Tort - Duty Of Care

Front 1

The first step in establishing a claim of negligence is determining whether a duty of care exists. What are the two leading cases and what does each case determine?

Back 1

1. Donoghue v Stevenson which established the "neighbour test"

2. Caparo Industries Plc v Dickman which established the three stage test.

Front 2

The definition of a neighbour was established in Donoghue v Stevenson. What is the definition and why is the case important.

Back 2

1. The definition is: "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"

2. The case is important because it created a new legal relationship between manufacturers and consumers, and because it opened the way for a tort of negligence to be expanded to meet new situations.

Front 3

What is the purpose of the three stage test established in Caparo Industries plc v Dickman?

Back 3

The purpose is to determine whether a duty care exists, and, a duty of care can only exist if the three conditions are met.

Front 4

What are the three criteria in Caparo Industries plc v Dickman that must be met in order for a duty of care to exist? Name a relevant case for each criteria.

Back 4

1. Reasonable foreseeability: Would a reasonable person have foreseen that there was a risk that the C might be injured or harmed by D's acts or omissions (Smith v Littlewoods)

2. Proximity: Was there sufficient proximity (a legal relationship) between the C and D (Watson v BBBC) (Relationships where it is established that a duty of care is owed is: road users, healthcare workers, employers)

3. Fair, just and reasonable: Is it fair, just and reasonable, in public policy grounds, to impose a duty of care on D (L v Reading BC)

Front 5

Public policy is an important consideration in negligence. What does s1 Compensation Act 2006 provide?

Back 5

That a court should consider the wider policy implications of their decisions to impose liability on someone.

Front 6

Considerations relating to public policy and whether a duty of care is imposed on D, can be broadly split under 3 headings. What are they?

Back 6

1. Statutory authorities - the basic position is that courts are reluctant to impose on public authorities any liability towards individuals (Hill v Chief Constable of West Yorkshire)

2. "Opening the flood gates" - the courts have been very reluctant to award damages in cases where there is a risk that the "flood gates could open" to similar claims. This applies particularly in the area of psychological harm.

3. Rescuers - a duty of care is owed if a reasonable person in the rescuer's position would have felt obliged to assist; but

NO duty of care is owed if the rescuer's intervention is regarded as unjustifiable and unnecessary interference

(Note: because helping others is generally regarded as a good thing, the courts tend to find rescuer's were obliged to act, meaning they can be awarded damages if they're injured.

Front 7

Psychological harm (i.e Nervous Shock) is when C suffers a clinically recognised mental injury or psychiatric illness brought upon by a sudden event. Who would the law recognise to which a duty of care is owed in relation to nervous shock?

Back 7

The law has never recognised a bystander (Bourhill v Young) but has accepted that damages should be paid to those whose nervous shock is a reasonably foreseeable consequence of D's negligence (McLoughlin v O'Brian)

Front 8

"Nervous shock" which can be compensated, is different to normal sorrow and grief, which cannot be compensated. Name leading case.

Back 8

Hinz v Berry

Front 9

(Consequential) Psychiatric harm (e.g PTS), when resulting from a physical injury has long been claimable in negligence. Much more difficult is pure psychiatric injury. A claim can be made in two situations, what are they?

Back 9

1. Where someone suffers nervous shock because they've been involved in an accident, or because they've witnessed one;

2. Where somebody suffers workplace stress (not in this book)

Front 10

In relation to psychiatric injury cases, the law distinguishes between primary victims and secondary victims. Explain the difference and name leading case example.

Back 10

Primary victims - someone directly involved in the accident or who is within the "zone of physical danger" Page v Smith

Secondary victim - someone not directly involved in accident and in no physical danger, but who suffers psychiatric injury as a result of what he sees or hears happening to others.

Front 11

In any case involving nervous shock, what must the claimant establish?

Back 11

1. D owed a duty of care to C

2. D breached that duty of care

3. C had a clinical recognised psychiatric illness that is considered to be potentially worthy of compensation and was caused by the D negligence.

Front 12

Explain the current rules for establishing liability for psychiatric injury.

Back 12

1. Must be a claimable harm (medically recognised condition caused by sudden shock); AND EITHER:

A) Primary victim - 1.Foreseeabilty, C must prove D could reasonably foresee some kind of injury and Proximity, C must have been within potential range of physical harm or in the dangerzone. (Note: not distinguish between physical/psychological)

B) secondary victim - these Csmust meet the rules established in Alcock v CC of South Yorkshire

1. Foreseeabilty, psychiatric harm must be reasonably foreseeable in a person of ordinary fortitude

2. Proximity, • close relationship of love and affection between C and victim • C must be physically close to the accident • C must actually see or hear the accident or immediate aftermath with his own senses.

Front 13

What was relevant about the case White v CC of South Yorkshire Police?

Back 13

The claims failed because there had been no threat to their own safety. It shows that rescuers who suffer psychiatric damage are not automatically classified as primary victims.

Hint 13

In relation to claims involving nervous shock by police officers who have been present at the Hillsborough disaster.

Front 14

Is an employer liable for psychiatric damage to an employee?

Back 14

Yes, if they are, or should be, reasonably able to foresee that the employee is particularly vulnerable to mental illness: Walker v Northumberland County Council

Hint 14

C suffered a nervous breakdown because of work pressure. After the promise of assistance, he returned to work only to find nothing had changed and then suffer a further breakdown causing him to have to give up work permanently. The court found that although first breakdown was not foreseeable the 2nd was.

Front 15

Consider the way in which issues that apply uniquely to nervous shock claims relate to the basic requirements for any claim in negligence.

Back 15

In order for a C to recover damages for psychological harm, the normal requirements for a negligence claim must be met:

1. D must have owed a duty of care to C - this is the case either if C is a primary victim to whom injury is foreseeable (page v smith) or if C meets the criteria from Alcock (secondary victim)

2. D must have breached the duty of care owed to C

3. C must have suffered a recognised psychiatric illness caused by consequences of D's breach of duty.

Front 16

Explain the policy consideration which have enabled rescuers to claim damages?

Back 16

By holding that they were compelled to act by the situation, rather than to interfere unnecessarily. Therefore the D owes a duty of care to the rescuer.

Front 17

Explain the policy consideration which have enabled rescuers to claim damages?

Back 17

By holding that they were compelled to act by the situation, rather than to interfere unnecessarily. Therefore the D owes a duty of care to the rescuer.

Front 18

In cases of psychiatric harm, can someone claim damages for normal grief and sorrow? case?

Back 18

No. Hinz v Berry