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27 Cards in this Set

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Exceptional Duty of Care Scenarios: Third Party Liability
Third party liability – a form of ordinaryfault-based liability, i.e., liability triggered by the conduct of thedefendant. Defendant being held to account for own personal failings. Differsfrom ordinary cases of fault liability as regards degree of directness betweenconduct of defendant and harm complained of – in third party liability cases,defendant not the one who actually inflicts the harm, involved rather asoutside player. Generally targeted on basis of failure to prevent harm. NB If you can establish the existence of anexceptional duty to control the acts of another, you still need to establishbreach and causation before you have liability.

Twospecial factors for imposing a duty of care:

- Strong relationship of control over the Defendant = a duty to control

- Special responsibility towards to Victim = duty to protect

Duty based upon the existence of twospecial relationships of proximity – one as between the defendant and the thirdparty harm-doer and another as between the defendant and the victim.

To be distinguished from vicariousliability:Vicarious liability – a form of no-faultliability. No inquiry made into defendant’s conduct. Liability based entirelyupon defendant’s position or status and consequent relationship with actualtortfeasor. Triggered automatically by latter’s commission of tort. No need toestablish breach or causation.

Woodland liability is separate from these two categories.

Home Office v Dorset Yacht [1970]

Exceptional Duty of Care Scenarios: Third Party Liability - Founding principle - special relationship - no policy reason to allow Crown special immunity - foreseeability

FACTS D’s, borstal officers allowed seven boys to escape from a training camp on Brownsea Island in Poole Harbour while they were asleep. They stole C’s boat and caused damage to other boats in the harbour.

Held: Borstal authorities owed a duty of care to the owners of property near the camp. There were no good reasons of public policy for allowing the Crown any special immunity in this respect. Liability restricted to the property-owners in the immediate vicinity their loss was foreseeable, and would not have extended to others further a field. The Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm would result from their inaction. C won.

The case is perhaps relevant not only for its clear elucidation of the Atkinian notion of Neighbourhood but also for its expression of a thoroughly incrementalist approach to the development of the duty of care. Lord Reid held:‘there has been a steady trend toward regarding the law of negligence as depending on principle so that when a new point emerges one should ask not whether it is covered by authority but whether recognised principles apply to it. Donoghue and Stevenson may be regarded as a milestone, and the well-known passage in Lord Atkin’s piece should I think be regarded as a statement of principle … it ought to apply unless there is some justification or valid explanation for its exclusion. For example, causing economic loss is a different matter’

Authority for theexistence of a duty to control the actions of a third party in order to preventharm being caused to a particular class of victims, in situations in which itcan be shown:

(i) that there is a very strong relationship of authority andcontrol between the ‘responsible’ defendant and the ‘irresponsible’ third partyperpetrator;

(ii) that the claimant comes within a narrowly defined class ofpotential victims; and

(iii) that the harm-causing conduct of the third partywas at least something that was very likely to occur in the circumstances.

Ellis v Home Office [1953]

Third Party Liability - special relationship - Relationshipbetween prison authorities and inmates giving rise to obligation on part ofprison authorities to prevent inmates from harming each other

FACTS The plaintiff, an unconvicted prisoner awaiting trial, was attacked by a fellow-prisoner, a mental defective awaiting transfer to an institution, who managed to get into the plaintiff's cell in breach of the prison rule providing for the separation of untried prisoners from convicted prisoners. There were no circumstances in the history of the mental defective which showed that he was any more violent or dangerous than other prisoners. The plaintiff claimed damages for a fractured skull, alleging that the prison authorities had failed in their common law duty to take reasonable care of hi, or were in breach of the Prison Rules 1949.

Held, on appeal, (1) the injury caused to the plaintiff did not result from the breach of the prison rule; (2) the duty on those responsible for prisons was to take reasonable care for the safety of those who were within, and that included those who were within against their wish or will, of whom the plaintiff was one; in the circumstances of this case, the prison authorities could not reasonably have foreseen that an attack might be made on the plaintiff by the mental defective, and consequently, the claim for damages for common law negligence failed

D’Arcy v Prison Commissioners (1955) Third Party Liability - special relationship - Relationship between prison authorities and inmates giving rise to obligation on part of prison authorities to prevent inmates from harming each other
The plaintiff, while serving a sentence of preventive detention in prison, had his throat cut by three fellow prisoners. He claimed damages against the defendants alleging that the injuries were due to their negligence in that they had not taken reasonable care for his safety. The jury, assessing damages at GBP 200, found that the defendants were 95 per cent and the plaintiff 5 per cent to blame for his injuries. Barry, J. gave judgment for the plaintiff for GBP 190.
Palmer v Home Office (1988)

Third Party Liability - special relationship - Relationship between prison authorities and inmates giving rise to obligation on part of prison authorities to prevent inmates from harming each other

It was held that the Home Office was not liable in a case where the prisoner had been attacked with a pair of scissors by another prisoner with a very violent criminal and prison record and who had been given the scissors when he was allocated tailoring work in the workshop. It was held that although it was foreseeable that the prisoner might attack a fellow prisoner, the authorities had a two-fold duty – to ensure the safety of fellow prisoner, and to provide all prisoners with a constructive working regime. The prison authorities had to balance the protection of prisoners with their duty to provide other prisoners with suitable employment and in that respect they were reluctant to interfere with the prison’s judgment in this case.
Kirkham v. Chief Constable of the Greater Manchester Police [1990]

Third Party Liability - special relationship - Relationship between prison authorities and inmates giving rise to obligation on part of prison authorities to prevent inmates self-harming in those with known such tendencies

FACTS D, the police force who detained the husband of C. The prisoner was known to be suicidal but the police failed to pass on the information to prison authorities. The prisoner committed suicide in prison.

Held: The police had assumed the responsibility of passing information to the prison authorities when they arrested him, the husband had relied on that assumption of responsibility, there was a duty of care and it was breached. Since his act was the very occurrence which should have been prevented, the defence of volenti non fit injuria could not succeed.Since suicide was no longer criminal act the defence of ex turpi causa non oritur actio was not available. C won

Reeves v Commissioner for the Police of the Metropolis[1999]

Third Party Liability - special relationship - Relationship between prison authorities and inmates giving rise to obligation on part of prison authorities to prevent inmates self-harming in those with known such tendencies

FACTS D the police arrested a prisoner who was a known suicide risk committed suicide whilst in their custody. Officers left open the hatch of the cell door and he took the opportunity to tie his shirt to it and thus strangle himself.The judge held that the duty of care had been breached but inter alia suicide was a novus actus interveniens; he assessed contributory negligence at 100 per cent.

Held: Although persons of sound mind were generally taken to be responsible for their own actions, in rare situations a duty could be owed to such persons to prevent them from self harm. That had occurred in the instant case. The duty represented an exception to the rule that a deliberate act by a person of sound mind taking advantage of the defendant's negligent act would destroy the causative link. A deliberate act of suicide was not a novus actus interveniens, if it were the very act which the duty sought to prevent would break the chain of causation. L was held contributorily negligent and damages were reduced by 50 per cent to apportion fault equally. C won reduced damages

[Comment] 100 percent contributory negligence is rare and arguably illogical; only a contribution between 1 - 99 percent is possible on strict reading of the Law Reform (Contributory Negligence) Act 1945 see also Pitts v Hunt [1990]

Orange v Chief Constable of West Yorkshire Police [2001]

Third Party Liability - special relationship - Relationship between prison authorities and inmates giving rise to obligation on part of prison authorities to prevent inmates self-harming in those with known such tendencies

FACTS D, the police in whose custody the husband of C committed suicide, by hanging himself with his belt from the gate to the cell.

Held: The police were under a duty to take reasonable steps to identify whether or not a prisoner presented a suicide risk. The obligation to take reasonable care to prevent a prisoner from taking his own life only arose where the police knew or ought to have known that the individual prisoner presented a suicide risk, Reeves v Commissioner of Police of the Metropolis [2000] applied. The deceased was not a person whom the officers knew or ought to have known was a suicide risk. C lost

Holgate v Lanchashire Mental Hospitals Board [1937]
Defendants allowed the release on “holiday licence” of a compulsorilydetained man with a propensity for violence without making anychecks in relation to his supervision while out. He attacked theclaimant, who succeeded before a jury. The report sets out the Judge’sdirection to the jury, which appears to have been on the basis that aduty of care existed. However, this case is doubted as it is from a time before duty of care was more precisely defined.
Palmer v Tees A.H.A. [1999]

duty of care - mental patients - no liability for murder of a child - lack of proximity - act of third party - just fair and reasonable

FACTS D, the health authority responsible for a former patient undergoing out patient treatment who sexually abused and murdered a 4 year old. C, the child's mother who suffered psychiatric illness as a result of the murder. C claimed that D had failed in their obligation to recognise the real, substantial and serious risk that, a former patient undergoing outpatient treatment, would sexually abuse and murder a child and had failed to take appropriate steps to avoid or minimise the risk of him doing so.

Held: There was no proximity between D the child and C. In Barrett C had been in the care of D and no issue of proximity had been raised, and so was distinguished. Caparo Industries Plc v Dickman [1990] and Marc Rich and Co AG v Bishop Rock Marine Co Ltd [1996] did not take account of third party intervention. The court asked how the offences could have been avoided even if sufficient proximity were established. C lost

Clunis v Camden and Islington Health Authority [1998]

duty – no duty situations – statutory duty - defences – ex turpi causa non oritur actio - public authorities - public policy

FACTS D a Local Authority released C from a psychiatric hospital into "community care"; he then killed a stranger for no evident reasons and was sentenced to life imprisonment. C sought damages for D's negligence in not providing adequate treatment, and D asserted ex turpi as a bar to such an action.

Held: The case should be struck out: the court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the complainant’s own criminal act. Furthermore, actionsby psychiatric patients against health authorities based on an alleged failureto prevent them from engaging in criminal behaviour will be excluded on groundsof public policy. D won.

Newton v Edgerley [1959]

duty of care - parent/childrelationship – policy considerations making it difficult to establish theliability of parents for the acts of their children

FACTS A farmer allowed his son aged twelve to buy a gun and showed him how to use it. He told him not to take the gun off the farm, and not to use it when other children were present. Disobeying these instructions, the son went off shooting with four other boys. The son accidentally shot one of them in the heel.

Held, the farmer had been guilty of negligence because he could not ensure that the instructions which he had given his son were obeyed, and he had not taught his son how to handle the gun when other persons were present. Caselaw indicating that an affirmative duty on part of parents to prevent theirchildren from harming others will only arise where the parents themselves havesomehow actively contributed to the risk of harm.

Carmarthenshire County Council v Lewis [1955]

duty of care - omissions - exceptions: the defendant’s occupation of an office or position of responsibility, teachers/pupils public policy – duty owed in operational matters - third party liability

FACTS D a Local Authority employed a teacher who left a 4-year-old child alone for about ten minutes while she did other things. The child left the classroom onto a busy road, where he caused a lorry driver to swerve and collide with a telegraph pole. The lorry driver was killed and his widow sued the education authority.

Held: The education authority had taken charge of the child and had a duty to take reasonable care to prevent him from causing harm to others.C won. otherpersons exercising a significant degree of care and control over a child arelikely to come under an affirmative duty to prevent them from causing harm toothers

Perry v Harris [2008]

duty of care - omissions - exceptions: the defendant’s occupation of an office or position of responsibility, parent/child - third party liability

FACTS The defendant had organised a children’s party. The claimant (11) was injured when a bigger boy was allowed to use the bouncy castle at the same time. The defendants appealed the award of damages.

HELD D won.LordPhillips, CoA: "It is quite impractical for parents tokeep children under constant surveillance or even supervision and it would notbe in the public interest for the law to impose a duty upon them to do so. Some circumstances or activities may, however, involve an unacceptable risk to children unless they are subject to supervision, or even constant surveillance.Adults who expose children to such circumstances or activities are likely to beheld responsible for ensuring that they are subject to such supervision or surveillance as they know, or ought to know, is necessary to restrict the risk to an acceptable level." Otherpersons exercising a significant degree of care and control over a child arelikely to come under an affirmative duty to prevent them from causing harm toothers

Surtees v Kingston-upon-Thames Borough Council [1991]

duty of care - parent/child relationship - no automatic duty to protect child from foreseeable harm

The test of reasonable foreseeability demanded an objective standard but the test should be decided with reference to the person to whom it was to be applied.

FACTS P, aged two years, whilst in the care of the local authority, scalded her foot by immersion in water hot enough to cause third degree burns and which caused virtually the complete destruction of the skin and tissues of the sole of her left foot. She brought an action in negligence against the local authority and the foster-parents and it was common ground that if the claim against the foster-parents failed then that against the local authority must fail too. P's case was that the injuries had been caused by the immersion of her foot in a hot receptacle which contained hot water at a time when she was left alone in its vicinity. Ds' case was that the injuries had been caused by running, not static water, which had been activated by the inadvertent action of P herself. The foster- mother took P immediately to the doctor, who treated the injuries daily. The judge dismissed P's claims and she appealed.

Held, dismissing her appeal (Beldam L.J. dissenting), that the test of reasonable foreseeability demanded an objective standard but such a test must be decided in relation to the person to whom it was to be applied. The foster mother had been performing normal household duties and the injury to P was not reasonably foreseeable. To hold the foster-parents liable would be to impose an impossibly high standard to which few parents could measure up. As a matter of causation the claim against the local authority was bound to fail, unless the injuries were deliberately inflicted, as the occurrence of accidental injury could not be affected by the number of visits paid to a foster-parent, unless urgent removal was required.

McCallion v Dodd [1966] (New Zealand)

duty of care - parent/child relationship - legal duty to exercise reasonable care to protect child from harm

FACTS The plaintiff, aged four, was injured by a motorist while walking along the left side of the highway with his father; he sued the motorist in negligence, and the latter joined the child's father as a third party, alleging that he was negligent in not looking after his son properly and walking with his back to oncoming traffic on the highway. \

Held, (1) that a child can sue its parents in tort; and (2) that while parents are present they are at all times under a legal duty to exercise reasonable care to protect their child from foreseeable dangers; thus the father was rightly joined as a third party and the motorist was entitled to recover contribution from him.

Hahn v Conley (1971) (Australia)

duty of care - parent/child relationship - no automatic duty of care

FACTS The plaintiff, K, was a child aged three who had gone out unaccompanied and crossed a tarred road. She was there seen by her grandfather who could have crossed to her to bring her back, but before he did so the child started to cross the road, was struck by a car and injured.

HELD The trial court and the full court of the Supreme Court of South Australia held that the driver and the grandfather were negligent and apportioned responsibility. On a further appeal, held, that in the circumstances the grandfather owed no duty of care to K. The court went on to consider the scope of the duty owed by parents and persons in loco parentis to children.

Barrett v Ministry of Defence [1995]

duty of care - C's own actions - assuming a duty of care - intoxication

FACTS A naval airman became so drunk at the Royal Navy Air Station where he was serving that he died. The duty Petty Officer, had the rating placed on his bunk he vomited and died as a result of inhaling his own vomit. It was alleged that D failed to enforce disciplinary regulations to prevent drunkenness.

Held: The deceased alone was responsible for his own actions and that no duty was owed to him in this respect. However, the Ministry was held liable on the basis that, following his collapse, service personnel voluntarily assumed a duty of care and were negligent in that capacity. Foresight of harm alone was not sufficient to create a duty to guard him against his own folly. Beldam LJ stated:"To dilute self-responsibility and to blame one adult for another’s lack of self-control is neither just nor reasonable and in the development of the law of negligence an increment too far.” “Until he collapsed, I would hold that the deceased was in law alone responsible for his condition. Thereafter, when the defendant assumed responsibility for him, it accepts that the measures taken fell short of the standard reasonably to be expected. It did not summon medical assistance and its supervision of him was inadequate”. Airman's widow won

Jebson v Ministry of Defence [2000]

duty of care - C's own actions - foreseeability - intoxication

FACTS D the army with whom C, a former Grenadier Guard, attended an off duty trip to relax. They travelled in a lorry and C attempted to climb onto the roof of the lorry but lost his footing and fell, sustaining severe injuries.

Held: While ordinarily drunkenness did not create a duty on others to exercise special care, that rule was not immutable. It had been foreseeable that the soldiers would behave in a rowdy manner on the return trip thereby placing themselves at risk from some form of injury, and that the MOD had failed in their duty to supervise them. Furthermore, the conduct of C had been within the genus of behaviour which had been foreseeable. It was not necessary that a precise injury should be foreseen; instead it was sufficient to show that an injury of a given description was likely to occur. The MOD had a 25 per cent liability for C's injuries.

Everett v Comojo [2011]

duty of care - foreseeability - intoxication - nightclubs and bars - third parties actions on premise - third party liability of property owners

FACTS The Claimants were at the Met Bar, a private members’ nightclub owned by the Defendant, when they were attacked by Cecil Croasdaile. One of the waitresses, Ms Kotze was kicked or tapped on the bottom by one of the group in which they were standing. This was witnessed by a long standing member, Mr Balubaid, who later that evening asked the waitress to put Mr Croasdaile’s name on the guest list. Mr Croasdaile arrived later and his demeanour caused the waitress to become concerned about a possible confrontation between Mr Croasdaile and the Claimants. The waitress went to speak with the bar manager and whilst doing so the confrontation took place.

There was a duty of care on the management of a nightclub in respect of the actions of third parties on the premises but the standard of care imposed or the scope of the duty had to be fair, just and reasonable. As between the managers of a nightclub and guests, there should not be a higher degree of foreseeability than was required under the common duty of care in the Occupiers' Liability Act 1957.

HELD Accordingly, Lady Justice Smith held that there was a duty of care owed by the management of a club in respect of the actions of third parties on the premises. In this particular case however, Comojo had not been in breach of that duty as at the time the waitress went to speak to her manager, there was no reason to think that a confrontation was imminent.

Smoldon v Whitworth (1996)

duty of care- omissions - referee owes duty to young players whom he should be controlling - third party liability in sport

FACTS D was negligent in the refereeing of an under-19 colts' rugby match, in the course of which C (aged 17) sustained a broken neck after a scrum collapsed. There were a 3 or 4 times the normal number collapsed scrums during the game.

Held: The referee owed a duty to the players, although he would not be held liable for oversights or errors of judgment that might easily be made during a competitive and fast-moving game. One of the duties of a referee was to ensure the players' safety and would be liable for the foreseeable resulting spinal injuries. It was not open to D to argue that C had consented to the risk of injury by participating voluntarily in the scrum. C might have consented to the ordinary risks of the game, but could not be said to have agreed to D's breach of duty in failing to apply the rules intended to protect players from injury. C won

[comment] this case was the first case of negligence against a referee

Watson v British Boxing Board of Control [2001]

duty of care – proximity created by sports regulating body - third party liability in sport

FACTS D the British Boxing Board of Control failed to provide sufficient medical care at the ringside. C a boxer suffered severe brain damage following an injury in the ring, but the evidence suggested his injuries would have been less severe had better medical attention been available at the ringside.

Held: The sport's controlling body owed a duty of care to those who took part. Injury was foreseeable. The licensing system created proximity, and in all the circumstances it was just, fair and reasonable to impose such a duty.The duty alleged was not a duty to take care to avoid causing personal injury, but rather a duty to take reasonable care to ensure that personal injuries already sustained were properly treated; C won

Vowles v Evans [2003]

duty of care – proximity - foreseeability - just fair and reasonable - referee owes duty to players - third party liability

FACTS DD the referee of a rugby match and the sport’s governing body. C injured and confined to a wheel chair when a scrum (where players bend over and push each other) collapsed. C’s position was hooker (right in the middle of the scrum).

Held: A referee and player have sufficient proximity, it was foreseeable that if the referee did not enforce the rules there would be injury (that is what the rules are there to prevent). It was just, fair and reasonable to impose a duty of care. There was a structured relationship, the referees acts or omissions were manifestly capable of causing physical harm to others, and in such circumstances the law will normally impose a duty of care. A referee of a game of rugby football owes a duty of care to the players. The court did not consider it logical to draw a distinction between amateur and professional rugby.The referee had breached that duty of care, the referee had been in a position no more than basic skill and competence at that level of the game (see Bolam). Lord Phillips, MR:“Rugby football is an inherently dangerous sport. Some of the rules are specifically designed to minimise the inherent dangers. Players are dependant for their safety on the due enforcement of the rules. The role of the referee is to enforce the rules. Where a referee undertakes to perform that role, it seems to us manifestly fair, just and reasonable that the players should be entitled to rely upon the referee to exercise reasonable care in so doing. Rarely if ever does the law absolve from any obligation of care a person whose acts or omissions are manifestly capable of causing physical harm to others in a structured relationship into which they have entered. Mr Leighton Williams has failed to persuade us that there are good reasons for treating rugby football as an exceptional case. A referee of a game of rugby football owes a duty of care to the players.”[Comment] This is the first case involving an amateur game. The court applied Caparo Plc. v Dickman [1990] HL and a line of cases where the sport's governing body has been held responsible for the safety of the players or participants. For example, the brain damage suffered by the boxer Michael Watson and his claim for negligence against the British Board of Boxing Control had forced the governing body into bankruptcy. C won

P Perl v Camden LBC [1984]

duty of care - proximity - foreseeability - third party liability of property owners

FACTS 2 adjoining buildings owned by Camden LBC, one leased to claimant, the other empty-Empty bulding had no lock on the door-Thieves entered empty premises, made hole in the wall, entered claimant's property and burgled the claimant's property.

HELD CoA: Camden LBC owed no duty in respect of burglar's actions - Even though reasonably foreseeable, no proximity of relationship.

King v Liverpool City Council [1986]

duty of care - proximity - foreseeability - third party liability of property owners - special relationship between defendant and third party

Liability for the wrongdoings of a third party will attach only when there is some special relationship between the defendant and the third party.

FACTS P, the tenant of a council flat in a block, telephoned the council to report that the flat above hers was unoccupied and unprotected against trespassers and vandals, and asked the council to board it up. No effective steps were taken to do so. Vandals got in on three occasions, damaging the water pipes and causing severe damage by flooding in P's flat. When P sued the council, inter alia, for negligence, the judge rejected the claim on the ground of absence of duty of care, finding that it would have been impossible to prevent the vandals' activities.

Held, dismissing P's appeal, that liable for the wrongdoing of a third party would attach only when there was some special relationship between the third party and the defendant. Since it was impossible for the council to control to acts of the third party, there was no duty of care, and the council were not liable in negligence.

Smith v Littlewoods Organisation [1987]

duty of care - proximity - foreseeability - third party liability of property owners

FACTS The defendant owned a disused cinema which they purchased with the intention of demolishing it and replacing it with a supermarket. The cinema was last used on 29th May 1976. Littlewoods acquired the building on 31stMay 1976. Contractors were present at the cinema until 21st June and thereafter the cinema was empty until the incident on 5th July 1976. The contractors had left the building secure, however, vandals had broke into the building. Littlewoods had not been informed of this and so the building remained unsecured. There was evidence to suggest that further entry by vandals had occurred over the couple of weeks. The fittings inside the building were damaged and debris was thrown. On one occasion a sink had been removed and thrown onto the roof of a billiard hall. There were also two small incidents involving fire. None of this was reported to the police or Littlewoods. On July 5th the vandals broke into the cinema and set fire to it. The fire spread and caused damage to neighbouring properties. The owners of the properties brought an action in negligence claiming that Littlewoods owed them a duty of care to prevent the actions of the vandals.

Held: Littlewoods were not liable. Whilst they did owe a duty of care they were not in breach of duty. They were not required to provide 24 hour surveillance and were unaware of the previous incidents. The law is unwilling to impose liability for the deliberate act of a third party s but will do so in appropriate cases. The general rule relating to omissions is that no liability arises for a pure omissions but there exist exceptions to this where there is a special relationship, an assumption of responsibility, where the defendant is in control of a 3rd party that causes the damage, where the defendant is in control of land or dangerous thing.

Clark Fixing Ltd vDudley Metropolitan Borough Council [2001]

duty of care - proximity - foreseeability - third party liability of property owners

FACTS Council owned property, which shared a rood with an adjoining property owned by claimant. -Trespassers entered the council's property and started a fire, which spread to the claimant's property causing substantial damage. -Council aware that trespassers had entered the premises and had started fires on a number of occasions, claimants complained about this.

HELD CoA: Council owed duty of care as they know of the danger. Local authority was liable in negligence for damage caused to premises adjoining an empty property which it had compulsorily acquired where the authority was aware that the property was not secure and had been prone to instances of fire-setting by trespassers in the past.