Negligence I: Duty and Breach Flashcards
(27 cards)
From which case does the neighbour principle come from?
Donoghue v Stevenson
How has the test for finding a duty of care developed?
- Anns v Merton LBC created a two stage test which asked was harm forseeable as to bring the claimant within the neighbourhood principle? If yes, was there any good policy reason to deny the existence of the duty?
- NOTE, this test received much judicial scrutiny, foreseeability is not enough alone, there must be proximity between the two
- Confirmed in Marc Rich & Co that foreseeability alone is insufficient to create a duty
- Caparo v Dickman then established the three stage test for confirming a duty of care
What is the Caparo test?
- Proximity
- Obvious risk of harm / foreseeability
- Is it fair, just and reasonable to impose a duty
For proximity, the person must not be one of an indeterminate class of persons, Goodwill, the test is ultimately a factual one based on case. HOWEVER, this does not mean that we should we try to find duties in all cases. If there is an analogous situation, then rely on that case authority
What does the current law say in relation to finding a duty of care and the caparo test?
Robinson v Chief Constable of West Yorkshire: There should be an incremental approach to the duty of care. Caparo is not about delivering a test for all situations but new cases where analogy cannot be drawn to precedent or other cases
What does the case law say about the liability of public authorities?
- Robinson v CC of West Yorkshire: The ordinary principles of negligence apply to public authorities, no special immunity for the police
- Poole BC v CG: Public authorities do not owe a duty of care merely because they have statutory duties or powers
HXA v Surrey County Council
* Social workers had not assumed responsibility for children, the case was analgous to the Poole decision
* However there can be some cases in which a local authority will assume responsibility, e.g. where care order is obtained and authority assumes parental responsibility or their safety has been entrusted to them
* Reliance is not always needed, e.g. where there is a child with learning difficulties it would be wrong to require reliance
What is the difference between primary and secondary victims?
Page v Smith
* Primary victims are those involved in the accident, for these people only physical harm need to be foreseeable, pyschiatric injury will be recoverable
* Secondary victims are those not directly involved but who suffer as a result of what they see or hear, more constrained requirments for these people
How has the case of Paul reclassified the rules on psychiatric harm for secondary victims?
Paul v Royal Wolverhampton NHS Trust
1. There must be an accident. This is to be given its ordinary meaning, an unexpected and unordinary event but must be a discrete and external event. Materialisation of a medical condition does not suffice. No need for this to be ‘horrifying’, no scale of such
2. Claimant must be present at the scene or witness the immediate aftermath. No longer a requirement of ‘shock’ as this has no medical basis. As long as a medical condition arises, there is no reason why a gap in time should affect liability
3. There must be a close tie of love and affection between the claimant and victim
What criticism can be given about Paul?
LORD BURROWS (DISSENT): The distinction of an accident is arbitrary, excluding legitimate claims. We should focus on whether psychiatric harm was medically recognised, foreseeable and caused by the breach
LEE: Judgement creates a heirarchy of trauma based on ‘accidents’. This simply reinforces the old rule, simply shifting around ideas. Floodgate argument is misfounded, especially given Alcock was about a massive disaster
MCBRIDE & BAGSHAW: Amend FAA 1976 to abolish the right to sue in negligence for pyschiatric injury where there is close tie of love and affection and allow a dependent of V to sue for compensation for foreseeable and and serious pyschiatric harm that they suffered and it would have been unlikely to suffer because of V’s pre-existing condition
What overall argument can be made about the Paul decision?
- Court recognised the distressing nature of the facts and expressed sympathy with the families
- However it was held the law cannot impose duties based on sympathy
- BUT might say this means the law is in an unsatisfactory state such that reform is needed so its principles are no so remote to deny a legal remedy where one is so obviously a social wrong (Donoghue v Stevenson)
What were the old requirements for pyschiatric harm prior to Paul?
McLoughlin v O’Brian / Alcock
1. A close familial relationship between the claimant & victim
2. There must be close proximity to the accident in both time and place
3. Shock suffered must come through sight or hearing of the event or its immediate aftermath (NO LONGER NEEDED UNDER PAUL)
What did the case of Alcock say with regards to psychiatric injury?
Alcock v Chief Constable of South Yorkshire (Hillsborough)
1. Damages for psychiatric shock from merely being informed of, or reading, or hearing about the accident are not recoverable
2. Mere mental suffering, although reasonably foreseeable, if unaccompanied by psychiatric injury, is not recoverable
3. There is yet no authority that a negligent person or his estate is liable for psychiatric shock sustained as a result of self-inflicted injury or death by the negligent person
What further developments have been given to the law on pyschiatric harm?
Alcock
* A loving relationship is presumed with husband/wife (or engaged couple) and parent/child, other situations burden of proof is on the C
* Watching the accident on TV was not sufficient for the third element (potentially could in different situations, e.g. if live)
White v CC
Having the status of a rescuer does not give an exception to the Alcock rules
Attia v British Gas
Psychiatric harm may be recoverable if suffered as a result of physical harm to property, likely would have to be grave like a home fire
What are the rules on involuntary participants, i.e. those who feel responsible for injury?
Alcock: Where the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary cause of anothers death / injury will establish a sufficient proximate relationship
- Has been treated as creating a discrete category, usual requirments in Alcock may not be necessary
- Must be a reasonable belief that they had been an unwitting cause of death
Dooley v Cammell Laird
If the negligence of the defendant makes the person think they are responsible for injury and this was a reasonable belief that they caused death or injury, then they will be liable
W v Essex CC: Those placed by D’s negligence in a position where they unwittingly contributed to the accient and developed psychiatric injury from guilty can be primary victims
Is the distinction between primary and secondary victims satisfactory?
- Distinction of primary and secondary victims creates the idea that physical harm is ‘real harm’ because it is easier for primary victims to recover, relies on outdated medical ideas (Ahuja)
- The law has recognised other areas, such as involuntary participants as special categories, so why can’t we abolish primary and secondary
- Floodgates argument, creates clear distinction and there should be a predictable framework (Stapleton)
What is the general rule on omissions in negligence?
Usually no liability for omissions, there is no general duty of care to guard against harmful conduct of third parties (Smith v Littlewoods)
What is the liability of public authorities for omissions?
Gorringe v Calderdale MBC
A private law duty in tort cannot be inferred from the mere existence of statutory power or duty, must be shown there is a Parliamentary intention to create a duty. In the absence of a right to sue for breach of the statutory duty, it would be absurd to hold that D was under a common law duty
What two cases confirm the liability of public authorities such as the police?
- Michael v Chief Constable of South Wales: Police do not owe a general duty of care to the public at large nor do they owe a duty of care towards victims of crime. Will be liable for an omission where they are responsible for creating the danger, they are in a position of control over the third party or have assumed responsibility
- Robinson v Chief Constable of West Yorkshire: The ordinary principles of negligence apply to the police, no special immunity
What examples in the case law tell us when a public body will be liable for an omission?
Kent v Griffiths: Where emergency call workers give an assurance to the claimant which is relied upon, they will have assumed responsibility
Home Office v Dorset Yacht Co: A duty of care may be owed for the acts of a third party where there is a ‘special relationship’ and it is foreseeable and proximate that harm will occur
When will a private party be liable for an omission?
Smith v Littlewoods gives 4 cases in which a private party will be liable for a failure to act / actions of a third party:
1. Relationship between the parties creates an assumption of responsibility on behalf of D for the safety of C
2. Relationship of control between D and a third party that causes the damage (e.g. Dorset Yacht case)
3. D creates or permits a source of danger to be created, which is interfered with by third parties and this was foreseeable
4. D fails to remove a source of danger which he is aware of
How has the recent case law developed the principles for a duty of care in relation to omissions?
Tindall v Chief Constable of Thames Valley Police
- There is a distinction in cases of making matters worse and failing to confer a benefit (generally the first carries a duty, second does not)
- Where a distinction is hard to draw, the question is ‘what would have happened if the defendant had done nothing and never embarked on the activity giving rise to a claim?’ (i.e. if made worse, then a duty will arise)
- If A knows or ought to know B is in need of help and A knows or ought to know he has done something to put or prevent someone else helping B, then A owes B a duty to take reasonable steps to give the help needed
- In this case, police did not know that Mr K had been warning drivers and it was not reasonably foreseeable that they would be making things worse
- There was no assumption of responsibility, no special duty of care and no control over the danger
What is the test for determining if a defendant has breached their duty of care?
Blyth v Birmingham Waterworks
Failing to do something that the reasonable man would do or doing something he would not do
What does Bolton v Stone tell us about the standard of care required?
- Likelihood of harm must be taken into account, the greater the risk the greater the need for precaution to be taken
- Remote possibility of injury is not enough, there must be sufficient probability that it would occur
What does the The Wagon Mound No2 say in relation to a risk?
Where the person was aware of an incident and ought to have known of the risk, and did not take steps to prevent this when such steps presented no difficulty or expense they will be seen as being negligent
Why was the standard of care different in Paris v Stepney Borough Council?
If the claimant has a known condition / disability which makes the risk of injury higher, this must be accounted for in determing whether the reasonable person would have taken precautions to prevent such injury
