A more recent version of these General Negligence notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Tort Law : General Negligence Structure for a general neg claim
? Claimant & Defendant
? Remoteness (reasonably foreseeable)
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
? Crushing liability/loss allocation
? Deterrence/maintaining high standards
? Defensive practices
????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.
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.
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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