Duty of Care Flashcards
What the elements of an actionable negligence claim?
Loss
Duty
Breach
Causation
Remoteness
Defences
What is the 3 step approach to duty of care?
The courts have indicated that the starting point when determining if there is a duty of care in a novel case is by using the Caparo approach and developing the scope of duty of care incrementally, by analogy with established authorities.
* Stage 1: Foreseeability of harm. This test is objective; it is not what the individual defendant foresaw but what the reasonable person would be expected to foresee. It must be reasonably foreseeable that the defendant’s lack of care would cause the claimant harm.
* Stage 2: There must be a relationship of sufficient proximity (closeness) between the claimant and defendant.
* Stage 3: It must be fair, just and reasonable to impose a duty.
What does fair, just and reasonable mean?
Some policy considerations are:
* Floodgates
* Insurance
* Crushing liability
* Deterrence
* Maintenance of high standards
* Defensive practices
What are key precedents concerning duty of care?
Nettleship v Weston [1971] 2 QB 691
It is well established that a driver (road user) owes a duty of care to other road users not to cause them physical injury by careless driving. If you are presented with a case of a road user causing injury to other road users, there is no need to embark on a complex analysis to establish duty – you simply need to apply Nettleship.
* Cassidy v Ministry of Health [1951] 2 KB 343 Medical professionals owe a duty of care to patients once they have accepted them for treatment.
* Baker v T.E. Hopkins & Son Ltd [1959] 3 All ER 225 Dr Baker knowingly descended into a well containing poisonous fumes in an attempt to rescue two workers and died from the fumes. The Court of Appeal held that Dr Baker was owed a duty of care as it was reasonably foreseeable that someone would seek to rescue the workers in danger.
* Robinson v Chief Constable of West Yorkshire Police [2018] UKSC The police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.
Is there liability for omissions?
The general rule is that the law of tort only imposes liability on those who cause injury or damage to another; no such duty is imposed on a mere failure to act, otherwise known as an omission (Smith v Littlewoods Organisation Ltd [1987] AC 241). For example, if a stranger sees a child drowning, there is no legal obligation on that stranger to try to rescue. There are exceptions to this general rule, in which the law does impose a positive duty to act ie where liability might be found in relation to an omission.
What are the exceptions to the rule on omissions?
(a) Where there is a statutory duty: If a statute imposes a positive duty to act on the defendant, then a failure to do so can be the basis for liability. For example, the Occupiers’ Liability Act 1957 imposes a duty of care on the occupier of premises to ensure their premises are reasonably safe for visitors. Failure to do so (eg failing to fix a broken window which injures a visitor) could lead to liability on behalf of the occupier.
(b) Where there is a contractual duty: Where a person fails to perform a contractual duty this may give rise to a duty owed for an omission. The case of Stansbie v Troman is an example of this (see more about this in the section on Duty of care: liability for acts of third parties).
(c) Where the defendant has sufficient control over the claimant: Where the defendant has a high degree of control over the claimant, the law may impose a positive duty on the defendant to act. For example, a parent has a sufficient degree of control over their child and should intervene if they are drowning. In Reeves v Commissioner of Police for the Metropolis [1999] the House of Lords held that the police owed a duty to protect a prisoner from taking his own life because they had a high degree of control over the prisoner who was in their custody and there was high known risk of prisoners taking their own life.
(d) Where the defendant assumes
responsibility for the claimant: Where a person starts to act to assist a claimant this may give rise to a duty of care on the basis by starting to assist they have assumed responsibility for the claimant’s welfare. In Barrett v Ministry of Defence a duty of care arose when a naval officer started to help the victim when he got drunk but then left
him unattended and he choked to death on his own vomit. Interestingly, if the naval officer had never started to help the victim, no duty would have arisen. This category also overlaps with the previous exception, ie where the defendant has sufficient control over the claimant.
(e) Where the Defendant creates the risk: If a defendant creates a dangerous situation through an omission the law may impose a positive duty to act to mitigate the danger. For example, in Goldman v Hargrave, the defendant was held liable for a naturally occurring fire that started on his land where he knew or ought to have known of the danger and failed to take reasonable steps to mitigate that danger. In this case the defendant extinguished the fire on his land but did not douse the embers. Wind reignited the fire causing damage to the
claimant’s land. The defendant had the physical and financial means to spray water over the embers and should have taken these reasonable steps to mitigate the danger. His omission to do so gave rise to a duty of care.
Does the rule on omissions apply to the emergency services?
The position in relation to emergency services has been considered in various cases. The ambulance service (regarded as part of the health service) owe a duty of care to respond to a 999 call within a reasonable time (Kent v Griffiths & Others [2000] 2 All ER 474). However, this duty might not have been breached where the service 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. Duty and breach are separate questions.
The fire brigade owes no duty of care to attend a fire but if they do attend a fire, they owe a duty not to make the situation worse through a positive act (Capital and Counties plc v Hampshire County Council [1997] QB 1004 - a fire-fighter ordered a sprinkler system, operating at the fire, to
be turned off). The police owe no duty of care to respond to emergency calls (Alexandrou v Oxford [1993] 4 All ER
328 - the police did not owe the claimant a duty to respond to his burglar alarm). However, police can owe a duty in other circumstances eg in Reeves the police owed a duty in relation to an omission (but the omission was not a failure to respond to an emergency call).
What is the general rule for liability for acts of third parties?
As a general rule, the law of tort only imposes liability on those who directly cause injury or damage to another; no such duty is imposed on a failure to prevent a third party causing harm to another (Smith v Littlewoods Organisation Ltd [1987] AC 241). However, there are a number of
exceptions to this general rule, in which the law does impose a positive duty to act to prevent a third party causing harm to another.
What are the exceptions to the rule on liability for acts of third parties?
Where there is sufficient proximity between the defendant and claimant
Where there is sufficient proximity (a special relationship) between the defendant and third party (the party that caused the harm)
Where the defendant created the danger
The risk was on the defendant’s premises
What entails sufficient proximity between the defendant and claimant?
Case law suggests that sufficient proximity is established where the claimant is an identifiable victim at risk over and above the public at large and the defendant has assumed responsibility for the claimant’s safety.
Key case: Stansbie v Troman [1948] 2 K.B. 48
In Stansbie v Troman there was sufficient proximity between the defendant and claimant because of the contractual relationship between the parties. The defendant decorator owed a duty of care
to lock the claimant’s property when he left and owed a duty of care when his failure to do so allowed burglars into the property.
Key case: Home Office v Dorset Yacht [1970] A.C. 1004
In Home Office v Dorset Yacht the defendants were held liable for the wrongful acts of some borstal boys under their supervision. The borstal boys were left unsupervised and attempted to escape the island using the claimant’s yachts and damaging them in the process. The court held that there was sufficient proximity between the claimant and defendant – the claimants were identifiable victims at particular risk of damage over and above the public at large. The borstal boys had a history of escape and the claimant’s yachts were the only way they could escape the
island.
Key case: Swinney v Chief Constable of Northumbria [1999] 4 WLUK 160
In Swinney v Chief Constable of Northumbria, the claimant was a police informer who gave information concerning a suspect on the condition that she remained anonymous. A police file containing her details was left unattended in a police car and was stolen, reaching the criminal against whom she had given evidence. As a result she was harassed, causing her to suffer psychiatric illness. The Court of Appeal found sufficient proximity between the claimant and the police –it was known by the police who might be harmed as a result of their negligence. The police
had assumed responsibility to protect the claimant against the criminal she gave evidence about.
Key case: Hill v Chief Constable of West Yorkshire [1989] A.C. 53
In contrast to Home Office and Swinney, in Hill v Chief Constable of West Yorkshire, the mother of the last victim of the ‘Yorkshire Ripper’, sued the police for negligently failing to apprehend him earlier. He had been questioned by the 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 the victim who was an unidentifiable member of a massive group of potential victims (all women in the area) and the police.
Key case: Mitchell v Glasgow City Council [2009] UKHL 11
Recent case law suggests being an identifiable victim is not enough, and in addition the defendant must through their words or conduct assume responsibility for the claimant, as seen in Mitchell v Glasgow City Council. Mr Drummond and Mr Mitchell were both tenants of the defendant. The defendant was aware of Mr Drummond’s death threats to Mr Mitchell. At a meeting, the defendant threatened to evict Mr Drummond if his anti-social behaviour continued.
Mr Drummond returned home and killed Mr Mitchell. Mr Mitchell’s widow claimed the defendant owed Mr Mitchell a duty of care to warn him of the potential danger. However, the claim failed: there was not sufficient proximity between Mr Mitchell and the defendant as the defendant had
not assumed responsibility for the safety of Mr Mitchell through their words or conduct.
What entails s sufficient proximity (a special relationship) between the defendant and third party (the party that caused the harm)?
A duty is imposed on the basis that the defendant has a responsibility to control/supervise the third party. What amounts to sufficient proximity can be explained by looking at the following
case law.
Key case: Home Office v Dorset Yacht [1970] A.C. 1004
In Home Office v Dorset Yacht the defendants were held liable for the wrongful acts of some borstal boys under their supervision. Given the borstal boys were under the supervision of the
defendant, this supervisory relationship created proximity between the defendant and borstal boys and a duty of care was owed.
Key case: Hill v Chief Constable of West Yorkshire [1989] A.C. 53
In Hill v Chief Constable of West Yorkshire, there was no proximity between the defendant (police) and third party (the ‘Yorkshire Ripper’) as the third party was not under police care and control at the time of the killing so no duty was owed.
Key case: Palmer v Tees Health Authority [1997] 7 WLUK 68
In Palmer v Tees Health Authority, there was a lack of proximity between the authority and the third party. In this case, the claimant argued that a local Mental Health Authority owed her a duty in allowing a psychiatric patient into the community without adequate supervision. The patient had previously threatened to kill a child and after he was released, he subsequently attacked and killed the claimant’s daughter. The Court of Appeal stated that there was not sufficient proximity between the authority and patient as the patient was not under the authority’s care and control at the time the harm was committed. Equally there was no proximity between the claimant and defendant as the daughter was not an identifiable victim.
What entails where the defendant created the danger?
If a defendant creates or allows the creation of a danger and the claimant is injured as a result, it may be liable even though it was a third party’s action that actually caused the damage in question.
Key case: Stansbie v Troman [1948] 2 K.B. 48
In Stansbie v Troman, the defendant decorator, owed a duty of care to a property owner having allowed burglars into the property by failing to secure the building (this created the danger).
What constitutes a risk 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 that danger. In other words, the defendant has a duty of care to take reasonable steps to eradicate or diminish the known danger.
Key case: Smith v Littlewoods [1987] AC 241
In Smith v Littlewoods vandals broke into the defendant’s derelict cinema and started a fire which caused damage to the claimant’s neighbouring property. The defendant owed no duty of care to abate the danger because they did not know of the danger nor was the danger foreseeable – they had no reason to suspect the vandals’ entry (there was no history of break-ins)
What are the 2 complicating factors regarding public bodies and a duty of care?
(a) Many public bodies derive their powers or duties from statutes – and this can have an impact on the court’s findings in relation to duty.
(b) When deciding whether to develop the law of negligence into a new area, the court must look at what is fair, just and reasonable, and take into account policy considerations – public bodies often present different concerns in this regard to those presented by individuals.
What is the relevance of powers or duties derived from statute?
A negligence claim was brought against the defendant for failing to take two children into care, to prevent them from harm caused by another party. The principles established in authorities in relation to acts of third parties were therefore relevant. The court summarised the law in this area
as follows:
(a) When looking at positive acts and omissions, the liability of a public authority is in principle the same as that of a private person but may be restricted by statutory powers or duties. So, an act which would normally amount to a breach of duty cannot if it is specifically authorised by an Act of Parliament. This principle gives effect to the principle of parliamentary sovereignty.
(b) When looking at omissions, the usual law applying to individuals would again apply, and it would be very hard to argue that because a public body has a duty or power to act in a particular area, that a failure to act would give rise to a duty in negligence.
Held: The court applied the above principles to the facts and held that even if the Council had the power to take the children into care, this was insufficient to show that the Council had a duty to do so.
To succeed, the claimant needed to show that one of the exceptions to the rule that there is no liability for failing to prevent a third party from causing harm applied. In this regard, the claimant argued that the council had assumed responsibility for the claimant’s welfare. However, the court
rejected this argument. Accordingly, there were no exceptions to the general rule, and so no duty was owed. Previous authorities had also made it hard to argue that the defendant had created the source of danger by placing the claimants next door to an abusive family.
