negligent. 

The British Geological Survey was testing ground water and built wells in Bangladesh funded by the government, testing for a range of things, but not arsenic. A water supply was built believed to be safe, but Sutradhar brought a claim in negligence after falling ill. The House of Lords said no duty of care was owed because there was no sufficient relationship of proximity. 

Bharma had an allergic reaction to egg at a Sikh wedding where no eggs should have been served. It was reasonable for the man to rely on the fact that there would be no eggs and there was therefore a duty of care. However, generally, if there were an undifferentiated amount of people then there wouuld have been no duty of care.

This requirement tends to allow the court to deny the existence of a duty of care in certain situations, but where they cannot rely on foreseeability or proximity to deny a duty of care.

It allows the courts to determine liabililty on the basis of policy considerations.

William Hill the betting service entered into a self-exclusion arrangement with Calvert who had a gambling addiction, and agreed not to accept any bets from him for 6 months. By accident the arrangement was never implemented and he continued betting, losing £1.8 million. The Court of Appeal held that even if the self-exclusion arrangement had been implemented, Calvert would have spent this money elsewhere and that it was necessary for Calvert to take responsbility for his own actions. 

PRESERVING INDIVIDUAL AUTONOMY - people must take responsibility for their own actions

During an amateur rugby match a member of the team was injured and replaced by an inexperienced player. The scrum kept collapsing, injuring a player. The referee was held to owe a duty of care to the players in preventing accidents such as these by not playing scrums 

The Congenital Disabilities Act of 1976 allows that if a child is born disabled as a result of an injury to either parent affecting their ability to have a normal child, they may sue for the resulting disability, but it will be necessary to show on a balance of probabilities that the negligence caused the child's injury. It does not only extend to cover situations where the foetus is injured but alos before a child is conceieved. 

The Act does not allow children to bring claims against their mothers, apart from when a mother injures the child by negligently driving a motor vehicle when she ought to know she is preganant (the moral objections to this are prevented by the fact that the mother would be insured in this situation). The general immunity granted to mothers does not extend to fathers. 

Moral objections have prevented the courts from holding that an unborn child is a foreseeable claimant in wrongful life cases - where a disabled claimant said they should never have been born. This is because disabled life should not be considered to be less valuable thatn normal life. 

In this case, the claimants had 4 children and decided they didn't want anymore. The husband had a vasectomy and was neglgiently told that his sperm count was low and that he no longer needed to use contraception. Mrs McFarlane became pregnant and they had another daughter called Catherine. Because they didn't want the child they brought a claim.

The mother claimed for her pain, suffering and loss of amenty during pregnancy and claimed special damages such as medical expenses, the cost of pregnancy clothes and her loss of earnings. 

The parents also brought a joint claim for the costs of bringing Catherine up. 

It was held that - for the mother's claim - a duty was owed, as the mother could foreseeably be harmed by the negligence and was sufficiently proximate. For the joint claim, it was held that no duty was owed. It would not be fair, just and reasonable to impose a duty of care, as a child should be considered a blessing, and they should therefore bear the cost of the disadvantages of having children. There was also the question of quantification - where would the costs end? It would be distasteful for the NHS to be paying such huge damages; an unfair use of limited public resources.

The mother of a child sued after getting pregnant when the father had had a vasectomy. However, it was held that there was no sufficient proximity, as the father had been single before making the decision to have a vasectomy and the child was born 3 years later, and so there was no proximity between BAS and the mother, as Goodwill was one of an indeterminately large class of females that the father may have had sex with during his lifetimes. 

It was the known relationship in McFarlane that gave rise to sufficient proximity. 

The claimant already had 4 children and then had a child with special needs following a negligently performed sterilisation operation. She was entitled to recover damages in respect of bringing up the child for its care relating the disability, but not for basic costs of maintenance. 

The analysis treats a disabled child as having the same worth as an ordinary child, but simply acknowledges that they cost more to bring up. She was able to recover extra costs due to the disability caused by the sterilisation. 

A child was born healthy following a sterilisation but the mother was blind, and therefore needed assistance with absolutely everything. The mother had had the sterilisation because she was unable to look after a child. The parents ha dbeen denied the opportunity to lvie her life as planned, and a vindicatory/conventional award of £15,000 was made for her loss of autonomy. 

This decision was heavily criticised.