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NEGLIGENCE - Coggle Diagram
NEGLIGENCE
DUTY OF CARE
- Donoghue v Stevenson 1932 – can only sue the manufacturer not the café
- Does not need a direct contact for negligence
- Lord Macmillan you need some sort of relationship in order for there to be a duty of care that was breached
- Neighbour = you are proximate – Caparo v Dickman made 3 point test
REASONABLE FORESEEABILITY
- Is the claimant an individual or class of individuals at foreseeable risk of harm
PROXIMITY
- ‘It would not be right to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation’ R v Instan 1893
- Is different in each case
FAIR, JUST AND REASONABLE TO IMPOSE THE DUTY
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CAPARO
- Lord Bridge 1990 Caparo – should work with precedent – the 3 points are not enough – build on each case to make precedent – should be more distinct and use traditional categorisation –
Increment development – cases where duty has been recognised 1996
- We now only use the Caparo test where a relationship has not been previously implemented (where there are no other cases that you can apply)
- Michael v South Wales Police [2015] - Lord Toulson - Someone else did the harm – police not reliable
- Robinson v Chief Constable of West Yorkshire [2018]
- Darnley v Croydon Health Services [2018] - relationship was created so duty of care is made and breached
BREACH OF DUTY
RESPONSIBILITY FOR THE CLAIMANT
- Reeves [2000] - police called out to someone who attempted suicide – kept in cell every 15 mins – hung himself – Lord Hope – they owed a duty of care to prevent him of doing this – was liable
-parents and children - Perry [2008]
- teachers and pupils - Lewis [1955] - pre-existing relationship
- doctors and patients - Cassidy [1951] - 'once they undertake the task they come under a duty to use care in the doing of it' Denning LJ, Barnett [1969] - was sent home and one died, was signed in but refused to see by the doctor but a duty of care was found, Dar nley [2018]
THIRD LIABILITY - 2 TYPES
- 1 - C argues that D ought to have done something to stop a third party from harming C
- 2 - C argues that D has done something positive to aid a third party to harm C
- general rule = there is no liability for the act of a third party
EXCEPTIONS
- special relations - position of control over D
- Dorset Yacht [1970] - liability was found by the guards even though it was the prisoners - 'very likely to happen' - needed a strong level of control in the relationship
- Littlewoods [1987] - liability not found as was not 'very likely to happen'
- Mitchell [2009] - was owed a duty to be warned by the council - Lord Hope - no duty of care was found as no special relationship with claimant
- Michael - Lord Toulson - 'the failure to do something cannot hold liability'
CAUSATION
- factual
- legal/ remoteness
EXCEPTIONAL DUTY OF CARE
- Liability for omissions
- Liability for the Acts of third parties
- Public authority liability (suing police)
OMISSIONS LIABILITY
- Misfeasance v nonfeasance distinction
- Difference between making things worse and simply failing to make things better (an omission)
- Calderdale [2004]
- Robison [2018] - police was liable for failing to protect – was a cause of them to harm her – was a positive act not an omission
- Stuart-Smith LJ ‘fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so, no expectation that fir5es will be extinguished by the fire brigade’ - Hampshire [1997]
EXCEPTIONS TO GENERAL RULE
- A is not under a duty to care to prevent harm to B through a danger not created by A unless; A has assumed responsibility of B; A has done something which prevents others protecting B; A has a level of control over the danger;
- Harwood [1935] - they created the source of danger – original wrong – danger invites rescue
PUBLIC AUTHORITY LIABILITY
- Just because you have a public duty does not mean you have a private duty
- Vicarious liability = holding the authority responsible for their employee’s actions or the council have direct liability
- X minors [1995] - victims of abuse by parents and reported to council but nothing happened - Sir Thomas Bingham – too many people to have individual liability e.g teacher, doctors, police
- Test = is the matter justiciable by the courts? And was the harm claimed within the ambit of the local authority’s duties? - then apply the Caparo test
- Phelps [2000] - not diagnosed dyslexia – dropped out of school and fired from jobs – professional person owes a duty of care = foreseeability, proximity and tight relationship over time
- JD [2005] - parents had psychologic trauma for wrongly child taken away – did the local authority owe a duty of care to the parents – displaced omissions – states that social workers do have a duty of care to children – HRA 1998 3,6,8
- Poole [2019] - neighbours threat and bullied – reported to the housing authority – takes 5 years to be rehomed – suffered psychological trauma – shall we apply JD or not – Lord Reed said you need a relationship like Phelps which is not established – anxiety does not amount to reliance
- Hill [1989] - Yorkshire ripper – police had lots of evidence but failed to act – no duty of cared owed here – Lord Keith – low proximity – blanket protection for police – would interfere too much
- Brooks [2005] - racial murder – police slow in arresting the white men – racism in police – black friend was treated as a suspect – cannot convert an ethical value to a legal one – not enough to overrule the Hill case
- Smith [2008] - death threats – police knew – murdered – Lord Bingham’s dissenting judgement said that this is different to Hill – if appropriate should take steps to prevent – Lord Hope’s majority says there is no liability
- Sherratt [2018] - daughter is mentally ill – mum calls police to check – downgraded - mother committed suicide – Mr Justice King states that the police took on the role of an ambulance and they were relied on
ACTIONABLE DAMAGE
not enough to just be negligent - needs to have cause damage
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PHYSICAL HARM
limitation Act 1980 s38
-“personal injuries” includes any disease and any impairment of a person’s physical or mental condition, and “injury” and cognate expressions shall be construed accordingly;
common law
-Rothwell v Chemical and Insulating Co (2008)
- Need to have proof that you are worse off than before – damages are not given to injuries that are harmless e.g emotional – but recognised psychiatric is allowed Hinz v Berry (1970)
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PURE ECONOMIC LOSS
- General rule = no recovery for PEL
– Spartan Steel [1973] - damage to furnace, loss of profit, loss of overall profit - only first two were permitted, last was not as was purely economic loss – was not recognised as actionable damage
EXCEPTIONS
- Hedley [1963] - bank misinformed the client – loss them money – liability not found as in protected in document – negligent misrepresentation (also seen in Darnley) - no cause of action so must be more – needs to exist between claimant and defendant – Lord Reid ‘D has to accept responsibility’/ ‘assumed responsibility’/ ‘relationship equivalent to a contract’
- YOU NEED:
- A special relationship giving rise to an assumption of responsibility - financially
- Reasonable reliance
FACTORS CONSIDERED
- Purpose of the accounts as drawn up
- Info communicated to the claimant
- Objectively likely the claimant would rely on the info for the specified purpose