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Flashcards in Negligence Deck (36):
1

Elements for a cause of action in negligence

1) Duty of Care
2) Breach of Duty
3) Damage
4) Causation
5) Remoteness

2

Duty of care

First needs to be established whether this is a situation in which D ought to have avoided causing loss to C

3

Donoghue v Stevenson

Emerging of the neighbour principle
Lord Atkin:
a person "must take reasonable care to avoid acts and omissions that are likely to cause injury to your neighbour"

Neighbour: so closely and directly affected by your act that you ought reasonably have them in contemplation as being so affected when you think about the act
(criteria: 1) Proximity 2) Foreseeability)

4

Home Office v Dorset Yacht

Development of neighbour principle:
should work as working presumption

5

Ann v Merton

Development of a testfor duty of care:
1) is there sufficiently close relationship so that it must have been in reasonabe contemplation of C that carelessnes on his part would be likely to cause damage to D
(procimity is established by foreseeability)
-> if yes priema facie duty
2) countervening policy consideration which have influence on scope of duty?

6

CURRENT TEST FOR NOVEL SITUATIONS

Caparo v Dickmann
1) Damage must be foreseeable
2) Proximity of relationship
3) fair, just and reasonable

7

Caparo

Lord Bridge
onus on C:
1) Damage must be foreseeable
-> reasonably foreseeable that C would suffer harm if D acted careless in the way he did
2) Proximity of relationship
3) fair, just and reasonable
- policy considerations come into play as in Ann v Merton

this test applies where there is not a previous category of duty guided by different rules

8

Lord Bridge
onus on C:
1) Damage must be foreseeable
-> reasonably foreseeable that C would suffer harm if D acted careless in the way he did
2) Proximity of relationship
3) fair, just and reasonable
- policy considerations come into play as in Ann v Merton

this test applies where there is not a previous category of duty guided by different rules

Caparo

9

1) Foreseeability of damage

What would a reasonable person in Ds position ought to have anticipated at the moment at which they were about to commit the act

10

Hill v Chief Constable of West Yorkshire

Proximity of Relationship requirement failed (police /victim)

11

Proximity of Relationship requirement failed (police /victim)

Hill v Chief Constable of West Yorkshire

12

McFarlane

Fair just and reasonable
Cost of unintended child could not be sued for due to perspective of distributive justice

13

Mulcahy

negligent orders from sergeant
it was common sense that on the battlefield you cant expect people to take care of others.
- combat immunity

14

Fair just and reasonable
Cost of unintended child could not be sued for due to perspective of distributive justice

McFarlane

15

negligent orders from sergeant
it was common sense that on the battlefield you cant expect people to take care of others.
- combat immunity

Mulcahy

16

Smith v MoD

no combat immunity, and case was not decided based on a fair, just and reasonable assesment of duty of care but MINORITY: (mance, carnwarth)
Government decisions on how much to invest into what are not for the court to investigate

17

no combat immunity, and case was not decided based on a fair, just and reasonable assesment of duty of care but MINORITY: (mance, carnwarth)
Government decisions on how much to invest into what are not for the court to investigate

Smith v Mod

18

Hill v Chief Constable West Yorkshire

not fair just and reasonable to impose a duty on police:
1) would not lead to improvement - police already works on highest standard
2) lead to defensive policing
3) divert resources to resist negligence claims where police should concentrate on crime prevention

19

not fair just and reasonable to impose a duty on police:
1) would not lead to improvement - police already works on highest standard
2) lead to defensive policing
3) divert resources to resist negligence claims where police should concentrate on crime prevention

Hill v Chief Constable West Yorkshire

20

Art. 6 ECHR

right to fair trial- excluding liability will cause courts to strike out claims

21

Osman

CoA had striked out a claim,
ECHR:
Hill failed requirement of proportionality
from then on: factors that give rise to court denying a claim (fair just and reasonable consideration) would have to be weighed against Cs suffering

it seemed like a claim could no longer be simply struck out but that there would always have to be such a weighing exercise

HOWEVER: Z v United Kingdom

22

Z v United Kingdom

art. 6 had been observed when striking out claims

there would be no requirement to do a proportionality assesment as set out in Osman where the rule that deprives C of bringing a claim is a SUBSTANTIVE LEGAL RULE

Here: it was established that there was in fact no immunity of the police but that the fair, just and reasonable principle, a sustantive legal principle, had been applied in cases such as Hill

23

Brooks

MODIFICATION FROM HILL PRINCIPLE
1) it should be no longer assumed that imposing a duty of care would have no positive effect on police standards as extensive failings had been shown
2) if there had been outrageous negligence this might be a reason to impose a duty of care

nb although the weighing up of factors from Osman was no longer required due to the decision in Z v UK the courts still seemed concerned about hwether degree of negligence and injury had to be considered

24

Van Colle

the concern was that if police was made liable they'd start to neglect crime prevention as well as education
scepticism about "outrageous negligence" from brooks
-> unclear if it still applies as Van Colle as well as Michaels suggest otherwise

25

CoA had striked out a claim,
ECHR:
Hill failed requirement of proportionality
from then on: factors that give rise to court denying a claim (fair just and reasonable consideration) would have to be weighed against Cs suffering

it seemed like a claim could no longer be simply struck out but that there would always have to be such a weighing exercise

HOWEVER: Z v United Kingdom

Osman

26

art. 6 had been observed when striking out claims

there would be no requirement to do a proportionality assesment as set out in Osman where the rule that deprives C of bringing a claim is a SUBSTANTIVE LEGAL RULE

Here: it was established that there was in fact no immunity of the police but that the fair, just and reasonable principle, a sustantive legal principle, had been applied in cases such as Hill

Z v United Kingdom

27

MODIFICATION FROM HILL PRINCIPLE
1) it should be no longer assumed that imposing a duty of care would have no positive effect on police standards as extensive failings had been shown
2) if there had been outrageous negligence this might be a reason to impose a duty of care

nb although the weighing up of factors from Osman was no longer required due to the decision in Z v UK the courts still seemed concerned about hwether degree of negligence and injury had to be considered

Brooks

28

the concern was that if police was made liable they'd start to neglect crime prevention as well as education
scepticism about "outrageous negligence" from brooks
-> unclear if it still applies as Van Colle as well as Michaels suggest otherwise

Van Colle

29

Liability for Omission is generally harder to establish

ex partner killing woman, who had called the police whp had classified the call as non-urgent

DISSENT IMPoRTANT:
Hale, Kerr
Societys attitudes may have changed and people may no longer find it fair to grant immunity for police from duty of care in such scenarios

Michaels

30

Michaels

Liability for Omission is generally harder to establish

ex partner killing woman, who had called the police whp had classified the call as non-urgent

DISSENT IMPoRTANT:
Hale, Kerr
Societys attitudes may have changed and people may no longer find it fair to grant immunity for police from duty of care in such scenarios

31

Hale in Michaels v Chief Constable south wales

Hale: Policy reasons against imposition have largely diminshed by the fact that undert art. 2 echr police owes a common law duty to protect members of public

32

Kerr in Michaels

Sufficient proximity should be recognised where:
1) closeness of association (arises f.e. where info is communicated)
2) info is about serious harm unless action
3) D is an angecy reasonably expected to act and protect
4) D is able to do so without unnecessary danger to himself

33

Emerging principle tests

Donoghue v Stevenson neighbour principle
Home Office v Dorset Yacht should apply
Ann foreseeability, policy considerations but
Caparo : foreseeable, proximity relationship, fair just reasonable

34

Proximity of relationship

Hill v Chief Constable West Yorkshire
Michaels v Chief Constable South Wales

35

Fair Just Reasonable
Military

Mulcahy
Smith

36

Fair Just Reasonable
Police

Hill v Chief Constable West Yorkshire
Osman
Z v UK
Brooks
Van Colle
Michael v Chief Constable South Wales