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Tort - General Negligence: Duty of Care (Elements of negligence,…
Tort - General Negligence: Duty of Care
Elements of negligence
Loss - must be recognised
Duty of care - must ascertain whether duty is owed by defendant to the claimant for the loss
Breach of duty - must be an element of fault
Causation - defendant's breach of duty must have caused the loss
Personal injury
Property damage
Pure economic loss
Psychiatric damage
Problem categories
Psychiatric damage
Pure economic loss
Wrongful life
McFarlane v Tayside Health Board - entitled to damages for pain and discomfort but not pure economic loss claim for raising the child - impossible to value the pleasure which might be received from the child's existence and which would counteract the financial burden
Rees v Darlington - blind mother - entitled to compensation for loss of opportunity which went over and above pain and suffering - not entitled to recover extra costs of childcare occasioned by her disability
Remoteness - must be proximity
Defences - must be none available
History
Pre-1932 (Donoghue and Stevenson) negligence as a tort was limited to only a few categories and relationships
D v S established duty of care owed by manufacturers to consumers - Lord Atkins introduced the "neighbour" test, with foreseeability and proximity as key considerations
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation."
2/5 judges dissented on floodgates policy grounds - arguably right since every negligence case since has been based on this precedent
Caparo v Dickman
Not a precise formula
First look for precedent - is this a recognised category or relationship seen before?
If there is close precedent, apply incrementally - doesn't have to be identical
Recognised categories
Manufacturer and consumer - Donoghue v Stevenson
Road users - Nettleship v Weston - learner driver held to same standard as competent driver - not the fault of the passenger even though he knew - claimant centred approach - what they are reasonably entitled to expect
Doctor and patient - Cassidy v Ministry of Health
Health authorities are also vicariously liable for the torts of their employers
Employer and employee - Wilson v English
Employees to each other - ICI v Shatwell
If there is no precedent or if it is a recognised problem category, apply the test - arguably judges know in advance what the result should be due to policy considerations, then work backwards and use test as justification
Was the damage to the claimant reasonably foreseeable?
Was there a relationship of proximity between the claimant and the defendant?
Is it fair, just and reasonable to impose a duty of care in this situation?
Policy concerns
Opening floodgates of litgiation
Insurance
Crushing liability/loss allocation
Deterrence/maintaining high standards
Defensive practices
Justice
Problem categories
Police
Not liable
Damages after burglary - Alexandrou v Oxford - burglar alarm went off and didn't attend
Not promptly attending 999 call - Michael v Chief Constable of South Wales
No proximity - Hill v Chief Constable of West Yorkshire - failed to arrest Yorkshire Ripper in time to save last victim - let him go when he was in custody
Lord Bingham's liability principle - needs to be known victim in danger of harm - couldn't protect every female in West Yorkshire - defensive practices argument
Liable
When assure confidentiality - Swinney v Chief Constable of Northumbria - police informant - proximity created by frequent references to her in stolen document - highlighted need to protect her over others
An Informer v A Chief Constable - do owe duty of care to informants but not liable for pure economic loss - not the job of the police to protect financial interests
To protect colleagues in certain circumstances - Costello v Chief Constable of Northumbria
Operational failures - Rigby v Chief Constable of Northamptonshire - entitled to damages as want to maintain high standards in the field
As opposed to policy failures - in this case policy decision also led to outcome - not liable for this but were negligent in making related operational decision - floodgates and defensive practices arguments
Emergency services
Ambulance
Liable if accept 999 call and fail to arrive within reasonable time due to negligence - Kent v Griffiths
Fire service
Liable
Where actions positively exacerbate the situation - Capital and Counties plc v Hampshire County Council and others
Not liable
No duty can arise from omission to act - John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority and others)
Coastguards
Not liable for misdirection of own personnel - OLL v Secretary of State for Transport
Local authorities
No power to detain so cannot be responsible for what happens on letting someone go - Palmer v Tees - released someone who said they wanted to kill a child - but no proximate relationship or known victim
General rule is that must assume responsibility through words or conduct - Mitchel v Glasgow City Council
Omissions
Generally no duty for pure omissions - Smith v Littlewoods - intruders set fire in cinema which spread to building next door - court held not foreseeable, no proximity, and that claimant was responsible for insuring themselves
Includes failure to rescue and failure to prevent third parties causing harm
Exceptions
Where defendant has created the dangerous situation - Stansbie v Troman - decorator left door unlocked - created proximity
Special relationship where defendant assumes responsibility for claimant - Barrett v MOD - by choosing to help the person you assume responsiblity
Never applies to strangers as don't want people failing to rescue for fear of incurring liability
Vicarious liability - where defendant has care and control over the third party - Home Officer v Dorset Yacht - juvenile convicted criminals under care of defendant - on island so the pool of people who could possibly be affected was small especially as juveniles known for escape attempts and this was the only way to do it