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Duty of care lecture - Coggle Diagram

- - - - Carriage driver owes DoC to pedestrian
      - Remoteness
      - but only allow primary victim in fear of floodgate
    - - second victim can establish DoC
      - Justification: if selfish ppl get compensated, selfless should too
    - - Anns era: McLoughlin v O'Brien
        
        extend Hambrook
        
        Court: unfair to distinguish b/ C being there vs. there in the immediate aftermath
      - Murphy era: Alcock v Chief Constable of South Yorkshire Police
        
        the Hillsborough tragedy - all claim failed
    - - Paul v Royal Wolverhampton NHS Trust
        
        NO DoC
        
        Cannot use case law on accident for doctor-patient
      - still distinguish b/ primary vs. secondary
  - - - fear for your own injury
    - - Chadwick v British Transport Commission
        
        psychiatric harm foreseeable in rescuer
      - White v Chief Constable of South Yorkshire Police
        
        police officer got PTSD
        
        Court deal w Chadwick - C need to satisfy threshold to show that they're expose to danger
        
        Chadwick went into scene while still in danger
        
        dont become primary victim by just recuing
        
        court dont wanna give compensation negligent defender
        
        Another explanation: Mr Chadwick was volunteer, police officer was trained rescuer
    - - prove breach, factual causation, no break in chain, harm is not remote etc
      - Page v Smith
        
        Mr Page= primary victim
        
        eggshell skull rule: take victim as they find them
        
        treated same way as personal injury victim
  - - - all failed
    - - medical negligence
    - - McFarlane v EE Caledonia
        
        cant persuade the court that seeing ppl burn to death horrific enuf
      - Alcock
        
        "reasonable foreseeability"
        
        need to prove closeness of the tie
        
        quite bad, brothers dk that they had to prove
    - - McLoughlin v O'Brien
        
        secondary victim has to actually be there
      - Alcock: deceased take to mortuary
        
        HoL: NOT immediate aftermath
    - - BUT no longer require "sudden shock" or "horrifying event"
      - doctors no DoC to patient's relatives
      - C did not witness event, and event she witness was not accident
        
        got to be there when it happens + what happen is "accident"
        
        "unexpected & unintended event by violent external means"
        
        no accident here, just negligent medical
      - medical negligence out of scope of psychiatric harm
        
        unless second victim prove reasonable fortitude person will also suffer
    - - Primary --> Eggshell skull rules
      - Secondary --> only if reasonable fortitude person suffer
    - - injury --> 3 weeks later die at home
      - CANNOT recover - very strict control for 2nd victim
    - - Attia v British Gas
        
        court approach differently
        
        don't start from DoC
        
        British gas own Attia a DoC already, just a remoteness question
        
        if Wagon moundremoteness - is psychiatric harm a reasonable foreseeable risk? --> Yes
        
        contrast Alcock: need to ask is there DoC first
        
        Attia: just a question of remoteness
  - - - home office owed DoC because prisoner in custody
      - no need to worry abt secondary victim hurdles here
      - same w workplace claims
    - - teacher at work
      - disregard primary/secondary distinction
        
        only need secondary hurdles in accident cases
  - - - 1) distinction b/ primary and secondary victim
        
        Page v Smith treated as primary, whereaes the Hillsborough tragedy got nothing
      - 2) arbitrary restriction on 2nd victim claims dont confirm w psychiatric expertise
        
        more likely to suffer psychiatric harm if u know ur loved ones suffer but don't see it
        
        also proving "closeness" is just arbitrary
    - - majority confine DoC to 2nd victim of "accident"
        
        "unexpected and unintended caused injury by violent/external means"
        
        why? need legal certainty
        
        what if primary & secondary victim same person?
        
        selfish/selfless mother - can't differentiate b/ mother's fear for herself vs. for her child
      - Doctor's duty owed just to their patient
        
        simpler reasoning: doctor is in unique position, should just care abt the patient not their relatives
  - - - reluctance to held D liable to secondary victims in other negligence
        
        e.g. economic loss: West Bromwich Albion Football Club v El-Safety
- - - - Anns too expansive
        
        didnt pay attention to proximity
        
        important in donoghue - "close and direct connection"
        
        foreseeability answer everything
      - auditors owed NO DoC to investors EL foreseeable that investors depend on audit
    - - OVERRULED Anns
        
        departing from Anns --> certainty
        
        Anns too expansionist
    - - damage must have been reasonably foreseeable
      - must be proximity between parties
      - "just, fair and reasonable" to impose liability
      - extremely fluid; shouldnt be used like a "test"
        
        GNv Poole Borough Council: Caparo misunderstood as establishing a test
  - - - Sutherland Shire Council v Heyman
  - - - dont need *Caparo*, therefore no need to consider "fair just reasonable"
      - police owed DoC
      - but how much is proximity?
  - - - why duty denied in Caparo
        
        publicly accessible audit =liable to thousands
      - Spartan Steel v Martin
        
        no DoC cuz worry if electricity owed to entire country
      - Sutradhar v National Env Research Council
        
        no DoC, or else DoC owed to entire Bangladesh
        
        Howarth: D cause greater ham enjoy better treatment than smaller harm
        
        pure omission - normally no DoC
        
        proximity essential when decide exceptional cases
    - - negligence liability vs other law
        
        Marc Rich v Bishop Rock Marine (The Nicholas H)
        
        contract v DoC
        
        can't get around contract by DoC
        
        Rowley v SS for work and pensions
        
        DoC inconsistent w statute
      - compliments other law
        
        Hall v Simons
        
        barrister not immune from negligence liability
    - - holding ppl to DoC hinder public good
      - e.g. case that need wide discretion/emergencies
      - Hill v Chief Constable of West Yorkshire
        
        2) not just fair and reasonable
        
        fear of defensive policing
        
        1) No proximity
        
        court strike out claim, NO DoC
        
        novel case - reasoning similar to Caparo
      - Nicholas H
        
        classification society will get defensive, stop all ship from sailing
      - Barett v Enfield London Borough Council
        
        DID NOT strike out
        
        cant say that local authority no DoC to someone in care
    - - D v East Berkshire
        
        DoC owed to children, NOT parents
        
        when theres conflict of interest doctors should raise concern freely
      - SXH v Crown prosecution service
        
        CPS owed duty to public NOT victims
    - - DONT impose DoC to ppl who conduct justice
        
        James-Bowen v Metropolitan Police Commissioner
- - - - damage to ruined steel in the furnace v inability to use furnace to make more profit
      - DoC to ruin steel but NO DoC to loss profit
      - why?
        
        1) floodgate, too many claims
        
        2) protestant work ethic: just work harder
        
        3) parli say no claim to sue gas board during power cut, common law should be same
        
        4) everyone experience power cut now and then
        
        5) property damage more deserving than pure economic loss
      - court reluctant to find duty for pure economic loss
    - - i think its West Bromwich Albion Football Club v El-Safety?
    - - when C use pure economic loss, mean that prob for some reason they can't sue for breach of contract
      - privacy - cant sue third party
      - courts dont like that parties get around contract
        
        e.g. the ship case (Marc Rich v Bishop Rock Machine) want to use tort when can't use contract
      - Simaan General Contracting Co v Pilkington Glass (No 2)
        
        chain of contracts
        
        builder sue glassmaker, cuz the window maker gone bust
        
        cant use contract, so use tort
        
        Court: NO, cant be fair just reasonable for glassmaker to owe DoC to builder WHILE contractually liable to windowmaker
        
        court WONT use negligence to get around contractual structure
    - - Murphy v Brentwood District Council
        
        the case that overruled Anns
        
        local authority fail to spot the building defect
        
        Court: pure economic loss instead of property damage
        
        property damage = u have a property, it was fine, something happen and then damage
        
        the defect here is inherently there - local authority did not damage
        
        property never existed in a good state in the 1st place
        
        quickly said NO DoC after recognizing pure economic loss
  - - - Islington BC v University College London Hospitals
        
        C fail to satisfy any one of Caparo factors
        
        NOT foreseeable if u do operation negligently that C's local authority will suffer econ loss
      - West Bromwich Albion v El-Safty - the club footballer - the club loss money and sued
      - Leigh and Sillavan v Aliakmon Shipping (The Aliakmon)
        
        D damaged X's good, but C obliged to pay
    - - still pure econ loss when that defect manifest itself
      - of course if toaster turned up and explode and u are injured or property damage --> personal injury and property damage
      - in Donoghue if she had seen the snail and just throw beer away, NO claim in tort
      - in Simaan glass panel just defective, had to spend money replacing it
      - D&F Estates v Church Commissioners
        
        NO DoC owed by builders or local authority in terms of defective buildings
        
        bubbling some abt complex structure theory
        
        if dodgy foundation count as a property that damage the walls (one bit of property damage the other bit)
        
        so basically defect parts caused property damage to other parts
        
        incredibly artificial
        
        e.g. if u buy car and engine defective--> car explode, is it 1) engine damaging rest of the car (complex structure) or 2) a defective car blowing up?
        
        is irrelevant
        
        rly complicate things, rarely see it applied
        
        suggest that economic loss is consequential in defect property
        
        HoL decide that they CANNOT sue original builder
      - Murphy v Brentwood
        
        DENIED turning pure economic loss --> property damage
        
        DENIED complex structure theory
        
        BUT might apply if one component was built by separate contractor and where this component cause damage to other components
        
        they recognize it as a helpless way of trying to turn pure economic loss --> property damage
        
        the reality is its just one building
      - complex structure theory pleaded (then rejected) in the case where roof got lift up, goes back down and damage walls
        
        barristers pleaded property damage of roof to wall
        
        court be like nah its just a defect in your house
        
        no DoC in tort for inherent defects in property
        
        at least complex structure theory is NOT a rescue
  - - - C sued the bank for giving reference for their client, who later went bust
        
        C relied on that reference and loss money
      - no contract - C didnt pay for the reference
      - until here no negligence action succeeded for pure economic loss
      - ratio: C loss, when D gave reference expressively disclaim responsibility using disclaimer --> No DoC
      - Obitar: in principle D can owe DoC in pure economic loss
        
        legally possible just not in the facts of Hedley Byrne
        
        recognize the possibility of DoC here
        
        BUT even if DoC established still need fault - the bank actually give correct description
      - HoL in principle recognizing the possibility of DoC here
        
        1) the basis of DoC is that they assumed responsibility towards C
        
        C ask D for info, D could have decline or use disclaimer (no DoC) but if they just give = assuming responsibility, theres DoC
        
        2) danger of imposing too wide DoC w regard to careless fault statement --> economic loss
        
        potential floodgate problem if recognize too much liability through words
        
        on the facts of HB no such problem, C ask D and D give C - very proximate
        
        cuz of this worry
        --> HoL stress a need for special relationship b/ C and D
        
        special relationship whereby D assumed responsibility in "circumstances akin to contract"
        
        The essence of liability is D ‘assuming responsibility’ for C in circumstances ‘akin to contract’
        
        in HB its very contract-like, business setting, professional party exchanging info, only b/ 2 of them
        
        HB facs are spot on if it wasnt for the disclaimer
    - - C did not hire the auditors, just read their report
        
        if they do will be like Hedley Byrne
      - too far from "contract like"
    - - bad advice for buying car, sued friend for pure economic loss on HB DoC
      - AND SHE WON
        
        the only reason is that D's lawyer useless that they conceded a DoC is owed
        
        even one of the judges be like thats not right; HB shouldnt extend to family friends giving advice
    - - imaging a defective house
        
        builder No DoC
        
        local authority surveyor who negligently spot No DoC
        
        professional surveyor fail to spot - owe HB Doc
        
        seem weird, cuz even actual builder owe no DoC
    - - Objective - what did D do that reasonably appeared to be assuming responsibility for C's economic interest
        
        Williams v Natural Life Health Foods
        
        C tried to sue managing director
        
        Court: D didnt assume responsibility himself as oppose to on behalf of the company
        
        judged objectively on what they said/did and not whats on their mind
        
        preserves the separate legal identity of the company
      - Voluntary
        
        no good if u have no choice of what ur doing
        
        Customs and Excise Commissioners v Barclays Bank
        
        bank should have frozen account but negligent
        
        C sued HB duty
        
        Court: no DoC - bank is involuntary, had no choice but to comply w the court order
        
        NOT a situation of voluntarily assumed responsibility
        
        HB says need to be akin to contract - contract all abt freedom to contract
    - - aside from the two cases just said - one where no objective assumption of responsibility and the other where no voluntary
      - Hedley Byrne itself - because of the disclaimer
        
        opposite result in Smith v Eric S Bush where also disclaimer
        
        buyer sued surveyor who write report for bank
        
        HoL find a way around this thinking that Smith is a deserving C
        
        also since HB new statute (unfair contract terms act 1977) - disclaimer must be reasonable
        
        court think in this case unreasonable
      - Caparo v Dickman
        
        too far away from the situation of "akin to contract
        
        audit got release into the world, no reciprocity
        
        very far from proximity
        
        lord oliver: DoC only arise where almost like contract, rightly restricted
        
        wanna keep HB within reasonable grounds
        
        1) advice required for purpose made known to adviser
        
        2) adviser knows his advice will be communicated to advisee
        
        3) known that the advice will likely to be acted on by the advisee
        
        4) it is acted on by advisee to his detriment
        
        basically got to be like a contract
      - the limits of HB
        
        Steel v NRAM
        
        wrong drafting and signed
        
        sued the solicitor
        
        can't say that you have a special relationship w the other side's solicitor
        
        its is not reasonable, and HB said that got to be reasonable reliance
        
        even if DoC, C's action might be an action breaking chain of causation
        
        Playboy club london v Banca Nazionale del Lavoro Spa
        
        doesnt fall in HB: for it to be HB need to be akin to contract, that means dealing b/ the two contracting parties
        
        parties here dont know who to assume responsibility to - they only knew abt the private company
        
        actually the playboy club is the one relying
        
        playboy club ask private company to get credit reference from bank
        
        bank negligent
    - - HB not confined to negligent mistatement
        
        can arise where negligent performance/non-performance give rise to DoC provided there is assumption of responsibility akin to contract
      - Spring v Guardian Assurance
        
        D wrote a bad reference, didnt get any new job - sued for HB
        
        this is a triangular shape pattern, while HB is two way
        
        D provide info, new employer relies on it, C suffer loss
        
        HoL say this is ok: there was special relationship b/ C and D, just wasnt adviser and advisee
        
        tremendous proximity here
        
        D assumed responsibility to C when giving reference
      - White v Jones
        
        leaving property to ex-husband of his daughter
        
        change his mind, but solicitor didnt change, die before it is changed
        
        daughters sue in tort cuz got no contract w solicitor (privicy)
        
        dad (contractual party) suffer no loss, but daughter (non-contractual party) suffer loss
        
        didnt rely on the solicitor's duty
        
        solicitor didnt assume responsibility to daughters, just to the father
        
        court allow them to sue
        
        CANNOT say this is Hedley Byrne, but can't just ignore poor daughters
        
        considering practical justice
        
        exhusband keep the money, daughter get compensation from solicitor
      - Henderson v Merrett Syndicates
        
        syndicates = investors groups
        
        lose money, sue manager of syndicates
        
        why not breach of contract?
        
        limitation rule: time run out when they discover they lose money
        
        Question: does HB extend to case where there is ACTUALLY a CONTRACT
        
        YES
        
        it would be weird if u are worse off when u have "akin to contract" than if u actually had contract
        
        C can choose whichever two is more favorable
        
        but can't use negligence to get around a restriction in contract
        
        e.g. can't use HB when theres exclusion clause
  - - - starting point is to look at the scope of the duty not remoteness
      - valuer should only be liable to the extent it got the valuation wrong
      - 2 problems
        
        odd coutnerfactual
        
        advice vs. information cases
    - - Manchester building society v Grant Thornton
        
        Lord Hoffmann's two problem downplayed
        
        look at purpose of DoC, not distinction b/ info vs. advice cases
        
        counterfactual useful but NOT the decision to be made as to scope of DoC
      - Meadows v Khan
        
        doctor give advice, women pregant, had kid w hemophilia + autism
        
        risk of foreseeable unrelated disability that would occur in any pregancy NOT within DoC of doctor
      - Armstead downplayed scope of duty --> only applied in professional negligence case, not for common DoC
- - - - X (minors) v Bedfordshire CC
  - - - Fault CANT do all the work
- - - - same as individuals, generally no duty of care to prevent harm
      - can have DoC to avoid causing harm
    - - but public authority v different than individuals
      - repeated in other SC cases
        
        GN v Poole BC, HXA v Surrey CC, Tindall
  - - - e.g. Smith v MOD
        
        Majority: not unjusticiable
    - - Osman v Ferguson
        
        Caparo failed on just fair and reasonable
        
        Court: Strike out
        
        Human rights challenge: Osman v UK
        
        breach of art 6 right to fair trial
        
        UK lawyers felt this is wrong: not a loss of fair trial if no DoC in the 1st place
      - After Osman both sides cool down
        
        Z v UK: not a breach of right to fair trial
        
        no negligence but remedy under HR law
        
        Domestic: wont strike out in complex/developing areas
        
        Positive act: D v East Berkshire Community NHS Trust
        
        Failure to protect: GN v Poole, HXA v Surrey
      - other human rights - art 2 right to life
        
        Van Colle v Chief Constable of the Hertfordshire Police
        
        "real and immediate risk" --> positive obligation
        
        Michael v Chief Constable of South Wales
        
        two claim: 1 negligence,1 breach of art 2
        
        HR claim not stroke out, can proceed
      - twin act regime now - might be EASIER to establish HR
  - - - Rarely court hold theres duty
        
        e.g. Swinney, medical cases
        
        doctors sued for failing to make someone better
    - - "went beyond mere errors of judgement" --> negligent
      - public authorieis may not be at fault, no liability anyways
- - - - Smith v Littlewoods Organization
        
        Not liable, no liability for pure omissions
      - Important reassertion: Stovin v Wise
      - Gorringe v Calderdale
        
        general no liability for failing to make things better BUT there are exceptions
      - but if you act and act badly than different
        
        Capital & Countries v Hampshire CC
        
        liable for making situation worse
        
        Tindall v Chief Constable of Thames Vally Police
        
        No DoC, just fail to make things better
        
        only when they did something that make someone worse off --> liable
    - - No duty arise w regards to pure omission
        
        GN v Poole BC
        
        like private individuals, public bodies dont owe DoC to confer benefits
    - - 1) control over 3rd party
        
        Camarthenshire CC v Lewis
        
        If D was in control over T, should have foreseen the likelihood of T causing damage to someone in close proximity
        
        Home office v Dorset Yacht
        
        default is no duty of care BUT within the control exception
        
        Foreseeability: damage when escaping is foreseeable; but if boys steal other stuff in future - no longer liable
        
        CASE DECK UP UNTIL THIS POINT
      - 2) Assumption of responsibility to C
        
        D assume positive responsibility to safeguard C
        
        Barnes v Hampshire CC
        
        School under affirmative duty
        
        Airport Authority v Western Air (The Bahamas)
        
        D liable - assumed responsibility to protect aircraft
        
        Proximity: C was uniquely dependent on D
        
        Difficulty of applying assumption
        
        HXA v Surey CC
        
        Social worker did NOT assume responsibility for abused children (by planning initiative)
      - 3) Interference Principle - Tindall v Thames Valley Police
        
        Blocking other routes of help
        
        A know that B need help + put off someone else from helping B --> A owe B duty
        
        emergency services caselaw
        
        call ambulance, did not turn up
        
        ambulance liable
        
        believing ambulance on the way, did not seek other help
        
        Tindall?
        
        DID NOT work
        
        police did not know that Mr Tindall alerting others
        
        D NEED TO KNOW theyre blocking help
    - - judicial re-evaluation of existing "novel" precedents
      - Lord Reed: failure to benefit rule very general, treat any case on whether theres an exception as therefore NOT a novel case (cant use caparo)
        
        Older Caselaw
        
        Swinney v Chief Constable of Northumbira
        
        Distinguished Hill
        
        Proximity: here police know whos potential victim
        
        Just fair reasonable: protection for informants
        
        Court: NO strike out
        
        Hill v Chief Constable of South Yorkshire
        
        Application of Caparo
        
        New orthodoxy
        
        emphasize the making things worse v failing to make things better
        
        Michael v Chief Constable of South Wales
        
        failure to protect, default rule --> no liability
        
        Robinson v Chief Constable of West Yorkshire
        
        Revision doesnt solve things, shifting question to whether there was exception (duty of affirmative action)
        
        obsession w assumption of responsibiltiy
        
        Michael: whether liable depends on precise conversation w call handler
        
        e.g. "we got you, will send ambulance..."
        
        just based on language?