June 2013 - Outline the tests used to decide whether a duty of care is owed.

Duty of Care was established in Donoghue v Stevenson.

Mrs Donoghue's friend bought a ginger beer in a cafe, which came in an opaque bottle. Mrs Donoghue drank some of the drink and realised that there was decomposed reamins of a snail in the drink. She became ill after drinking it.

Lord Atkin developed the law of negligence through the neighbour principle and said "you must take reasonable care to avoid acts or omissions which are reasonably foreseeable to injure your neighbour".

The problems with the neighbour principle was that: no clear boundaries were set, the 'floodgates of litigation opened and the state became claim conscious.

The 'modern-day test' was developed in Caparo v Dickman, using a 3 stage test to establish a duty of care.

1) Is it reasonably foreseeable that a person in the claimant's position would be injured?

2) Is there sufficient proximity between the parties?

3) Is it fair, just and rasonable to impose liability on the defendant?

The first test is an objective test.

In Kent v Griffiths, the ambulance didn't arrive on time and the patient suffered a heart attack. It was held that a duty of care was owed, as it was reasonably foreseeable that the claimant would be injured.

In Topp v Loundon County Bus, the company left an unattended and unlocked bus overnight, with the keys in the ignition. Thieves stole the bus and killed a lady on her bicycle. It was held that a duty of care was not owed as it was not reasonably foreseeable that they would kill someone.

Proximity means closeness.

In Bourhill v Young, the claimant heard a collision 50 feet away. She saw a lot of blood at the scene but not the deceased body. No duty of care was owed, as there was not a sufficient proximity during the incident.

In McLoughlin v O'Brian, the claimant's family was involved in a car crash. She saw her family suffering before they had been treated, she suffered severe shock as a result. The HL held that a duty of care was owed and she was entitled to the recovery for psychiatric injury. Proximity was extended to those who come within the immediate aftermath of the incident.

There is a blanket of immunity on those in the public services.

In Hills v CC of South Yorkshire, the claimant said that if the police had caught the "The Ripper", then her daughter wouldn't have died. It was not fair, just and reasonable so the police had no duty of care. This could lead to the police working to prevent claims against them instead of protecting society.

In MPC v Reeves, the police arrested a man who was a high risk for suicide. Whilst in custody, he hung himself. It was fair, just and reasonable so the police owed a duty of care.