Introduction

Negligence is a common law tort, which has been developed though case law. Despite being a modern tort it is the most common. In order to prove liability in Negligence the claimant must show, on the balance of probabilities, that: the defendant owed a duty of care, breached that duty by failing to meet the standard of care required and as a result the claimant suffered loss or damage which is not too remote.

Neighbour principle

It is well established that there is a duty of care owed in number of situations such as road users to other road users, employers to employees and doctors to patients. However, the neighbour principle is a test used to determine whether a duty of care is owed in novel situations.

The neighbour principle is a test of proximity: whether the particular defendant ought reasonably to have foreseen the likelihood of injury to the claimant. It is used to determine whether a duty is owed in a new situation, where the claimant has suffered injury or loss.

Three-part test

The courts have further developed the neighbour principle by the three-part test.

• Caparo Industries plc v Dickman [1990] 2 AC 605

  Facts:

  The plaintiff bought shares in a company and made a loss. The company accounts failed to show the company was making a loss before the plaintiff bought the shares. The plaintiff claimed that the defendant, the account auditors, had been negligent.

  Issue:

  Did the defendant owe the plaintiff a duty of care?

  Held:

  At first instance the defendant was found not owe a duty of care, on appeal it was held the defendant did but the House of Lords overturned this decision. The House of Lords decided that the law should develop incrementally and by analogy with established categories of negligence. Existing precedents must be considered and if they cannot be adapted to fit the case then a general test should be applied. Three elements must be considered: firstly, the reasonable foresight of harm, secondly, sufficient proximity of relationship between the plaintiff and the defendnat and thridly, that it is fair, just and reasonable to impose a duty. If all three parts are satisfied a duty of care may be imposed.

• Sutherland Shire Council v Heyman (1985) 60 ALR 1

  An Austrialian case approved by Lord Bridge in Caparo v Dickman [1990].

  Brennan J: .. It is preferable in my view, that the 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....

The first two parts of the Caparo test reflect the neighbour principle and the third part introduces consideration of policy matters, which may go beyond the case itself. The three-part test is now used to establish a duty of care in novel situations.

• Part 1: foreseeability

  The first requirement is reasonable foresight of harm to the claimant. In most cases it is easy to establish as it refers to the foreseeability of the claimant as a victim not whether the precise nature and extent of the harm is foreseeable. It is an objective test: is it reasonably foreseeable that the defendant's actions will affect this particular claimant?

  Bourhill v Young [1943] AC 92

  Facts:

  The case pre-dates the Caparo test. A motorcyclist was driving negligently, crashed into a car and was killed. The plaintiff was in safe place and did not witness the accident but decided to go and see what had happened. The plaintiff suffered shock and a miscarriage after seeing blood and debris on the road. The plaintiff sought damages from the defendant, the motorcyclist's estate.

  Issue:

  Was harm to the plaintiff reasonably foreseeable?

  Held:

  No duty of care was found as the plaintiff was a not reasonably foreseeable victim of the negligence.

• Part 2: proximity

  The second requirement is proximity. Proximity relates to the relationship between the claimant and the defendant. In most cases there is little issue of proximity. Proximity is usually satisfied if harm to the claimant is reasonably foreseeable, for example if the defendant has directly caused physical harm to the claimant or his property. However, if the claimant's harm is not directly caused by the defendant's actions or is economic or psychiatric in nature proximity can be pivotal.

• Part 3: fair just and reasonable

  The third requirement is whether it is fair, just and reasonable to impose a duty of care. This is a matter of public policy.

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

  Facts:

  The claimant lost cargo when a ship sank. The defendants, a ship classification society had allegedly been negligent in certifying the ship sea worthy. The claimant sued for damages.

  Issue:

  Should a duty of care be imposed?

  Held:

  The defendants did not owe a duty of care. The defendants were a non-profit making organisation which carried out classification as a public good. Therefore, it would not be fair, just and reasonable to impose a duty of care on the defendants as it may endanger the existence of such organisations.

  Courts tend to be cautious about ruling in a way which may open the floodgates, for many more similar cases. Deterring certain types of behaviour can be considered and may lead a court to rule in favour of a claimant. If a claim is successful the defendant will often be liable for damages. These are usually paid by insurers which ultimately leads to society paying increased insurance premiums. This is especially taken into account in pure economic loss cases. The courts may consider any possible public benefit of a decision.In order to maintain certainty in the law, the result in some cases may seem unjust but courts can decide that not undermining the legal principle is more important. The courts will consider whether there was an alternative, more appropriate legal action which should have been brought. Defendants in the public sector are more likely to find claims fail against them. This is because it is deemed necessary for public sector workers such as police to act without undue worry about claims for Negligence.

Omissions

The general rule in Negligence is that there is no liability for omissions (a failure to act).

Special relationship

There is a duty to act positively if a person has some sort of power or control over the other person. A special relationship can arise in various situations, including: parents and children, employers and employees, schools and children. In novel situations, the court will consider the Caparo test in order to determine if a positive duty to act arises as an exception to the general rule of no duty for omissions.

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

  Facts:

  The plaintiff's yacht wass damaged by a group of young offenders. The young offenders were working on a restoration project at the harbour. They were supervised during the day by prison officers but they failed to supervise the young offenders at night. The damage occurred when the young offenders went sailing at night and crashed into the plaintiff's yacht. The plaintiff sought damages from the defendant, who employed the prison officers.

  Issue:

  Could the officers be liable for their omission?

  Held:

  The House of Lords decided that the prison officers did owe a duty of care to the plaintiff and the defendant was vicariously liable for the negligence of their employees. A duty for the omission could be imposed because the officers had control over the young offenders and damage to the yacht was reasonably foreseeable. The case preceded the Caparo test but it would have been satisfied.

• Smith v Littlewoods Organisation Ltd [1987] AC 241

  Facts:

  The plaintiff owned and occupied property adjacent to a cinema owned by the defendants. The cinema was being demolished and during the building work the defendants left the building locked but unattended. On numerous occasions, vandals broke into the property and started fires. The plaintiff's house was extensively damaged by one of the fires. The plaintiff sued the defendants for the damage caused.

  Issue:

  Was the defendant liable for their omission?

  Held:

  The House of Lords found that no duty was owed. The duty on an occupier would be too wide if they were responsible for damage caused to adjoining properties by third parties, who they had no control over. An occupier has no general duty to secure their property to prevent vandals entering and damaging adjacent property. The defendant was not aware of the previous break-ins. Essentially, there was no special relationship between the defendants and the vandals.

• Carmarthenshire CC v Lewis [1955] 1 All ER 565

  Facts:

  The plaintiff's husband, a lorry driver, was killed when he swerved to avoid hitting a child in the road. The child wandered onto the road when under the care of a nursery run by the defendant, the local council. The plaintiff sought damages from the council.

  Issue:

  Did the council have a duty to prevent the child endangering others?

  Held:

  The council was found liable because it had assumed responsibility for controlling the child.

There is no general duty to act positively for the benefit of others. However, if a duty is assumed obligations may be imposed.

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

  Facts:

  The plaintiff's land was flooded after a sea wall was breached. The defendant repaired the wall, although they had no duty to do so. The repairs were carried out badly and took 178 days to complete rather than 14 days. The plaintiff claimed for damages.

  Issue:

  Did the defendant assume a duty?

  Held:

  The House of Lords held that defendant was under no obligation to act and as the land was already flooded they owed no duty to the plaintiff. The intervention had not made the situation worse. Furthermore, the House of Lords stated that a duty would arise if you decided to intervene and in so doing made matters worse than they would otherwise have been.

• Kent v Griffiths [2001] QB 36

  Facts:

  The claimant suffered an asthma attack and a call was made for an ambulance on her behalf. The ambulance failed to arrive within a reasonable time and the claimant suffered a heart attack. The claimant sought damages.

  Issue:

  Could a duty of care be imposed on the ambulance service?

  Held:

  The court imposed a duty on the ambulance service. It is reasonably foreseeable that a person in the claimant's position (a person waiting for an ambulance) would be further injured if the ambulance failed to arrive promptly. Once a call for help was accepted, the ambulance service assumed responsibility for the patient's care. The reason for the delay was not proved and therefore no policy considerations prevented the duty being imposed.

Claims against the Police

If a claimant suffers physical injury as a direct result of Police action then the Police will be treated in the same way as other citizens. However, the application of the Caparo test may be more complex in other cases involving the Police.

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

  Facts:

  The defendant, the Police, had interviewed and released Peter Sutcliffe, later known as the Yorkshire Ripper. Peter Sutcliffe went on to rape and murder the plaintiff's daughter. The plaintiff was the sole representative of her daughter's estate and sought damages in Negligence.

  Issue:

  Did the Police have a duty of care towards the victim?

  Held:

  The claim was unsuccessful. The House of Lords found that it was foreseeable that the Police's failure to catch the Yorkshire Ripper could lead to further crimes. However, the Police did not owe a duty of care to any individual rather to the public at large. The House of Lords reasoning focussed largely on public policy: if a duty was imposed it would be too wide and too onerous.

  Lord Keith: .. The 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 also found to be 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:

  The plaintiff gave the Police information which helped to identify a driver who had killed a police officer. The defendant, the Police, assured the plaintiff that her identity would be kept confidential. However, the plaintiff's details were left in a police car, which was stolen. As a result of her identity being revealed the plaintiff suffered threats and psychiatric harm. She sought damages from the Police.

  Issue:

  Did the Police have a duty of care towards the plaintiff?

  Held:

  There was a duty of care. It was foreseeable that the plaintiff would be harmed if her identity was revealed and there was sufficient proximity because the Police had assumed responsibility for the plaintiff. The case was distinguished from Hill v Chief Constable of West Yorkshire [1989] because the plaintiff had been highlighted as a potential victim. Furthermore, there was another policy factor which should be weighed against the policy arguments for immunity in Hill, that it is desirable to encourage informants and provide them with sufficient protection.

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

  Facts:

  The claimant was a witness to the murder of his friend, Stephen Lawrence. The claimant suffered post traumatic stress disorder after being the victim of abuse following the well publicised racially motivated crime. The claimant argued that the defendant, the Police, had failed to provide him with adequate protection as a victim of serious crime and that the attitude of the Police had made his situation worse.

  Issue:

  Did the Police owe the claimant a duty of care?

  Held:

  The High Court found that there was no duty of care arose but the Court of Appeal ruled that there was a sufficient proximity. However, the House of Lords disagreed and reaffirmed the 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... It is unnecessary in this case to try to imagine cases of outrageous negligence by the police, unprotected by specific torts, which could fall beyond the reach of the Hill principle. It would be unwise to try to predict accurately what unusual cases could conceivably arise. I certainly do not say that they could not arise. But such exceptional cases on the margins of the Hill principle will have to be considered and determined if and when they occur....

However, 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 in one of his pupils and his harassment was reported to the Police. The teacher subsequently shot and killed the pupil's father and injured the pupil. The family, the claimant, sought damages from the Police.

  Issue:

  Were the Police immune from the claim?

  Held:

  The domestic courts held the family could not claim damages.

  However, the European Court of Human Rights found that blanket immunity for the Police investigating a crime amounted to a violation of Article 6 of the European Convention on Human Rights. Police immunity was a disproportionate restriction on the rights of access to a court, contrary to the Article 6 right to a fair trial.

• Z v UK (2002) 34 EHRR 3

  The European Court of Human Rights reviewed the decision in Osman v UK (1998) and found that the domestic courts' approach to Negligence claims does not infringe Article 6. The test of fair, just and reasonable and the consideration of policy reasons are not on breach of the European Convention on Human Rights.

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

  Facts:

  A Police witness was threatened and subsequently murdered. The claimant, the victim's family, brought an action under the Human Rights Act 1998: arguing that the Police, as public body, had breached Article 2 of the European Convention on Human Rights (the right to life).

  Issue:

  Can a claim be made under the HRA 1998 in relation to Article 2 ECHR?

  Held:

  On the facts the claim failed. However, the House of Lords held that a claim could be made under the HRA 1998, in relation to Article 2 ECHR, if the Police knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take reasonable measures within the scope of their powers to avoid that risk.

Public authorities

Generally, the courts recognise that public authorities should be able to carry out their functions without fear of being liable for Negligence. Their decisions often affect a large number of people and this means that their job may become impossible if they were constantly subject to claims. Of course, public authorities may be subject to public law remedies, such as judicial review, if they have gone beyond their powers. The courts have balance practically allowing the public authority to carry out its duty and providing a remedy to the individual if the public authority is negligent in the performance of its duty.

• X v Bedfordshire CC [1995] 2 AC 633

  Facts:

  The case involved combined claims against local authorities. The claimants alleged that they had suffered parental abuse and neglect and that the defendant had known of this but had failed to investigate or protect them from further harm.

  Issue:

  Could the local authority be liable in Negligence?

  Held:

  The claims failed.

  Lord Browne-Wilkinson provided guidance to determine whether a claim could be brought in Negligence against a public authority. Generally, the courts should not interfere in cases where the claimant complains about the way in which the public authority exercises a statutory discretion. However, the courts may consider a claim if the local author decision was so unreasonable, it went beyond the ambit of the statutory discretion. Therefore, a Negligence claim may be possible in these circumstances but a duty of care would not be inevitable. In cases where the exercise of discretion was a policy matter then the courts could not interfere. Therefore, in these cases it would not be possible for a duty in Negligence to arise. If the local authority has a statutory duty and the claimant is complaining about the way it was carried out there may be a possible claim. Under Negligence, a duty of care could arise as to the manner in which that decision is carried out.

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

  The House of Lords found that if a statutory power or discretion was exercised for the benefit or protection of a particular class, a duty of care in Negligence would not arise in relation to others who may be adversely affected. If a duty was imposed it would restrict the ability of public authorities to carry out statutory obligations and undermine the purpose of the powers themselves.