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Duty of Care (Current Duty of Care Test (Current test is established under…
Duty of Care
Current Duty of Care Test
Current test is established under Caparo for novel cases
Was it reasonably foreseeable that D's failure to take a duty of care could cause C harm?
Is there a proximity of relationship between C and D?
Different proximity of relationship may apply in different cases
Caparo - Convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists
Is it fair, just and reasonable for the law to impose a duty upon D?
X v Bedfordshire County Council [1995] - 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
Current approach follows precedent, meaning if there is a case with the same facts, then the case will be followed and the same result given
Caparo doesn't set out a clear test, but merely a more general approach to be taken
Lord Oliver
To search for any single formula which will serve as a general test of liability is to pursue a will-o'-the wisp
History of Duty of Care
Donoghue v Stevenson [1932]
Lord Atkins Neighbour Principle
A duty is owed to anyone who is directly affected by an act by a Defendant
Anns v Merton London Borough Council [1978]
Establishes a 2 stage test which are now the first two points of the current test in Caparo
Case was eventually overruled by HL in Murphy v Brentwood District Council
Duty of Care & Ommissions
Generally, there is no duty to act to prevent harm from happening to another
Yuen Yuen Yeu v Attorney General of Hong Kong [1978]: No liability on the part of one who sees another about to walk off a cliff with his head in the air and forbears to shout a warning
Justifications
Pragmatism
Why pick on one person who doesn't act rather than everybody else
Too much of a burden to impose a duty to act
Exceptions to the general rule
Presumption of Care
Barrett v Ministry of Defence [1995]
C got so dunk he collapsed unconscious and an officer ordered the men to take C back to his bed, where he later choked to death on his vomit
CoA said there was no duty to stop C from drinking, but once the responsibility had been assumed, a duty of care arose
Damages reduced by 2/3 to reflect C's contribution
Acts of third parties
Generally, no duty to stop others from causing harm, but a duty may arise if D has assumed responsibility of C
Stasbie v Troman [1948]
D was decorating C's house and agreed to lock the door to the house if he left
D left house to get wallpaper but left the door unlocked and the house was subsequently burgled
D was held as liable as he had assumed a duty of care
Mitchell v Glasgow City Council [2009]
C was attacked by his neighbour and the council had been made aware of the attacker's anti-social behaviour as well as threats made towards C
C argued council had failed to warn him about the danger he was in so he could protect himself
Hol held the council was not liable to warn another person that they are at risk unless they have assumed responsibility, which was not the case on these facts
Home Office v Dorset Yacht Co. Ltd. [1970]
Young offenders were negligently allowed to escape custody and went on to damage C's yacht that was moored in the harbour
Held that the home office did owe a duty of care on behalf of the prison as the supervisory nature of the relationship created a sufficient degree of proximity between D and a third party
In addition, the boys had done the thing that was foreseeable, e.g. trying to steal a boat to get off the island
Public Bodies
Public bodies aren't exempt from suit in negligence, but the courts are reluctant to allow claims against them
Reasons for reluctance include
Public bodies given statutory discretion by Parliament to formulate policies and thus to question the body would be to second-guess policy and breach separation of powers
May not be the best way to hold a public body to account
Suing public bodies often drives funds away from public services to pay for claims
Police
Police can be held liable for operational matters, but don't have a general duty to protect public from crime
Hill v Chief Constable of West Yorkshire [1989]
C's daughter was the final victim of a serial killer and argued that the police had failed to carry out investigations and been negligent in their detection and detention of the killer
HoL said there was no duty as there was not a sufficient proximity of relationship
Also some policy reasons fro not allowing Police to have a duty
Fear of liability may cause police to undertake defensive policing tactics which would not be desirable
Many cases would concern the exercise of discretion as to the way that investigations should proceed
Time, trouble and expenses put into defending claims would represent a diversion of police manpower and attention from the task of suppressing crime
Smith v Sussex Police [2009]
Smith attacked with a claw hammer by ex-boyfriend and suffered brain damage after Police failed to respond to concerns of threats made to C
HoL held there was no duty as there was concern surrounding defensive policing and the diversion of resources