Negligence - INTRO & DUTY OF CARE Flashcards
(21 cards)
What is negligence?
Winfield and Jolowicz
‘the breach by D of a legal duty to take care causing some recoverable damage to C.’
Actionability Question - Is the harm actionable in negligence AND different types of harm
Dryden v Johnson Matthey PLC 2018
Negligence requires proof of harm
Harm includes:
> Damage to property
> Personal injury = physical injury
> Recognised psychiatric harm
> Economic loss
Scope of Duty - what is a duty of care in negligence?
Duty of care in negligence = an obligation recognised in the law of negligence which requires D. to do or not do something
Usually a duty on D to take reasonable care to avoid acts or omissions which cause reasonably foreseeable harm to C
Scope of Duty:
> Is there a duty?
> If there is a duty, what is its scope?
Does a duty exist? ESTABLISHED CATEGORIES
Have to look at previously-decided established categories
Established Categories include:
1 - pre-tort relationship
2 - a positive act of D
3 - a pure omission by D
4 - 3rd party
5 - special relationship between parties
6 - special type of harm
1 - Pre-tort relationship - was their a relationship between D and C before? 2 different types
Specific relationship recognised in precedent
OR
General ‘neighbour’ relationship
1 - Pre-tort relationship between C and D - GENERAL NEIGHBOUR / Reasonable foreseeability of harm
The neighbour principle arised from the case of Donnoghue v Stevenson
Lord Atkins ‘neighbour principle’:
You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour
Reasonable forseeability of harm –> Would a reasonable person, in the circumstances of D at the time of the act/omission, have foreseen harm to a ‘neighbour’?
1 - Pre-tort relationship between C and D - SPECIFIC EXAMPLES
Driver and passenger = Nettleship v Weston
Employers and Employees = Wilson & Clyde v English
Doctor and patient = Bolam v Friern Hospital
Manfucatures and consumers = Donnoghue v Stevenson
School / Teacher and pupil = Gibbs v Barking Corporation
2 - C’s harm caused by D’s positive act
Positive act of the defendant ‘making matters worse’
D. will usually owe a duty to take reasonable care to avoid causing reasonably foreseeable personal injury or property damage to C as a result of D.’s positive act (or omission where there is an independent obligation to act positively)
Robinson v Chief Constable of West Yorkshire [2018] UKSC –> police knocked over Mrs Robinson when trying to arrest a suspect
3 - Pure omission by D
Stovin v Wise –> The duty of care in negligence usually arises from positive acts, rather than pure omissions to act
An omission which fails to make things better for C
> a ‘pure omission’ (i.e. a total failure to act); and
> an ‘omission which is really part of a broader act’ (e.g. not rescuing your child from a cage)
> an ‘omission which is really a failure of an established duty to act positively’
Tindall v Chief Constable of Thames Police:
> Driver slide on black ice but was injured, warned other motorists about the ice
> police came out to check if okay –> but they removed their signs and then another motorists slid on the black ice and were killed
> Police had a duty to make the road safe and drivers aware of the ice –> but was not an omission
Omission part of a broader act
Mitchell v Glasgow City Council 2009
‘A driver who takes to the roads and thus is an actor in the drama is liable for the things which he fails to do as well as for the things which he does. His failure to keep a proper lookout, or to indicate when he proposes to change direction, is an omission. But he took the action of propelling his car in a particular way.’
Omissions principle AND exceptions
Smith v Littlewoods Org Limited –> ‘the common law does not impose liability for what are called pure omissions.’
Essentially stating that D are not to be held liable for their inaction / pure omission
There are exceptions to this rule:
1 - relationship of control of D over C
2 - D voluntarily assumes responsibility over C
3 - D creates a danger for C
4 - D adopts pre-existing risk
Exceptions to the omissions principle - RELATIONSHIP OF CONTROL BY D OVER C
D’s failure to act is not really a ‘pure’ omission (as there is an
independent duty to act positively).
Gibbs v Barking Corporation Parent/ Teacher & Child –> failing to assist a pupil landing after being required to vault)
Kirkham v Chief Constable of Greater Manchester
Custody cases –> Kirkham was in custody had mental health issues and the police didn’t provide sufficient help and so K ended up taking his own life in his cell
Exceptions to omissions principle - D VOLUNTARILY ASSUMES RESPONSIBILITY FOR C
D. can owe a duty of care to C. for a pure omission by D. where D. has
voluntarily assumed responsibility to safeguard C.
E.g. Contractual responsibility: decorator left in charge of property: Stansbie v Troman
(1948)
(Where C. has sustained pure economic loss, courts often ALSO look to C. having
relied on D.’s assumption of responsibility)
Exceptions to omissions principle -
D CREATES A DANGER C
D. can owe a duty of care to C. for a later pure omission by D. where D.’s earlier act has created a danger for C.
Capital & Counties PLC v Hampshire County Council CA –> firefighters stopped their water sprinkler, therefore the fire started spreading even more and they ended up being liable for all the damage to the owner’s property
Exceptions to omissions principle - D adopts a pre-existing risk to C
D. can owe a duty of care to C. for a pure omission by D. where D. has adopted a danger created by others, and D. fails to take steps to reduce that danger to C.
4 - C’s harm was caused directly by a 3rd party
C. may already have a claim against a 3P responsible directly for causing the harm to C.
BUT if C. can establish that D. has breached a duty of care owed directly to C. –> C. may get a more effective remedy against D.
Very closely related to omissions principle (because C. may be harmed directly by 3P because of D.’s failure to do something, e.g. supervise 3P)
General principle about 3rd Parties
Where the harm to C. is caused by 3P, then D. WILL NOT owe a duty of care to C. for the harm caused by 3P.
HOWEVER there are exceptions to this rule, which include:
1 - proximity between D and C
2 - special proximity between D + 3P
3 - D creates a danger for C worsened by 3P
4 - D fails to deal with a danger to C
Exceptions to 3P principle - PROXIMITY (closeness) BETWEEN D AND C
D. can owe a duty of care to C. for harm directly caused by 3P where there is a sufficiently special relationship between D. and C.
E.g.
Express: decorator left in charge of property: (Stansbie v Troman)
Exceptions to 3P principle - RELATIONSHIP OF SPECIAL PROXIMITY BETWEEN D AND 3P
D. can owe a duty of care to C. for harm directly caused by 3P, where there is a sufficiently special relationship between D. and 3P.
E.g.
D. has a relationship of control over 3P
Carmarthenshire County Council v Lewis –> 3y/o boy wandered out from his nursery and onto the main road –> lorry has to swerve and ends up hitting a telegraphic post and dies –> Lorry drivers family brings a claim against the nursery rather than the boy due to their failure to secure the nursery properly
Exceptions to 3P principle - D creates a danger for C worsened by 3P
D. can owe a duty of care to C. for harm directly caused by 3P, where D. creates a danger for C., and 3P makes it worse, causing harm to C.
Must be a ‘special risk’ created:
No - Unlocked bus: Topp v London Country Bus (South West Ltd (1993) CA –> Bus driver left bus unattended to help a passenger –> 3P drives the bus away resulting in a crash
Exceptions to 3P principle - D FAILS TO DEAL WITH A DANGER TO C
Very rarely, D. can owe a duty of care to C. for harm directly caused by 3P, where D. knows (or ought to have known) that there is a danger that he ought to do something about, but does not deal with it, he may be liable to anyone injured as a result of that danger.
