General Negligence

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Negligence = breach of a duty of care which leads to damage which is not too remote

Establishing a duty of care

• Lunney & Oliphant: no thought given to general principles unifying negligence early on

Donoghue v Stevenson

Snail in the opaque bottle served to a customer who then experienced personal injury

Held: birth of the neighbour principle

• Lord Atkin “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”

The neighbour principle is thus:

1. Lack of reasonable care

2. To avoid reasonably foreseeably harm

3. To a neighbour

Dorset Yacht

Borstal boys stole C’s boat & caused damage to other boats in the harbour through the lack of reasonable care of the borstal officers

Held: in spite of policy arguments against the finding of liability, this could not amount to immunity. Liability was found for the property owners in the immediate vicinity as their loss was reasonably foreseeable, whereas people further afield would be out of the remit

This expands the conditions of liability

Anns v Merton LBC

Structural defects in a block of flats inspected by D

Held: (HL) D did owe a duty of care to ensure foundations were of correct depth

• The two-stage test per Lord Wilberforce:

  • Do the parties satisfy the neighbour test? (lack of reasonable care to prevent reasonably foreseeable harm & neighbour relationship)

  • Prima facie duty of care unless there are policy considerations which negative it

This led to a massive expansion of liability

• Brennan J in an Austalian case: preferable to “develop novel categories of negligence incrementally”

• Lord Keith: very anti presumption of a duty – should be on a case by case basis and whether it is “just and reasonable” to do so

Caparo v Dickman

Acquisition relying on accounts which miscalculated profits by auditors not for the purpose of investors

Held: no duty of care owned as there was no sufficient proximity between the auditors & Caparo – they didn’t know he existed nor was it the purpose of their accounts to provide information to investors

• Lord Bridge: foreseeability of damage; relationship of proximity; fair just and reasonable to impose a duty

Establishes the three-stage test which is good law today:

1. Reasonably foreseeable damage

2. Sufficient proximity

3. Fair, just and reasonable to impose a duty

Reasonable foreseeability

AG for the British Virgin Islands v Hartwell

Supervised police officer given access to gun as part of employment. Then shot at his girlfriend & tourists in a restaurant. Action brought against police

Held: duty of care owed where police entrust officers with guns.

• Lord Nicholls “the wide reach of the duty is proportionate to the gravity of the risks”

NB: this shows breadth of foreseeability; the actual type of harm & the potential victims would have been unknown to the supervising police officers

Suggests the more serious the potential harm, the less strict the rules of duty imposition

Proximity

Factors inclined towards a finding of proximity:

• Personal/economic relationship:

  • Osman v Ferguson

Police investigating inappropriate relationship between teacher & child

Held: duty of care owed as harm was reasonably foreseeable & proximate relationship between child & police force – however decided following Hill that there was an immunity to police forces

• Everett v Comojo

Waitress assaulted by club-goers at a nightclub

Held: duty of care established as there was proximity (through economic relationship) & foreseeability, however here there was no breach as they had not fallen below the reasonable standard of care in all the circumstances (upmarket club)

• Assumption of responsibility:

  • Kent v Griffiths

Ambulance accepted call but major delay meant asthma attack put her into respiratory arrest

Held: “the acceptance of the call in this case established the duty of care” per Lord Woolf

• Vowles v Evans

Referee for Welsh rugby union sued by player

Held: duty of care through assumption of responsibility

• Henderson v Merrett

Liability of underwriters to members of a syndicate in mismanagement of investment

Held: the foreseeability of the harm could extend liability to unproximate third parties. A contractual assumption of responsibility, when relied on, may give birth to a tortious liability, unless it is successfully excluded by the contract (per Lord Goff)

• Type of harm: proximity will not be found readily where the type of harm has been restricted from compensation

  • See: pure economic loss

  • See: psychiatric harm

• If the potential class of claimants is closed or open (open classes will be viewed as less proximate)

  • Hill v Chief Constable of West Yorkshire

Mother of the Yorkshire Ripper claiming against police for their lack of reasonable care in investigating

Held: no duty of care owed (policy reasons as well as proximity grounds)

However the finding of proximity may also reflect the court’s discretion to impose duties in situations where they feel it would be beneficial:

• D Howarth: the elasticity of the ‘proximity’ ground

• Stevenson J “proximity expresses a conclusion, a judgment, a result, rather than a principle”

• Lord Oliver in Alcock “what the law should be” influences perception of proximity

Fair, just & reasonable

Relevant policy factors:

• Floodgates (Hill, Alcock, D v East Berkshire NHS)

• Insurance position of the defendant

• Does D act for the collective welfare?

  • The Nicholas H

Negligent ship survey by the classification society

Held: no duty of care as they were only a subsidiary responsibility & it wouldn’t be fair to impose a duty on all classification societies

• Reeman v Department of Transport established the same reasoning for Dept of Transport performing same function

  • Selwood v Durham

NHS trust...

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