Tort of Negligence: Duty of Care Flashcards

Question

Duty of care (psychiatric illness) 1. What must PV of PI have to show? 2. Page v Smith [1996] - facts - held - difference between fortitude of SV vs PV? - what must be shown for PV to recover damages? - does it matter whether physical or psychiatric injury was foreseen?

Answer 1

1. (a) D has reasonably foreseen that he might suffer some personal injury (which will suffice to establish a DOC owed to PV in respect of his PI) (b) PV was in the zone of danger 2. D negligently crashed into C’s car. C felt exhausted and the exhaustion continued and he never recovered. In the following 8 years C had not yet returned to work as he suffered ME. - Held: C was well within the range of foreseeable physical injury and was therefore a PV. The distinction between primary and secondary victim is to create a control mechanism, otherwise a negligent D might find himself being made liable to the whole world! For SVs, there are control mechanisms of proximity and objective foreseeability by D of shock to a person of normal fortitude or ‘ordinary phlegm’. However, none of these above mechanisms apply to a PV, where D takes V as he finds him even if an ordinary person would not have incurred PV’s injury: eggshell skull rule. Nevertheless, to hold that PV can recover damages for a PI, these things have to be shown: 1) D must have reasonably foreseen that PV might suffer personal injury: if there is no such foreseeability, D owed PV no DOC. Hence, provided some kind of personal injury was foreseeable, it did not matter whether the injury was physical or psychiatric, as D would be under a DOC to avoid causing personal injury to C. But there is no need to ask whether there is foreseeability of injury shock, and it is irrelevant that PV did not in fact suffer any external physical injury. The illogical distinction between physical and psychiatric injury has been abolished! 2) PV is in within the range of foreseeable physical injury (zone of danger)

Answer 2

1. Commentary: Law Commission says that the distinction between PV and SV is ‘more of a hindrance than a help’ and there is confusing inconsistency as to how the line should be drawn. 2. This is a response to W v ECC where Lord Slynn held that the categorization of claimants as PV and SV is not finally closed! If the PV category is enlarged, this might undermine the proximity requirements for SVs under Alcock. 3. Oliphant: the scope of the zone of danger is unclear: if everyone on the street thinks momentarily that a disabled plane might come down on them, will they be termed as being ‘under a zone of danger’ (within the range of foreseeable physical injury) even though the plane goes away? If yes, then there will be a large number of claims arising out of a single incident. 4. Lord Goff (in White v Chief Constable of South Yorkshire): the decision dethroned foreseeability of PI from its central position as the unifying feature of this branch of law by making a distinction between PV and SV. Only for SVs was it still necessary for C to establish foreseeability of PI where the PV only had to show the foreseeability of injury, whether physical or psychiatric – there has been no previous support for any such approach. The eggshell skull rule has been misunderstood…the maxim only applies where liability has been established. JY: what if C’s PTSD is caused more by genetic makeup? If C suffers personal injury and then develop PTSD, it is unfair to make D liable! What if the SV line of cases be united by ‘foreseeability’? The court is obsessed by the PV/SV element. Foreseeability removes this whole distinction and looks into the culpability of the act.

Answer 3

ϖ C’s workmate was electrocuted, dying instantly. On hearing a loud bang, C looked behind and saw the dead man and the flames around him. C ran to the security office to summon help and returned to the scene. He suffered PI and claimed damages as a PV of D’s negligence. Held: D was liable and C was indeed the PV. C was within the area of physical danger, even though C seems to have been unaware of the physical danger until after the accident had occurred. Commentary: dispensing with any requirement that PI should result from fear for one’s physical safety blurs the distinction between PV and SV and is likely to result in anomalies.

Answer 4

1. C’s husband (H) sustained physical injury in an industrial accident, developed depression and committed suicide 6 years later. 2. Held: Applying Page v Smith, the suicide was a manifestation of depression H suffered consequent upon a head injury sustained as a result of D’s negligence. It did not matter whether H’s psychiatric harm was foreseeable as a result of D’s negligence as long as some kind of personal injury (physical or psychiatric) was foreseeable. In this case, D conceded that H’s PI was reasonably foreseeable. 3. Lord Walker: Page v Smith provides a much simpler test for judges…even if it sometimes results in compensation for damage in the form of psychiatric squeal which might not have been reasonably foreseeable.

Answer 5

1. Page does not apply! 2. Grieves v Everard &Ors[2008] 3. C suffered clinical depression after knowing that he was at risk of suffering asbestos-related illness in the future as a result of his negligent exposure to asbestos dust in the workplace. C developed symptomless pleural plagues, and the knowledge of triggered C’s PI.C sued his employer D. 4. Held: affirmed the correctness of Page v Smith. However, even though physical harm was a foreseeable consequence of D’s negligence, C could not claim damages because Page did not apply to a case where PI was triggered by fear of something that might happen in future rather than an immediate response to a past event.

Answer 6

No 1. W v Essex County Council [2001] - C were foster parents who had young children of their own. C told the Council that they would not adopt children with sexual abuse history, but the Council negligently gave them a child with a history of sexual abuse, who caused C and C’s children PI.Held: did not strike out the case. The law regarding psychiatric injury was still developing and the categories of primary victims are not closed. It was arguable that the claimants may be primary victims based on a feeling of responsibility in unwittingly bringing the abuser in to the house. Furthermore the concept of the ‘immediate aftermath of the incident’ has to be assessed on the particular factual situation. Therefore the issues should go to trial. Commentary: is there really proximity of time and space? This contradicts other decisions. 2. Re Organ Retention Group Litigation [2005] ϖ C in a group action were all parents of deceased children on whom post mortems had been conducted by doctors to establish the causes of death. C alleged that, although they had consented to the post mortems, the organs of the children had been removed, retained and subsequently disposed of without their knowledge. C suffered from PI. Held: D had a duty to consult the C. C was a PV.

Answer 7

(i) reasonable foreseeability that SV would suffer psychiatric illness specifically (objective) (ii) proximity of relationship (iii) proximity in time and space (iv) proximity of perception (v) caused by shock (vi) person of customary phlegm

Answer 8

Has to show that reasonable foreseeability that the SV would suffer psychiatric illness specifically (objective test: would a reasonable person in the defendant’s position have foreseen that someone in the claimant’s position might be injured?) 1. Lord Denning: there can be no doubt since Bourhill v Young that the test of liability for shock is foreseeability of injury by shock. But this test is by no means easy to apply. The test is not what the negligent party himself could reasonably have foreseen, for he rarely has time to foresee anything. The test is what a "hypothetical reasonable observer could reasonably have foreseen": see Bourhill v. Young, 66 per Lord Wright 2. I cannot accept that D could reasonably have foreseen, or, more correctly, the reasonable hypothetical observer could reasonably have foreseen, the likelihood that anyone placed as the appellant was, could be affected in the manner in which she was. 3. the test of reasonable foreseeability is whether the hypothetical reasonable man in the position of the defendant, viewing the position ex post facto, would say that the shock-induced psychiatric illness was reasonably foreseeable

Answer 9

* The SV must have a ‘close tie of love and affection’ to the PV * Presumed proximal relationships: parent and child, spouses, engaged to be married couples * For all other relationships, C must evidentially rebut the prior presumption that ‘there is NO close tie of love and affection’ between he and the primary victim (PV). Sibling relationships, for example, can be very varied! * Exception ¬ Alcock v Chief Constable of South Yorkshire --- (Lords Ackner and Keith)Held: there might be liability of D in respect of a bystander SV if the accident witnessed by the SV is ‘particularly horrific’ (i.e. air-balloon crashes but live TV (rather than stream) such that akin to being there) * Weir: this requirement is messy in practice and risks causing ‘perplexity to advisers and embarrassment to litigants’ * Oliphant: this requirement ‘closes the door’ for bystanders such as rescuers who have no relationship with the PV.

Answer 10

• The SV must be ‘proximal to the event or its immediate aftermath’ 1. The ‘aftermath’ of an accident extends not only temporally forward from the accident, but also spatially away from the scene (to the hospital for example) during the period of immediate post-accident treatment. Lord Wilberforce: a two-hour delay period was at the margin of the time span for recovery. Commentary: arbitrary timescale! 2. PV was taken to hospital after a serious accident and was transferred to the intensive care unit. C (parent of PV) was not allowed to visit him whilst PV was receiving treatment. C was later allowed to do so, and claimed that D owed him a DOC in respect of their PI.Held: C, although in attendance at the hospital when he arrived, saw little of their son PV until several hours later when he had been stabilised. The psychiatric injury suffered, according to medical evidence, grew out of a whole sequence of events extending over an appreciable period of time and could not be attributed to one shocking event. 3. the concept of the ‘immediate aftermath of the incident’ has to be assessed on the particular factual situation. Lord Slynn: it is not certain that the parents would have to come across the abused or abuse immediately after the sexual event. Commentary: this is a very strange proposition of law! 4. C’s daughter was killed by a car which dangerously mounted the pavement. C went looking for her at the cordoned area and was told V was dead. C then went to the mortuary and saw her daughter’s disfigured body. Held: this constituted an uninterrupted sequence of events. The ‘aftermath’ extended to the moment at which C left the mortuary. Commentary: this is inconsistent with Alcock, where C did exactly the same thing – they went to the mortuary to identify the bodies but were denied the aftermath doctrine! 5. D was negligent, which lead to a workplace accident in which PV was injured and died from the injury 3 weeks later. C (SV) is PV’s daughter, and developed post-traumatic stress disorder and sued D. Was C (SV) sufficiently proximate to the accident or its ‘immediate aftermath’? Held: No, D was too distant from the accident. Proximity was not made out in this case as the C was not present at the accident at work or anything which could sensibly be considered as its immediate aftermath.

Answer 11

• The SV must ‘witness the event through their own unaided senses’  i.e. their own, and direct, sight and hearing 1. watching the event on live TV was NOT equivalent to direct perception. Commentary: 1) what is the rationale behind the distinction? Why isn’t it enough for someone to see on TV that his relative has been severely injured? 2) How much perception is required? Is witnessing a generalized chaos as good as witnessing the actual injury of the relative? 3) What if PV was not injured but still gave SV PI? Would SV still be able to recover damages? 2. C’s daughter was abducted and her body was found 4 days after her abduction, during which period C suffered from visions and nightmares. C later saw the body. Held: C, whatever she feared, had had no sudden appreciation by sight or sound of the horrifying event. It was irrelevant that her fears were subsequently confirmed by events. 3. parents were only told of the abuse of their child, without actually witnessing it or its immediate aftermath. Held: their claim was not struck out. Commentary: this is inconsistent with the requirement of proximity of perception

Answer 12

• The SV’s PI must have been caused by a shocking event, ‘the sudden appreciation by sight or sound [of which] violently agitates the mind’ (per Lord Ackner in Alcock) 1. C (SV)’s son was in hospital suffering from liver failure which was the result of D’s admitted negligence in failing to diagnose his condition. When C knew that the son was suffering from serious brain damage, she agreed to his life support system being turned off and he died. It was agreed that C had suffered shock and a RPI, namely pathological grief reaction, as a result of what she had witnessed and experienced over a period of some 36 hours between her son’s seizure and his death. Held: there was shock which violently agitated the mind. In this case there was a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for the claimant was undoubtedly one drawn-out experience. Accordingly, the 36-hour period constituted one entire event, albeit made up of discreet events. 2. C (SV) went looking for her daughter and found a road cordoned off by police. C was then told her daughter had been killed by a car. She went to the mortuary and saw her daughter's disfigured body. Held: this series of events was sufficiently linked in time and space to allow C to recover compensation.

Answer 13

1. this requirement is further control mechanism 2. It is here, as elsewhere, a question of what the hypothetical reasonable man, viewing the position, I suppose ex post facto, would say it was proper to foresee. What danger of particular infirmity that would include must depend on all the circumstances, but generally, I think, a reasonably normal condition, if medical evidence is capable of defining it, would be the standard… The driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may from time to time be expected to occur in them, including the noise of a collision and the sight of injury to others, and is not to be considered negligent towards one who does not possess the customary phlegm

Answer 14

• A PV does not owe a duty of care to a SV in relation to self-inflicted harm. As a matter of policy there was no liability in negligence where the PV was the negligent D himself and the shock to C arose from witnessing the D's self-inflicted injury 1. C (fire officer) was called to the scene of a car accident in which his son had been injured through his own negligence. C sued his son for damages for the PTSD he consequently sustained. Cazelet J: D who imperilled/injured himself owed no duty to C who suffered PI as a result. This is based on the policy reason not to create a further limitation upon an individual’s freedom of action. To allow family member B to sue family member A suffered as a result of B having been present when injury was sustained upon A will open up the possibility of a particularly undesirable type of litigation within the family. It will be productive of acute family strife!

Answer 15

No special treatment is given to regard rescuers as a distinct category of PVs. White v Chief Constable of South Yorkshire [1999] 1. police officers sued D in respect of the PTSD they suffered as PV after the Hillsborough football stadium disaster where they witnessed chaotic and gruesome scenes and actively rendered assistance as ‘rescuers’, who, it was said, always qualify as PVs. D denied he owed a DOC to the officers. 2. Held (Lord Hoffman): (i) No, this is not a relevant distinction and it would be unfair to give C the right to a larger claim merely because the disaster was caused by the negligence of other policemen. (ii) There is no authority which decides that a rescuer is in any special position in relation to liability for PI. Hence, there is no logical reason why rescuers should be given special treatment as PV when they were not within the range of foreseeable physical injury and their psychiatric injury was caused by witnessing or participating in the aftermath of accidents which caused injury to others. 3. Rescuers are not to be treated as PVs because (i) this will blur the line between bystanders (such as that in Alcock who also gave assistance) and PVs, and (ii) even if the increase in claims is modest, the extension would be unacceptable as it would offend his notions of distributive justice. He would think it unfair that policemen should have a right to compensation while the bereaved relatives are sent away with nothing. 4. it would be a very artificial control to say that rescuers can only recover if they were in fact in physical danger. The public would not find it offensive that those who suffered disabling PI as a result of their efforts to rescue V should receive compensation.

Answer 16

• Unwitting agents of misfortune (those who believe they are the cause of another’s' death and develop PI as a result) 1. C (crane operator) suffered an aggravation of a RPI when the rope carrying his load suddenly broke as a result of D’s negligence and fell down. C felt so wretched afterwards, thinking that someone would be injured, that he was unable to return to work as a crane operator. Held: C was entitled to damages, as C’s PI was a foreseeable consequence of D’s failure. 2. C (vehicle driver) accidently struck a water hydrant whilst manoeuvring his vehicle, causing water to flow out. C went off to find a hose-pipe, leaving X at the scene. When he was 30m away from the scene, the hydrant burst and was told that X was dead. C thought he was responsible and subsequently suffered clinical depression. The accident in fact occurred due to D’s negligence in failing to maintain the vehicle clearances at the site. Held: C was NOT entitled to damages. There was no sufficient proximity in time and space or perception for C to be properly described as an unwitting participant. As a SV therefore, he could not satisfy the Alcock proximity tests. According to Alcock, a PV can be (i) those who are caused to fear physical injury to themselves; (ii) those who believe that they are about to be, or have been, the involuntary cause of another's death or injury (unwitting agents), as they all are ‘mediate or immediate participants in the traumatic event’ Commentary: this represents an attempt to limit the category of liability to unwitting agents of misfortune.

Answer 17

• To recover for PI in relationship cases, C only has to show that his psychiatric injury could be reasonably foreseen. This dispenses with theAlcock requirements.

Answer 18

where the employer's negligence creates a sudden, shocking event, employees who suffer a psychiatric reaction from observing that event must satisfy the criteria for a ‘secondary victim’ under Alcock, and could

Answer 19

1. there was an allegation that C was a bad landlord, threatening and beating up tenants to get their rent from them in cash. C was charged for a criminal offence and sentenced to prison. C claimed that his solicitors (D) had acted without the evidence, especially the witness-statement of a person who knew that C was not present when the beatings allegedly took place. It soon became apparent that C was actually an upstanding member of society and C suffered psychiatric injury as a result of the imprisonment and loss of reputation due to D’s negligence. 2. Held: solicitors have a pre-existing duty of care towards their clients. There was a contractual relationship between C and D which allowed C to recover damages. 3. Elias J: on the evidence that the claimant suffered from a major depressive disorder as a result of his conviction and imprisonment. However, he held that this was not a foreseeable consequence and struck out the claim. The question was whether, with hindsight, it could be said to be reasonably foreseeable that the defendant’s failures in two particular respects – to advertise and to engage an inquiry agent – would lead a person of ordinary fortitude, in the circumstances of the case, to suffer an identifiable psychiatric illness!

Answer 20

1. C (teacher) suffers a RPI brought about by the stress of workload. C tried to talk to her employers on many occasions. 2. Held: Hale LJ: All employers have a duty to take reasonable care for the safety of their employees. The test is whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned, and such reaction relating to injury to health which is attributable to stress at work. Some factors are relevant - (i) they include the nature and extent of the work being done by the employee, (ii) whether others are working under harmful stress level. (iii) Harm is reasonably foreseeable if the employer is putting pressure on the employee which is in all circumstances of the case unreasonable. (iv) The signs of the employee himself are important, e.g. frequent absence from work. (v) Unless he knows of some particular problem, an employer is usually entitled to assume that his employee is up to the normal pressures of the job. Generally he is entitled to take what he is told by or on behalf of the employee at face value. (vi) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty. 4. Rule: even in the absence of a risk of foreseeable physical harm if the claimant is classified as a ‘primary victim’ he does not have to demonstrate that he is of ‘ordinary fortitude’, merely that the psychiatric harm was foreseeable in him. 5. Lord Walker: the judgment should not be read as having anything like statutory force, every case will depend on its own facts. Commentary: employer’s liability is in a complicated state after this. The rules are: 1) Occupational stress: the employer owes a DOC if the injury was foreseeable(Hatton) 2) Shock from witnessing injury: no DOC in the absence of proximity of relationship 3) Foreseeable risk of physical harm: this is the case where C is the PV (Donachie)

Answer 21

In summary, therefore, claims for psychiatric injury fall into four different categories. (1) Tortious claims by primary victims, usually those within the foreseeable scope of physical injury, for example, the road accident victim in Page v Smith; some primary victims may not be at risk of physical harm, but at risk of foreseeable psychiatric harm because the circumstances are akin to those of primary victims in contract (see (3) below). (2) Tortious claims by secondary victims: those outside that zone who suffer as a result of harm to others, for example the witnesses of the Hillsborough disaster in Alcock’scase. (3) Contractual claims by primary victims: where the harm is the reasonably foreseeable product of specific breaches of a contractual duty of care towards a victim whose identity is known in advance, for example the solicitors’ clients in Cook v S [1967] All ER 299 . . . or the employees in the cases of Petch, Walker and Garrett, and in all the cases before us. (4) Contractual claims by secondary victims: where the harm is suffered as a result of harm to others, in the same way as secondary victims in tort, butthere is also a contractual relationship with the defendant, as with the police officers in White’s case.

Answer 22

ϖ Pill LJ: The reference to counselling services in Hatton does not make such services a panacea by which employers can discharge their DOC in all cases

Answer 23

C (health care officer at D’s prison) had to recover bodies of prisoners who had committed suicide. He attended 8 suicides and developed a stress-related illness. Held: psychiatric injury was reasonably foreseeable in the circumstances. This was sufficient to ground a DOC.As far as occupational stress is concerned, cases of shock would be covered as well and C would not have to prove proximity of relationship. Commentary: can this be reconciled with White?

Answer 24

ϖ if the employee has, under the employment contract, undertaken an agreed amount of work, can the employer nonetheless breach the DOC by requiring the employee to perform that work? Held: the tortious DOC does not sit easily with such contractual arrangements, nor does it seem likely to promote efficiency within the enterprise. The overall test of an employer's duty of care was that of the conduct of the reasonable and prudent employer, taking positive thought for the safety of his employees in the light of what he knew or ought to have known

Answer 25

Hatton was followed in respect of employer’s liability for causing PI to PV. The test is the reasonable foreseeability of PI test. On the facts, D had no special knowledge of how C might react to his discovery of his disease, and were therefore entitled to assume that C was a person of ordinary fortitude. Hence, there was no evidence from which it could be concluded that C might reasonably foreseeably suffer PI in consequence of their negligence. Hence, C’s action should fail!

Answer 26

ϖ C (volunteer worker on a youth homelessness project). The police needed an appropriate adult to be present in an interview to deal with people with mental disorder. A serial killer was interviewed, and C heard harrowing stories un-forewarned and was incorrectly told that she would not have to give evidence at trial. Did the police owe C a DOC in respect of conduct of interviews? Held: no. Operational effectiveness is more important. On whether C was owed a DOC after the interview, it is possible that a DOC was owed it. But it is a foreseeability question. However, there were well-established duties of care which the police undoubtedly owed to C just as they owed them to anyone else who was foreseeably at risk of personal injury C’s claim would be allowed to proceed to trial on the issue of failure to provide counselling services but the particulars of claim so far as they related to the duty of care towards C as an appropriate adult would remain struck out. C won

Answer 27

prisoner sued D in respect of his PI. C was depressed and suicidal and was placed in a cell with a cellmate known to have a risk of suicide. Cellmate committed suicide and C discovered the body and claimed he suffered PI. C avoided blaming the cellmate and blamed D (to keep out of the Alcock line of case law). CA Held: the Alcock cases are irrelevant, where the main harm and main duty is owed to someone else, not C. D ought to have known or knew C’s condition, and so the duty owed includes the duty to take reasonable steps to minimise psychiatric harm.

Answer 28

* The general rule is that there is no duty to assist another person who is at risk of injury. This general rule is, of course, qualified. * There is no duty to be a Good Samaritan in general.

Answer 29

ϖ Lord Keith: there is no liability 'in negligence on the part of one who sees another about to walk over a cliff with his head in the air and forbears to shout a warning'

Answer 30

ϖ doctor was at the scene of the accident but was under NO duty to help, but only under a duty not to make the situation worse!

Answer 31

ϖ Lord Hoffman: 1) In political terms, it is less of an invasion of an individual's freedom for the law to require him to consider the safety of others in his actions than to impose a duty on him to rescue or protect (=it is a serious infringement of personal liberty to impose such a duty) 2) In moral terms, the point is 'why pick on me?'. A duty to prevent harm to others or to render assistance to someone in danger may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be liable instead of all of them? 3) In economic terms, the efficient allocation of resources usually requires an activity should bear its own cost. If we impose some of its cost on others (by requiring them to act), the market is distorted because the activity appears cheaper than it really is. Lord Nicholls: the classic example of the absence of a legal duty to take positive action is where a grown person stands by while a young child drowns in a shallow pool. Something more is required than being a bystander...there must be some additional reason why it is fair and reasonable that one person should have legal obligations in that regard. When this additional reason exists, there is said to be sufficient proximity. Commentary: Prosser & Keeton: 'revolting to any moral sense...the remedy in such cases left to the higher law and the voice of conscience'. Bender: the no duty to rescue rule is a consequence of a legal system devoid of care and responsiveness to the safety of others. Weinrib: initially supported the duty to rescue in cases of emergency where the rescuer can act without prejudice to himself. Retracted as thus blurs the distinction between misfeasance and nonfeasance inherent in the correlative structure of tort law. Williams: the 2nd argument is no more than evidential uncertainty. The 3rd argument is also dubious, as it seems that social cost will be less when timely treatment is provided rather than not. A more forceful reason is that a stranger may find himself endangered if he helps. Providing emergency treatment is not risk free (e.g. if the patient carries diseases). Also, when assistance is offered it is unclear for how long the rescuer must continue to look after V in order not to attract legal liability.

Answer 32

ϖ the government commissioned the BGS to test the performance of irrigation wells. BGS failed to detect the presence of arsenic which D did not consider to be a potential problem. Millions of inhabitants were at risk. C, for one, developed symptoms of arsenic poisoning and sued D for breaching its positive duty to test for arsenic. HL Held: the claim is hopeless. The fact that D had expert knowledge does NOT itself create a duty to the whole world to apply that knowledge to solving its problems! D can only be liable for thing they did, not for what they did not do.

Answer 33

• The distinction does not reflect any philosophical subdivision of human conduct into two types. This is because a medical man who diagnoses a case of measles as a case of scarlet fever may be said to have omitted to make a correct diagnosis! An omission is also not referring to a person's bodily movement as we can only set things in motion by ourselves making movements. the distinction concerns whether X is 'making things worse' or 'failing to make things better'. Liability for the latter results in far greater restrictions on liberty of action than does liability for the former. simply put, omission is the failure of D to act to prevent harm directed to C from another source

Answer 34

a medical man who diagnoses a case of measles as a case of scarlet fever may be said to have omitted to make a correct diagnosis; he may equally well be said to have made an incorrect diagnosis! withdrawal of V's life support can be an omission as the treatment was considered 'futile'

Answer 35

• Honore: the cases 'do not fall into any neat pattern'. Some cases purported to use a test of reasonable foreseeability as the criterion for imposing liability for a culpable omission. • Lunney: But this approach is hopelessly vague and does not account for the general rule stated above. • Mitchell: this test focuses only on the first limb of the Caparo test and neglects the rest. The focus seems to be the assumption of responsibility! • Oliphant: a number of loosely-defined circumstances giving rise to duties of affirmative action: 1) D created the source of danger, even if entirely with fault 2) D has undertaken the responsibility for C's welfare 3) D's occupation of an office/position of responsibility • ZCT: if we look at the criminal law, the above circumstances almost represent the whole law on negligence. 1): R v Evans 2) R v Stone and Dobinson 3) R v Singh; R v Sinclair, Johnson & Smith

Answer 36

ϖ In Hampshire, D (fire brigade) attended the fire on C's premises. Then the fire officer ordered C's sprinkler system to be turned off, which made the fire spread rapidly and destroy the entire building. In London, D arrived at the scene and were later satisfied that the fire had been extinguished and left without inspecting C's premises in which fire broke out later on. In West Yorkshire, D failed to extinguish the fire as D failed to maintain their fire hydrants. CA Held: the fire brigade is under not duty to answer the call for help and are under no duty to take care to do so. If they fail to turn up in time, they are not liable. There are exceptions to this. Stuart-Smith LJ: 1) Where the rescue service itself by negligence creates a danger which caused C's injury, there is no doubt that C can recover. This is the case for Hampshire. 2) There is only assumption of responsibility and a sufficient relationship of proximity if someone possessed of special skill undertakes to apply that skill for the assistance of another person who relies upon such skill and there is direct and substantial reliance by C on D's skill. This may exist among doctors and patients. Here, the duty of the fire service is owed to the public at large, and on the present facts, there is insufficient proximity of relationship and no assumption of responsibility. Commentary: Mitchell: emergency services are funded by the government and so elbow room has to be given to the public service. Otherwise there would be a chilling effect on these services. Rebuttal: does imposing a duty not enhance public service efficiency instead?

Answer 37

ϖ D, exercising statutory powers, undertook the repair of a breached sea wall which caused flood to C's land. D carried out the work so inefficiently that the repairs was protracted for 134 days, prolonging the period during which C's land was under water. HL Held: D did NOT assume any responsibility to C beyond its undoubted duty not to cause additional damage. Lord Porter: the damage was not caused by any positive act of D, but would have occurred to the like extent if D had taken no steps at all, the loss of C was not due to D's breach, it was due to the original breach. D's duty was to avoid causing damage, but not prevent future damage due to causes for which they were not responsible.

Answer 38

ϖ C (owner of land adjacent to that of D's)'s tree began to burn after being hit by lightning. C asked for a tree-feller to be sent, and the tree was cut down. C however then decided to let the tree burn itself out and took no further steps to stop the fire from spreading. Strong winds caused the fire to revive and spread to D's property, causing extensive damage. PC Held: Lord Wilberforce: the case concerns whether C, faced with hazard accidentally arising on his land, fails to act with reasonable prudence so as to remove the hazard. In Sedleigh-Denfield v O'Callaghan, the occupier is liable with regard to a hazard created on his land by a trespasser, of which he has knowledge, when he fails to take reasonable steps to remove it. Similarly, in the case, C's liability lies not in the use of the land, but in the neglect of action in the face of something which may damage his neighbour. C owes a DOC to his neighbours.

Answer 39

ϖ a serving naval airman got himself exceedingly drunk at the bars on the Royal Navy base, which sells drinks at an 'astonishingly cheap' price. V choked on his vomit and died. Does the Royal Navy owe V a DOC? Held: Until the deceased became unconscious, he alone carried the legal responsibility for his own actions. However, once the senior officer assumed a responsibility for him by ordering the Petty Officer to look after him a duty of care did arise. He was in breach of duty by failing to ensure the deceased received the appropriate supervision. Hence, there was a DOC, but it was not established based on the supply to V of the dangerous quantities of drink. Commentary: hence, the result would have been the same had the drinks come from another source. The courts were afraid that imposing liability purely on the basis of the purveyor's supply of alcohol would undesirably dilute individual responsibility. Contra the Canadian case Jordan House v Menow. ``` Misfeasance = negligent/improper performance of a legal act. Nonfeasance = failure to carry out a duty imposed by the law ```

Answer 40

ϖ C's call for an ambulance was accepted by D, but for unknown reasons, the ambulance took some 40 mins to arrive where it should have arrived 14 mins earlier. While the ambulance was on its way, C suffered a respiratory arrest, resulting in permanent brain damage. It was suggested if the ambulance had arrived earlier, the arrest might have been averted. Held: Lord Woolf: the activities of the ambulance services are subject to a statutory framework. The ambulance service includes transporting patients to and from the hospital, and these services are different from police/fire services, whose primary obligation is to the public at large (maintaining public order/preventing spread of fires to other places). The ambulance service, however, when called by C, was only to help C alone who is adversely affected. Say the ambulance is required to attend to a scene of an accident in which a limited number of people need to be transported to the hospital, the result might not necessarily be different because the numbers involved would be limited. Here, there is obviously a duty of care owed by the ambulance. Commentary: Lord Woolf is saying that the fire service, when responding to a call, is acting in pursuance of a public duty whereas the ambulance service typically is not. Mitchell: if it is truly a matter of numbers, what if there are 1000 injured persons in an accident, will the ambulance now owe a public duty? If not, why does a fire service owe a public duty where there is only a small fire? ZCT: Should the fire service be said to be owing a non-public duty where the fire is so small that it has no potential to spread, or where someone is stranded in the lift? The fire service should not be seen as uniformly burdened with a public duty - it really depends on what the nature of the work is in the particular case. Winefield& Jolowicz: there is some tension with Capital and Counties, the fire service is primarily concerned with saving property and that imposing liability would tend to inure for the benefit of subrogated fire insurers who have taken a premium to cover the risk, though that would hardly justify a different result where life was at risk from the fire!Lunney: but the courts have been hostile to the idea of considering the availability of insurance when deciding on liability! The decision could be defended if we argued that the ambulance service has already assumed responsibility when it picks up the phone call and accepts to help. Williams: this seems to be an exception to the Yuen Kun Yew rule based on voluntary acceptance of public law duty. Lord Woolf regarded proximity as having been made out as soon as the 999 was initially accepted. There is no resource allocation problems and is justiciable. This makes Capital and Counties unconvincing. Art 2 ECHR may impose positive obligations on states to guarantee right to life.

Answer 41

ϖ (English case) C called 999 after being assaulted. The operator replied that a local officer would call her shortly, but by mistake the call was not flagged as requiring immediate response. Meanwhile, C was stabbed to death. CA Held: the operator's response was NOT an assumption of responsibility for C's safety or to ensure that C was even called.Commentary: this conflicts with CA's finding in Kent v Griffiths that the operator assumed responsibility when he accepted the call! Distinguished from Kent because operator didn’t say anything.

Answer 42

(English case) C called 999 after being assaulted. The operator replied that a local officer would call her shortly, but by mistake the call was not flagged as requiring immediate response. Meanwhile, C was stabbed to death. CA Held: the operator's response was NOT an assumption of responsibility for C's safety or to ensure that C was even called.Commentary: this conflicts with CA's finding in Kent v Griffiths that the operator assumed responsibility when he accepted the call! Distinguished from Kent because operator didn’t say anything.

Answer 43

* A duty of care is generally thought to be owned by a doctor to a patient, a parent to a child (custodian duty; however, see the Australian counter-proposition in Hahn v Conley) * Duties of affirmative can also be undertaken by contract. A contractual undertaking may be sufficient to generate a duty of affirmative action towards X.

Answer 44

the duty to take affirmative action is present because contract law is already providing the employee with certain things

Answer 45

ϖ Held: a staff in a hospital casualty department assumed a DOC by helping or advising a person who is seeking attention and drank arsenic tea. There was breach of DOC, but no causation.

Answer 46

ϖ CA: it is absurd to suggest that the BGS, by undertaking testing of the well, had assumed responsibility to the Bangladeshi population in relation to the safety of its water!

Answer 47

ϖ the prison authorities have NO right to stop a prisoner from committing suicide by starving himself to death

Answer 48

ϖ police owed a duty to prevent prisoners with suicidal risk from harming themselves. They had a duty to take reasonable steps to assess the prisoner and prevent self-harm.

Answer 49

* This is where C is injured by acts committed by X (third party), where X is controlled by D. * The general rule is that D is not liable for X's injury to C.

Answer 50

ϖ Lord Sumner: ‘in general … even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do. Though A may have given the occasion for B’s mischievous activity, B then becomes a new and independent cause’.Commentary (Mitchell): the claim that scientific tests of causation can be used are confusing, because it is always policy considerations which drive most court judgments. Courts appear innocent by saying they apply the causal tests.

Answer 51

ϖ driver lost his life when he was forced to swerve his vehicle in an effort to avoid a small boy and drove into a lamp post. The boy, aged 4, had strayed onto the busy main road from the grounds of a nursery school maintained by the CC. The driver's widow sued the CC. Held: the CC was liable for negligence of the teacher to prevent the child escaping. Lord Reid: (focused on the foreseeability approach in Dorset Yacht)Commentary: the modern approach is to limit the scope of any DOC by reference to proximity and policy factors. This case can be viewed as resting on the school authority's assumption of responsibility for control of the child, which created a relationship of proximity with those who were foreseeably endangered by him.

Answer 52

ϖ Some young offenders (D) were doing some supervised work on Brown Sea Island under the Borstal regime. One night the Borstal officers retired for the evening, leaving the boys unsupervised. Seven of them escaped and stole a boat which collided with a Yacht owned by C. Held: The Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party (sufficient proximity) who caused the damage and it was foreseeable that harm would result from their inaction. Lord Reid: this is an issue of causation. Considerations of foreseeability determines whether the causal chain could be traced through the deliberate conduct of D. It would have to be shown that the commission of the offence was the natural and probable, as distinct from merely a foreseeable, result of the release. Compare K v SSHD [2002], where C was raped by criminal detainee X who had been released by the Home Office for unexplained reason, and the court held that there was no sufficient proximity between C and the Home Office such as would create a DOC on the Home Office. D's mere knowledge that X would pose a grave risk of harm to the public at large was NOT sufficient to create the necessary proximity: D does not become the world's insurer against the grave danger posed by a third agency which he might control by virtue only of the fact that he appreciates the danger exists! Lords Pearson and Diplock: rely on considerations of proximity, which provides a mechanism for limiting D's liability Lord Morris: the focus is the foreseeability of the risk Commentary: McIvor: the sufficient proximity (control) requirement implies a strong relationship to be had between the responsible D and the irresponsible X.

Answer 53

ϖ Lord Keith: the court has to consider whether the individual members of a police force, in the course of carrying out their function of controlling...the incidence of crime, owe a DOC to individual members of the public who may suffer injury...through the activities of criminals, such as to result in liability in damages on the ground of negligence...Here, there is no close proximity, and the Yorkshire Ripper was never in the custody of the police force!

Answer 54

ϖ D owned a disused cinema and wished to replace it with a supermarket. D hired contractors to work on the foundations, but thereafter the cinema was left unattended by D. Within a few weeks, the building was being regularly entered by unauthorised persons. Debris accumulated outside the cinema. Someone started a fire in the cinema and damaged the adjoining properties. C sued D and claimed damages. HL Held: D were not liable. Whilst they did owe a duty of care they were not in breach of duty. They were not required to provide 24 hour surveillance and were unaware of the previous incidents. The law is unwilling to impose liability for the deliberate act of a third party see Lamb v Camden London Borough Council [1981] QB 625 but will do so in appropriate cases (Dorset Yacht v Home Office [1970] AC 1004). The general rule relating to omissions is that no liability arises for a pure omissions but there exist exceptions to this where a) there is a special relationship b) an assumption of responsibility c) where the defendant is in control of a 3rd party that causes the damage d) where the defendant is in control of land or dangerous thing. Lords Brandon: there was a DOC owed to C by D, but there wasn't a breach. There are two questions to be asked: 1) is there a general duty owed to C by D to ensure that the premises did not become a source of danger? 2) does the general duty encompass the specific duty to exercise reasonable care to prevent young persons obtaining unlawful access to the site and unlawfully setting fire on it? D owed to C a duty to exercise reasonable care to ensure that the cinema did not become a source of danger to neighbouring buildings owned by C. However, since D did not know of the behaviours of those young persons, the occurrence of the behaviour in question was NOT reasonably foreseeable by D. Hence, the general DOC owed by D did not encompass the specific duty referred to above. Lord Griffiths: D owed C a DOC to take reasonable care that the condition of the premises they occupied was not a source of danger to neighbouring property. However, it would be a tremendous burden to D if the law required them to mount 24-hour guards on an empty premises, save in the most exceptional circumstances. Lord MacKay: where the only possible source of the type of damage is agency of a human being for whom D has no responsibility, it may not be easy to find that as a reasonable person D was bound to anticipate that type of damage as a consequence of D's act or omission. The more unpredictable the conduct in question, the less easy to affirm that any particular result from it is probably...the result can only be reasonably foreseeable if, in the circumstances, it was highly likely. Here, there is a mere possibility only - C has not established probability that the vacant property would be set on fire with the present consequences. Lord Goff (dissenting on the point on DOC): imposing a general DOC on owners/occupiers of land would result in an unreasonable burden on ordinary householders. Also, the loss is generally covered by insurance. One thing is clear - liability in negligence cannot be founded simply on foreseeability that the pursuer will suffer loss or damage. There are exceptional circumstances in which liability will arise: i) Relationship between the parties giving rise to an imposition or assumption of responsibility, which may be arising from contract (Stansbie v Troman) or not. ii) Vicarious liability. iii) Nuisance iv) ***Where D negligentlycauses or permits to be created a source of danger, and it is reasonably foreseeable that X may interfere with it and, sparking off the danger, thereby causes damage to C. (Haynes v Harwood). v) ***where D has knowledge or means of knowledge that X has created or is creating a risk of fire, or indeed has started a fire, on his premises, then fails to take such steps as are reasonably open to him (in the limited sense: Goldman) to prevent any such fire from damaging neighbour property. In the present case, D does not fall into either 4 or 5 as i) the empty cinema could not properly be described as an unusual danger in the nature of a fire hazard ii) D did not fail to take reasonable steps to abate a fire risk created by X without their fault and means of knowledge that the fire risk existed. The existence of such risk was not established. Hence, no DOC arose in this case. Commentary: Oliphant: (re Lord Goff) 1) if having a 'means of knowledge' means 'D ought to know', and if what 'ought to know' is defined by what is reasonably foreseeable, might this not undermine Lord Goff's assertion that there is no general DOC to prevent X from causing damage to others, even though there is a high degree of foresight that this may occur? 2) Goff argued that ordinary items in daily life would not be regarded as posing a special danger, even though it might be foreseeable that their use would involve the risk of harm. Markesinis: Lord Brandon's specific duty conception is whether there is a 'careless breach of the duty'

Answer 55

The Defendant left a horse-drawn van unattended in a crowded street. The horse bolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and children who were in the path of the bolting horses. The police officer was injured. Held: the Defendant owed a duty of care as he had created a source of danger by leaving his horses unattended in a busy street

Answer 56

ϖ M was a violent and anti-social man who was summoned by the council to warn him that he could face eviction. M lost his temper and killed V. The council was sued for not informing V of the meeting, or warning V that he was at risk, or alerting the police. HL Held: The council owed V no duty. Lord Hope: a duty by D to warn someone he is at risk of loss, injury or damage as a result of the criminal act of X will arise only when D has by his words or conduct assumed responsibility for the safety of the person who is at risk. This is not present on the facts. Lord Brown: D is generally not liable to V who is the subject of intentional attacks from X unless: 1) D creates the source of danger or permits the danger to be created himself (e.g. giving an unreliable man a gun: AG of British Virgin Island v Hartwell) 2) D assumed responsibility to C which lies in the scope of the duty (Amin v SSHD) 3) D is under an obligation to supervise X: Dorset Yacht 4) There is vicarious liability

Answer 57

(a) Where by D’spositive conduct it caused the claimant additional damage (e.g. leaving C in a worse position (Capital and Counties)than C would have been in had D not intervened at all (East Suffolk);dissuading or preventing the third party from coming to C’s assistance (Kent v Griffiths) (b) Where the claimant has relied to his or her detriment on an express or implied representation by the defendant that a benefit will be conferred on him or her (e.g. reasonable expectation that the duty would be carried out (Gorringe); entrapment by painting and not repainting the white lines (Bird v Pearce) (c) Where D undertook or assumed responsibility

Answer 58

``` Introduction • There are three different causes of action that could be relied upon against a public body: (per Lord Browne-Wilkinson in X v Bedfordshire CC) 1. Common law negligence 2. Breach of statutory duty 3. Misfeasance in public office ``` • Now, two more actions are possible: 4. Breach of EU law amounting to Euro-tort 5. Violation of specific obligations placed on public authorities (PA) by the s.6 HRA

Answer 59

• Distinguish claims made in respect of the performance by a public body of its public functions from other claims, e.g. Johnstone v Bloomsbury HA [1992]

Answer 60

• Doctrine of vicarious liability can be used to hold the authority responsible for what an individual has done.

Answer 61

In independent contractor cases, vicarious liability traditionally does not apply, as the public authority cannot be sued. ϖ Woodland v Essex CC [2013] --- D (public education authority) enters into a contract with an independent contractor to provide swimming lessons for pupils. One of the pupils was injured and suffered brain damage, and wanted to sue the public authority instead of the independent contractor, saying that the public authority owed her a non-delegable DOC. Old cases restricted the delegation. SC Held: the authority cannot sidestep responsibility.

Answer 62

* Where C wants to sue D (public authority) directly, or where C claims that there's an individual is negligent and D is vicariously liable, liability will be restricted based on public policy. It should not be open to C to sidestep public policy reasons. * With respect to claims of the former kind, distinguish the ‘public law dimension’ (private law actions for damages are inappropriate means for challenging decisions of public authorities. JR should be used.) from the ‘private law dimension’ (concerns the normal Caparo three-pronged test to establish liability)

Answer 63

• The legality of the actions committed by PAs can be challenged through applications for judicial review ϖ Lord Diplock: when balancing public interests and other concerns, judges are not suited to decide on discretionary executive activities. Such matters are not the kind which can be satisfactorily elicited by the adversary procedure and rules of evidence adopted in English courts of law or of which judges are suited by their training and experience to assess the probative value. When suing public authorities, C should be asking whether they acted ultra vires. Lord Reid: only when authorities are conferred discretion (power to make both right and wrong decisions?) and exercise it so carelessly will the exercise be ultra vires.

Answer 64

to deal with these concerns, English law developed the concepts of vires, discretion, policy, justiciability and irrationality.

Answer 65

Dorset Yacht, Lord Diplock suggested that liability of D (PA) was to be tested by reference to whether D acted ultra vires. Commentary: Lord Diplock has gone too far: the mere fact that the act was ultra vires does not mean that the consequential injury should be actionable. A finding of ultra vires does NOT entail a finding a fault, nor does it address the Caparo requirements which are ALL necessary in giving rise to a DOC. Oliphant: abandoning the public law concept of vires would enable the courts to keep issues of duty and breach separate. The duty stage would focus on the nature of D's discretion (was it in a policy or operational sphere; was it justiciable); the breach stage would focus on the irrationality of the discretion. Bailey: It was neither helpful nor necessary to introduce public law concepts as to the validity of a decision into the question of liability at common law for negligence: a decision may be ultra vires for reasons other than Wednesbury unreasonableness, such as breach of natural justice, which have no relevance to the question of negligence. The unreasonableness is reflected in the Bolam test already. For that reason alone, it is unnecessary, costly and undesirable for the jurisprudence of judicial review to be invoked in the resolution of every negligence case that involves the exercise or non-exercise of a statutory power. The ambit proposition cannot be defended as a discrete test restrictive of an authority’s negligence liability. There are many instances where a public body exercises discretion and the choices made are justiciable (as shown by Barrett and Phelps v Hillingdon London Borough Council).

Answer 66

Discretion: This is to ask whether the conduct in question fell within the ambit of discretion conferred on D (PA) by Parliament. In Dorset Yacht, Lord Reid explained that when Parliament confers a discretion, there will certainly be errors of judgment in its exercise, Parliament could not have intended that the public can sue in respect of such errors. D must have acted in abuse or excess of his power.Commentary: while discretion is important, it is not the sufficient requirement for the imposition of DOC on a PA. The Caparo test still rules! Acts may be done subsequent to the exercise of a discretion where a DOC may exist (Barrett v LBE)

Answer 67

these policy considerations make it necessary for the courts to explicate the way in which the existence of a statutory discretion impacts on the issue of civil liability. ϖ Anns v Merton LBC [1978] --- Lord Wilberforce: many statutes also prescribe the practical execution of policy decisions in addition to the area of policy or discretion - operational areas. The more operational a power/duty may be, the easier it is to superimpose on it a common law DOC. But when the PA is acting in the policy sphere (e.g. in assessing budgetary priorities), the court should refrain from interfering with their activities by subjecting them to a DOC. Strategic policies are not reviewable by the courts by way of a tort action. Operational/practical decisions, however, are reviewable and the authority may well be liable in negligence. There is a distinction between policy and operational spheres. Commentary: thus it has to be first shown that the decision was ultra vires to establish a DOC. ϖ Rowling v Takaro Properties Ltd [1988] --- Lord Keith: the classification of a relevant decision as a policy in this sense may exclude liability; but a conclusion that it does not fall within that category does not mean that a DOC will necessarily exist!

Answer 68

thepolicy/operational area distinction does not itself determine whether here is a DOC, it is only used to filter out claims unsuitable for judicial resolution. The distinction also relates to the idea of justiciability (discretionary decisions on the allocation of resources are therefore non-justiciable). Oliphant: this is a separation of powers argument, not a policy argument!

Answer 69

Wednesbury unreasonableness is a precondition of the liability of a PA. ϖ X v Bedfordshire CC [1995] --- the issue is the liability of a local authority for the careless performance of its statutory functions on protecting children at risk of child abuse by failing to put them onto the register. The children sought damages for their consequent ill-treatment etc. Held: Lord Browne-Wilkinson: no policy matters are required to be adjudicated by the courts here, the issue does not necessarily involve questions of resource allocation etc. Some allegations are justiciable and so strike-out is unnecessary. However, it is believed that this case will fail. Yet, since Wednesbury unreasonableness can possibly be shown by C, there should be no strike out. To determine whether D (PA) owed a DOC to C, it should be asked: a) Is the negligence in the exercise of a statutory discretion involving policy considerations? If yes then the claim is pro-tanto non-justiciable. b) Were the acts alleged to give rise to a cause of action within the ambit conferred on the PA? 1) Coexistence of a statutory duty and a common law DOC: their coexistence is clear. Under a statutory duty, a PA might have to run a school, but it also has a duty to take reasonable care for the safety of the pupils. The common law duty can therefore arise based on proximity. 2) Discretion, justiciability and policy: I do not believe it is helpful to introduce public law concepts as to the validity of a decision into the question of liability in negligence. To establish that a PA is liable at common law, it must be first shown that the decision was outside the ambit of discretion altogether: if not, a PA cannot be in breach of any DOC. Courts cannot adjudicate on policy matters 3) If justiciable, the ordinary principles of negligence apply: Caparo will still have to be satisfied.

Answer 70

ϖ C was injured in a collision with negligent D's car as D emerged from a dangerous junction from which her view of the approaching traffic was obstructed by a raised bank of earth adjacent to the road. The PA was found to be 30% to blame on account of its failure to render the junction less hazardous. The PA failed to take any further action after receiving no response from the land owner. Held: PA not liable. PA was entitled to decide which junction to handle. PA did not have a duty to undertake the work, and had absolute discretion to decide whether the work should be undertake. It is impossible to impose a private DOC on PA unless the policy of the statute itself requires the statutory bodies to compensate. Lord Hoffmann: the distinction between policy and operations is inadequate, elusive, and even if it is clear cut (leaving no element of discretion for the PA not to exercise its power), it does not follow that there's a DOC. In the case of non-exercise of a statutory power, it is necessary to prove that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act. Here it is NOT unreasonable or irrational for the PA not to have undertaken the work - the timing of the work and the budgetary year in which money is spent is surely as much a matter of discretion as the decision in principle to do it. The PA's decision was not only about proceeding with the work, but also when and how it should be done (budgetary questions), and these fell within the PA's non-reviewable discretion).If the statutory duty does not give rise to a private right to sue for breach/statutory liability to pay compensation, it would be unusual if it nevertheless gave rise to a DOC at common law which made the PA liable to pay compensation. In summary, the minimum preconditions for basing a DOC upon the existence of a statutory power, if at all, are: 1) that it would in the circumstances have been irrationalnot to have exercised the power, so that there was in effect a public law duty to act 2) that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised (CHANGED in Gorringe!) Lord Nicholls (dissenting): the PA acted in a way NO reasonable authority would have done. It failed to proceed with reasonable diligence. It was not a discretion, but an overlook

Answer 71

Commentary: Lord BW always asks 'did the PA behave irrationally?' (reference to actual conduct). Lord Hoffmann always asks 'would it be irrational if the PA failed to do this'. So in this case, Lord BW considered it irrational for the PA to overlook its previous decision to remove the obstruction, but Lord Hoffman said that it does not follow that it is irrational for the PA to do anything other than implement the removal decision. Oliphant: why should the courts not impose liability simply on the basis that D's conduct was in fact irrational, and if it had not acted such as it would have provided the protection C wanted? Kirby J (Australian court): Lord Hoffmann's budgetary concern analysis is not convincing. Virtually ALL suggested precaution, necessary to prevent damage, has financial and economic implications for both the PA and the individuals. Why can private individuals not escape liability by arguing that his resource allocation is non-reviewable just as the PA does? This is because a person may cease to act altogether if he wishes, but the PA owes certain public law obligations to provide services which they cannot simply curtail Bailey and Bowman: the policy/operational concept adds nothing of substance to what is already inherent within private law, but only generates confusion and divert attention away from the policy factors to be considered. Mitchell: Lord Hoffman focused on 'rationality of the PA's failure to remove the earth' and concluded that PA could be rational and still decide not to remove it. But if PA's act was considered separately, it could be an irrational act because the earth was not removed. Lord Hoffman focused on whether PA was in breach, analysing what could have happened but ignoring what actually happened - this brews incoherency. It is also hard to discern what Parliament intended a breach of statutory duty - it is doubly hard to infer Parliament intended that a common law duty should be supplied.

Answer 72

ϖ C drove too fast towards the brow of a hill and caught sight of a bus coming up the other side which was not in her lane. C panicked and crashed and was injured, and sued the local authority on the basis that it should have repainted the word 'slow' on the road towards the top of the hill. The PA was under a statutory duty expressed in very broad terms. Held: the duty was a general duty, and could not be used to leverage a common duty of care to take care of particular bits of the road. [38] A duty would not be imposed if it could be shown that Parliament intended not to allow a common law duty to be supplied. (reverses the positive duty to find intention of Parliament in Stovin) Lord Hoffmann: in Stovin, it was rejected by the majority that the existence of a statutory duty to make improvements to the highway could in itself give rise to a common law duty to take reasonable care to exercise the power or even not to be irrational in failing the do so. It is difficult to imagine a case in which a common law duty can be founded simply on the failure to provide some benefit which a PA has power or a public law duty to provide! (= the existence of a public law duty does not of itself give rise to a duty to act in private law.) So in Capital and Counties, there was a general public law duty to make provisions for efficient fire-fighting services under statute, but this did not create a common law DOC! The present case is concerned only with the attempt to impose upon a PA a common law DOC based solely on the existence of a broad public law duty. We are not concerned with cases in which PA undertook responsibilities which gave rise to a common law DOC. The question is NOT whether the common law duty is created by statute but whether the terms of the statute are sufficient to exclude the common law duty! Lord Scott: I do not accept that a common law duty of care can grow parasitically out of a statutory duty not intended to be owed to individuals Lord Steyn: There is a crucial distinction to make: a. In a case founded on breach of statutory duty, the central question is whether from the provisions of the statute an intention can be gathered to create a private (common) law remedy. b. In a case framed in negligence, the basic question is whether the statute excludes a private law remedy.

Answer 73

Commentary: the theme of Stovin and Gorringe is that a public law duty to act does not in itself give rise to a private law duty to act (not positively as well: Capital Counties v Hampshire CC; Mitchell v Glasgow CC; qualified by Kent v Griffiths).

Answer 74

• So if a claim survives the hurdle of justiciability (public law dimension), then it will now be subject to the private law DOC principles in Caparo,which requires foreseeability, proximity to be shown, in addition to the consideration of what is fair, just and reasonable.

Answer 75

ϖ ]---(police immunity) Yorkshire Ripper case: police let YR go. HL Held: police owed no DOC to C in the investigation of criminal events due to general policy reasons (limb 3 in Caparo). Reason: the imposition of duty will not improve their performance - they are doing the best they can. It will also involve the investigation of allocation of resources. It may also lead to defensive behaviour by the police when deciding what crimes to investigate and how to do it. It will also tie up time and resources which the police can use to investigate other crimes. APPLIED in Brooks and Von Colle.

Answer 76

ϖ (child abuse and removal) this is another case (Newham) where the PA was alleged to have acted unlawfully to remove C from C's mother and C's mother's cohabiting partner. The PA said it reached this decision on the recommendation of the social worker and psychiatrist who interviewed C and (erroneously) understood her to be referring to her mother's partner when she spoke of her sexual abuse. The mistake was discovered and C was returned to her mother. Both C and C's mother claimed that their enforced separation had caused them to suffer a psychiatric disorder and sued the PA for negligence. Held: the social worker and the psychiatrist did NOT owe C a general professional duty of care to C the children (overruled by D v East Berkshire). The child is merely the subject of the report prepared. The only duty was owed to the PA as employer, because it was the PA who employed the social worker and the psychiatrist to advise the PA. The two were not employed to advise C! The fact that the child was interviewed did not alter the extent of the duty owed by the professionals under the retainer from the PA. Lord Browne-Wilkinson: (having dealt with the public law dimension and was satisfied that the claim is justiciable, moves on to consider the private law requirements for liability in negligence) Under Caparo, there is clearly proximity here. The PA has also admitted foreseeability as to the damage to C. So is it 'fair, just and reasonable' to impose the duty on the PA in relation to the performance of its statutory duties to protect children (remember this requires the private law answer, not the public law answer considered above)? NO, although I agree with Bingham that the 'public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter-considerations are required to override that policy'. There are these potent counter-considerations here: 1) A common law DOC would cut across the whole statutory system set up for the protection of children at risk, which is an inter-disciplinary system involving the police, the education bodies, doctors etc. Under this joint action system, to impose a common law DOC against only one of the participants would be manifestly unfair. Imposing DOC against all would cause even more problems when the participants try to disentangle their respective liabilities. 2) The task of the PA in dealing with children is extraordinarily delicate. Legislation requires it not to disrupt the child's family environment. If a liability in damages were to be imposed, PAs would adopt a more defensive approach to their duties (e.g. delay necessary speedy removal) and end up harming the children and other children for whom there is reduced time available due to the making of more investigations. 3) If there were no other remedies for maladministration of the statutory system for the protection of children, that would be an argument for the imposition of a common law DOC. But here the statutory complaint procedures have already provided a means to have grievances investigated, though not to recover compensation. 4) Caparo's incremental approach requires us to proceed incrementally and by analogy with decided categories when deciding whether to develop novel categories of negligence. The nearest analogies are cases where a common law DOC has been sought unsuccessfully to be imposed on the police or statutory regulators of financial dealings: Hill v Chief Constable of West Yorkshire. 5) Overkill or chilling effect argument Mitchell: Imposing a common law DOC may force the parties to relive the terrible situation and prevent them from moving on in life

Answer 77

The Human Rights Act 1998 gives C the right to enforce his Convention rights in the English courts. What if C has a valid claim against a public authority for HR liability which has the same substance as a tort claim, should the national law of tort be synchronised with the HRA by ditching the general principles? (see the previous chapter for analysis). The striking out cases are Osman v UK, Barrett v Enfield, W v Essex CC and Z v UK. The pre-HRA trilogy cases are Enfield, W v Essex CC and Phelps v Hillingdon BC

Answer 78

ϖ police immunity) C harassed by D. C reported to the police but the police did nothing about it. C were injured, claiming that the police was incompetent. C sued the police. UK court held: struck out C's claim and applied Hill's police immunity. C then argued that his Art 6 (fair hearing by a tribunal) has been breached because his claim was struck out. ECtHR Held: Art 6 was indeed breached. The courts should consider the general justice of the case and apply the principle on a case by case basis. COM: the ECtHR misunderstood the role of DOC in establishing negligence (decision was later qualified in Z v UK). But before Z v UK, the courts showed a reluctance to strike out actions on policy grounds. Mitchell: The striking out process is a filtration system - the legal system is not a compensatory system for every damage/loss suffered otherwise there would be a litigation explosion. It ought to be up to the English court to make a decision as to the merits of the case without hearing all of facts of it. Commentary: it is now possible to sue the police under the HRA!

Answer 79

ϖ ((aftermath of Osman) C was in local authority case for his childhood, and was moved 9 times between different foster placements. C alleged that he had developed PI as a result and this was due to the PA's negligence. CA struck out his claim on the public law dimension argument that the compliant was about matters involving the PA's exercise of discretion. C appealed. HL Held: the case should NOT be struck out, but be heard on its merits. Steele: three things can be noted of this decision: i. There is less enthusiasm for striking out after Osman. Lord Browne-Wilkinson: it is now difficult to foretell what would be the result in the present case if we were to uphold the striking out order. Osman is applied. ii. There is less broad policy reasoning and more confidence in the negligence action: the policy arguments thought to be fatal in X v Bedfordshire CC were not applied. iii. There is a simpler approach to the public dimension justiciability. Lord Slynn: the tests for justiciability (=court having a role to play) are the a) discretion and b) policy/operational sphere tests. The greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is non-justiciable. The concerns of Lord Browne-Wilkinson in X v Bedfordshire CC have diminished force in the present case, where the decision to remove the child does not involve the kind of discretion involved in taking a child from its family into care. Also, the 'over-cautiousness and defensiveness' concern should normally be a factor of little, if any, weight. If the conduct is of a kind which can be measured against the standards of the reasonable man, then the law in the public interest should require those standards to be observed! Also, the remedies accepted to be available in X seems to be less efficacious as the recognition of common law DOC! While it is right for the courts to restrain claims against PA exercising statutory powers, it is equally important to set reasonable bounds to the immunity such PA can assert. The present claim should NOT be struck out and should be investigated.

Answer 80

a couple applied to PA to become a full-time specialist adolescent foster carers, making clear they were not adopt a foster child who was known or suspected to be a sexual abuser as they had young children of their own. The PA negligently gave the couple G, who systematically and persistently subjected each of C's children in the household to physical and sexual abuse. The children and C sued the PA for damages in respect of the PI and the assaults. HL Held: declined to strike out the claim. C was indeed owed a DOC.

Answer 81

ϖ specialist education) Background: another issue inX v Bedfordshire CC could the local education authority be held liable to a pupil whose special educational needs it misidentified, in consequence of which the pupil was required to attend a special school? C argued that because of that, his personal and intellectual development was impaired, and had limited vocational opportunities. There, it was held that it would NOT be fair, just and reasonable to impose a DOC on the PA here simply because they had a statutory duty in the area. The PA could escape liability even if 'grossly delinquent'. However, the PA might arguably assume a DOC by its provision of specialist advisory service to children with educational difficulties. Facts of this case: C sought damages for the negligence of D's educational psychologist in failing to diagnose her dyslexia when she was referred for testing. As a result, she received inappropriate schooling for several years and her development suffered. C sought damages for the loss of earnings she would have been able to make if her learning difficulties had been properly identified and addressed, and for the cost of private tuition fees in future. HL Held: the psychologist owed C a DOC for whose breach the PA would be vicariously liable. Lord Clyde: the recognition of a liability upon employees of the education authority for damages for negligence in education would not lead to a flood of claims which would overwhelm the school authorities, nor would it add burdens and distractions to the already intensive life of teachers, nor would it inspire some peculiarly defensive attitude in the performance of their professional responsibilities. On the contrary, it might have the healthy effect of securing that high standards are sought and secured. In any case, to get off the ground C must be able to demonstrate that he standard of care fell short of that set by the Bolam test, which is already a deliberately high standard. Any fear of a flood of claims may therefore be countered. Also, even if there are alternative procedures by which redress might be obtained, it may only be through a claim for damages at common law that compensation for the damage done to C may be secured for the past as well as for the future.

Answer 82

ϖ (child abuse and removal) this arose out of abuse case of X v Bedfordshire CC, which was taken to Strasbourg. ECtHR: disagreed with argument 3) of Lord Browne-Wilkinson that the alternative remedies in the statutory regime was adequate. It is also admitted that the ECtHR interpretation of Osman was wrong. There had been no violation of Art 6 (free trial). However, there were violations of Art 3 (freedom from inhumane treatment) and Art 13 (right to compensation in the event of a violation of one of the substantive rights).

Answer 83

ϖ child abuse allegations of parents) parents (P) sued D for PI suffered as a result of mistaken and negligent allegations/findings of child abuse by the parents (themselves) against the children. In the Dewsbury case, child (C) also sued. She was taken to the hospital after she hurt herself in the genital area while cycling, and having regard to marks on her legs, the paediatrician concluded that she had been sexually abused and informed the social service . CA held: (historic decision!) that the professionals owed a duty to C, but not P. X v Bedfordshire CC was NOT followed, where the child's claim was dismissed! All those bad effects would occur anyway in the HRA claim. Lord Philips (CA): the departure was justified since after Oct 2000, the court, when dealing with claims under the 1998 Act in relation to action/inaction on the part of a PA in relation to child abuse, must take into account the jurisprudence of the Strasbourg court under s.2 HRA.X v Bedfordshire CC cannot survive the 1998 Act. The PA has obligation to respect the child's convention right. The recognition of a DOC to the child should not cause significantly adverse effect on the manner in which the professionals perform their duties. The absence of an alternative HRA remedy for children before Oct 2000 militates in favour of the recognition of a common law DOC once the public policy reasons have lost their force. Hence, it will no longer be legitimate to rule that no common law DOC is owed to a child in respect of the investigation of suspected child abuse etc. Since it is always in the parents' interest that the child should not be removed, the parents' personal interests come into conflict with the children's best interests, and hence no common law DOC should be owed to the parents! HL Held (only on the question of DOC on the parents, not the child): Lord Nicholls: the conflict of interest argument is correct! A doctor is obliged to act single-mindedly in the best interest of his patient. In these cases the child is the patient, and the doctor is charged with the protection of the child, not the parent. He ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent. The seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are in the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused or whether further investigative steps should be taken etc. Even though the suggested duty owed to the parents has the same content as that owed to the child, this response is inadequate because the time when the presence/absence of a conflict of interest matters is when the doctor is carrying out his investigation, and at that point of time the doctor does NOT know whether the parent is the abuser, but he knows that when he is considering this possibility the interests of the parent and the child are diametrically opposed. Lord Bingham (dissenting): there is no reason to distinguish between the parent and the child. The imposition of a DOC on the parent would instil a due sense of professional responsibility. The duty to the child is breached if the signs of abuse are overlooked, and this would be no different if a parent were the abuser, since the duty is to serve the lawful and not the criminal interests of the parent. If the diagnosis of child abuse were made when the evidence did not warrant it, the separation/disruption of the family is not suffered by the child alone, but the parent as well!

Answer 84

Commentary: Bailey: Other more contextual reasons included (1) the difficulty of distinguishing the position of suspected parents from that of persons generally suspected of crime who were generally owed no duty of care;155 (2) the limited availability of a remedy in respect of psychiatric harm to a parent when a child has been injured,156 or indeed to third parties generally in respect of losses arising out of a person’s death or injury;157 (3) the absence of a relationship of proximity as distinct from foreseeability between doctor and parent, the fact that the parent took the unexceptional step of taking the child to the doctor being insufficient to establish such proximity;158 (4) the point that if a duty to parents were recognised, there would be no proper basis for failing to extend it to non-family members suspected of child abuse;159 and (5) authorities against such a duty in the High Court of Australia and the Privy Council.160

Answer 85

ϖ (police immunity) C was present at the notorious racist killing of his friend Stephen Lawrence. C had also been subjected to abuse and attacks. He brought a claim against the Commissioner for the failure to provide him adequate protection, support and assistance which was generally afforded to victims of serious crimes. He suffered post traumatic stress disorder which he claimed was exacerbated by the treatment he received from the police racist thug killed a black teenager. C argued that the police handled the case carelessly. HL Held: followed the Hill immunity. There was no DOC owed by the police.

Answer 86

(police immunity) Potential victim informed the police about a threat against him. Police did nothing. V was murdered. Held: followed Hill for police immunity. The police may have a positive duty to take reasonable preventive measures to protect the Art 2 rights of an individual, but here the immediate and real risk of criminal acts of X test is not satisfied. Hence, no liability under the HRA arose! Commentary: Lord Bingham supports harmonisation of tort law with HRA. Tort law is out of synch. Lords Hope and Browne, however, said that there's no hole to plug - C has a valid claim under the HRA already. Changes to tort law are thus unnecessary. In Mitchell v Glasgow CC, the immediate and real risk test is also NOT satisfied.

Answer 87

ϖ tank warfare in Iraq. Family of V argued that V would not have died if the tank was well equipped. Explosion would not have happened if there were better equipment to protect soldiers against IED. C argued this was not a decision at the heat of the battle. HL Held: combat immunity rule: not possible to find a DOC in those cases. These things happen in a war. Lord Hope: However, this was indeed a decision relating to equipment which could be susceptible to review. Lord Mance (dissenting): it judicialises warfare and is concerned with resource allocation. Lord Hope: concurred with Bingham LJ in D. Commentary: this comes with the price - more litigation, more expenses.

Answer 88

ϖ Due to a high tide, a sea wall was breached and D's farm was flooded. PA's repair work was so inefficient that D's farm remained flooded for 178 days, and could have be done within 14 days. D claimed damages. HL held: the PA was not liable as they were under no obligation to repair the wall or complete it after the work began. Their lack of skill did not cause the damage suffered, which was the result of natural forces. Lord Romer: where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. The only duty the PA owes to X is not to add to the damages that X would have suffered had the PA done nothing. So long as the PA exercised their discretion honestly, they cannot be made liable except to the extent mentioned. Commentary: this was criticised by Lord Wilberforce in the controversial decision of Anns v Merton, in which it was found that a DOC arose under the statutory scheme under which a PA operated.

Answer 89

ϖ changed the Stovin v Wise test to exclusion of the common law DOC. The failure to paint SLOW on the road did not amount to a creation of danger. Lord Steyn: There is a crucial distinction to make: i) In a case founded on breach of statutory duty, the central question is whether from the provisions of the statute an intention can be gathered to create a private (common) law remedy. ii) In a case framed in negligence, the basic question is whether the statute excludes a private law remedy.

Answer 90

ϖ Lord Scott: where action is taken by a PA under statutory powers designed for the benefit of X, a tortious DOC will NOT be held to be owed by the PA to others whose interests may be adversely affected by an exercise of the statutory power, as this may inhibit its exercise and adversely affect the interests of X.

Answer 91

ϖ A v Essex County Council [2004] --- Lady Hale: Whenever the question of a common law duty of care arises in the context of the statutory functions of a public authority, there are three potential areas of inquiry: first, whether the matter is justiciable at all or whether the statutory framework is such that Parliament must have intended to leave such decisions to the authorities, subject of course to the public law supervision of the courts; second, whether even if justiciable, it involves the exercise of a statutory discretion which only gives rise to liability in tort if it is so unreasonable that it falls outside the ambit of the discretion; third in any event whether it is fair just and reasonable in all the circumstances to impose such a duty of care. The considerations relevant to each of these issues overlap and it is not always possible to draw hard and fast lines between them. Commentary: the three pronged approach is thus: 1) Is the matter justiciable? 2) Is there Wednesbury unreasonableness in the exercise of discretion? 3) Is Caparo’s ‘fair, just and reasonable’ requirement satisfied? ϖ Connor v Surrey County Council [2011] ϖ Carty v Croydon London Borough Council

Answer 92

* ‘The infliction of physical injury to the person or property of another universally requires to be justified. The causing of economic loss does not.’ (per Lord Oliver, in Murphy v Brentwood District Council) * Oliphant: financial interest are every day at risk from a variety of directions. Liability is already governed by other principles such as economic torts. The delicate balance between competing interests in the fields of trade competition will be disrupted if negligence were to play an increased role in this area.

Answer 93

• The exclusionary rule states that there is no compensation for pure economic loss. Pure economic loss is loss that does NOT arise out of physical damage (personal injury or property damage) suffered by C.

Answer 94

ϖ C (contractor) engaged in tunnelling on the land of X, he was delayed in his work and put to additional expense when the tunnel was flooded by water which escaped from a leak in D’s main. C failed to make the full profit expected from the contract. Held: there was no property damage to C tunnel, the flood merely delayed C’s work. Blackburn J: C could not recover the pure economic/financial loss.

Answer 95

ϖ C manufactured stainless steel alloys at a factory which was directly supplied with electricity by a cable form a power station. Continuous power was required to maintain the temperature in the furnace where metal was melted. D’s employees damaged the cable whilst using an excavating shovel. In light of this, the statutory electricity board shut off the power. C did not have electricity for 14.5 hours until the cable was fixed. There was a danger that a melt in a furnace might solidify and damage the furnace’s lining, so C poured oxygen onto the melt and removed it. C claimed damages in respect of 1) the reduction in the value of the removed melt (i.e. physical damage to the melt) 2) the loss of profit of £400 that they would have made from that melt had the electricity not been cut off (i.e. the loss of profit on that melt consequent thereon) 3) the loss of profit of £1767 on another four melts which they would have put into the furnace during the time that the electricity was interrupted. CA Held (2-1): 1) and 2) could succeed while 3) could not as 3) was not economic loss consequent on the damage to C’s property but irrecoverable pure economic loss (PEL). Lord Denning: A) here, we have the electricity board which is under a statutory duty to provide electricity, the inhabitants of the district who are untitled to a continuous supply of electricity, and the contractors who dug up the road. However, the cable could have been damaged by the electricity board, or by accident without any negligence by anyone, causing electricity to be cut off. If the cutting off of the electricity thus causes economic loss to the consumers, should it as a matter of policy be recoverable? And against whom? B) PEL should not be recoverable here because the hazard of having the supply of electricity cut off is a hazard which we all run. When it does happen, it affects a multitude of persons. Such a hazard is regarded by most people as a thing they must put up with. People can deal with the risk through insurance or an emergency generator etcC) if claims for PEL were permitted for this particular hazard, there would be no end of claims. Rather than expose C to such temptation and D to such hard labour on comparatively small claims, it is better to disallow pure economic loss altogether. D) in such a hazard, the risk of economic loss should be suffered by the whole community who suffer the losses rather than on one pair of shoulders. Head 3) is a PEL independent of physical damage which is not recoverable. At bottom I think the question of recovering economic loss is one of policy. Lord Davies (dissenting): the test should be reasonable foreseeability

Answer 96

Commentary: head 1) and 2) were consequential losses (relational economic loss), as they were consequential upon the damage to the melt. Pure economic loss, on the other hand, is NOT consequential upon the damage on C’s property, but damage on some other property in which C has no proprietary interest. Steel: Denning’s fourth argument is not universally applicable. It cannot apply to Cattle etc. Denning’ second argument is the strongest, because in order to encourage people to take precautions before an event, it is best to have a clear rule. Lord Oliver: PEL does not have to be justified. Petrin: just as a business does not have to justify taking away customers from its competitor. Causing PEL may well be a lawful behaviour! If suppliers go on strike lawfully, retailers should not have a claim. Oliphant: would fairness and reasonableness require C to be able to claim for refunds it paid to its customers under an obligation in a supply contract? Is liability to third parties subject to the same rules as loss of profits?

Answer 97

ϖ NR suffered loss when employees of C negligently damaged its railway infrastructure. C agreed that they were liable for the cost of repairing the infrastructure and associated costs related to the damage. However, C refused to pay the amounts NR became contractually liable to pay third parties because the formula for calculating those losses relied on the effect the damage would have on the future profits of the third parties. Held: Moore-Bick LJ: in the context of pure economic loss (financial loss suffered otherwise than as a consequence of damage to the person or property of C), there are difficulties for recovery because of the broad network of economic links that existed in any developed society. To identify the true measure of the loss suffered by C for which he is entitled to be compensated depend upon a fair assessment of what C has actually lost and the application of established principles relating to scope of duty and remoteness of damage. Jackson LJ: these are the principles: a) Economic loss flowing directly and foreseeably from physical damage to property may be recoverable so long as the general nature of C’s loss is foreseeable (detailed knowledge of C’s business or circumstances not required) b) Loss of income following damage to revenue generating property is recoverable c) Loss of future business as a result of damage of property lies on the outer fringe of recoverability. Whether C can recover depends on the circumstances of the case and the relationship between the parties. d) In choosing the appropriate measure of damages, the court seeks to arrive at an assessment which is fair and reasonable as between C and D. Commentary: Rule 4) says nothing at all!

Answer 98

ϖ CANADIAN case) C (railway company) was deprived of the use of a railway bridge, which belonged to X the licensor, as a result of the damage to the bridge caused by D’s negligence. Held: liability arouse because C was engaged in a joint venture with the bridge owner. Where C’s operations are so closely allied to the operations of the party suffering physical damage to its property that it can be considered a joint venture with the property owner, C can recover its economic loss even though C himself suffered no physical damage to its property. To deny recovery would be to deny it to a person who for practical purposes is in the same position as if he owned the property physically damaged. PEL does not have to be justified. So if a competitor causes PEL to another business competitor, this does not have to be justified. McLachlan J: the exclusionary rule is not justified because: 1) The comparative evidence: it seems that the availability of damages for PEL has not led to the materialisation of unlimited recovery and unworkable uncertainty in Canada. Adverse consequences were equally not provoked in the US, where the recovery for PEL has been allowed. 2) Economic theory: Certain type of loss should not be seen in terms of fault but rather the inevitable by-product of desirable but risky activity. It is just to distribute the costs of the activity among all who benefit from it, but unfair to impose it on individuals who are viewed as the faultless instrument causing the loss. The insurance argument: C is in a better position to predict economic loss consequent on an accident, and hence better able to obtain cheap insurance against the contingency. But this argument assumes that the victim must be not only the better insurer but better by some margin so great that it justifies the losses from more frequent and more severe injury. It is also questionable whether people could in fact insure at reasonable cost in the insurance markets of the real world. The loss spreading argument: it is better for the economic well-being of society to spread the risk among many parties than place it on the shoulders of the tortfeasor. Again, this argument involves the question of justice or of efficient risk distribution. Where losses are spread by relieving the tortfeasor of liability we can expect more accidents and more losses to occur. Also, some of the victims may sustain large losses not small ones. This rationale cannot, above all, justify the numerous cases where there is only one victim. Risk allocation argument: focuses on the ability of the victims to allocate the risk within their contracts effectively with property owners. But this argument assumes that all business entities organise their affairs in accordance with the laws of economic efficiency. It also assumes that there is equal bargaining power between parties which will result in effective risk allocation. It also overlooks the historical centrality of fault to our concept of negligence. At least businesses should be liable for PEL! Commentary: should English law be more flexible in departing from the exclusionary rule? If you hold people liable for PEL, they will also be more careful

Answer 99

ϖ where a physical injury leads to consequential economic loss (such as loss of earnings), that consequential loss is recoverable provided that it was reasonably foreseeable that loss of that type would occur.

Answer 100

• If goods simply fail to work, there is no physical damage to persons or property on which to base a DOC. An appropriate claim would be in contract. If a product has a defect (in design, in function etc.), it means that you're worse off because the product is less valuable than you thought. This is PEL and is normally irrecoverable.The builder can only become liable if the defect had been undiscovered until physical injury or property damages to things other than itself materialised. There is an absence of special relationship of proximity imposing on D a DOC to safeguard C from economic loss.

Answer 101

ϖ a defect in the building’s foundations caused subsidence (motion of surface), leading to the appearance of cracks in the walls. C claimed the repair costs and sued the authority as well. HL Held: C could recover the repair costs. Lord Wilberforce: this is to avoid a present or imminent danger to the health or safety of the persons occupying it. C suffered material physical damage. Commentary: the case is very unclear. Does danger to health and safety has to be shown in every claim in respect of a defective building against the builder? Steel: as for classification, Lord Wilberforce got it wrong, as this is clearly an economic loss and no separate damages had been done to the property of C, other than to the building itself.

Answer 102

ϖ C (lessee) lived in D1’s house which was erected by D3 (the builders), who reasonably believed their sub-contractor to be skilled and competent whereas the sub-contractor carried out his work negligently. C discovered that the plaster in the flat was loose and some of the plaster fell down. C sued D3 claiming the cost of remedial work (cleaning of the carpets), the damage and dirt caused to possessions in the flat and the loss of rent. CA held that D3 owed C no DOC as a sub-contractor was hired. HL Held: Lord Bridge: the liability of D3 can only arise if the defect remains hiddenUNTIL the defective structure causes personal injury or damage to property other than the structure itself. If the defect is discovered BEFORE any damage is done, the loss sustained by C would be purely economic. Where no physical damage has been caused, no action in tort can be sustained. Here, no physical damages has been caused as all that happened is that the defect in the wall has been discovered in time to prevent damage occurring. A dwelling house should be treated in law as a single indivisible unit. If the unit becomes a potential source of danger when a hitherto hidden defect in construction manifests itself, the builder should NOT in principle be liable for the remedial costs. Complex structure theory: This might be different for complex chattels such as a building (in an attempt to reconcile this with Anns), where damage to one part of the structure caused by a hidden defect in another part may qualify to be treated as damage to other property. Here the only hidden defect was in the plaster, the plaster is to serve as a smooth surface on which to place decorative paper or paint, it is artificial to treat the plaster as distinct from the decorative surface placed on it. Then cost of replacing the plaster was NOT an item of damage. To make D3 liable would be to impose on him for the benefit of those with whom he had no contractual relationship he obligation of one who warranted the quality of the plaster as regards materials, workmanship and fitness for purpose. Consumer protection is an area of law where legislation is much better left to the legislators. Lord Oliver: Anns introduced an entirely new and novel type of product liability and its logical basis and boundaries are not entirely clear to me. It can only interpreted to mean that D is liable where the defect of the building is one which threatens the health or safety of occupants or X or (possibly) other property. The damages claimed should be limited to theexpenses necessarily incurred in averting that damage (Anns). Anns cannot be used to support the recovery of damages for PEL… If I buy a second-hand car with a pneumatic tyre which bursts as a resulting of D’s carelessness, and causes injury other to me or to the car, D is of course liable in tort under Donoghue. But if it does not cause injury other than to itself OR if I discover the defect before a burst occurs, I know of no principle on which I can claim to recover from D in tort the cost of making good the defect. Otherwise, the effect is to attach to goods a non-contractual warranty of fitness which would follow the goods into whosoever hands they came. Such concept was suggested by Lord Denning in Dutton, but is entirely unsupported by any authority and is contrary to principle. Commentary: so if there is a defective building and the value of the building drops when you sell it, this is PEL as there is no personal injury/property damage. Sue the builder in contract might work, but not in tort. Steel: D & F could not leave Anns because no foundational problem was existent. The complex structure theory was rejected by Murphy, which also overruled Ann.Petrin: the reason why the building defect per se or damage to the building itself is not a ‘damage’ here is because it simply means the building is worth less

Answer 103

ϖ C purchased a semi-detached housewhich was built and sold by A. Its foundations were approved by D on the recommendation of independent consultant engineers. After 10 years, serious cracks began to appear in the walls of the house because the concrete raft had subsided differentially. C could not find the remedial work and so sold the house for some £35,000 less than its estimated worth. C sued D for that. HL Held: Lord Keith: although the damage in Anns was described as material physical damage, it was in fact PEL. As the HC of Australia pointed out, the only thing that was damaged in Anns was the building, but the building could not be said to have been subjected to material physical damage by reason merely of the inadequacy of its foundations since the building never existed otherwise than with its foundations in that state. The nature of the duty held by Anns to be incumbent on the local authority went very much further than a duty to take reasonable care to prevent injury to safety or health. If that duty is incumbent on the authority, it should also be so for the builder, and there can be no grounds in logic for not extending liability to the manufacturer of a chattel. That would open up a wide field of claims, involving the introduction of something in the nature of a transmissible warranty of quality. And from there another question will arise: should there be a right of recovery for the chattel where the defect renders the article not dangerous to health and safety, but merely useless? This question will also apply to real property. The complex structure theory in D & F is unrealistic as the whole of the building was built by the same contractor. The whole package provided by the contractor would be regarded as one unit rendered unsound as such by a defect in the particular part. Where, for example, the electric wiring had been installed by a sub-contractor, the sub-contractor might be liable. But even the complex structure theory was correct, it could not extend to local authorities as the 1936 Act aimed to avert danger to health and safety, not danger or damage to property. It would also NOT cover the situation which might arise through discover before damages occurred. There is also no logic to confine the remedy to cases where ‘damage to health and safety’ exists (Anns) because the loss involved in incurring expenditure is PEL, and deny remedy where the existence of the danger has come to light in some other way. Anns did not proceed on any basis of established principle and constituted a remarkable example of judicial legislation! Departure from Anns would re-establish a degree of certainty in the field of law which it has done a remarkable amount to upset (in 13 years).Anns is OVERULED!

Answer 104

1) Dangerous defects and defects of quality: Under Donoghue, if a manufacturer negligently puts into circulation a chattel containing a latent defect which renders it dangerous to persons or property, the manufacturer will be liable in tort for injury to persons or property damage. But if the chattel is merely defective in quality, even to the extent that it is valueless for the purposes for which it is intended, the manufacturer’s liability in common law arises only under and by reference to the terms of the contract. If the dangerous defect in a chattel is discovered before it causes physical damages, because the danger is now known [and can be averted] and the chattel cannot be safely used unless the defect is repaired, the defect becomes merely a defect in quality. The loss borne by C is purely economic, and is not recoverable in the absence of a special relationship of proximity imposing on D the DOC to safeguard C from economic loss. This applies to buildings as well.But if a building stands so close to the boundary of the building owner’s land that after discovery of the dangerous defect it remains a potential source of injury to persons or property on neighbouring land or on the highway, the building owner ought to be entitled to recover in tort from the negligent D the cost of obviating the danger which was necessarily incurred to protect himself from potential liability to X. 2) Complex structure theory: I expressed no opinion as to the validity of this theory [in D & F], but put it forward for consideration as a possible ground on which the facts considered in Anns might be distinguished. It is quite artificial to treat a defect in an integral structure as a dangerous defect liable to cause damage to other property. A critical distinction must be drawn between some part of a complex structure which is said to be a danger only because it does not perform its proper function in sustaining the other parts and those which positively malfunctions so as to inflict damage. The latter: So if the heating boiler explodes and damages a house, or if defective electrical installation malfunctions and sets the house on fire, C can definitely recover damages as long as he can show causation. The former: but the law is entirely different where cracks occur because of the inadequacy of the foundations of the building. 3) Imminent danger to health or safety: does not seem like a sound requirement. I) what is C to do when he is advised that the building will gradually deteriorate if not repaired (the longer he waits the greater the cost), but there is no present or imminent danger to heath of safety yet. Such danger will arise when the building is not repaired. Is he to wait until the building deteriorates until the danger surfaces? II) where the latent defect is not discovered until it causes the whole building to collapse (but causes no physical damage), the building can no longer be a danger to health or safety and does this mean C can have no remedy?

Answer 105

Oliver: Ann’s ‘material physical damage’ categorisation simply does not withstand analysis since C had suffered none. Categorising a damage as material, physical, pecuniary or economic does not provide a particularly useful contribution. While the infliction of physical injury or property damage has to be justified, the causing of economic loss does not! The essential question to be asked in every case is whether the relationship between C and D is of sufficient proximity such that it imposes upon the latter a DOC to avoid the sustained loss. Jauncy: the complex structure theory, if applicable to buildings, should apply to chattels consisting of integrated parts such as machinery. The consequence would be far reaching.

Answer 106

Commentary: Steele: the judgement did not set out a general exclusionary rule. The House unanimously dismissed the complex structure theory as a means of saving Anns as the foundations were not a separate structure from the house which was provided by a single contractor. The judgment affirmed the remaining latency of defect as a condition for recoverability, in addition to damage. The House also rejected that policy and justice required a remedy at common law. Sir Robin Coke: analytically, the courts could well have taken a more expansive approach to negligence. The choice was a policy one. The complex theory structure must be doubted: A result suggested, though possibly not actually decided, by opinions in Murphy is that if a contractor supplies only part of a house, such as the electrical system or boilers or steel framing, he owes a duty of reasonable care to successive owners to safeguard them from economic loss caused by damage to other parts of the building; yet not if he supplies the whole house. The smaller the role, the greater the responsibility. It must be respectfully questioned whether such a distinction can survive. **The conventional rationale for the negligent advice exception is that the duty stems from reliance and a special relationship of proximity. Yet the liability of a local authority for a building inspector's negligence has been based, by courts which uphold it, on control. If the argument then becomes that the relationship is nevertheless not sufficiently proximate, this is to introduce another term eluding definition,

Answer 107

liability could be imposed on the local authority without finding it necessary to consider liability of the builder.

Answer 108

Could a contractor be held liable in negligence to a purchaser of the building who is not in contractual privity with him? it is preferable for the courts to weigh the relevant policy issues properly since the use of the complex structure theory serves mainly to circumvent and obscure the underlying policy questions. The theory should be rejected. The use of reasoning applicable to chattels by way of analogy to realty is problematic – the idea that one can discard a house instead of repairing it smacked of unreality!

Answer 109

To say that a building is just a big product fails to recognise the greater economic and practical significance that building purchase entails (e.g. home: the owner of a commercial property is generally less vulnerable than the owner of a dwelling). Also, the analogy neglects consumer protection legislation.

Answer 110

s.1 provided a statutory warranty of quality for dwellings and imposes a DOC on the person taking on work for or in connection with the provision of a dwelling owed to the person for whom services are provided. Although this solves all questions above, be careful of the 6-year limitation period!!!!!

Answer 111

accepted that builders owe a DOC to remote purchasers in respect of non-dangerous defects. The purchase of a house is likely to be the most significant investment the subsequent owner will make during his or her lifetime. If C cannot realistically discard the house, what happens if the defect ultimately results in serious physical injury?

Answer 112

the courts of England and the Commonwealth have adopted at least three different approaches to the liability of a builder to a subsequent purchaser for defects in the building. In Murphy, there is no DOC. In Winnipeg, there is DOC only in respect of dangerous defects. In Bryan and Hamlin, a DOC is imposed in respect of some non-dangerous defects.

Answer 113

ϖ even in the case of defects that cause actual damage to a separate structure or indeed to the person, there will be liability only if the damage is caused by a defect that remains latent (hidden). Once the defect becomes known, it no longer poses a danger, except for Lord Bridge’s exceptional example. The rationale is that, in D & C, it is expected that C will avoid physical damage by repairing the defect once it has been discovered.

Answer 114

D designed and built council flats. C was a weekly tenant. The lower flight of stairs had no handrail nor was there artificial light provided in the vicinity. C was injured while descending the stairs in darkness and in bad weather. D argued that since C knew of the dangerous state of the stairs but continued to occupy the premises, this bared his claim. CA Held: Nicholls LJ: the bar on recovery where damage is done by a patent defect did NOT apply where a weekly tenant was injured when a handrail on a staircase gave way. This is because the tenant knew of the defect but could NOT reasonably have done anything about it! Knowledge of the existence of danger does not always enable a person to avoid the danger. It would be absurdly unrealistic to suggest that C could take steps to avoid the danger once he knew of its existence. Knowledge, or opportunity for inspection, does not by itself always negative the DOC or break the chain of causation. It depends on the circumstances.

Answer 115

ϖ Could a contractor be held liable in negligence to a purchaser of the building who is not in contractual privity with him? La Forest J: is it fair that C who moves quickly and responsibly to fix a defect before it causes damages must do so at his own expense, whereas C who either intentionally or through neglect allows the defect to develop into an accident may be benefit at law from the costly and tragic consequences? This legal doctrine serves to encourage reckless and hazardous behaviour! It provides no incentive for C to mitigate potential losses! There is also no risk of having an indeterminate amount of claims because the amount of liability will always be limited by the reasonable cost of repairing the dangerous effect in the building! The requirement that the defect for which the costs of repair are claimed must constitute a real and substantial danger to the inhabitants, and that C can only claim the reasonable cost of repair will control the floodgates.

Answer 116

ϖ CA: that fact that C should have known of the defect before it causes damages will NOT bar recovery. Only actual knowledge of the defect could lead to a denial of recovery.Commentary: would it be fair to deny recovery altogether to C who was injured when her house collapsed due to a defect which might have been discovered if she had commissioned a survey before inhabitation?

Answer 117

• A DOC may arise in respect of such pure economic loss where D voluntarily assumes responsibility towards C ϖ C (firm of advertising agents) placed substantial orders for advertising time on TV and for advertising space in newspapers on behalf of a client (E) on terms by which they became personally liable to the TV and newspaper companies if E would not pay. After becoming doubtful about E’s creditworthiness, C asked C’s bank to telephone E’s bank, D, to seek a credit reference. D’s reply was that E’s credit was ‘believed to be respectably constituted and considered good for its normal engagement’. C asked if E was ‘trustworthy, in the way of business, to the extent of £100,000 per annum’, and D replied, ‘for your private use and without responsibility on the part of the bank of its officials…E wasa respectably constituted company…however, your figures are larger than we are accustomed to see.’ C relied on these statements and as a result they lost over £17,000 when E went into liquidation. C the sued D on the ground that the replies were given negligently (negligent but innocent misrepresentation). D argued this was PEL as there was no property damage/personal injury! HL Held: the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care, and that party knew or ought to have known that reliance was being placed on his skill and judgment. However, the disclaimer D gave excluded liability.

Answer 118

1) On the proximity of relationship, D knew that C’s inquiry was in connection with an advertising contract. This is a case of negligent misrepresentation. 2) Negligent acts and negligent words (traditionally no liability) are different.The most obvious difference between negligent words and negligent acts is this. Quite careful people often express definite opinions on social or informal occasions even when they see that others are likely to be influenced by them; and they often do that without taking that care which they would take if asked for their opinion professionally or in a business connection. A man might give a friend a negligently-prepared bottle of home-made wine and his friend's guests might drink it with dire results. But it is by no means clear that those guests would have no action against the negligent manufacturer. Another obvious difference is that a negligently-made article will only cause one accident and so it is not very difficult to find the necessary degree of proximity or neighbourhood between the negligent manufacturer and the person injured. But words can be broadcast with or without the consent or the foresight of the speaker or writer. It would be one thing to say that the speaker owes a DOC to a limited class, but it would be going very far to say that he owes a DOC to every ultimate consumer who acts on those words to his detriment. Disclamation of responsibility would not protect him in a question with a third party who was unaware with it. 3) An innocent but negligent misrepresentation gives NO cause of action. There must be something more than the mere misstatement, such as the undertaking of responsibility. 4) A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied on, would, I think, have three courses open to him. He could keep silent or decline to give the information or advice sought: or he could give an answer with a clear qualification that he accepted no responsibility for it or that it was given without that reflection or enquiry which a careful answer would require: or he could simply answer without any such qualification. If he chooses to adopt the last course he must, I think, be held to have accepted some responsibility for his answer being given carefully, or to have accepted a relationship with the enquirer which requires him to exercise such care as the circumstances require. Here, D never undertook any DOC to exercise care in giving their replies. C cannot succeed unless there was such a duty.

Answer 119

I consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise. Here, D stated that they onlyresponded to the inquiry on the basis that their reply was without responsibility. If C chose to receive and act upon the reply C cannotdisregard the definite terms upon which it was given!

Answer 120

A defendant who is given a car to overhaul and repair if necessary is liable to the injured driver (a) if he overhauls it and repairs it negligently and tells the driver it is safe when it is not; (b) if he overhauls it and negligently finds it not to be in need of repair and tells the driver it is safe when it is not; and (c) if he negligently omits to overhaul it at all and tells the driver that it is safe when it is not. It would be absurd in any of these cases to argue that the proximate cause of the driver's injury was not what the defendant did or failed to do but his negligent statement on the faith of which the driver drove the car and for which he could not recover This is why the distinction is now said to depend on whether financial loss is caused through physical injury or whether it is caused directly. The interposition of the physical injury is said to make a difference of principle. I can find neither logic nor common sense in [the distinction between PEL and loss caused by physical damage]. If irrespective of contract, a doctor negligently advises a patient that he can safely pursue his occupation and he cannot and the patient's health suffers and he loses his livelihood, the patient has a remedy. But if the doctor negligently advises him that he cannot safely pursue his occupation when in fact he can and he loses his livelihood, there is said to be no remedy. I am bound to say, my Lords, that I think this to be nonsense A promise given without consideration to perform a service cannot be enforced as a contract by the promisee; but if the service is in fact performed and done negligently, the promisee can recover in an action in tort. There is ample authority to justify your Lordships in saying now that the categories of special relationships which may give rise to a duty to take care in word as well as in deed are not limited to contractual relationships or to relationships of fiduciary duty, but include also relationships which in the words of Lord Shaw in Nocton v. Ashburton at page 972 are " equivalent to contract" that is, where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract.I shall therefore content myself with the proposition that wherever there is a relationship equivalent to contract there is a duty of care. Such a relationship may be either general or particular. This is an application of the general conception of proximity

Answer 121

The reason for some divergence between the law of negligence in word and that of negligence in act is clear. Negligence in word creates problems different from those of negligence in act. Words are more volatile than deeds. They travel fast and far afield. They are used without being expended and take effect in combination with innumerable facts and other words. Yet they are dangerous and can cause vast financial damage. How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the Courts' assessment of the demands of society for protection from the carelessness of others. The true rule is that innocent misrepresentation per se gives no right to damages. If the misrepresentation was intended by the parties to form a warranty between two contracting parties, it gives on that ground a right to damages. If an innocent misrepresentation is made between parties in a fiduciary relationship it may, on that ground, give a right to claim damages for negligence. There is also, in my opinion, a duty of care created by special relationships which though not fiduciary give rise to an assumption that care as well as honesty is demanded. The representation must normally concern a business or professional transaction.

Answer 122

1) There is a clear difference of view between Lord Reid and Lord Morris regarding whether there would be a DOC in the absence of the disclaimer in this case. Lord Reid says a DOC by way of a ‘special relationship’ would arise if: i) It is plain that the recipient of the statement is trusting D to take care, ii) It is reasonable for C to rely on D’s representations in this way, AND iii) The information or advice was given where the statement-maker ought to have known that the inquirer was relying on him 1) Lord Morris believed that the only duty would be to give an honest answer 2) Lord Devlin** argued that the only difference between this particular case and a contract is that in this case there is no consideration. D would have been undertaking responsibility, had it not been for the disclaimer. for liability to be present, there must be ******: a) Proximity of relationship (=special relationship) b) Voluntarily assumption of responsibility by D, and c) A reasonable reliance of C on D. 2) Montague: D (representor) owes C (representee) a DOC if: a) D possess a special skill b) C must reasonably rely on D’s representation c) D must have some knowledge of the type of transaction envisaged by C. 3) Lord Oliver’s summary ** of Hedley Byrne in Caparo: the ‘special relationship’ between the parties will exist if 1) The advice is required for a purpose, whether particularly specified or generally described, which is made known, either actually or inferentially, to the adviser (D) at the time when the advice is given; 2) D knows, either actually or inferentially, that his advice will be communicated to the advisee, either specifically or as a member of an ascertainable class, in order that it should be used by the advisee for that purpose; 3) It is known either actually or inferentially, that the advice so communicated is likely to be acted upon by the advisee for that purpose without independent inquiry, and 4) The advice is so acted upon by the advisee(C) to his detriment. Paul Mitchell: The furnishing of the test is not a radical departure from its history at all! It merely exemplifies an existing principle. It repeated something very old! Two questions loom over Hedley: a) Is it sufficiently coherent to explain the cases to which it has been applied? The courts have begun to deem AOR instead of find AOR! b) Does the principle belong to the law of negligence at all? It seems to create liability where no contractual claim would lie. Some (McBridge) argue it belongs more to the law of contract or fiduciary duty. Yet they are different, as Hedley requires fault and does not require consideration. It only requires proof of damage and proof of fault. Steven: the test is a ‘hermaphrodite’.

Answer 123

--- a banker giving a reference in a form of a brief expression of opinion as to the creditworthiness of a customer. The person requesting the reference suffered economic loss after relying on the advice. PC Held: there was no DOC here! The Hedley Byrne DOC is only limited to advisors who carry on the profession of giving advice in the course of that business.Lords Reid and Morris (dissenting) if the advice was made in the course of, it would suffice and he assumed a DOC to the person requesting the reference! He did not have to be an advisor.

Answer 124

C asked a friend (D) to find her a used car which should not have been in an accident. D negligently found a car that had been in an accident. CA: that relevant circumstances included the actual degree of skill and experience which the agent possessed, and the existence of friendship between the principal and the agent, although the latter was relevant only to the standard of care and not to the existence of the duty. However, the agency arrangement here, albeit gratuitous, indicated that the occasion was not a social one. D owed C a DOC! Commentary: this contradicts Lord Reid’s remark that it is unlikely that one will be held to be under a DOC when providing information in a social context. It also contradicts Lord Peace in Hedley!

Answer 125

ϖ C relied on information provided on D’s website to choose a contractor to build their swimming pool. The information was misleading. CA: Hedley Byrne liability is applicable to these cases as well. Since the website made clear that the statements were not to be relied on, there was no DOC. Also, limitless number of people can access the site and so it is difficult to find that a DOC arises to all of them. However, where the website targeted only a specific class, a DOC might arise to them.

Answer 126

• Where D did not make any representations to C at all, Hedley Byrne cannot be directly applied. The alternative Caparo test was suggested in these cases instead of the test of ‘assumption of responsibility’

Answer 127

ϖ Does a property valuer owe a DOC to the purchaser of the house where the valuer had been instructed to carry out the valuation, not by the purchaser, but by the purchaser’s mortgagee? The purchaser here paid a fee to the mortgagee for the valuation. The valuer then passed the valuation to the purchaser who read it. The disclaimer was that ‘neither the society nor its surveyor warranted that the valuation would be accurate and that it was supplied without any assumption of responsibility’.Harris v Wyre Forest DC [1990] --- The valuation was undertaken by the mortgagee (WF DC) itself and was passed to the purchaser, who did not read it assuming that the house must have been worth the purchase price since D was prepared to lend the money. The disclaimer said that the valuation was confidential and was intended solely for the information of the local authority, and that no assumption of responsibility was implied for the value of the property by reason of the report. In both cases the survey was carried out negligently, and resulted in economic loss to C.Held: the valuer instructed by the purchaser’s mortgagee to carry out a valuation of a modest house for the purpose of deciding whether or not to grant a mortgage on it to the purchaser owed a duty of care to the purchaser to exercise reasonable skill and care in carrying out the valuation if he was aware that the purchaser would probably purchase the house in reliance on the valuation without an independent survey, unless the valuer had made a disclaimer of liability to the purchaser

Answer 128

In the present appeals, the relationship between the valuer and the purchaser is "akin to contract." The valuer knows thatthe consideration which he receives derives from the purchaser andis passed on by the mortgagee, and the valuer also knows that thevaluation will determine whether or not the purchaser buys thehouse.Even though there was a disclaimer, the valuer could still be said to have assumed responsibility if the exclusion clause falls foul of the Unfair Contract Terms Act 1977.The clause only affects liability, but not AOR! Here, the exclusion clause does NOT pass the reasonable test in UCTA.

Answer 129

: it is unlikely that this type of situation was envisaged by Lord Devlin in Hedley Byrne when he used the term ‘akin to contract’. Here there was a sufficiently proximate relationship between C and D. D had knowledge of the high likelihood that C would rely on the survey without obtaining any independent advice. Hence, there was a DOC owed. It was arguable that no duty would arise in respect of higher value properties, presumably because it was considered reasonable for purchasers to look after their own interests (agreed by Lord Griffith)

Answer 130

: there could not be a DOC on the basis of a ‘voluntary assumption’ when D had done all in their power to disclaim responsibility. (Note the word ‘voluntary’ here!) The disclaimer would determine whether the DOC would arise in the first place. I do not think that voluntary assumption of responsibility is a helpful or realistic test for liability. It is true that reference is made in a number of thespeeches in Hedley Byrne to the assumption of responsibility as atest of liability but it must be remembered that those speeches were made in the context of a case in which the central issue was whether a duty of care could arise when there had been an express disclaimer of responsibility for the accuracy of the advice.Obviously, if an adviser expressly assumes responsibility for hisadvice, a duty of care will arise, but such is extremely unlikely in the ordinary course of events. The better test is three-pronged. A DOC should be owed by the adviser to those who act upon his advice only if i) It is foreseeable that if the advice is negligent the recipient is likely to suffer damage, ii) There is a sufficiently proximate relationship between the parties, AND iii) It is just and reasonable to impose the liability

Answer 131

Commentary: Lord Griffith’s alternative test is later used in Caparo.The proximity requirement comes straight out of Lord Devlin’s proximity test in Hedley Byrne. Kaye: if the valuer reports the existence of a fault that does not exist, he is in just as proximate a relationship with C. However, the vendor does not pay for valuation. Should this prevent a DOC from being owed? Steele: Lord Griffith’s alternative approach (Caparo) to make the assumption of responsibility fit the facts amounted to a complete distortion of the concept and caused considerable subsequent confusion. Oliphant: in Merrett v Babb [2001] --- CA held that the surveyor who carried out the inspection owed a DOC to the prospective purchaser as an individual. May LJ: the nature of the valuer’s employment is not relevant to the relationship between the employed professional valuer and the purchaser. *Petrin: 1) Lord Templemandid not consider voluntary assumption a problem– obviously there was NO voluntary assumption of responsibility by the valuer to the purchaser (but only the purchaser’s mortgagee)!!!This clearly undermined the voluntary assumption notion in Hedley. Does this also contradict Spartan Steel? Can this be explained that there is an indeterminate class of C in Steel, but there is a determinate, defined class here?2) it is NOT clear why Spartan Steel was departed from – perhaps because the class of C is more narrow and defined here? Everything seems to be based on just policy considerations!!

Answer 132

ϖ C owned shares in company F. C started to acquire those shares before F’s audited accounts in 1984, and C made a successful takeover after the accounts which showed a £1.2 million pre-tax profit were made public. C then discovered that F in fact had not made a profit that year and in fact made a giant loss. C sued F’s auditors for the loss caused to them in paying an excessive price for F’s shares, alleging that F owed C a DOC because they could foresee that a potential bidder like C would rely on the accounts to make decisions. HL Held: C lost! The purpose of the statement was to provide information to shareholders, not potential investors. Smith is distinguished as the purpose of the valuation there was for the purchaser specifically.

Answer 133

considering Hedley, Smith, Cannetc)The salient feature of all these cases is that i) D giving advice or information was fully aware of the nature of the transaction which the plaintiff had in contemplation, ii) D knew that theadvice or information would be communicated to him directly or indirectly, and iii) D knew that it was very likely that the plaintiff would rely on that advice or information in deciding whether or not toengage in the transaction in contemplation. The situationis entirely different where a statement is put into more or less general circulationand may foreseeably be relied on by strangers to the maker of the statement for any one of a variety of different purposes which the maker of the statement has no specific reason to anticipate. To hold the maker of the statementto be under a duty of care in respect of the accuracy of thestatement to all and sundry for any purpose for which they maychoose to rely on it is not only to subject him, in the classicwords of Cardozo C.J. to "liability in an indeterminate amount for an indeterminate time to an indeterminate class”. It is also to confer on the world at large a quite unwarranted entitlement to appropriate for their own purposes the benefit of the expert knowledge or professional expertise attributed to the maker of the statement… Hence, the control mechanismis this: i) There must be proximity in relationshipbetween C and D ii) D must know that his statement would be communicated to C, either as an individual or as a member of an identifiable class, specifically in connection with a particular transaction or transactions of a particular kind iii) D must know that C would be very likely to rely on it for the purpose of deciding whether or not to enter upon that transaction or upon a transaction of that kind [617-18] The necessary ingredients in any situation giving rise to a DOC are that: 1) There should exist between C and D a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ 2) Foreseeability of damage 3) The situation must be one which the court considers it fair, just and reasonable that the law should impose the DOC on D for the benefit of C

Answer 134

Oliphant: here the accounts were provided under a statutory duty for the shareholders, not for the potential investors. The audit had nothing to do with the transaction for which it was relied upon! Yet, this purpose distinction is unsatisfactory, as doubtless the surveyor in Bush would say that the purpose of the valuation was to give information to the DC, not the purchaser. Why did the HL interpret there to be an additional purpose to give information to the purchaser in Smithbut no additional purpose to give information to potential investors in Caparo? Petrin: 1) Proximity 2) Foreseeability 3) Fair, just and reasonable --> Here there was no liability (incremental approach: reason by analogy first)

Answer 135

• The assumption of responsibility test was developed to encompass two limbs: A) an assumption of personal responsibility, and B) reasonable reliance by C.Hedley Byrne liability can be extended to the provision of services too (not just information). Concurrent liability in tort and contract has been accepted.

Answer 136

ϖ C (company representative) for D1. C switched jobs and under the rules of the regulatory body, the prospective employer was under a duty to obtain a reference and D1 was under a duty to provide that reference. D1’s reference was unfavourable and negligently prepared, and C was not hired! Held: Lord Woolf: direct application of the Caparo three-staged test. The test is not determinative since Caparo also required the test to consider whether the case was sufficiently analogous to existing categories where DOC is owed (incremental test). It was not too large a step to recognise a negligent negative reference since Hedley concerned a positive reference. Applying Caparo then, C’s loss was clearly foreseeable to D. C and D could hardly have been closer. Public policy also did not preclude the recognition of DOC in the giving of references. Lord Goff: (used the Hedley Byrne AOR approach rather than the Caparo test) There was indeed a AOR coupled with general reliance as C relied upon D to take due care in the protection of his interests.Lord Keith (dissenting): C had NOT relied upon the statement and so this was outside the ambit of Hedley Byrne. I can see no reason why a solicitor should not he under a duty to his clientto exercise due care and skill when making statements to third parties, so that if he fails in that duty and his client suffers damage in consequence, he may be liable to his client in damages.

Answer 137

Commentary: Steele: Lord Goff misapplied the ‘reliance’ idea in Hedley, which concerned reliance upon the truth of the statement, NOT D’s duty to take care of him! Lord Goff understood Hedley Byrne this way: 1) Assumption of responsibility by D to C 2) Coupled with reliance by C on the exercise by D of due care and skill It is a clear mistake when Lord Goff said that ‘D was held to have assumed responsibility’, as this would imply an objective test, and the voluntary element in Lord Devlin’s formulation (i.e.the duty was not be imposed by law) would be lost.

Answer 138

ϖ Names’ (C; investors) suffered loss in the Lloyds Insurance market. C brought these actions against underwriting and managing agents for negligent conduct of their affairs which exposed them to unreasonable risk of losses. Everyone who wishes to become a Name at Lloyd’s must appoint an underwriting agent to act on his behalf pursuant to an underwriting agreement. The agency agreements were contractual. C sued those responsible for the management of the Syndicates. D argued that the imposition of a DOC in tort is inconsistent with the contractual relationship between the parties. The issues were 1) whether the existence of a contract between the parties prevented the existence of a concurrent DOC in tort, and 2) whether the managers owed a DOC to M. Held: there could be concurrent liability in contract and tort, although the tort duty can be modified by the terms of contract between the parties.Hedley Byrne could be extended to the provision of services.

Answer 139

the direct Names could choose to sue D either in contract or in tort.Hedley Byrne was founded on cases of concurrent liability in contract and tort which were not solely for the provision of information, but provision of services as well. In the present case liability can, and in my opinion should, be founded squarely on the principle established in Hedley Byrne itself, from which it follows that an assumption of responsibility coupled with the concomitant reliance may give rise to a tortious duty of care irrespective of whether there is a contractual relationship between the parties,and in consequence, unless his contract precludes him from doing so, the plaintiff, who has available to him concurrent remedies in contract and tort, may choose that remedy which appears to him to be the most advantageous. In addition, the concept provides its own explanation why there is no problem in cases of this kind about liability for pure economic loss; for if a person assumes responsibility to another in respect of certain services, there is no reason why he should not be liable in damages for that other in respect of economic loss which flows from the negligent performance of those services. It follows that, once the case is identified as falling within the Hedley Byrne principle, there should be no need to embark upon anyfurther enquiry whether it is "fair, just and reasonable" to impose liability for economic loss - a point which is, I consider, of some importance in the present case. The concept indicates too that in some circumstances, for example where the undertaking to furnish the relevant service is given on an informal occasion, there may be no assumption of responsibility; and likewise that an assumption of responsibility may be negatived by an appropriate disclaimer. AOR to one party under a contract did NOT prevent a similar AOR to a non-party in respect of the services to be performed under that contract! This is rare - if the sub-contractors hired by the contractors who had a contract with the building owner performed the job negligently, it will not ordinary be open to the building owner to sue the sub-contractor under Hedley Byrne because there is generally no AOR.

Answer 140

The derivation from fiduciary DOC of the principle of liability in negligence where D has by his action assumed responsibility is illuminating in a number of ways.

Answer 141

Lord Goff made clear that the Hedley Byrne liability extended to the provision of services. He also made clear that once ‘assumption of responsibility’ is found, there is no need to further consider whether it is ‘fair, just and reasonable’ to impose the DOC. He also noted that AOR to one party under a contract did NOT prevent a similar AOR to a non-party in respect of the services to be performed under that contract! Oliphant: a better way of saying that is ‘assumption of responsibility’ is a question of law, and itself reflects considerations of fairness, justice and reasonableness. This is NOT to say that a tortious DOC will always be owed whenever there is a contractual relationship (Robinson v PE Jones). Does this conflict with Junior Books? How precisely do we tell when the parties’ contracts are a definitive statement of all the rights their arrangements create?

Answer 142

ϖ if A contracts with B to perform a task which benefits C, but C does not know of such contract and can place no reliance on it, can A be held to have assumed responsibility to C if through his own negligence, C does not receive the benefit he would otherwise have received? A solicitor was instructed to draw up a new will for the testator after a family quarrel was resolved to re-inherit his two daughters (C). Due to the solicitor (D)’s negligence, the will had not been drafted by the time the testator died. C, being the third party, sued D. HL Held: the Ross v Cauntersprinciple (that a solicitor owes a DOC to intended beneficiaries in respect of the proper execution of a will) cannot be maintained.

Answer 143

there is no true assumption of responsibility on the part of D towards C. However, there is a wrong that requires remedy through practical justice, and the best way of providing it is to deem that assumption of responsibility which existed between D and the testator client to also extend to the intended beneficiaries of the client. It may be argued thatthis would have more appropriately resolved through a contractual remedy, but right now the doctrines of consideration and privity get in C’s way. Therefore the law of tort should be turned to for a solution. The Hedley Byrne principle cannot, in the absence of special circumstances, give rise on ordinary principles to an AOR here. In my opinion, therefore, your Lordships' House should in cases such as these extend to the intended beneficiary a remedy under the Hedley Byrne principle by holding that the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may, as a result of the solicitor's negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor. Such liability will not of course arise in cases in which the defect in the will comes to light before the death of the testator, and the testator either leaves the will as it is or otherwise continues to exclude the previously intended beneficiary from the relevant benefit. The advantages of this approach are: 1) There is no unacceptable circumvention of established principles of the law of contract 2) No problem arises by reason of the loss being of a purely economic character. 3) Such assumption of responsibility will of course be subject to any term of the contract between the solicitor and the testator which may exclude or restrict the solicitor's liability to the testator under the principle in Hedley Byrne 4) Since the Hedley Byrne principle is founded upon an assumption of responsibility, the solicitor may be liable for negligent omissions as well as negligent acts of commission 5) I do not consider that damages for loss of an expectation are excluded in cases of negligence arising under the principle in Hedley Byrne, simply because the cause of action is classified as tortious

Answer 144

as I have sought to demonstrate, in the case of a duty of care flowing from a fiduciary relationship liability is not dependent upon actual reliance by the plaintiff on the defendant's actions but on the fact that, as the fiduciary is well aware, the plaintiffs economic wellbeing is dependent upon the proper discharge by the fiduciary of his duty. There are general factors which indicate that it is fair, just and reasonable to impose liability on the solicitor. To my mind it would be unacceptable if because of some technical rules of law, the wishes and expectations of testators and beneficiaries generally could be defeated by the negligent actions of solicitors without there being any redress. It is only just that the intended beneficiary should be able to recover the benefits which he would otherwise have received.

Answer 145

The assumptions that there must be something wrong with the law if C did not succeed and that some form of action should be granted simply because D had been negligent are questionable! The purpose of the courts when recognising tortious acts and their consequences is to compensate those plaintiffs who suffer actionable breaches of duty, not to act as second-line disciplinary tribunals imposing punishment in the shape of damages. Such an approach does not conduce to the orderly development of the law, or to the certainty which practical convenience demands! IfA promises B to perform a service for B which B intends, and A knows, will confer a benefit on C if it is performed, A might owe C a DOC in tort to perform carefully that service as long as the special relationship has mutuality

Answer 146

but there is no such relationship as Mustill mentioned at all here! Lord Goff noted that Hedley Byrne AOR cannot exist here, but said AOR can be deemed for practical justice. Lord BW’s approach is that Hedley Byrne AOR can apply because of Nocton v Lord Ashburton which found the solicitor liable to the client on the basis of a specialfiduciary relationship.Hence, no mutuality or reliance will be required for the trustee to be liable for loss because of the fiduciary relationship. Lord BW’s approach is problematic because it is based on the idea that it is foreseeable that C would suffer loss if D is negligent, but it has never been accepted that a DOC should be owed merely due to foreseeable economic loss! Lord BW fails to explain the reason why a fiduciary may be laible for negligently caused foreseeable economic loss. Note that Lord BW also mentioned ‘fairness, justice and reasonableness’. ZCT: this is an uneasy mix between policy and justice. The decision would have been different had a contractual claim under the 1997 Act been available! Lord Nolan: by driving a car, you assume responsibility towards other road users to exercise your skill not to cause loss to them. If carelessly performed, you assume legal responsibility towards them.Oliphant: Nolan’s example is problematic as it does not specify in respect of what the DOC is owed. Physical injury? PEL?

Answer 147

ϖ professional is the company director)C and his partner approached D with a proposal. C wanted to get a franchise for a health food shop in Rugby (i.e. they wanted to use the Natural Life brand to run a new store and pay Natural Life Ltd a fixed fee). C was given a brochure with financial projections. They entered the scheme. They failed, and lost money. So C sued the company, alleging that the advice they got was negligent. However, before the suit could be completed, D went into liquidation. So C sought to hold the company's managing director and main shareholder personally liable. This was M, who in the brochure had been held out as having a lot of expertise. M had made the brochure projections, but had not been in any of the negotiations with C. C argued that M assumed personal responsibility to them and therefore owed C a DOC in tort. Held: Lord Steyn: The liability of shareholders in a limited company is limited as the company is a separate legal entity distinct from others. To establish such DOC for M or the director of a contracting company, there must be i) An assumption of personal responsibility by D, AND ii) C must have reasonably relied upon that assumption Here, there was no personal dealings between M and C or exchanges or conduct which could have conveyed to C that M was willing to assume personal responsibility, there was not even evidence that C believed that D assumed personal responsibility to him. Hence, C could not recover for the loss. Coherence [of the AOR principle] must sometimes yield to practical justice! Commentary: inconsistent with White v Jones; Gorham v BT; Cape v Chandler?

Answer 148

ϖ D gave negligence advice to C (client) which made C’s wife and children detrimental financially. D was aware that C intended to make provision for his dependents. C’s wife sued D.Held: although there is no direct contact, there was assumption of responsibility. The claim was successful. Duty of care owed by D (adviser) to C's dependants when advising on retirement options

Answer 149

ϖ C (compulsive gambler) requested bookmaker D (which took bets at agreed upon odds) to close his betting account after he lost money. D negligently failed to do so and allowed C to continue betting and continued to take up his bets. C took advantage of D’s failure and went on gambling. C’s loss escalated and sued D for not implementing that ‘self-exclusion’ policy. Held: D did owe C a DOC! However, the DOC was only a duty to exclude him from betting with D, NOT preventing D from betting in general and therefore losing money. Hence, the breach did not pass the ‘but for’ test!

Answer 150

ϖ D worked for C (asbestos producer) in the 60s. D found that he had asbestos exposure but C's company did not exist anymore. So D sued C's subsidiary company. There were no direct dealings between D and C’s subsidiary company. Held: the parent company was liable to the employers of the parent company due to the assumption of responsibility. Commentary: Petrin: i) It is difficult to see why there is an AOR when there is no direct dealing/contact (reaffirming Williams v Health Foods) ii) ***Reliance (in Hedley Byrne) could not even exist here if C did not even know D exists!!!!! This is not just an extension of Hedley Byrne! iii) Proximity of relationship?

Answer 151

there is not necessarily a tort duty. Even if there is a tort DOC, it would only extend to personal injury or property damage, but NOT PEL!

Answer 152

ϖ C entered into an agreement with D that D would build and sell to him a new house. The house was to have gas fires in the lounge and family room. D constructed chimney flues in these rooms and C arranged for British Gas to supply and install the fires. Over 12 years later, Cobtained a surveyor's report on the chimneys, which stated that the chimneys hadn’t been constructed in accordance with good building practice, nor the Building Regulations in force at the time. C issued proceedings against D for breach of contract and for breach of a concurrent duty of care in tort. C subsequently accepted that his claim in contract was statute barred and that his case stood or fell on whether he could show that there was a concurrent duty of care in tort for economic loss that hadn’t been excluded. CA Held: the existence of a contract did not, without more, necessarily create a tortious duty to prevent economic loss, because one has to look at the relationship between the parties to see if there has been an assumption of liability. It is not possible for the claimant to invoke the law of tort in order to impose liabilities upon the defendant which are inconsistent with the contract.

Answer 153

(regarding concurrent liability in tort and contract) there is no reason why the law of tort should impose duties which are identical to the obligations negotiated by the parties. I see nothing in Lord Goff's speech which is inimical to this analysis. The tort duty in such cases did NOT extend to PEL. Absent any assumption of responsibility, there do not spring up between the parties duties of care co-extensive with their contractual obligations. The law of tort imposes a different and more limited duty upon the manufacturer or builder. That more limited duty is to take reasonable care to protect the client against suffering personal injury or damage to other property. The law of tort imposes this duty, not only towards the first person to acquire the chattel or building, but also towards others who foreseeably own or use it” I accept, however, that such an approach is too restrictive. It is also necessary to look at the relationship and the dealings between the parties, in order to ascertain whether the contractor or sub-contractor “assumed responsibility” to his counter-parties, so as to give rise to Hedley Byrne duties.

Answer 154

it must now be regarded as settled law that the builder/vendor of a building does not by reason of his contract to construct or to complete the building assume any liability in the tort of negligence in relation to defects in the building giving rise to purely economic. In cases of purely financial loss, assumption of liabilityis used both as a means of imposing liability in tort and as a restriction on the persons to whom the duty is owed. The duty of care in tort applies to damage to other property than that supplied, or to personal injury or death, caused by a defect in the property supplied. The provider of a service, such as an accountant or solicitor, owes a duty of care in tort to his client because his negligence may cause loss of the client's assets. I do not think that a client has a cause of action in tort against his negligent accountant or solicitor simply because the accountant's or solicitor's advice is incorrect (and therefore worth less than the fee paid by the client). Significance: 1) duty of care in tort is a common law duty which can be excluded 2)the DOC may in fact be no co-extensive duty of care at all to the extent that the loss is purely economic3) the only tortious duty owed by a manufacturer or builder to his client and others who would foreseeably own or use the product or building was to take reasonable care to prevent any defect in it causing personal injury to them or damage to other property of theirs

Answer 155

Stanley Burnton LJ’s analysis is inconsistent with White v Jones where C could recover for the failure to receive a benefit as opposed to suffering a loss! Whittaker: it can be argued that an AOR, a hence a tort DOC, may be imposed by virtue of an agreement by two parties even if the agreement itself is unenforceable as a contract. Bouwer: this basically shut down concurrent liability to limit tort liability to reasonable care. Henderson was applied very restrictively.

Answer 156

• When the courts later wanted to expand liability for PEL, they recognised that Hedley Byrne liability had its limitations. Some preferred to adopt the three Caparo test

Answer 157

ϖ A DOC should be owed by the adviser to those who act upon his advice only if - a) It is foreseeable that if the advice is negligent the recipient is likely to suffer damage, b) There is a sufficiently proximate relationship between the parties, AND It is just and reasonable to impose the liability

Answer 158

ϖ Lord Bridge: The law has moved on, the Anns approach might lead to the failure to weigh all relevant considerations in considering whether a DOC should be imposed. There should not be a simple formula as a test of liability. The law should be developed incrementally, Three stage test: 1. That harm was reasonably foreseeable 2. That there was a relationship of proximity 3. That it is fair, just and reasonable to impose a duty of care (onus is no longer on D)

Answer 159

ϖ Lord Woolf: applied the Caparo three-staged test.

Answer 160

ϖ Two of the chief constable's officers obtained authorisation under the Regulation of Investigatory Powers Act 2000 for the use of C as a covert human intelligence source to gather information about a person's criminal activities. While being so used C was arrested on suspicion of money-laundering offences by other officers of D, who obtained a restraint order against C in respect of his assets without informing the court making the order of his role as a police informer. After an interval of some months it was decided to bring no charges against C, and several more months passed before the restraint order was discharged. C brought an action against D, claiming damages on the basis that the conduct of the police in arresting him and obtaining a restraint order without disclosing his status to the court amounted to, inter alia, negligence, as a result of which he had suffered economic loss. Held: C failed to show breach and lost. But the relationship between the claimant and the police was such that the chief constable had assumed a duty of care, which it was just and reasonable that he should owe, to protect the claimant from risks to his physical safety and wellbeing to which he had been potentially exposed as a result of his activities as a covert human intelligence source in providing information about others. That duty also extended in principle to the economic loss suffered as a result of the claimant's arrest and the making of the restraint order.

Answer 161

ϖ AUSTRALIAN CASE) Brennan J: the law should develop novel categories of negligence incrementally and by analogy with established categories.

Answer 162

ϖ Lord Bridge: It is preferable in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed. Commentary: approved by Lord Keith in Murphy v Brentwood DC

Answer 163

• The first stage in deciding a novel case of economic loss is to ask whether there is a voluntary AOR. If it is established, this may be sufficient and no policy issues have to be considered. If not, move on to consider the threefold test in Caparo.

Answer 164

Lord Goff: once the Hedley Byrne AOR test (assumption of responsibility + reliance) is satisfied, the third stage of the Caparo test can be ignored!

Answer 165

ϖ Lord May: If the damage is what has been characterised as foreseeable economic loss, there may be a problem - the more so if what causes the loss is the giving of advice or the providing of information. In such cases especially – but, I think, in every case – reliance is an intrinsically necessary ingredient which appears in every formulation of a test. Beyond that, two strands of consideration emerged. These may for convenience be called the Caparo strand and the Henderson strand. The Caparo strand asks whether, in addition to foreseeability, there is a sufficient relationship of proximity and whether the imposition of a duty of care is fair, just and reasonable. The Henderson strand asks whether the defendant is to be taken to have assumed responsibility to the claimant to guard against the loss for which damages are claimed. The difficulty with the Caparo strand is that it is sometimes seen as being unhelpfully vague. The difficulty with the Henderson strand is that it was originally often expressed in terms of "voluntary assumption of responsibility" which tended to import a degree of subjectivity. Henderson itself put paid to that and, as Lord Slynn said in Phelps, "[assumption of responsibility] means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by the law." Thus, the Caparo strand and the Henderson strand in reality merge. In my view, it is very often a helpful guide in particular cases to ask whether the defendant is to be taken to have assumed responsibility to the claimant to guard against the loss for which damages are claimed. But I also think that it is reaching for the moon – and not required by authority - to expect to accommodate every circumstance which may arise within a single short abstract formulation. The question in each case is whether the law recognises that there is a duty of care.

Answer 166

ϖ C was in the process of recovering debts owed to it by 2 companies. C therefore obtained ‘freezing’ injunctions over their assets (prevents these assets from being dealt with so as to avoid them being dissipated). D(bank) breached the freezing injunction by carelessly failing to prevent payments out of the bank account of the companies. Hence, C was unable to recover all of the debts owed to it. The HL discussed the three possible tests: the test of AOR, the Caparo three-staged test, and the incremental test. Held: no DOC was owed by D to C. First, there is no voluntary AOR as D did not choose their relationship with C, they were exposed through the freezing order imposed on them to the risk of proceedings. There was thus no AOR! Therefore we go to consider the Caparo threefold test, where policy is the determinative test! It was NOT fair, just and reasonable to recognise a DOC here, and it is unreasonable that (Lord Bingham) the bank should, on being notified of an order which it had no opportunity to resist, become exposed to a liability which might in another case be for very much more than the present few million pounds! Also (Lord Roger), C relied on the courts to enforce the order, not on D to comply with it! (Lord Hoffmann) as you cannot derive a common law DOC from a statutory duty in Stovin, so you cannot derive one from an order of court. The order carries its own remedies and its reach does not extend any further.

Answer 167

these different tests contain statements which cannot readily be reconciled. However, the prior cases which sued AOR are very unlikely to have been decided different if different tests had been applied! Five observations: 1) **There are cases in which one party can accurately be said to have assumed responsibility for what is said or done to another, the paradigm situation being a relationship having all the indicia of contract save consideration (e.g. Hedley Byrne; White v Jones; Henderson v Merrett Syndicates). I think it is correct to regard an assumption of responsibility as a sufficient but not a necessary condition of liability, a first test which, if answered positively, may obviate the need for further enquiry. If answered negatively, further consideration is called for 2) **It is clear that the assumption of responsibility test is to be applied objectively (Henderson v Merrett) and is not answered by consideration of what D thought or intended. The problem here is, as I see it, that the further this test is removed from the actions and intentions of the actual defendant, and the more notional the assumption of responsibility becomes, the less difference there is between this test and the threefold test. 3) The threefold test in Caparoitself provides no straightforward answer to the vexed question whether or not, in a novel situation, a party owes a duty of care 4) I incline to agree with the view expressed by the Messrs Mitchell in their article that the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test or principle which identifies the legally significant features of a situation. The closer the facts of the case in issue to those of a case in which a duty of care has been held to exist, the readier a court will be, on the approach of Brennan J adopted in Caparo v Dickman, to find that there has been an assumption of responsibility or that the proximity and policy conditions of the threefold test are satisfied. The converse is also true. 5) Fifthly, it seems to me that the outcomes (or majority outcomes) of the leading cases cited above are in every or almost every instance sensible and just, irrespective of the test applied to achieve that outcome… [Where the existence of proximity does not provide a compelling reason for finding that D owed a DOC], I think it is the third, policy, ingredient of the threefold test which must be determinative

Answer 168

How does one determine whether a duty of care is owed? In the case of personal or physical injury, reasonable foreseeability of harm is usually enough, in accordance with the principle in Donoghue v Stevenson to generate a duty of care. In the case of economic loss, something more is needed. In a case in which A provides information to C which he knows will be relied upon by D, it is useful to ask whether A assumed responsibility to D: Hedley Byrne v Heller; Smith v Eric S Bush. Likewise, in a case in which A provides information on behalf of B to C for the purpose of being relied upon by C, it is useful to ask whether A assumed responsibility to C for the information or was only discharging his duty to B: Williams v Natural Life Health Foods. Or in a case in which A provided information to B for the purpose of enabling him to make one kind of decision, it may be useful to ask whether he assumed responsibility for its use for a different kind of decision: Caparo Industries plc v Dickman.In these cases in which the loss has been caused by C’s reliance on information provided by D, it is critical to decide whether D (rather than someone else) assumed responsibility for the accuracy of the information to C (rather than to someone else) or for its use by C for one purpose (rather than another).The purpose of the inquiry is to establish whether there was, in relation to the loss in question, the necessary relationship (or "proximity") between the parties and the existence of that relationship and the foreseeability of economic losswill make it unnecessary to undertake any further inquiry into whether it would be fair, just and reasonable to impose liability… It is equally true to say that a sufficient relationship will be held to exist when it is fair, just and reasonable to do. Hedley Byrne should NOT be overstretched

Answer 169

Lord Roger: if AOR is absent and cannot provide the answer in the case, the court faced with a novel situation must apply the Caparo threefold test! Lord Mance: the 3 tests may often (though not inevitably) lead to the same result.Incrementalism was therefore viewed as a corollary of the rejection, now uncontroversial, of any generalised liability for negligently caused economic loss, rather than as necessarily inconsistent with the development of novel categories of negligence. Having said that, caution and analogical reasoning are generally valuable accompaniments to judicial activity, and this is particularly true in the present area. The Caparo test is a convenient framework. The concept of assumption of responsibility is particularly useful in the two core categories of case identified by Lord Browne-Wilkinson in White v Jones, when it may effectively subsume all aspects of the three-fold approach. The third test is just a crosscheck!

Answer 170

Steele: Lord Hoffman clearly said that the AOR test is an aspect of proximity. The procedure of the enquiry seems to be: 1) Apply the AOR test and see if there is a relationship of proximity 2) See if there is foreseeability of economic loss 3) If 1) and 2) are satisfied, ‘fairness, justice and reasonableness’ need not be considered because the nature of the relationship has made the duty fair, just and reasonable. Lord Bingham’s procedure of enquiry is as follows: 1) Apply the AOR test(sufficient but NOT necessary requirement for liability). 2) If the AOR test is satisfied, this is the end of the enquiry. 3) If the AOR test is NOT satisfied, further enquiry is required. This is not the end of the matter. Lord Roger: we then consider the Caparo three-staged test! Oliphant: Lord Bingham believed that the incremental test is not even a test at all! The AOR test can be suitable in many cases, but it is not the test for DOC in PEL cases! The role of AOR seems to be as a means to satisfy the three-staged test and a means to answering the three questions! There is little to be gained by treating AOR and the three-staged test as completely independent tests! They are inter-related. As Lord Bingham points out, the Caparo three-staged test does not provide a straightforward answer to the DOC question. If AOR is not satisfied, this is NOT the end of the matter. In the vast majority of old cases where only AOR is used, it would make no difference if C used the Caparo test because the factors which prevented the existence of AOR will also prevent a DOC arising from the three-staged test. Paul Mitchell and Charles Mitchell:(re: incremental test) factual analogies and distinctions are not helpful in themselves, they are only helpful when used in combination with a test or principle which indentifies the legally significant features of the situation Barker: AOR adds little to Caparo’s three-staged test, and should be jettisoned. Petrin: If AOR does not resolve the problem, it does not mean there is no liability. If Caparo can be applied, there can still be liability. Hence, both tests can be applied, but sometimes one is more appropriate, depending on the circumstances (e.g. the AOR extension to third parties in White v Jones should be replaced by Caparo). Hence this is a mess. All we can sure is that the exclusionary rule is certain (floodgate argument, reluctance to undermine contractual/statutory responsibilities and duties)

Answer 171

a) The first step is to ask whether there is a voluntary AOR. If yes, (and if there is also foreseeability of economic loss (Lord Hoffmann)), then there may be no need for further enquiry. DOC is owed. b) AOR may be seen as an aspect of proximity (Lord Hoffmann, Lord Walker) c) If there is no AOR, then we still have to apply Caparo’s three-staged test (Lord Mance; Lord Bingham)

Answer 172

Important case because asks the questions what is the core of negligence? Reed: Physical damage and (2) positive act Cowsley and Brook don’t fall within it because (no physical damage but economic and psychiatric respectively) But Hughes says there are some policy considerations ESSAY Q: set facts/reasoning out but concisely (if PQ then Reed); if essay consider balance between the two.

Answer 173

Facts: debtor solicitors say as a result of sale what has to be released in security over all properties. Company goes bust security gone because discharged all of them, not just security over one so no point in suing insolvent company. Court: gross carelessness as release over all securities granted. *if told one party is insolvent don’t try to sue them* but look for someone solvent to sue Was there a DOC owed by solicitor? No. Solicitor acting for the other side, so to whom did they assume a responsibility? Her client. Some exceptions to this but not the rule. Conflict of interests – can’t owe duty to both sides – NRAM stupidly relied on statement made by the other side (so not reasonable)

Answer 174

Facts: debtor solicitors say as a result of sale what has to be released in security over all properties. Company goes bust security gone because discharged all of them, not just security over one so no point in suing insolvent company. Court: gross carelessness as release over all securities granted. *if told one party is insolvent don’t try to sue them* but look for someone solvent to sue Was there a DOC owed by solicitor? No. Solicitor acting for the other side, so to whom did they assume a responsibility? Her client. Some exceptions to this but not the rule. Conflict of interests – can’t owe duty to both sides – NRAM stupidly relied on statement made by the other side (so not reasonable)

Answer 175

Facts: Example of attempted incremental development of the law – claim brought by police officers against commissioner of police Employer vs employee Separate claims by suspected terrorist that he was mistreated but unfortunately the names released into the public domain which leads to civil proceedings by suspected terrorist against the police. The latter claim is settled by commissioner of the police who apologizes for gratuitous violence and officers charged with assault but they hadn’t been convicted AND FINALLY… employees bring a claim against employer (failed to exercise care to in conduct of proceedings i.e. public apology) Claim = reputational/economic harm so not within core case and courts slow to develop [23] refer to Robinson but this is a case where you are seeking to extend the duty of care to a novel situation (where Robinson deals with ordinary cases). Novel cases require development incrementally and by analogy with previous decisions (don’t like Anns v Murphy) NB: you don’t jump from incremental to policy but mediate it via previous cases law and case law shows tort of negligence slow to protect economic torts and reputational interests – cases protecting reputation is defamation Potential conflict of interest on Ds side: where your interest and employer diverges from interests of employee E.g. employee wants to be vindicated in court but employer must be free to manage litigation in its best interest (which may give rise to a potential conflict between employer and employee) KEY: Policy considerations important in novel cases and less so in straightforward cases

Answer 176

Facts: Critical point – party who asked for reference was not claimant but associated company of the claimant ‘Is D trustworthy to make £1.6 million gamble?’ response was ‘yes’. So, defendant bank reckless in saying individual could afford gamble but owed no duty of care to claimant Supreme Court: agree with D; D was careless but wrong person had asked for the reference SC’ concern: if third party can rely on info requested, where do you draw the line? Present line of reasoning clear and simple. Judgment: Lord Sumption: [7] talks about development of law since Hedley Byrne (1964) but these are incremental changes within a consistent framework of principle. Notes one respect in which law reluctant to develop is person/persons to whom the duty is owed (Caparo classic example – no DOC to third party who rely on accounts; Smith v Bush is an exception) [10] examines Caparo and role of D’s knowledge of the transaction. 3 functions noted and one relevant: Identify person or group of persons to whom he can be said to assume responsibility (may suffice to identify them as a class). On the evidence, no proof D knew its reference would be communicated to or relied on by anyone other than the company who asked for the reference. In ordinary case, no duty to third party unless you know such passing on likely to occur. NB floodgate argument may apply even where only one extra person seeks to establish liability (not only thousands) Also there must be identification of the purpose So double requirement (person and purpose) Lord Mance: agrees knowledge of the person required by knowledge of the purpose may depend on the facts/circumstances of the case. Difference between unamed principle and undisclosed principle When bank asking for reference in Hedley Byrne, clear they were asking for someone else: if names, agency is clear, but if they are not named, there is still a duty of care that is owed because statement maker knows person will rely; In present case, the undisclosed principle applies as you don’t know that someone else will rely – council’s argument but Lord Sumption say ‘no’ undisclosed principle is an anomaly and question is D assume responsibility? But Sumption says no. Ultimately, court said we’re not prepared to extend the principle because where do you draw the line?

Answer 177

facts: C attacked by unknown person + told to wait 4/5 hours; he goes home to bed (not telling the hospital) and an hour later he is distressed and ambulance summoned. He is left with severe and permanent brain damage If he had been told he would have been seen within 30 minutes (standard practice) then he would have stayed and would have made a full recovery; Failed at first instance and CA because not ‘fair, just and reasonable’ to impose duty on hospital, thereby negating duty. SC allowed appeal: Not a novel case – straightforward Robinson case – hospitals owe a DOC to patients once you are under their care and control (not necessarily given a bed). Scope of duty point straightforward – under a duty not to give misleading information about way in which he should be treated. Duty owed by hospital trust and not appropriate to distinguish between medical and non-medical staff (both staff under duty to not provide misinformation) Standard: no breach of duty because standard practice = anyone complaining of a head injury should have been told they would be seen within 30 mins/ASAP but instead told it was 4/5 hours. Information was misleading and incorrect so existence of duty and breach [22] (in relation to breach): fact that hospital staff act under colossal pressure is highly influential in many cases in assessing whether there has been a breach of duty

Answer 178

Regulatory context = factor which weighs against recognition of duty of care at common law Example of where public policy is considered If Parliament wanted to create such a duty they could have done so but they didn’t

Answer 179

Elements of Robinson Facts: 2 children are claimants and placed by local authority in property owned by 3rd party: acting pursuant to statutory power. Children subject to harassment and abuse by neighboring family. Claimant bringing claim in negligence (physical and psychological damage) due to D’s failure to protect them from harassment and abuse Points to consider: Claim brought within context of statutory duty (section 17: safeguard welfare of children; 47: inquire whether action should be taken where child likely to suffer…) NB: these did not give rise to cause of action in and of themselves – forced back onto common law rights Common law claim in negligence – judgment consist of Lord Reed going through case law [64-65] is heart of reasoning – from Robinson, Caparo test does not apply in all cases but only (1) where there is a novel situation – (2) looking to incrementally develop the law by reference to established category and (3) whether something is fair, just and reasonable, already found within precedent Significance of the distinction between harming the claimant and failing to protect reaffirmed Public authorities subject to same general principles of law of negligence as private individuals and bodies (reaffirms his own position in Robinson, which was doubted by Lord Hughes) – unless would be inconsistent with statute Don’t owe duty of care at common law by virtue of the statutory duty because legislator had possibility of imposing liability but chose not to do so Public authorities can come under common law, but where it would under normal law D made source of danger D assumed duty to protect C from danger 3 points on facts: X v Bedfordshire held to be good law, but not in relation to public policy – broad statement of need to protect public authorities thrown away as essence of judgment treatment of public policy (see [74]). Is this act or omission case? Omission. D did not by their act inflict harm on C but gist = failed to protect C from harassment. General rule = no liability. Given omission case, any basis on which D could be liable? If they had taken them into custody, would have established basis for liability but not what they did Nor had they assumed responsibility to C So on facts C failed

Answer 180

Cody has a potential claim against Cody in negligence. However, all the elements must be present. First, a duty of care arises because there is a positive act which causes physical harm which is an ‘established category’ (Donoghue v Stevenson reaffirmed in Robinson v Chief Constable of West Yorkshire Police). With respects to breach, due to his age (12), Dave must meet the standard of care reasonably expected of ordinary children of the same age (Mullin v Richards per Hutchinson LJ). Furthermore, following Blake v Galloway, Dave must be judged in the context of a game in which he is throwing an object to another participant. More broadly, in sporting cases, ‘heat of the moment’ should be considered. Even if Dave was overexcited and was negligent in throwing it out of time, he still has not breached his duty of care. There are no issues of damage, causation or remoteness. Turning to defences, Dave would not be able to rely on the defence volenti. For such a defence to be raised, Cody must have (a) knew of the risk and (b) voluntarily agreed to incur the risk. With respects to (a), it is unreasonable to think that Cody was fully aware of the danger of the club being thrown out of time such and even the risk of incurring a concussion; (b) Cody’s acquiescence would fail to satisfy the narrow test in Nettleship v Weston since Cody clearly didn’t ‘waive any claim for negligence’ (per Lord Denning) and would not satisfy the broad approach, which is not confined to an agreement to waive a future claim. The agreement must be to the negligence itself and not the general risk of injury. In Freeman v Higher Park Farm, the claimant knew that the horse she picked had a propensity to buck. She fell off when the horse bucked and the defence applied. In the present case, an analogous scenario would be where Cody picked a partner who had a propensity to throw inaccurately and dangerously. There is no evidence that this is the case with Dave. The defences of contributory negligence and illegality do not apply on the facts. Nonetheless, since there is no breach of duty, Dave cannot be liable for injuring Cody. Alternatively, there may be a possible claim for the tort of battery. For such a tort, there must be a direct application of force (Collins v Wilcock) to C’s body, with the requisite intent, which must be either intentional or reckless (Fowler v Lanning). In the present case, the juggling club is sufficient to constitute direct application of force (DPP v K). Further, it must have been thrown with significant force to have caused a concussion. However, there is significant ambiguity as to whether there is the requisite intention. There is no evidence to suggest that the juggling club was thrown intentionally out of time. Moreover, it is unlikely to satisfy the requirement for recklessness since it would be better characterised as ‘an error of judgment or lapse of skill’ (Blake v Galloway per Lord Diplock), especially since Dave is 12. Furthermore, Dave would have a defence of consent following Blake. The children were engaged in an activity which inevitably involved the risk of physical contact. Therefore, they were taken to have impliedly consented to those contacts which could reasonably be expected to occur in the course of the game and assume the risk. Cody, by throwing the club, impliedly consented to the risk associated with the juggling.

Answer 181

The psychiatrists noted that her depression may be attributable to the fear of her daughter falling to her death. As such, she may bring a claim for psychiatric injury. Ines satisfies the various elements of psychiatric injury and, as Lord Oliver in Alcock (obiter) comments, ‘[t]here may, indeed, be no primary ‘victim’ in fact. It is, for instance, readily conceivable that a parent may suffer injury, whether physical or psychiatric, as a result of witnessing a negligent act which places his or her child in extreme jeopardy but from which, in the event, the child escapes unharmed.’ Indeed, one of the plaintiffs in Alcock suffered illness consequent upon his fear for the safety of his nephew, who in fact escaped unharmed from the tragedy. Although ultimately unsuccessful, there was no suggestion that this plaintiff should fail because his relative was not injured. Was there a breach? We are told that Edna and Frank are ‘professional trapeze artistes’. Therefore, the standard of care is that of ‘the ordinary skilled man exercising and professing to have that special skill’ (Bolam) i.e. that of an ordinary skilled trapeze artistes. This has subsequently been qualified by Bolitho, in which the House of Lord held that the body of opinion must be able to withstand logical analysis. In the present case, it seems starkly negligent to put a child’s life in danger for the sake of entertainment. It is one thing for the artists to risk their lives as adult, consenting and trained performers; it is quite another to put a child’s life at risk who can neither consent nor has been properly trained. Therefore, they will have breached their duty. On the other hand, Tomlinson provides authority for the courts considering the social utility of an activity (i.e. seeing a wild park not spoiled by signs) before imposing liability. In the present case, there may be some social value in the circus since we are told that the ‘crowd loves it’. Nonetheless, this social value is heavily outweighed by the likelihood of injury and the seriousness of the possible injury (death). Therefore, there is clear breach. With respects to causation, the same considerations discussed in relation to Ines’ depression stemming from John’s injury are relevant. There are no issues of remoteness or damage or possible defences.

Answer 182

Carl may wish to bring a claim for suffering psychiatric injury (PTSD) because he feared for his own safety during the spectacle. First, PTSD is a medically recognised psychiatric injury (Leach v Chief Constable of Gloucestershire Constabulary). Secondly, Karl will argue that he is a primary victim because he suffers psychiatric injury due to reasonable fear of injury, even though he was not in fact imperilled. In McFarlane v EE Caledonia Ltd, Stuart-Smith LJ identified three situations in which a plaintiff may recover damages for psychiatric injury sustained through fear of physical injury to him or herself. The first situation is where the plaintiff is in the actual area of danger created by the event, but escapes physical injury by good chance or fortune (such as in the case of McFarlane and Page). The third situation concerns rescuers and is not relevant. The second situation is where the plaintiff is not actually in danger, but because of the sudden and unexpected nature of events, reasonably believes that he or she is. An example case is Dulieu v White & Sons, where the plaintiff was not actually at risk of physical injury, but she was natural put in fear for her own safety. Such a plaintiff can recover, but must show not only that he or she genuinely feared for his or her safety, but that the defendant should reasonably have foreseen that a person of ordinary fortitude in the plaintiff’s position would have done so. In McFarlane, the plaintiff failed to recover under this head because it could not be said that the defendants ought reasonably to have foreseen that a person of ordinary fortitude in his position would suffer psychiatric injury and the Court of Appeal, differing from the trial judge, did not accept that the plaintiff genuinely feared for his life. In Hegart v EE Caledonia, Brook LJ noted that once it had been found that the rescue vessel had come close to danger bur was not in fact ever in danger, it was almost inevitable that the plaintiff’s fear for his life should be found to be an irrational one, which the law would not accommodate. Applying this to the facts of the present case, Karl genuinely feared for his own wellbeing. Evidence showing that he was predisposed to such fear due to his PTSD may provide compelling evidence to satisfy this limb of the test. However, he would fail the second limb which requires that the defendant reasonably foresaw that someone in Karl’s situation (of ordinary fortitude) would have feared for their safety. Further, the approach taken in the Caledonia cases illustrate that the courts favour an objective approach. Although it is possible that the defendant would be liable where they knew that the plaintiff was abnormally susceptible to fear from the present danger (i.e. they had been told he had PTSD), this would still involve the test of reasonable fear being assessed on a more subjective basis than has previously been the case. There would consequently be no need for a third party to have actually been imperilled by the defendant. Such an approach should not be taken because it would put an undue burden on the circus to ascertain the mental state of each spectator. Given that circuses often have acts which consist of throwing objects and gymnasts, the responsibility should fall on Karl to make that abnormal weakness known so that provisions can be made for him or he should avoid the event altogether.

Tort of Negligence: Duty of Care Flashcards

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