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General Negligence Notes

GDL Law Notes > GDL Tort Law Notes

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Tort Law : General Negligence Structure for a general neg claim
? Claimant & Defendant
? Loss
? DoC
? Breach
? Causation
? Remoteness (reasonably foreseeable)
? Defences

Duty of Care (DoC)
????'Neighbour Principle' (Lord Atkin, Donoghue v Stevenson).
????Home Office v Dorset Yacht: can owe duty for tort committed by 3rd party.
????Hedley Byrne v Heller: DoC re economic loss by negligent misstatement.
????Caparo v Dickman (1990) ? Caparo test: o (1) look for precedent. o If no precedent, apply 3-stage test: o (1) damage to C reasonably foreseeable (objective)?
o (2) Relationship of sufficient proximity between C and D. o (3) is it 'fair, just & reasonable' to impose duty (policy).
? Floodgates of litigation
? Insurance
? Crushing liability/loss allocation
? Deterrence/maintaining high standards
? Defensive practices
? Justice

????Egs of use of Caparo, extension: o Watson v British Boxing Board of Control: held: DoC found: injury foreseeable; boxing licensing system meant proximity; fair, just & reasonable. o Law Society v KPMG Peat Marwick: firm of auditors owed DoC to Law Society in preparing reports. o Spring v Guardian Assurance: D owed DoC to give careful job references. o White v Jones: solicitor owed DoC to beneficiary of a will.

????Incremental approach

Recognised categories---always an automatic DoC
?????Manufacturer/consumer, Donoghue v Stevenson 1

?????Road users, Nettleship v Weston, Fitzgerald v Patel.
?????Doctor/patient, Cassidy v Ministry of Health
?????Employer/employee, Wilson v English
?????Employees to each other, ICI v Shatwell
?????Referee/competitor: Vowles v Evans
?????Participants in sporting events: Condon v Basi EMERGENCY SERVICES
? ?? ? Police, no duty o Alexandrou v Oxford: no DoC for police to respond to an emergency call. Re local police ignored message from burglar alarm.
? NO duty on proximity & public policy grounds.
? ?? ? Fire Brigade, no duty o Capital & Counties v Hampshire County Council
? Fire Brigade does not owe a DoC to attend scene of fire? But, if they do attend, DoC not to make situation worse through a positive act
? [[had ordered sprinkler system to be turned of?
operational decision, no public policy immunity]]. o Church of Jesus Christ of the Latter-Day Saints: fire service failed to ensure an adequate supply of water available; no DoC. o Policy concern-insurance: individual should insure himself against fire.
? ?? ? Coastguard, no duty o OLL v SoS Transport, no DoC, unless caused greater injury than would have occurred if not involved.
? ?? ? Ambulance, yes duty o Kent v Griffiths: DoC to respond, and respond in reasonable time.
? Acceptance of 999 call ? establishes proximity.
? Rationale: ambulance part of NHS, not a rescue service?
same policy arguments for police & fire don't apply. o But, eg, DoC might be excluded if ambulance had properly exercised discretion to attend a more pressing emergency first; or choice about allocation of resources. o Again, operational/policy distinction. PROBLEM CATEGORIES, apply always Caparo (1) Lawyers
??? ?Arthur Hall v Simons: ended advocacy immunity. civil and criminal.
??? ?Barristers:

2 o Criminal cases, Hunter v Chief Constable West Midlands Police: appropriate challenge to conviction = appeal. If accused still convicted after appeal, negligence action against advocate will generally fail. o But, if conviction set aside on appeal? could be a negligence claim against advocate. o Civil cases: can bring action for negligence; high burden of proof, need to show better standard of work would produce diferent outcome.
??? ?Jones v Kaney: no immunity for paid expert witnesses in court. (2) Police---always apply Caparo
? Rigby v Chief Constable of Northamptonshire: operational/policy divide o Police threw canister into building; caused fire? an operational mistake, imposed liability.
? If policy failing, probably no DOC (see Hill).
? No DoC to respond to emergency: Alexandrou v Oxford
? Duty to informants: o Swinney v Chief Constable of Northumbria: informant anonymity, her file was stolen; received threates/psychiatric injury. DoC. Policy: encourage informants. o An Informer v A Chief Constable: no DoC of police re economic loss, but would owe DoC re informer's physical safety.
? Proximity: yes, between police & informants.
? Policy: want to encourage informants to come forward, if police not careful then discourages informants coming forward. Need to protect informants in public interest > protecting police from lawsuits.
? DoC to safety of those in police custody: o Reeves v Met Police Commissioner: DoC found, re mentally ill prisoner who committed suicide in police custody.
? Proximity: Police had high degree of control over victim.
? DoC between police colleagues: o Costello v Chief Constable of Northumbria: C attacked in cell; colleague didn't help. DoC existed.
? Policy: maintain high standards.
? [[note: employees owed DoC to each other, ICI v Shatwell]]. o Waters v Commissioner of Police Metropolis: C raped and bullied by colleagues. Police authorities failed to deal with her complaint properly?
? Found DoC, scales fell for claimant (actually an employers' liability claim). 3

The protection given to police against owing a DoC didn't apply here---she was not suing as a member of the public. NO DoC, re apprehending criminals/preventing crimes o Hill v Chief Constable of West Yorkshire, no proximity, not fair/just/R
? Mother of victim of Yorkshire Ripper; police had questioned Peter Sutclife, released him, he murdered again.
? No general DoC owed to individual members of public to identify and apprehend an unknown criminal.
? (1) Foreseeable? Yes, foreseeability.
? (2) But Insufficient proximity between the woman, as potential victim of crime, and police.
? (a) Between D and the 3rd party: Distinguished from Dorset Yacht---Sutcliffe was not under police custody (cf Dorset Yacht), so not in police control.
? (b) Between D and C: wide pool of potential victims: Couldn't predict who he would kill, not identifiable victim, CF Dorset Yacht, particular risk to the yacht owners.
? (3) 'fair, just, reasonable': policy reasons:
? defensive practices, if police could be sued they would lock up loads of people. Could give police a 'detrimentally defensive' frame of mind.
? Floodgates: number of claims re police failing to catch criminals fast enough.
? Would cause courts to have to make decisions as to how police should do inquiries.
? Divert police resources, time & money, into preparation of defences against claims---at expense of their core function, suppressing crime.
? Courts will not impose DoC in respect of a policy failing. Policy considerations why: floodgates; defensive practices; diversion of limited resources; tax payer.
? Cost & time of police having to defend litigations brought against them, floodgates, diverting resources away from their proper role in suppressing crime. o Duwayne Brooks v Commissioner of Police Metropolis: re friend of murdered Stephen Lawrence, sufered PTSD. Followed policy reasoning in Hill. o Osman v Ferguson, yes proximity (identified victim) but not fair/just/R: re stalking teacher, family told police of threat to pupil's life; shot pupil; killed father.
? (1) Foreseeable: Yes?

4 ???(2) Proximity: YES, because victim identified (CF Hill). (3) Fair, just, reasonable? NO---police cannot be responsible for all repeated crimes committed by criminals, would lead to defensive practices, police would keep everyone locked up. So Osman shows: yes, foreseeable risk of PI; yes, proximity, victim identified; but even then, no DoC, on policy grounds.

No DoC o To lay witness: Leach v Chief Const Gloucester: C a lay witness to a police interview; sufered PTSD.
? No DoC.
? Policy, not fair, just & reasonable: sort of person who could be lay witness very wide, would be too onerous to impose burden on police to psychologically test every person.
? Also don't want conflict, police cannot owed a DoC to both C and D. o To someone who reported incidents, Smith v Chief Constable of Sussex:
? C reported incidents about threats to him by his former lover; was then attacked.
? NO proximate relationship just because reported incidents to police---police have not assumed responsibility for your welfare.
? Policy: too many cases reported to police, can't hold them responsible.
? Used Hill policy reasoning. o Desmond v Chief Const Nottinghamshire:
? Police denied his CRB check? no DoC (would conflict with statutory purpose of protecting vulnerable young people). Phone call to emergency services ? does not create DoC (Michael v Chief Constable South Wales). ECHR cases, re 'blanket immunity' for police o Osman v UK: ECHR---immunity given to police (re DoC) was disproportionate cf the infringement of C's human rights. UK's domestic law, following Hill---incompatible with Art 6 by afording blanket immunity to police. o Article 2(1) ECHR may imposed a duty on a PA to take all reasonable steps to protect a person from a 'real and immediate risk' to life if an 'identified' victim---if PA 'knew, or ought to have known',r of risk. o Somewhat softened by Z v UK: ECHR said they misunderstood English tort law; and diference between a substantive legal right and procedural legal right. There was no procedural bar. 5

o Van Colle v UK: instead of negligence claim, brought an HRA breach of Article 2 claim. Claim failed, unable to satisfy Osman test that police 'knew or ought to have known' of 'real and immediate' threat to life of an 'identified individual'. (3) Local authorities & public bodies---always apply Caparo
? NOTE: if successful claim against local authorities? taxpayer pays the damages.
? Stovin v Wise, policy grounds re discretionary powers and authorities [[also good case for no liability for omission]]
o Local authority failed to remove a bank of earth adjacent to road, blocked visibility; C, motorcyclist, injured. o Statute gave the authority a statutory power to act at their discretion (to order removal to improve road safety), not a statutory duty to act. o Omission (failing to exercise that power) ? no DoC. o Parliament had not intended a private individual to have a right to compensation, re a statutory power---they conferred a discretion, rather than create a duty. o A statutory (discretionary) power does not create a duty of care to be exercised, unless: o (a) irrational not to exercise that power. o And (b) exceptional grounds for finding compensation should be paid to persons, re diverting local authority resources away. o Policy, defensive measures: finding DoC would encourage local authority to spend lots of money on road improvements, to avoid liability, and less on eg education/social services. Cost to community if liability imposed, defensive measures.
? Reluctance of courts to impose duties on public bodies: o Stovin v Wise o West v Buckinghashire CC o Danns v Department of Health o AD v East Kent Community NHS Trust o D v East Berkshire Community Health NHS Trust
? DoC found, Carmarthenshire CC v Lewis: authority owed DoC to motorist; had to swerve to avoid pupil left unsupervised in school?
DoC due to special relationship between school authority and the children in its care.
? No DoC, Mitchell v Glasgow CC, no proximity + policy: o Local authority evicted tenant; didn't tell claimant; history of violence towards claimant; after evicted, he killed C. o Re whether DoC of housing authority to warn neighbor attacked by a tenant?
o (a) Yes, foreseeable. o (b) But no proximity: local authority didn't assume responsibility for C. 6


o (c) Policy, not fair, just & reasonable: defensive practices, councils/housing authorities might stop ofering people accommodation. Lord Hope: such a duty would be too onerous for D. No DoC, X v Bedfordshire CC, policy grounds o Claims against local authority for negligence re child abuse &
special needs pupils. o HL, rejected child abuse claims. o Re child abuse claims: o Not fair, just & reasonable: to impose a duty in an area (child abuse) where a degree of discretion is required, and there are difering opinions re which practice to follow. o Policy: Would open floodgates, strains an already overstretched system. o So no DoC on public authority where a statutory discretion conferred (like Stovin v Wise) o [[also, were alternative means to bring a claim, eg JR. o re education claims---DoC arguably may exist re negligent advice. Advice was given directly to parents who relied on it. No DoC, Palmer v Tees, no proximity + policy o Someone with mental problems; killed a child. o Yes, foreseeable. o No proximate relationship? they had no idea who victim would be, couldn't identify victim, could be any child (Dorset Yacht; Hill)
? Distinguish from Barrett, where C was in D's care, so no proximity issue. o Policy: defensive practices, if held liable authorities might start breaking confidentiality rules about mental health. o They also had DoC to D, to look after him. Cannot have DoC to both C and D. More liberal approach, DoC found in W v Essex CC: o Re couple take foster child, sexually abused C's daughter. He was a known sex ofender; C made made clear no sex abusers in their home. o D knew of his abuse history-> risk was obvious. o HL allowed case to be heard, said arguably there was a DoC to parents; Council had made assurances (no history of abuse) that they failed to meet. More liberal approach in: o Barrett v Enfield London BC: DoC owed to 17-yr-old, in local authority care, moved between 6 diferent homes, developed alcoholism. o Phelps v Hillingdon London Borough: misdiagnosis by psychologist re C's dyslexia. o Jarvis v Hampshire: dyslexia, negligence re providing educational services. Child abuse: 7

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