Introduction

• Negligence: modern common law tort & most common
• claimant must show on the balance of probabilities: defendant owed a duty of care, breached that duty by failing to meet standard of care required & as a result claimant suffered loss or damage which is not too remote

Neighbour principle

• established duty of care owed in many situations, including road users to other road users, employers to employees & doctors to patients
• neighbour principle used to determine whether a duty of care is owed in novel situations

  Donoghue v Stevenson [1932] AC 562

  Facts:

  • plaintiff (P) ill after drinking lemonade manufactured by defendant (D)
  • P's friend bought her bottle of lemonade in cafe, P drank some before realising there was a snail in the bottle
  • privity of contract meant P (a third party) could not sue D under contract law, so P pursued claim in Negligence

  Issue:

  • did D owe P a duty of care?

  Held:

  • P could claim against D because manufacturer owes consumer duty of care, reasoning stablishes neighbour principle
  • Lord Atkin: .. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour... persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question...
• neighbour principle is test of proximity: whether the particular D ought reasonably to have foreseen the likelihood of injury to C

Three-part test

• courts developed neighbour principle by three-part test

  Caparo Industries plc v Dickman [1990] 2 AC 605

  Facts:

  • P bought shares in a company & made loss
  • company accounts did not show making loss (P bought shares), P claimed D (account auditors) had been negligent

  Issue:

  • did D owe P a duty of care?

  Held:

  • House of Lords found D did not owe duty of care
  • law should develop incrementally & by analogy with established categories of negligence, existing precedents must be considered & if cannot be adapted three-part test should be applied
  • three elements: reasonable foresight of harm, sufficient proximity of relationship between P & D & t is fair, just & reasonable to impose duty, if all three parts satisfied a duty of care may be imposed

  Sutherland Shire Council v Heyman (1985) 60 ALR 1

  • Austrialian case approved by Lord Bridge in Caparo
  • Brennan J: .. he law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed...
• first two parts of Caparo test reflect neighbour principle & third introduces consideration of policy
• three-part test now used to establish uty of care in novel situations

Part 1: foreseeability

• must be reasonable foresight of harm to C, refers to foreseeability of C as a victim not precise nature & extent of harm
• objective test: is it reasonably foreseeable that D's actions will affect this particular C?

  Bourhill v Young [1943] AC 92

  Facts:

  • pre-dates the Caparo test
  • motorcyclist was driving negligently, crashed & was killed, P was in safe place, did not witness accident but went to see what happened
  • P suffered shock & miscarriage after seeing debris on road, P sought damages from D (motorcyclist's estate)

  Issue:

  • was harm to P reasonably foreseeable?

  Held:

  • no duty of care, P was a not reasonably foreseeable victim of the negligence

Part 2: proximity

• must be sufficient proximity in relationship between C & D, most cases not an issue, usually proximity satisfied if harm to C is reasonably foreseeable
• if C's harm not directly caused by D's actions or is economic or psychiatric in nature proximity can be pivotal

Part 3: fair just and reasonable

• whether it is fair, just and reasonable to impose a duty of care

  Marc Rich & Co AG v Bishop Rock Marine [1996] AC 211

  Facts:

  • C lost cargo when a ship sank, Ds (ship classification society) allegedly been negligent in certifying ship sea worthy, C sued for damages

  Issue:

  • should a duty of care be imposed?

  Held:

  • Ds did not owe duty of care, Ds were non-profit making organisation carrying out classification as public good, would not be fair, just & reasonable to impose duty (it may endanger existence of such organisations)
• courts cautious about opening the floodgates, for many more similar cases but will consider public benefit
• deterring certain types of behaviour can be considered & may lead to ruling in favour of C
• resources taken into account: if claim successful D often liable for damages, usually paid by insurers, ultimately leads to society paying increased insurance premiums (especially considered in pure economic loss cases)
• individual cases may seem unjust but courts can decide not undermining legal certainty more important
• whether alternative, more appropriate legal action should have been brought

Omissions

• general rule in Negligence: no liability for omissions (a failure to act)

  Stovin v Wise [1996] AC 923

  Facts:

  • P was injured when hit by D's car
  • D claimed accident partly due to negligence of local authority (LA), who knew about overgrown hedge which obstructed visibility & had statutory power to order the removal but did not

  Issue:

  • was the LA liable for the omission?

  Held:

  • LA had no duty of care to alleviate the danger & no duty to act positively for benefit of road users so no liability for omission
  • LA knew about obstruction & previous accidents there, but there were worse affected areas & LA's budget was limited

Special relationship

• duty to act positively if a person has some sort of power or control over other person
• established special relationships include: parents & children, employers & employees, schools & children
• novel situations: Caparo test applied to determine if positive duty to act arises as an exception

  Home Office v Dorset Yacht Co Ltd [1970] AC 1004

  Facts:

  • P's yacht wass damaged by young offenders (YOs), when YOs went sailing at night & crashed
  • YOs were working on a restoration project, supervised during day by prison officers (POs), who failed to supervise YOs at night
  • P sought damages from D, who employed POs

  Issue:

  • were POs liable for their omission?

  Held:

  • House of Lords decided POs did owe a duty of care to P & D was vicariously liable for negligence of employees
  • duty for omission imposed because POs had control over YOs & damage was reasonably foreseeable
  • case preceded Caparo test , but would have been satisfied

  Smith v Littlewoods Organisation Ltd [1987] AC 241

  Facts:

  • P owned & occupied property adjacent D's cinema, cinema being demolished & during building works D left locked but unattended
  • vandals broke in & started fires, one time fire spread to P's house, P sued D for damage caused

  Issue:

  • was D liable for their omission?

  Held:

  • House of Lords found D owed no duty, D not aware of previous break-ins & there was no special relationship between D & vandals
  • occupier no general duty to secure their property to prevent vandals entering & damaging adjacent property, would be too wide to impose

  Carmarthenshire CC v Lewis [1955] 1 All ER 565

  Facts:

  • P's husband was killed when he swerved to avoid hitting a child in road
  • at time child was under care of a nursery run by D (local council) & P sought damages D

  Issue:

  • did D have a duty to prevent the child endangering others?

  Held:

  • D liable because it had assumed responsibility for controlling the child
• no general duty to act positively for the benefit of others, but if duty is assumed obligations may be imposed

  East Suffolk Rivers Catchment Board v Kent [1941] AC 74

  Facts:

  • P's land was flooded after a sea wall was breached & D repaired the wall, although under no duty to do so
  • repairs were carried out badly & took 178 days to complete rather than 14 days, P claimed for damages

  Issue:

  • did D assume a duty?

  Held:

  • House of Lords held that D under no obligation to act & as land was already flooded, owed no duty to P
  • duty would arise if D decided to intervene & in so doing made matters worse than they would otherwise have been

  Kent v Griffiths [2001] QB 36

  Facts:

  • C suffered asthma attack & ambulance called on her behalf
  • ambulance failed to arrive within reasonable time & C had heart attack, C sought damages.

  Issue:

  • was the ambulance service liable for the omission?

  Held:

  • court imposed a duty on the ambulance service
  • reasonably foreseeable a person in C's position would be further injured if ambulance failed to arrive promptly, once call for help was accepted, ambulance service assumed responsibility for patient's care & reason for delay not clear, so no policy considerations prevented duty being imposed

Claims against the Police

• if C suffers injury as direct result of Police action, then Police treated in same way as other citizens
• if C injured by third party but due to Police negligence application of Caparo test more complex

  Hill v Chief Constable of West Yorkshire [1989] AC 53

  Facts:

  • D (the Police) interviewed & released Peter Sutcliffe (the Yorkshire Ripper), later he raped & murdered P's daughter
  • P as representative of her daughter's estate, sought damages in Negligence

  Issue:

  • did D have a duty of care towards the victim?

  Held:

  • House of Lords found claim was unsuccessful
  • was foreseeable that D's failure to catch Yorkshire Ripper could lead to further crimes, but Police not owe a duty of care to any individual rather to public at large
  • reasoning focussed largely on public policy: if a duty was imposed it would be too wide & too onerous
  • Lord Keith: .. general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime.... The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime...
  • there was a lack of sufficient proximity
  • Lord Keith: .. [the victim] was one of a vast number of the female general public who might be at risk from his [the Yorkshire Ripper] activities but was at no special distinctive risk in relation to them...

  Swinney v Chief Constable of Northumbria [1997] QB 464

  Facts:

  • P gave D (the Police) information which to identify a driver who killed a police officer
  • D assured P her identity would be kept confidential but P's details were left in a police car, which was stolen
  • after her identity was revealed P suffered threats & psychiatric harm & she sought damages

  Issue:

  • did D have a duty of care towards P?

  Held:

  • D did owe P a duty of care, foreseeable that P would be harmed if her identity revealed, sufficient proximity because D assumed responsibility for P
  • distinguished from Hill v Chief Constable of West Yorkshire [1989] because P highlighted as potential victim
  • desirable to encourage informants & provide them sufficient protection, policy factor which should be weighed against policy arguments for immunity in Hill

  Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24

  Facts:

  • C witnessed murder of his friend, Stephen Lawrence & suffered post traumatic stress disorder after being victimised following the notorious racially motivated crime
  • C argued the Police (D) failed to provide him with adequate protection as a victim of serious crime & D's attitude had made his situation worse

  Issue:

  • did D have a duty of care towards C?

  Held:

  • House of Lords reaffirmed general principle against Police liability, established in Hill v Chief Constable of West Yorkshire [1989]
  • Lord Steyn: .. A retreat from the principle in Hill would have detrimental effects for law enforcement...
• blanket Police immunity for civil liability in relation to Negligence has been challenged

  Osman v UK (1998) 29 EHRR 245

  Facts:

  • a teacher developed an unhealthy interest a pupil & the harassment was reported to the Police (D)
  • teacher subsequently shot & killed pupil's father & injured pupil, the family (C) sought damages

  Issue:

  • were the Police immune from the claim?

  Held:

  • domestic courts held C could not claim damages
  • European Court of Human Rights found blanket immunity for Police investigation of crime violated Article 6 European Convention on Human Rights
  • Police immunity was disproportionate restriction on right of access to a court, contrary to Article 6 right to a fair trial

  Z v UK (2002) 34 EHRR 3

  • ECtHR reviewed Osman v UK (1998) & found domestic courts' approach to Negligence claims (fair, just and reasonable test & consideration of policy reasons) does not infringe Article 6 ECHR

  Van Colle v Chief Constable of Hertfordshire Police [2009] 1 AC 225

  Facts:

  • a Police witness was threatened & subsequently murdered, Cs were the victim's family
  • Cs brought an action under Human Rights Act 1998: arguing the Police (as public body) had breached Article 2 ECHR (the right to life)

  Issue:

  • can a claim against the Police be made under the HRA 1998 in relation to Article 2 ECHR?

  Held:

  • on the facts the claim failed
  • House of Lords found claim could be made under HRA 1998, in relation to Article 2 ECHR, if the Police knew or ought to have known of the existence of a real & immediate risk to life of an identified individual & failed to take reasonable measures, within scope of their powers to avoid that risk

Public authorities

• generally courts recognise public authorities should perform functions without fear of Negligence claims, especially as decisions often affect many people
• public authorities may be subject to public law remedies, such as judicial review, if gone beyond their powers
• courts balance allowing public authority to carry out duty & providing remedy to individual if public authority negligently performs duty

  X v Bedfordshire CC [1995] 2 AC 633

  Facts:

  • combined claims against local authorities, Cs alleged parental abuse & neglect & D was aware but failed to investigate or protect them from further harm

  Issue:

  • could the local authority be liable in Negligence?

  Held:

  • on the facts claims failed, Lord Browne-Wilkinson provided guidance to determine whether Negligence claim could be brought against public authority
  • generally: courts should not interfere where C complains about public authority exercise of statutory discretion
  • exception: if local authority decision was so unreasonable went beyond statutory discretion, claim possible but duty of care not inevitable
  • if exercise of discretion was a policy matter then courts cannot interfere & no duty in Negligence can arise
  • if claimant is complaining about way local authority caarried out statutory duty a Negligence claim is possible, duty of care could arise as to manner in which decision is carried out

  Jain v Trent Strategic Health Authority [2009] 2 WLR 248

  • House of Lords found if statutory power or discretion exercised for benefit or protection of a particular class: duty of care in Negligence not arise in relation to others adversely affected
  • such a duty would restrict ability of public authorities to carry out statutory obligations & undermine purpose of powers themselves