Duty of Care: Liability

[Flash Card 1 of 4]

Neighbour principle

• lemonade manufacturer / Lord Atkin: .. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour... (Donoghue v Stevenson [1932])

Three-part test

• company account auditors / 3 part test: all satisfied duty imposed (Caparo Industries plc v Dickman [1990])
• Australian case / approved in Caparo / Brennan J: .. the law should develop novel categories of negligence incrementally and by analogy with established categories... (Sutherland Shire Council v Heyman (1985))
• used to establish duty of care in novel situations / part 1 & 2 reflect neighbour principle / part 3 introduces policy considerations

Part 1: foreseeability

• foreseeability C a V / not precise nature & extent of harm / objective test: reasonably foreseeable D's actions will affect C?
• predates Caparo / P miscarriage / safe place / motorcyclist no duty of care (Bourhill v Young [1943])

Part 2: proximity

• relationship between C & D / usually satisfied if harm C reasonably foreseeable / pure economic loss or psychiatric proximity important

Part 3: fair, just & reasonable

• D ship classification society: non profit / no duty imposed ( Marc Rich & Co AG v Bishop Rock Marine [1996] )
• policy considerations: floodgates / deterrence / resources / upholding legal principles / alternative action

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Duty of Care: Liability

[Flash Card 2 of 4]

Omissions

• general rule: no liability for omissions (failure to act)
• LA hedge / no duty to act positively for benefit of road users so no liability for omission (Stovin v Wise [1996])
• exception: special relationship / power or control over other / established: parents & children, employers & employees, schools & children
• novel situations: Caparo test / determine if positive duty to act arises / as exception
• yacht / POs control over YOs & damage reasonably foreseeable / duty owed (Home Office v Dorset Yacht Co Ltd [1970])
• cinema neighbour fires / no special relationship between D & vandals / no general duty occupier secure property (Smith v Littlewoods Organisation Ltd [1987])
• P's husband killed served avoid child in road / council nursery assumed responsibility / duty owed (Carmarthenshire CC v Lewis [1955])
• no general duty to act positively for benefit of others / if duty assumed obligations may be imposed
• sea wall / duty would arise if D decided to intervene / & made matters worse / on facts no duty (East Suffolk Rivers Catchment Board v Kent [1941])
• ambulance delay / further injury reasonably foreseeable / once call accepted assumed responsibility patient / cause delay unclear so no policy issue (Kent v Griffiths [2001])

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Duty of Care: Liability

[Flash Card 3 of 4]

Claims against the Police

• Yorkshire Ripper / Police not owe duty of care to individual rather to public / public policy: duty would be too wide & divert attention from suppression of crime / lack sufficient proximity / Lord Keith: .. [V] at no special distinctive risk... / general principle Police immunity Negligence claims: investiagtion of crime (Hill v Chief Constable of West Yorkshire [1989])
• foreseeable P harmed if her identity revealed / sufficient proximity ( D assumed responsibility ) / distinguished from Hill immunity: P highlighted as potential V / policy: desirable encourage informants & provide sufficient protection (Swinney v Chief Constable of Northumbria [1997])
• Stephen Lawrence friend / reaffirmed immunity principle / Lord Steyn: .. A retreat from the principle in Hill would have detrimental effects for law enforcement... (Brooks v Met Police [2005])
• domestic courts: no claim / ECtHR: blanket immunity for Police investigation of crime violated Article 6 ECHR / disproportionate restriction right of access to court (Osman v UK (1998))
• ECtHR reviewed Osman: domestic courts' approach (fair, just & reasonable test & policy) / not infringe ECHR (Z v UK (2002))
• Police witness murdered / Cs V's family / brought action under HRA 1998: Police (public body) breached Article 2 ECHR (right to life) / on facts failed / HoL claim possible: if Police knew or ought known of existence: real & immediate risk to life of identified individual / & failed take reasonable measures / to avoid risk (Van Colle v Chief Constable of Hertfordshire Police [2009])

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Duty of Care: Liability

[Flash Card 4 of 4]

Public authorities

• courts recognise PAs should perform functions without fear Negligence claims / balance: allowing PA to carry out duty / providing remedy if PA negligently performs duty
• child abuse cases / did PA owe a duty? / on facts failed / Lord Browne-Wilkinson PA claim guidance (X v Bedfordshire CC [1995])
• generally: not interfere where C complains about PA exercise of statutory discretion / exception: if decision so unreasonable went beyond statutory discretion / but duty of care not inevitable / if exercise of discretion policy matter no duty in Negligence can arise
• if C complains about PA carrying out statutory duty C / duty of care could arise as to manner in which decision is carried out
• HoL: if statutory power or discretion exercised for benefit of particular class / no duty to others adversely affected / too restrictive & undermine purpose of powers (Jain v Trent Strategic Health Authority [2009])

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