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CPE - LLM

LAW OF TORT

7LW

MATERIALS BOOKLET 1

Negligence: Duty of Care

STUDY TOPIC 1: NEGLIGENCE: DUTY OF CARE

INTRODUCTION

Negligence occurs when a defendant:  Owes a duty of care to the claimant in the circumstances of the case;  Breaches that duty by falling below the standard of care that is appropriate to the duty owed;  Causes the claimant to suffer damage which is not too remote a consequence of the defendant’s breach of duty 9generally that damage is foreseeable). These are the essential elements that must be proved in all negligence claims. In relation to certain specific types of claimant or defendant, or specific types of claim additional requirements also need to be proved. Nevertheless, these three basic elements are always at the heart of any claim. DUTY OF CARE INTRODUCTION TO NEGLIGENCE It is often said that the modern tort of negligence started with Lord Atkin’s ground breaking judgment in Donoghue v Stevenson [1932] AC 532. A new approach was necessary in the case because no other action was available. Negligence as an individual tort is a departure from more traditional torts since it involves careless rather than intentional behaviour. Even before the twentieth century many judges had accepted that more people suffered damage through careless acts than through intentional ones. Judges then established the principle that defendants in certain specific situations might be considered liable for their careless act where they caused foreseeable loss or injury to a claimant. However, there was no general duty of care and there was no means of establishing one. An early attempt to establish a formula through which duty situations could be identified came in Heaven v Pender [1883] 11 QBD 503. Extract from judgment In the case Brett MR suggested that “wherever one person is … placed in such a position with regard to another that everyone of ordinary sense … would at once recognise that if he did not use ordinary care and skill … he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” However, another case, Winterbottom v Wright [1842] 10 M & W 109, suggested that a duty of care could not be established in the absence of a contractual relationship. This was one of the issues that the court had to deal with in Donoghue v Stevenson. Donoghue v Stevenson [1932] AC 562 House of Lords (now the Supreme Court) Facts The claimant claimed to have suffered shock and gastro-enteritis after she drank ginger beer that she had poured from an opaque bottle and out of which a decomposing snail had fallen when the dregs were poured. The drink had been bought by her friend so she was unable to sue in contract, nor, according to Winterbottom v Wright , could she show that she was owed a duty not to cause her harm because of the absence of a contractual relationship.

So there are three important elements here that must be satisfied in order for a manufacturer to owe a duty of care to the consumer in the factual circumstances of the case:  The goods must reach the consumer and be intended to reach the consumer in the form that they left the manufacturer. (A straightforward example is given by the case of Donoghue v Stevenson. The goods were in a sealed container.)  There is no chance of any examination of the goods between leaving the manufacturer and reaching the consumer. (Again in Donoghue v Stevenson this was straightforward because the product was in a sealed opaque bottle and nobody did or could have known that the snail was there)  The manufacturer knows that taking insufficient care over the goods and his production methods are likely to put the consumer at risk of some foreseeable harm. So establishing whether the narrow ratio from Donoghue v Stevenson applies in another case can be illustrated in diagram form as follows: YES YES YES So if these conditions are not met, even though there is a manufacturer and defective goods and a consumer who has suffered damage there will be no duty and no liability. In Evans v Triplex Safety Glass Co Ltd [1938] 1 All ER 283 the claimant bought a car that was fitted with a safety glass windscreen manufactured by the defendant. When the windscreen inexplicably shattered while the claimant was driving the car there was no liability on the manufacturer of the windscreen. This was, as the judge identified, because:  The windscreen had been in the car for more than a year  There was nothing to say that the windscreen arrived with the claimant in the form it left the factory  There could have been defective fitting of the windscreen to the car  There could have been many other causes of the shattering. Now try the Activity on page 27 of Unlocking Torts THE MANUFACTURER OWES THE CONSUMER A DUTY OF CARE Did the manufacturer sell products in a way that there would be no intermediate inspection of the goods before they reached the consumer? THE MANUFACTURER HAS BREACHED THE DUTY Was there a failure in the production process leading to a defect in the goods or a failure to rectify a known defect? THE MANUFACTURER HAS CAUSED THE FORESEEABLE LOSS Did the consumer suffer foreseeable damage caused by the defect with no other known cause for the defect or no later negligent inspection of the goods? THE MANUFACTURER IS LIABLE UNDER DONOGHUE V STEVENSON

THE DEVELOPMENT OF DUTIES OF CARE

From the time of Donoghue v Stevenson judges developed individual duties of care incrementally, case by case, circumstance by circumstance for a variety of different relationships, for example:  The duty of care owed by a doctor to a patient R v Bateman (1925) Cr App Rep 8 (actually a case of criminal negligence)  The duty owed by an employer to an employee not to cause him harm Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 (which identified that the duty extends to providing safe premises, safe plant and equipment, safe working colleagues and a safe system of work)  The duty of a motorist to a fellow road user including a passenger Nettleship v Weston [1971] 2QB 691 even, as in this case when the motorist is an inexperienced learner driver since the standard of care never varies However, even within these general relationships there are more specific duties or situations where there is no duty owed.  So, for example, a doctor owes a duty to examine his patient where examination is reasonably required Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 , but is not under a duty to wait for the results of all tests before acting on a clinical diagnosis Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635  And an employer’s duty of care to employees has been extended to care of the employee’s psychiatric health also where the condition is known and harm is therefore foreseeable Walker v Northumberland County Council [1995] 1 All ER 737 , but there is no duty to take care of an employee’s private property Deyong v Shenburn [1946] KB 227  And a motorist owes a duty to other road users in respect of incidents caused by medical problems known to him Roberts v Ramsbottom [1980] 1 All ER 7 but not for those that are unknown to him Mansfield v Weetabix [1997] PIQR P From this we can see that the duty of care is a control mechanism for limiting claims for negligence – so that there is no universal duty of care:  Firstly the court must be sure that the case involves not only a risk of harm of a type that is accepted in law as leading to a duty of care to avoid harm;  But also that in the circumstances of the case the risk is one that is envisaged by law A good example of this is Bourhill v Young [1943] AC 92 where the court refused to impose a duty because the claimant was outside of the area of foreseeable harm. (see Unlocking Torts p 123) THE ANNS TWO PART TEST FOR ESTABLISHING A DUTY OF CARE Following Donoghue v Stevenson there was reluctance by the judiciary as regards such a general principle applying to new situations and they developed duties by reference to previous case law, as we have seen. So the law developed incrementally case by case. At a later point the test was simplified. The new test did not depend on a duty of care being determined in a given case according to how the case fitted in with past law. Under the new test a duty would be imposed because of the proximity of the relationship between the two parties unless there were policy reasons for not doing so. This of course means legal proximity (the extent to which the deeds of one can affect the other) not proximity based on physical closeness.

Lord Keith also argued that the Anns test had been “… elevated to a degree of importance greater than its merits” , and this he felt was probably not Lord Wilberforce’s original intention. THE MODERN THREE PART TEST FOR ESTABLISHING A DUTY OF CARE In 1990 the then House of Lords (now the Supreme Court) rejected the two-part test from Anns in the case of Murphy v Brentwood District Council [1990] 2 All ER 908 and also overruled the case. More importantly it also approved a three part test suggested in the case of Caparo Industries plc v Dickman [1990] 2 AC 605. N.B. You do not need to know the facts of these cases at this point but you may see them later. They can also be found on pages 28 and 29 of Unlocking Torts. The three parts of the test are cumulative:  Firstly is there a risk of foreseeable harm (if the defendant can foresee harm resulting from his careless acts or omissions then he should guard against it – if not then he could not have guarded against the risk and cannot be liable for the harm)  If harm is foreseeable then the court should consider whether there is legal proximity between the parties (this does not mean physical proximity, as in Donoghue v Stevenson the parties need not even know each other but the claimant must be someone who the defendant could have in his contemplation when he acted) N.B. these two are really just restating the neighbour principle  Finally, if both of these are satisfied the court must also be satisfied that it is fair, just and reasonable in all of the circumstances of the case to impose a duty on the defendant (it is arguable whether this just means whether a duty should not be imposed because of public policy reasons) As a result of this test it can be seen that:  No general principle is applicable to all circumstances.  Judges should look at cases individually.  Future developments should follow a more traditional categorisation of distinct and recognisable situations as guides to the existence, scope and limits of various duties of care (and later cases have confirmed this). Foreseeability  The defendant must have foreseen some damage to the claimant.  Reasonable foreseeability, however, is neither the necessary nor the sufficient condition of liability.  Foreseeability is the foundation of the neighbour principle - also a test of breach of duty and remoteness of damage.  Foreseeability is a very flexible concept.  It is a control mechanism whereby liability may be accepted or rejected.  Foresight is distinct from proximity although foreseeability is a necessary ingredient of proximity. We have already seen examples of foreseeable harm in the case law above. It is also useful to see instances where harm was not foreseeable. Bourhill v Young [1943] AC 92 House of Lords (now the Supreme Court)

Facts A pregnant Edinburgh fishwife claimed to have suffered nervous shock after getting off a tram and hearing the impact of a crash involving a motorcyclist. She then walked in the direction of the crash and saw blood on the road, after which she gave birth to a still-born child and claimed nervous shock. Legal Principle The House of Lords held that, as a stranger to the motorcyclist, she was outside of the area of foreseeable shock and her claim failed. Clearly the motorcyclist, although he could have foreseen the possibility of psychiatric harm to a person seeing the crash could not have foreseen that someone would willingly move to the accident to witness it and then suffer harm. Legal Proximity  This is clearly related to the neighbour principle.  It refers to legal proximity, not physical proximity.  Proximity has been referred to as an elusive element’, which persistently defies definition -Lord Oliver - **Murphy v Brentwood DC**  It will inevitably vary from case to case.  Sometimes, foreseeability of damage will be enough to establish proximity.  In other cases the relationship between the claimant and the victim and also how close the claimant was to the accident scene, will determine proximity. Again we have seen legal proximity existing between a manufacturer and a consumer of his products in **Donoghue v Stevenson** where the parties are not in contact and between a doctor and his patient in **Barnett v Chelsea and Kensington Hospital Management Committee** when they do. **Bourhill v Young** is also an example of where there is no legal proximity, as the motorcyclist could not have had the claimant in his contemplation. The same applies in a more specific sense in the following case. **Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238** House of Lords (now the Supreme Court) **Facts** This involved a claim by the mother of the thirteenth and final victim of Peter Sutcliffe, the Yorkshire Ripper. The basis of the claim was that, but for the negligent police investigation of the murders, her daughter need not have died as Sutcliffe should have been caught at a much earlier stage. **Legal Principle** The court held that there was insufficient proximity between the police and the public for a duty to be imposed to protect individual members of the public from specific crimes to be imposed. Police could not anticipate the identity of individual murder victims. **N.B.** You can read a longer extract from the judgment in this case in Harvey and Marston Cases and Commentary on Tort. **Fair, Just and Reasonable**  Some courts appear to equate thejust and reasonable' requirement to the second stage of the Anns test i.e. the policy stage.

Lawrence claimed for suffering post-traumatic stress disorder because of the handling of the crime investigation, for of his own treatment as a witness and as a victim. The court would not accept that the police owed any duty in any respect, although it did accept that an action was possible for his mistreatment by the police. ( Robinson v West Yorkshire Police [2014] EWCA Civ 15 (a pedestrian injured while police were arresting a drug dealer) but now see below ); and Michael v South Wales Police [2015] UKSC 2 (999 operator failed to tell police that caller had indicated her ex-partner was going to kill her) – both followed Hill. However, there are limited circumstances where courts will hold that the police owe a duty. In Reeves v Commissioner of the Metropolitan Police [1999] 3 WLR 363 police held a prisoner who was a known suicide risk. When the prisoner committed suicide the court rejected a defence of novus actus interveniens. The police owed a duty which they breached because the suicide was the risk that they should have guarded against. Indeed subsequently in Robinson v West Yorkshire Police [2018] UKSC 4 SC overruled CA above and held that a duty of care does not always depend on applying Caparo, and there was no duty in Hill because it involved an omission while here the negligence was a positive act and the police owed a duty. N.B. You can read about areas where decisions not to impose a duty have been made on pages 34-39 of Unlocking Torts SUMMARY In being able to decide whether a duty of care exists in particular factual circumstances you have three aids:

1. Past case law relevant to the area e.g. the duty owed by a doctor to examine a patient. Then if the principle covers the factual circumstances then all you need to do is to cite the appropriate case Barnett v Chelsea and Kensington Hospital Management Committee.
2. Past case law that while not on exactly the same facts may nevertheless be extended to cover the factual circumstances e.g. the duty to examine would logically include a duty to ask the patient about symptoms and so might be extended to include asking about allergies to specific medication such as antibiotics – so Barnett might still be used
3. Check the circumstances to see whether the Caparo three part test applies:  Is there foreseeable damage; and  Is there a sufficiently `proximate' relationship between the two parties, and  Even where both are satisfied it must be just and reasonable to impose such a duty. You can also try the self assessment questions on page 44 of Unlocking Torts. N.B. When answering problem style questions on negligence (and the Law of Torts is always based on a problem style question) it is often useful to revise and to construct your answer from an effective flow chart. Below is a flow chart illustrating what you must ask and therefore prove in relation to the duty of care Did the defendant owe the claimant a DUTY OF CARE? There is a public policy reason for not imposing a duty of care A principle from past cases applies because the material facts are analogous (the same principle applies in the light of the material facts.

YES

NO YES NO

YES

NO

LIABILITY FOR AN OMISSION (FAILURE) TO ACT (POSITIVE DUTIES)

We have already seen how a failure to act can be negligent ( Barnett v Chelsea & Kensington Hospital Management Committee (see Unit 1 and Unit 3). However, this happens only in limited circumstances where there is a positive duty to act. English law distinguishes between:  Misfeasance – the infliction of damage or injury by a positive act; and  Non-feasance – causing harm by failing to prevent or allowing damage to happen Failing to take precautions could always be applied to a negligent act but this would be the negligent performance of an activity and not the type of omission with which we are concerned. The law does not include any general liability for non-feasance, or failing to act. The idea of a ‘good neighbour’ principle has not been accepted by English courts. There are two fairly obvious reasons for this historically:  The problem of showing causation – showing that somebody failed to prevent harm is much more difficult than showing that they caused it;  The problem of imposing burdens that are too harsh or difficult to comply with e.g. should a person who sees someone drowning be obliged to jump in to attempt a rescue even if he cannot swim himself? Foreseeability of damage is not, in itself, enough to create a duty to act. However, there are special circumstances where a defendant may be responsible for the deliberate wrongdoing of someone else. These were identified by Lord Goff in the following case: Smith v Littlewoods Organisation Ltd (1987) 1 All ER 710 Facts The defendant bought a cinema which it intended to demolish and rebuild as a supermarket. It left the cinema empty and vandals broke in and set fire to it. The fire spread causing damage to adjoining property. The owner of this property claimed compensation for the loss. Legal Principle The court held that the defendant was not liable as it was not responsible for the acts of strangers. Lord Goff referred to pure omissions and the defendant's failure to prevent a third

THE

DEFENDANT

OWES A

DUTY OF

CARE

The three part test from Caparo v Dickman is satisfied:  The harm is a reasonably foreseeable consequence of the defendant’s act or omission  There is sufficient proximity between the parties in law for the defendant to have the claimant in his contemplation when acting or failing to act  In all the circumstances of the case it is fair, just and reasonable for the duty to be imposed on the defendant

THE DEFENDANT

OWES A DUTY OF

CARE

 Referee and rugby player eg Smoldon v Whitworth (1996) PIQR P133 a duty to enforce the rules of the sport to avoid foreseeable injury C. Control over third parties The claimant may have a relationship with a third party whom he has a duty to control. In this instance if the third part causes the claimant harm in circumstances where the defendant should have prevented it he may be liable for his negligent failure to act. Home Office v Dorset Yacht Co Ltd (1970) AC 1004 Facts Borstal boys on a residential outing escaped due to the negligence of the warders (Borstal was a type of youth custodial sentence at the time). The young offenders caused considerable damage to the property of the claimant who sued for compensation. Legal Principle The Home Office was held liable for its employees’ failure to control the offenders in their charge. Keeping the young offenders secure and the public protected from them was an absolute obligation in which they had failed.  There may be even be a relationship between a claimant and a defendant whereby there is a duty on the defendant to exercise reasonable care to prevent the claimant from harming himself e.g. parent/child and prisoners. e.g. Reeves v Metropolitan Police Commissioner (1999) 3 WLR 363 a duty on police to prevent a known suicide risk from doing so while in their custody D. Control of land/dangerous things An affirmative duty in respect of visitors' behaviour may arise from an occupier's control of land/premises. Such a duty may even arise where there has been an act of nature. Goldman v Hargrave (1967) 1 AC 645 Facts A tree on the defendant’s land was struck by lightning and ignited. Obviously this was not the defendant’s fault and beyond his control. However, when the defendant failed to properly deal with the fire and it spread to neighbouring property causing damage he was liable. Legal Principle The court held that the defendant owed a duty, once knowing of the danger to avoid the possible spread of harm that could be caused by the burning tree. Having failed effectively to do so, he was in breach of that duty.  There are also situations where the defendant is in control of dangerous things. If a defendant has control over an object which may become especially dangerous when interfered with by a third party, then the defendant may be under a duty to prevent such interference e.g. Haynes v Harwood (1935) KB 146 duty to tether a horse properly so that strangers cannot cause it to bolt and risk injury to passers by N.B. You can read about many more individual cases on liability for omissions in pages 169- 173 of Unlocking Torts N.B. Now try the Activities on page 174 of Unlocking Torts

YES

ES

Does the defendant owe a duty to act in a particular situation:  The defendant owes a contractual duty to the claimant or has made another undertaking to act:  The defendant owes a duty to act because of a special relationship with the claimant e.g. doctor and patient  The defendant owes a duty to act because of damage caused by a third party for whom he is responsible or in control of  The defendant owes a duty to act because of damage caused by events on land over which he has control or other dangerous things within his control Has the defendant acted negligently and caused damage as a result? The defendant may be liable for a failure to act (an omission)