Negligence And The Test For A Duty Of Care Notes

Winfield – ‘the breach of a legal duty to take care which results in damage, undesired by the defendant, to the claimant’

Elements required for negligence:

1. The existence of a duty of care owed by the defendant to the claimant

2. Breach of that duty by the defendant

3. That the claimant suffers some damage

Must also ask:

1. Whether the breach caused the damage (causation)

2. Whether the damage suffered was reasonably foreseeable (Remoteness)

The existence of a duty of care

• Cannot be liable unless the law requires them to be careful in the first place

The Search for a Universal Test:

1. The Neighbour Test

Not until 1932 that an acceptable general statement of principle was formulated Donoghue v Stevenson:

• Sued the manufacturer – before this manufacturers only liable to consumers in limited situations

• Lord Atkin’s speech – developed the ‘neighbour’ principle:

‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’

• Who counts as neighbour – ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’

• Test of foreseeability = OBJECTIVE – not whether the defendant actually foresaw

  • Ginger beer manufacturers didn’t have to foresee Mrs D would have drunk their product, just that anyone might

  • Sowed seeds for general test for establishing a duty of care – became widely accepted and applied

• Home Office v Dorset Yacht Co: Home Office’s liability for the carelessness of prison officers who allowed juvenile delinquents to escape and cause damage to boats and property in Poole Harbour – found that the Home Office did owe a duty of care – Lord Reid said that Lord Atkin’s well-known speech ‘should be regarded as a statement of principle’

2. Expansion and the two-stage test

• in Anns v London Borough of Merton: local authority’s liability for the negligent inspection of building works

• Lord Wilberforce:

  • asked firstly if the parties satisfied requirements of the neighbour test, and if yes, if there were any policy considerations which dictated no duty existed (if society benefited as a whole)

• Led to period of massive expansion of liability – test generally favoured claimants because could establish first that a duty arose, and only then consider whether policy should limit it

• Peak of expansion – Junior Books v Veitchi

3. A period of contraction

• Reservation with Anns approach voiced by Australian judge Brennan J in Sutherland Shire Council v Heyman – ‘it is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories’

• Picked up in other cases:

  • Governors of the Peabody Donation Fund v Sir Linday Parkinson & Co and others

4. The incremental Approach or the Three Stage Test

• 2 cases - Caparo Industries plc v Dickman (1990) and Murphy v Brentwood (1991)

  • Recent authority – Sutradhar v Natural Environment Research Council

In Caparo:

• Acknowledgement that the Anns test was obsolete – criticised expansion of liability

• Need for cautious, incremental approach based on existing authority: need to examine the facts on an incremental approach rather than using a ‘set test’

But now known as the three stage test to establish duty of care:

1. Foreseeability

2. Proximity

3. Whether it is fair, just and reasonable to recognise a duty in the circumstances

Murphy v Brentwood – decision in Anns finally overruled

• Watson v British Boxing Board of Control:boxer’s claim that immediate medical attention should have been available at the ringside was upheld – injury was foreseeable, the boxing licensing system meant there was close proximity, and it was fair, just and reasonable to impose a duty

• Law Society v KPMG Peat Marwick: CA stated that a firm of authors did owe a duty of care to the Law Society to prepare accurate reports for a solicitors practice as required under the professional code of conduct

• Whilst appearing to present a more –pre-Anns approach – next 2 cases have found scope for further development:

  • Spring v Guardian Assurance plc & Others :illustrated difficulties in formulating a common approach to determining existence of DOC – identified DOC to give careful job references about the plaintiff

  • White v Jones – did a solicitor owe DOC to the proposed beneficiary of a will – it WAS found to exist – claimed they had used the incremental approach but also stressed need to find practical justice

Restricted Duty Situations

• Lawyers

• Previously had immunity – Rondel v Worsely

• But landmark decision – Hall v Simmons:

  • Unanimously decided that immunity no longer stood for civil case OR criminal cases

• The Police

• Liable for operational but NOT policy:

• Rigby v Chief Constable of Northhamptonshire: police had negligently fired a canister of CS gas into the plaintiff’s shop which was under siege – didn’t take precautions – negligent operational act

• But in Hill v Chief Constable of West Yorkshire – mother of the last victim of Sutcliffe – sued police for negligently failing to capture the Yorkshire Ripper – HofL refused to impose a DOC: policy issue

  • Confirmed recently in appeal concerning the friend of the murdered Stephen Lawrence – Duwayne Brooks v Commissioner of Police for the Metropolis

• Alexandrou v Oxford – plaintiff’s actions failed – local police owed no DOC to check his property or respond to message from burglar alarm

• Leach v Chief Constable of Gloucester – plaintiff was lay witness and suffered post-traumatic stress – no DOC – would impose too onerous burden on police to psychologically test every potential person for position

But – NO BLANKET IMMUNITY FOR POLICE

• Swinney v Chief Constable of Northumbria (no. 2):pub landlady had provided info on the basis that she has anonymity, but police file was left unattended and stolen – she then suffered psychological illness when...

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