TORT OF NEGLIGENCE Duty of Care I: Foundational Principles Dr Amanda Odell-West

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TORT OF NEGLIGENCE

The largest and most important tortNot defined or limited to the protection of a single type of right or interest instead, the primary focus concerns the defendants conductNegligence not actionable per se (absent C sustaining loss or injury)Negligence, in order to give a cause of action must be the neglect of some duty owed to the person who makes the claim: per LJ Greer in Haynes v Harwood.

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Accident Compensation for PI1.8 billion for solicitors 31 March 2012, the NHSLA estimates that it has potential liabilities of 18.9 billion, of which 18.6 billion relate to clinical negligence claimsLegal Aid, Sentencing and Punishment of Offenders Act 2012 s. 56

Elements of the Tort

Duty (owed by D to C to take reasonable care)Breach (D falls below the standard of reasonable care) Causation (the breach causes the damage C complains of)Remoteness (in the view of the court, the damage is not too remote)Defences

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Duty of Care: Historical Overview

Landmark decision: Donoghue v Stevenson [1932] A.C. 562 Recognition that a duty of care could be owed outside a contractual relationship (Lord Atkin at 599) Categories of negligence never closed (Lord Macmillan at 619) Lord Atkins neighbour principle to take reasonable care

Donoghue v Stevenson [1932]

Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably forsee 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

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Consider the following:A driver in a pedestrian zone swerves to avoid a drunk man who falls over; the driver runs over the mans kneeA (blind) man falls down a 10 ft hole in the pavement, cordoned off by Electricity BoardA passerby walks past a baby who is face down drowning in a puddleA decorator forgets to lock up as requested

by the home owner and the house is burgled

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Anns v Merton LBC [1978] AC 728Lord Wilberforce: 2-stage test for dutyWas the harm to C foreseeable, so bringing him within Lord Atkins neighbour principle?If yes, were there any policy reasons to deny a duty to C?

Expansion of Negligence Liability

Anns v Merton LBC [1978] McLoughlin v OBrian [1982]Home Office v Dorset Yacht Co Ltd [1970]

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Contraction of Negligence Liability

Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210.Suspicious injuries, such as psychiatric injury (PSI) and economic loss; and claims against public bodiesCaparo Industries v Dickman [1990] 2 AC 605.

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Caparo v Dickman at p.617 per Lord Bridge What emerges is that, in addition to the forceability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed, a relationship characterised by the law as one of proximity or neighbourhood and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.

Caparo: Lord Bridge Observed that the duty ingredients are insufficiently precise to be used as practical testsCommended desirability of proceeding by analogy with established categories of negligence

Caparo: Lord OliverTo postulate a simple duty to avoid any harm that is, with hindsight, reasonably capable of being foreseen becomes untenable without the imposition of some intelligible limits to keep the law of negligence within the bounds of common sense and practicality although the cases in which the courts have imposed or withheld liability are capable of an approximate categorisation, one looks in vain for some common denominator by which the existence of the essential relationship can be tested.

IncrementalismBrennan J in Sutherland Shire Council v Heyman [1985] The Nicholas H [1996] To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials, per Laws LJ in Connor v Surrey CC [2010]

IncrementalismSmith and others v The Ministry of Defence [2013] UKSC 41Whether the MOD breached article 2 of the European Convention on Human Rights Other claims based on negligence at common law

IncrementalismMOD invoked combat immunityWhether this defence should be extended from actual or imminent armed conflict, to failures at an earlier stage?

IncrementalismTo apply the doctrine of combat immunity to these claims would involve an extension of that doctrine beyond the cases to which it has previously been applied. That in itself suggests that it should not be permitted. I can find nothing in these cases to suggest that the doctrine extends that far Lord Hope

http://www.bing.com/videos/search?q=donoghue+v+stevenson&FORM=HDRSC3#view=detail&mid=31319F5DAC26D1F71E2531319F5DAC26D1F71E25

Mickles1424 5 months ago I love being a law student sometimes

Duty of Care: Basic PrinciplesCaparo Industries v Dickman [1990]

... the modern backdrop against which to judge any putative negligence claimForeseeable DamageRelational Proximity between C and D, andFair, Just and Reasonable

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(1) Foreseeable Harm

The test is objective whether injury to C could have been reasonably forseen (or injury to a class in which C belongs).Haley v London Electricity Board [1965]

.. what a reasonable man, careful of his neighbour's safety, would do having the knowledge which a reasonable man in the position of the defendant must be deemed to have.

(2) Proximity

The factual relations between the parties which signify the potential for D to cause harm to C. Proximity is, no doubt, a convenient expression as long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which pragmatically, the courts conclude that a duty of care exists.Goodwill v British Pregnancy Advisory Service [1996] 1 WLR 1397: C member of an indeterminate class ouch!

(3) Fair, Just and ReasonablePerrett v Collins ... where circumstances comply with established categories of liability, a defendant should not be allowed to seek to escape from liability by appealing to some vaguer concept of justice or fairness ... (per Hobhouse LJ).

(3) Fair, Just and Reasonable...it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong Smith and others v The Ministry of Defence [2013], per Lord Hope, at [100].

999 Services

Hill v CC West Yorkshire [1988]Capital & Counties Plc v. Hampshire County Council [1997] CAKent v Griffiths [2001] CA

Duty in Respect to OmissionsPure omission: Stovin v Wise [1996]It is one matter to require a person to take care if he embarks on a course of conduct which may harm others. It is another matter to require a person who is doing nothing to take positive action to protect others from harm for which he is not responsible.

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Pure OmissionSutradhar v National Environment Research Council [2006]Omission where a relationship and obligation to act exists: Lord Atkin in Donoghue v Stevenson

Exceptions

Reeves v Commissioner of the Police for the Metropolis [2000] HL

Exceptions Barrett v Ministry of Defence [1995]Watson v British Boxing Board [2000]The MOD v Radclyffe [2009]

Capital Countries Plc v Hampshire CC [1997]

Should a positive duty to try to assist someone in danger by taking reasonable steps where there is no risk to oneself, be created in English law?

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Liability for Acts of Third Parties

Harm caused to C due to failure on the part of D to control/guard against the act of a third party. As a general rule, D not subject to a duty to protect individuals from the tortious conduct of others: Smith v Littlewoods Organisation Ltd [1987]

Special Relationship between C and D

Stansbie v Troman [1948] The act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that in fact happened per Tucker LJ.

Special Relationship between D and Third PartyHome Office v Dorset Yacht Co Ltd [1970]Borstal officers had owed the plaintiffs a duty to take such care as was reasonable in all the circumstances with a view to preventing the boys under their control from causing damage to the plaintiffs' property if that was a happening of which there was a manifest risk if they neglected that duty

Creating a Source of Danger

Haynes v Harwood [1935]Topp v London Country Bus [1993]Smith v. Littlewoods Organisation Ltd: whether there was a duty of care to protect against the wrongful acts of third parties was a matter for the judges of fact to determine.

Failure to Abate a Known Danger

Smith v Littlewoods [1987] Clark Fixing v Dudley Met BC [2001]

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