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Duty of Care (cont) (Public Policy (TWO MAIN AREAS IDENTIFIED AS ARISING…
Duty of Care (cont)
Public Policy
Capital and Counties v Hampshire: Ps claimed when firefighters attend scene of a fire, a relationship of proximity created and teh homeowners rely on skill and care of firefighters in those circumstances
Held; Rejected- UK fire act imposed a duty to take control for the benefit of the public at large
- no specific assumption of responsibility to the owner of given premises- therefore no proximity
Public policy: Primary consideration of the law is that wrongs should be rectified
- there must be extremely potent counter considerations in order to override this position in law
High threhold of where public policy will intervene
- Where the DOC would be inconsistent with wider object of the law
- Where the imposition of duty would interfere with the perforamnce of a public or professional function
- where the duty would be open o abuse by those bearing grudges
-
What is public policy?
- Practical considerations
- Moral considerations
- Floodgates
- Beneficial effects of imposing a duty for future conduct
Floodgates:
public policy as a filtering process n the principle that new areas of liability not previously envisaged could be created and in o doing courts would be subject to increased no. of claims
Hill v Chief Constable of West Yorkshire:
Facts: Action taken by father of one of the victims of the Yorkshire Ripper
- ISSUE: claimed if the local police carried out investigation correctly they would have caught him and daughter would not ahve died
Held: Dismissed: Public policy - if this action lies, every citizen will be able to require the court to investigate the performance of every policeman
- the threat of litigation against a police force would not amke a policeman more efficient
- threat of litigation would distract from his duties
W v Ireland: Facts: P sought compensation for emotional suffering for the failure of the AG to extradite a convicted pedophile priest
- Applying similar logic to Hill case- Court found AG not sufficiently proximate position to P to foresee such harm and further to impose such a duty would impact workings of AG office
M v Commissioner of An Garda Siochana: Public policy concerns outweigh the needs of individualistic justice
Goodwill v British Pregnancy Advisory Service
Facts: D performed a vasectomy on a man who 3 years later became P's lover
- Unprotected sex
- P became pregnant
Held; there was no duty of care to the P as a future sexual partner
Proximity Consideration: At that time they had no knowledge of her, she was not an existing sexual partner of Mr. MacKinlay but was merely, like any other woman in the world, a potential future sexual partner of his, that is to say a member of an indeterminately large class of females who might have sexual relations with Mr. MacKinlay during his lifetime.
Policy consideration: Find it imposs to believe the policy of the law is or should be o treat so tenuous a relationship between the adviser and the advisee as giving rise to DOC
- no Analogous situation (back towards incremental approach)
Tevlin v McCardle: HC urged to hold, as a matter of public policy, that because the P was allowing himself to be carried by the D, when both had clearly consumed over the legal limits of alcohol permitting driving- that the driver owed no duty of care to the P
- References to public policy generally tell one more about the state of digestion of teh Decision maker than any real account of what public policy may be. Trust public policy nd its interpretation in the courts is best understood to arise out of decisions of the Oireachtas and any changes in the law
HELD: public policy which exempted drunken drivers froom tortious liability to their passengers however intoxicated, would serve to encourage the irresponsibility of drunken driving and must be fundamentally flawed
Recent Cases
Ennis v HSE: P suing HSE for fire damage caused by girl living under care and placed in independent living next door to them
- The tenancy had ended
- Day before she returned to premises, broke in, hosted a party, allowed associates of hers to set place on fire
Held: Duty of care on basis of special reltionship
- Negligent to place her independent living when she was not fit for same
- Reasonable foreseebability- it was forseeable that this girl would damage premises
- Proximity of location of the people affected
- Policy- at pains to say it would be considered at the level of abstraction
- Noted the incremental development of the law,
- Just and reasonable- analogy drawn to position of state in respect of prisoners to HSE's duty in supervising troubled teenagers
ON APPEAL: Kelly J: Disagreed with Hogan as to qu as to whether there was reasonable foreseability of damage
- P had no history of starting fires
-Did not in fact start this fire, it was two other people
Flanagan v Houlihan HC- no duty of care owed by a publican to prevent patrons from driving after consuming alcohol and causing injury to themselves or others
- To do otherwise would have imposed unreasonable burden that would have been almost imposs to adhere to
McGee v Alcorn HC ordered damages were recoverable against an architectural technician who certified the quality of newly constructed dwelling house and stated in complied substantially with all applicable building regulations
- Construction later found to have defective foundations
Proximity of relationships: fair, just and reasonable to impose DOC towards purchasers on persons such as engineer and architects who provide certificates of this nature to builders
- Untenable to suggest a person who holds himself out as professionally qualified to assess and certify the quality of a house should not thereby be required to take care in giving such certification
Foreseeability of Damage
Use Breslin v Corcoran
- First D left car unlocked w keys in ignition outside coffee shop
- Went into shop, as he was coming out, unknown person jumped into car and drove off at high speed
- Turned into Lane where P crossing road and struck him
- Reasonably foreseeable someone will steal car
- Not reasonably foreseeable that the the car would be drive and hit someone
- Feels more like suggestion car be stolen
- Feels like suggestion car be stolem and hit someone
- USE THIS AS A WAY OF APPLYING FORESEEABILITY OF DAMAGE
Whelan v AIB:
- Qu of foreseeabiluty must be addressed at a general level.
- It is foreseeable that when advice is given in the context of a transaction and is incorrect, a person to whom that advice is given will suffer damage?
Put in this way the qu answers itsefl
- the purpose of legal advice when it is sought and given is so that a client can factor that advice into decisions which he or she may take
- if that advice is incorrect, it is plaintly foreseeable that the client may suffer damage
Proximity
Echoing Fennelly, McMahon and Binchy describe proximity as being 'foreseeability plus something more'
- Concept hints at closeness in space or time
- But on analysis it turns out that the legal notion of proximity does not require closeness in either space or time
- May be liable for conduct that results thousands of miles away
Shinkwin v Fay v Tegral Pipes
- employee suffers injury due to some deficiency in way workplace set up
- both cases, problem in suing the co so employee seeks to sue directors of the co
QUESTION: Did directors owe personal DOC to employees of co
SHINKWIN: Co, was small co, directors worked on shop floor everyday, saw conditions
- the Director was proximate to shop floor
HELD: Relationship of proximity
FAY V TEGRAL PIPES: bigger organisation, directors not on shop floor, management in between
- Directors did not operate on day to day basis beside employees
HELD: no relationship of proximity
Test: Glencar v May CC
- Foreseeability of Damage
- Proximity test
- Absence of countervailing public policy considerations
- Situation should be one which court considers fair just and reasonable