General Negligence - Duty Of Care

Front 1

Donoghue v Stevenson [1932]

Back 1

Manufacturers owe a duty of care to consumers of their food and drink products.

The plaintiff had accompanied her friend for tea in a café. Whilst there, the friend had ordered and paid for some ginger beer for the plaintiff. The beer came in an opaque bottle, which, to the plaintiff’s horror, when poured out was found to contain the decomposed remains of a snail. The plaintiff claimed she had been made ill by this but was unable to sue the café owner, as there was no contract between them. Instead, she sued the manufacturer. Duty of care established.

Front 2

Home Office v Dorset Yacht Co [1970]

Back 2

Case started the departure from strict categories to an application of Lord Atkin’s test from Donoghue v Stevenson. It would make establishing a duty of care very easy for about 20 years.

Exception to the General Rule of Omissions: If the defendant has care and control over the third party, then a duty of care may be established.

The case concerned the Home Office’s liability for the carelessness of prison officers who allowed some juvenile delinquents in their care to escape and cause a great deal of damage to boats and property in Poole Harbour. The House of Lords held that the Home Office, through its officers (i.e. vicariously) did owe a duty of care.

Front 3

Anns v London Borough of Merton [1978]

Back 3

Case established a new test for duty of care (by Lord Wilberforce):

1. Is the loss reasonably foreseeable? If so, there is automatically a relationship of proximity.

2. A duty should be imposed unless that are policy reasons not to do so.

The test was too vague, could be satisfied too easily.Opened litigation floodgates. Overruled in 1990. Cases established with this test must be considered in a questioning light.

Front 4

Caparo Industries plc v Dickman [1990]

Back 4

Overruled Anns test. Established new test (as per LordBridge):First, look for a precedent. If none exists, then apply test.

1. Was the damage to the claimant reasonably foreseeable?

2. Was there a relationship of sufficient proximity between the claimant and the defendant?

3. Is it ‘fair, just and reasonable’ for the law to impose a duty of care in the situation?

Front 5

Watson v British Boxing Board of Control [2001]

Back 5

Example of how the Caparo v Dickman test is used. A boxer’s claim that immediate medical attention should have been available at the ringside was upheld. The injury was foreseeable, the boxing licensing system meant there was close proximity and it was fair, just and reasonable to impose a duty.

Front 6

Law Society v KPMG Peat Marwick [2000]

Back 6

A firm of auditors did owe a duty of care to the Law Society in preparing accurate reports for a solicitors practice as required under the professional code of conduct.

Front 7

Spring v Guardian Assurance plc & Others [1995]

Back 7

Employers owe a duty of care to give careful job references about their (current or former) employees.

Front 8

White v Jones [1995]

Back 8

A solicitor owes a duty of care to the proposedbeneficiary of a will. Here, the beneficiary was not included in the willbefore the death of the testator as a result of the solicitor’s delay indrafting a new will.

Front 9

Rondel v Worsley [1969] and Saif Ali v Sydney Mitchell & Co [1980]

Back 9

Originally, those in the legal profession had immunity from claims of negligence as it was feared that giving them a duty of care would hamper the exercise of their profession.

Front 10

Hall (Arthur J.S. & Co v Simons [2000]

Back 10

Solicitors and Barristers no longer have immunity from claims of negligence.

Front 11

Hunter v Chief Constable of the West Midlands Police [1982]

Back 11

In criminal cases, where the accused still stands convicted of the offence, any attempt to challenge the competence of the advocate will generally fail. However, if the conviction is set aside on appeal there can be no such objection to a negligence claim.

Front 12

Jones v Kaney [2011]

Back 12

Expert witnesses in court paid for by a client to giveevidence on their behalf also no longer have immunity to claims of negligence.

Front 13

Rigby v Chief Constable of Northamtonshire [1985]

Back 13

The police can be held liable for operational matters but not for policy matters: they owe a duty of care to victims who have suffered loss as a result of operational errors.

Here, the police had negligently fired a canister of CS gas into the plaintiff’s shop, which was under siege, without taking adequate precautions against the high risk of fire When a fire occurred, the plaintiff was successful in his claim against the police, as this was a negligent operational act.

Front 14

Hill v Chief Constable of West Yorkshire [1989]

Back 14

The police do not owe a duty of care to potential victims ofcrime.

The mother of the last victim of Peter Sutcliffe, the‘Yorkshire Ripper’, sued the police for negligently failing to apprehend Sutcliffe earlier. He had been questioned by police and released and had subsequently murdered again. The House of Lords refused to impose a duty of care as there was insufficient proximity between any woman, as a potential victim of a crime, and the police. Also, on policy grounds, the threat of liability in such cases would lead to the police adopting defensive practices and may result in a waste of resources and inefficient use of police manpower.

Front 15

Alexandrou v Oxford [1993]

Back 15

The police do not owe a duty of care to potential victims of crime.

The plaintiff’s action failed against his local police after they had ignored a message from his burglar alarm. They owed him no duty of care either to check his property or respond to the alarm’s message.

Front 16

Leach v Chief Constable of Gloucester [1999]

Back 16

The police do not owe a duty of care to witnesses of policeinterviews.

Here, the plaintiff had been a lay witness to a policeinterview; a requirement under the Police and Criminal Evidence Act 1984. She had sat in on several interviews with Frederick West (a suspect accused of a series of murders). As a result of this, she suffered Post-traumatic stress syndrome. In her claim, she stated that the police had owed her a duty of care to inform her of the disturbing nature of the case. The Court of Appeal dismissed her claim. The sort of person who could act as a lay witness was very wide and it would impose too onerous a burden on the police force to psychologically test every person who could potentially hold such a position.

Front 17

Swinney v Chief Constable of Northumbria (No. 2), The Times,25 May 1999

Back 17

Police do not have ‘blanket immunity’. The Police owe a dutyof care to informants.

The claimant was a pub landlady who had provided the policewith information concerning a suspect involved in the death of a policeofficer. She had made it an absolute condition that she remained anonymous.Nevertheless, a police file containing her details was left unattended in a police car and was stolen. On being told this she suffered psychiatric illness and had to give up her job. As in previous cases, the police argued that there was no relationship of proximity between them and the claimant and, even if there were, policy reasons would prevent such a duty existing. The Court ofAppeal disagreed. Informers should not be considered like other members of the public; they had a special relationship with the police, which created sufficient proximity. Policy was considered but, in this case, acted in the claimant’s favour, in that to deny that the police owe a duty might be to hinder the disclosure of confidential information. However, judgment was nevertheless granted in favour of the defendant on the basis that there had been no breach of the duty – the police did owe a duty of care, but this duty had not been breached.

Front 18

An Informer v A Chief Constable [2012]

Back 18

While the police do not owe a duty of care to an informer in respect of pure economic loss, they do owe him a duty in respect of his physical safety – the relationship between the police and the informer is a confidential one, and the police owe an informer a duty of care to protect him from risks to his personal safety and wellbeing to which he was potentially exposed as a result of his activities in providing information about others.

Front 19

Reeves v Metropolitan Police Commissioner [2000]

Back 19

The police were found to hold a duty of care to a mentally ill prisoner who committed suicide whilst in custody.

Here the police had a high degree of control over the victim and it was well documented as to the likelihood of some prisoners committing suicide.

Front 20

Desmond v Chief Constable of Nottinghamshire Police [2011]

Back 20

The police did not owe a duty of care to the claimant when they denied his CRB check thus impeding his employment as a teacher. Such a duty would have conflicted with the statutory purpose of protecting vulnerable young people.

Front 21

Waters v Commissioner of Police of the Metropolis, TheTimes, 1 August 2000

Back 21

The claimant suffered psychiatric injury having been raped by a fellow police officer and ostracised and bullied by her colleagues. She claimed that the police authorities had failed to deal with her complaint properly and had allowed other officers to victimise her.The House of Lords held that in deciding if immunity existed, consideration had to be given to the primary role of the police(namely to deter crime) and to the wider public interest issue of ensuring the police service is run both efficiently and as a responsible employer. They ruled in the claimant’s favour.

Front 22

Osman v Ferguson [1993]

Back 22

A pupil was shot and his father killed by a stalking teacher. The teacher was convicted of manslaughter and sentenced to be detained in a mental hospital. The civil action of negligence against the police was struck out by the Court of Appeal on the grounds that there was no cause of action because of the policy reasoning given in Hill v Chief Constable of West Yorkshire Police.

Front 23

Osman v UK

Back 23

After Osman v Ferguson [1993], an application was made to the ECHR on the basis that there had been a breach of Article 6 (the right to a fair trial). The ECHR upheld the complaint. They said that the Court of Appeal had failed to consider the case on its own merit, that the litigant had been denied a full hearing and that the immunity given to the police was disproportionate in comparison to the infringement of the claimant's human rights. Struck out because the Court of Appeal felt it would not be fair, just and reasonable to impose a duty.

Front 24

Z v UK [2001]

Back 24

(Kind of) nullified Osman v UK.

Here, the ECHR admitted they misunderstood english tort law and, in particular, the difference between a substantive legal right and a procedural legal right. They agreed that there was no procedural bar preventing a litigant having a fair trial. Osman's case was struck out because the Court of Appeal felt it would not be fair, just and reasonable to impose a duty.

Front 25

Smith v Chief Constable of Sussex Police [2008]

Back 25

The claimant suffered severe injuries during an attack by his former boyfriend. The claimant had informed the police of a series of violent and threatening telephone, internet and text messages, including death threats. The police treated it as a domestic matter and declined to look at the messages or to take any steps to protect the claimant. His case was struck out by the House of Lords, holding that the policy reasoning outlined in Hill applied.

Front 26

Van Colle v Chief Constable of Hertfordshire Constabulary [2008]

Back 26

The victim was killed days before he was due to give evidence for the prosecution in a criminal trial. Instead of bringing a negligence action his parents sought to base their claim against the police on a breach of Article 2 ECHR (right to life). The claim failed because they were unable to satisfy the test established in Osman v UK that the police 'knew or ought to have known, with the information available at the time that there was a real and immediate threat to the life of an identified individual.' Contrast with Michael v Chief Constable of South Wales.

Front 27

Michael v Chief Constable of South Wales [2012]

Back 27

The Article 2 ECHR claim here was not struck out but returned for trial where the victim was stabbed by her former husband having called the police who failed to categorise her call properly. Contrast with Van Colle v Chief Constable of Hertfordshire Constabulary.

Front 28

Capital and Counties v Hampshire County Council [1997]

Back 28

The Fire Brigade does not owe a duty to respond to an emergency. However, if the fire brigade does attend and actually aggravates the situation, then it does owe a duty of care.

The alleged negligence consisted of a fire-fighter ordering that a sprinkler system, operating at the fire, should be turned off. It was held that the fire brigade's attendance at the scene did not, in itself, give rise to the requisite degree of proximity and it, therefore, followed that the fire brigade was under no duty to attend to the fire in the first place. However, the fire brigade aggravated the situation, giving rise to a duty of care: doing a positive act that makes the situation worse may result in a duty of care being owed.

"If [the defendant] volunteers his assistance, his only duty as a matter of law is not to make the victim's condition worse."

Front 29

John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority [1997]

Back 29

The Fire Brigade does not owe a duty to respond to an emergency.

It was alleged that the fire brigade left the scene before ensuring the fire was properly extinguished. It was held that the fire brigade's attendance at the scene did not, in itself, give rise to the requisite degree of proximity and it, therefore, followed that the fire brigade was under no duty to attend to the fire in the first place.

Front 30

Church of Jesus Christ of the Latter-Day Saints (GB) v West Yorkshire Fire and Civil Defence Authority [1997]

Back 30

The Fire Brigade does not owe a duty to respond to an emergency.
The fire service failed to ensure that an adequate supply of water was available at the scene of the fire. It was held that the fire brigade's attendance at the scene did not, in itself, give rise to the requisite degree of proximity and it, therefore, followed that the fire brigade was under no duty to attend to the fire in the first place.

Front 31

Kent v Griffiths & Others

Back 31

Here, the ambulance service was regarded as part of the health service and not a rescue service and so the policy arguments applicable to the police and fire brigade had no general application. The judgment of the court in Kent was that the acceptance of a 999 call by the ambulance service established a duty of care. The acceptance of the call established proximity between the parties. There might, however, be situations where a duty of care could be excluded where the service had properly exercised its discretion to deal with a more pressing emergency before attending to the claimant or where it had made a choice about the allocation of resources. The court also affirmed the distinction between operational and policy matters.

Front 32

Haynes v Harwood [1935]

Back 32

The law does not oblige a person to affect a rescue (i.e. there is no legal obligation to be a Good Samaritan) but will treat favourably a person who attempts to rescue a person and suffers harm in the process because of someone's negligence.

The defendant left a horse unattended and untethered in a busy street. When the horse bolted, a policeman was injured in the act of bringing the horse to a halt, which he did to prevent injury occurring to other users of the street. He was able to recover damages, as the necessity of his act in affecting a 'rescue' was a foreseeable result of the defendant's negligence.

Front 33

Cutler v United Dairies Ltd [1933]

Back 33

The law does not oblige a person to affect a rescue (i.e. there is no legal obligation to be a Good Samaritan) but will treat favourably a person who attempts to rescue a person and suffers harm in the process because of someone's negligence.

The plaintiff was injured trying to recapture a horse which had bolted and had come to a rest in a field. As there was no risk to either person or property he was not acting in an emergency and, therefore, he could not be regarded as a rescuer. As such, the claim failed.

Front 34

Baker v T.E. Hopkins & Son Ltd [1959]

Back 34

The law does not oblige a person to affect a rescue (i.e. there is no legal obligation to be a Good Samaritan) but will treat favourably a person who attempts to rescue a person and suffers harm in the process because of someone's negligence.

Here, a doctor was held to be a rescuer when trying to save some workman trapped down a mine.

Front 35

Carmarthenshire County Council v Lewis [1955]

Back 35

A local authority was held to owe a duty of care to a motorist who had been injured in a road accident.

The driver had to swerve to avoid a young pupil who had been left unsupervised in school and who had decided to go outside exploring. The decision was based on the special relationship between a school authority and the children in its care.

Front 36

Stovin v Wise [1996]

Back 36

A driver in a road traffic accident had injured the plaintiff. The first defendant had been unable to see the plaintiff because of an over hanging bank of earth which obstructed the view. The local authority became a joint defendant in that it was claimed that they were responsible for failing to clear the highway of an obstruction they were aware of and which had previously caused accidents. The House of Lords compared the situation between a statutory power and that of a duty and concluded that they were similar but not identical. In such cases, the courts should look on the construction of the statute in question, and ascertain from it whether Parliament had granted a power to act, or a (mandatory) duty to do so. Here it appeared that Parliament had created a power to act, not a duty and, therefore, it had not intended a private individual to have a right to compensation.

Front 37

X v Bedfordshire County Council [1995]

Back 37

This concerned five separate claims against a local authority for negligence; two cases concerned child abuse, the other three concerned educational provisions for special needs pupils. The House of Lords rejected the child abuse claims as it would not be just and reasonable to impose such a duty in an area where a degree of discretion is required and where there are differing opinions on the practice to follow. There were also alternative means by which such persons may bring a claim (judicial review actions). In the education cases, the Lords were of the opinion that it was arguable that a duty of care may exist. Here the advice given was made directly to the parents who relied on it.

Front 38

Palmer v Tees Health Authority, The Times, 6 June 1999

Back 38

Alleged negligence of a health authority in failing to properly identify the risks presented by a dangerous outpatient. The Court of Appeal found the local health authority not liable for the murder of Rosie Palmer by a psychiatric patient who was under their care. As in Hill, there was insufficient proximity between the parties.

Front 39

W v Essex County Council [2000]

Back 39

Signalled a departure from the strict approach to imposing a liability to Public Authorities.

Here, the claimants argued that, despite a request by them not to be given an abusive foster child, the local authority allowed a 15-year-old boy into their care knowing he had abused his sister. In the event, he sexually abused the claimant's daughter.

The House of Lords allowed the case to be heard - rejecting arguments on policy. The council had made assurances that they failed to meet.

Front 40

Barrett v Enfield London Borough Council [1999]

Back 40

Continued the trend started by W v Essex County Council.

A duty was owed to a 17-year-old who had been in local authority care and had been moved between six different homes subsequently developing alcoholism and social problems in adult life.

Front 41

Phelps v Hillingdon London Borough (2000)

Back 41

Continued the trend started by W v Essex County Council.

Misdiagnosis by local authority psychologist as to the claimant's dyslexia whilst a child.

Front 42

Jarvis v Hampshire County Council [1999]

Back 42

Continued the trend started by W v Essex County Council.

Local authority were accused of negligence in the provision of educational services.

Front 43

S v Gloucestershire County Council, L v Tower Hamlets [2000]

Back 43

Court of Appeal clearly stated that there should be no blanket immunity on local authorities with regards to child abuse. The court should look at all the circumstances of the case in deciding if such a duty existed.

Front 44

JD v East Berkshire Community Health NHS Trust [2005]

Back 44

The doctors and social workers investigating suspected child abuse owed a duty of care to the child. A duty was not, however, owed to the parents suspected of abuse since it was considered that such a duty would naturally conflict with the duty owed to the child.

Front 45

Merthyr Tydfil CBC v C [2010]

Back 45

Distinguished from JD v East Berkshire Community Health NHS Trust because it was a third party rather than the parent who was suspected of abuse. Where the parents are not suspected of abuse, they may be owed a duty of care since this would not conflict with the duty owed to their child.

Front 46

Mulcahy v Ministry of Defence [1996]

Back 46

No duty of care between fellow soldiers engaged in battle conditions. There was foreseeability and proximity, but it would not be just and reasonable to impose a duty in the circumstances. To decide otherwise may result in military operations being adversely affected if soldiers in battle felt they could be sued by a comrade for their negligent actions.

Front 47

X v Hounslow LBC [2009]

Back 47

General approach to imposing a duty on a local authority: if the authority has acted within the powers granted to it by statute and on the basis of a discretionary decision properly made, there will be no liability. Whether the authority has exercised its discretion properly can only be answered once the facts of the case have been fully considered in court.

Here, no duty was imposed as the local authority was acting in accordance with its statutory duties.

Front 48

Smith v Ministry of Defence [2013]

Back 48

The Supreme Court held that the doctrine of combat immunity should be narrowly construed. The victims were servicemen killed and injured in friendly fire who contended that the Ministry of Defence had breached a duty of care to provide equipment that would have prevented the incident. Combat immunity has not previously been extended as far as these decisions that were taken long before the incident, so the claim was struck out.

Front 49

Omissions

Back 49

General Rule: No duty imposed on a mere failure to act.
Exceptions:

1. A positive duty imposed by statute.

2. A contractual duty: lifeguard failing to assist drowning person - depends on terms of contract.

3. Degree of control held by the defendant: Reeves v Commissioner of Police for the Metropolis [1999].

4. Assumption of Responsibility.

5. Defendant creating a risk: Capital and Counties plc v Hampshire County Council [1997].

Front 50

Costello v Chief Constable of Northumbria Police [1999]

Back 50

Assumption of responsibility example: employer police force owed a duty of care to one of their officers, the claimant, who was attacked by a prisoner whilst a fellow officer failed to assist.

Front 51

Barrett v MOD [1995]

Back 51

Assumption of responsibility example: though the defendants were not liable for their employee, a naval pilot, getting drunk and choking to death on his own vomit, they did assume responsibility once an officer had taken action to care for him (to summon appropriate medical assistance).

Front 52

Mitchell v Glasgow City Council [2009]

Back 52

The local authority were under no duty to warn a tenant that his neighbour might resort to violence after being informed (by the council) that he risked being evicted. A duty to warn someone that they might be at risk of injury/loss as a result of the criminal act of a third party would arise only where the person ostensibly under the duty had assumed responsibility for the victim. In this case, nothing in the words or conduct of the council suggested that they had.

Front 53

P. Perl (Exporters) Ltd v Camden London Borough Council [1984]

Back 53

General rule for the acts of Third Parties: Courts will not impose a duty in situations in which the wrong was committed by a third party.

There was insufficient foreseeability for a council to be liable for the acts of a thief who entered one of the defendant's empty properties.

Front 54

Acts of third parties

Back 54

General rule for the acts of Third Parties: Courts will not impose a duty in situations in which the wrong was committed by a third party.

Exceptions:

1. Vicarious liability.

2. Proximity between the Defendant and the Claimant.

3. Proximity between the Defendant and the Third Party: Home office v Dorset Yacht Co. [1970].

4. Creation of a Danger.

5. Dangers on the defendant's premises.

Front 55

Stansbie v Troman [1948]

Back 55

Example of Proximity between the Defendant and the Claimant - exception to the general rule of Third Parties.
Here, a decorator, the defendant, owed a duty of care to a property owner having allowed burglars into the property by failing to secure the building.

Front 56

Everett v Comojo [2011]

Back 56

Example of Proximity between the Defendant and the Claimant - exception to the general rule of Third Parties.

Nightclub management owed a duty of care to their guests.

Front 57

Topp v London Country Bus (South West) [1993]

Back 57

A bus company were no liable for 'joy riders' who had stolen one of their buses and injured the plaintiff, despite evidence that they had left the keys in the ignition. The Court of Appeal did not believe that leaving the bus unattended at the end of the route in such a state constituted a sufficient enough risk of danger.

Front 58

Smith v Littlewoods [1987]

Back 58

Exception to the General Rule of Liability of 3rd Parties: Dangers on the Defendant's Premises: if a defendant knows, or ought to know, of a danger on their property created by a third party, they may owe a duty to anyone who is subsequently damaged as a result of the said danger. In other words, the defendant has a duty of care to take reasonable steps to eradicate or diminish the danger. There needs to be actual awareness of the third party on the defendant's property however.