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Duty Of Care, Omissions, Public Authorities, Nervous Shock, Wrongful Conceptions Notes

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This is an extract of our Duty Of Care, Omissions, Public Authorities, Nervous Shock, Wrongful Conceptions document, which we sell as part of our Tort Law Notes collection written by the top tier of Oxford students.

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Tort: Duty of Care; Omissions; Public Authorities; Wrongful Conception; Nervous Shock 1) Duty of care i)

General

Donoghue v Stevenson [1932] AC 562: A manufacturer (R) sold bottles of drink to a cafe
which sold them to customers. One bottle contained a snail and made P ill when she drank it. Case in HL determined whether R had a legal duty to P and thus whether a case could be brought. HL said there was a legal duty, establishing (i) that manufacturers have a duty to take care for their consumers and (ii) that R must take "reasonable care to avoid causing foreseeable injury". Lord Atkin: Negligence: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". He defines "neighbour" as people who are "so directly affected" by my act or omission that I "ought reasonably to have them in contemplation as being so affected" when I undertake the act/omission. This is the meaning of the "proximity" doctrine i.e. not merely physical proximity. He takes moral perspective: It is wrong that a person who consumes the product and is harmed due to R's negligence should be left without remedy as would happen if there were no contract/warranty involved i.e. if the consumer is not the purchaser, as here. Finally he says that liability for negligence has public support. Lord Macmillan: To whom was the duty owed? All "potential consumers" of his product. "Liability occurs where a reasonable man would have foreseen, and could have avoided the consequences of his act/omission". Circumstances will always dictate whether (i) there was a duty of care and (ii) to whom it was owed. NB where the product was intended to reach the consumer in the condition in which the manufacturer sold it, and it was so, the manufacturer is liable, as in this case. However if intermediary parties "have the means and opportunity" to examine it, then the manufacturer's liability ceases (not this case). Negligence has to be proved by P and it has to be shown that the thing was in a state capable of causing injury at the point when it left the manufacturer. The burden is on P, and res ipsa loquitur doesn't apply. Lord Macmillan said that "the categories of negligence are never closed". Home Office v Dorset Yacht Co [1970] AC 1004: 3 Borstal boys were left unsupervised and damaged a boat. The owner sued the home office for negligence. HL held that the borstal officers, for whom the Home Office (HO) was vicariously liable, owed a duty to take such care as was reasonable in the circumstances to prevent the boys damaging property, provided there was a manifest risk of that occurring if they did not take such care. Since the risk was manifest (they knew of the boys' criminal records etc), HO was liable. Public policy was also in favour of making HO liable.

Lord Pearson: There was a duty of care to the boat owners under the definition of "neighbourhood" by Lord Atkin in Donoghue v Stevenson. NB Pearson says that this is not a universal test but is a general test, to be applied except where it would produce injustice: the test is to be applied unless there is a reason for not applying it. He dismisses each claimed reason for not applying the test. There IS sufficient proximity here because there isn't only physical proximity but the harm was also foreseeable. HO WAS responsible for the boys due to the special relationship between them, despite the boys being legal adults. Although borstal training sometimes requires giving boys greater freedom, this may only diminish but not eradicate the duty and it is therefore not against public policy interests to make HO liable for borstal boys' actions. Lord Reid: he takes a different approach to Pearson. He says that where there is a NAI between R's carelessness and the ultimate damage, it is still possible to sue R provided that the damage was highly probable, and NOT mere foreseeability, as in cases where the damage is direct (the "very probable" requirement emphasises that the NAI is a consequence of R's carelessness. "Mere foreseeability" could allow R to be liable even where the damage comes from a new, separate cause, with little connection to the original carelessness). Lord Diplock: Lord Atkin's dictum, as he himself said, was not to be applied universally but merely "generally" (i.e. not always) since this would unduly restrict the law. If it can be established (1) that the officers were acting in breach of their instructions (and not acting in pursuance of discretion granted to them, in which case they, and thus the HO would not be liable) and (2) that in breaching the instructions the harm was reasonably foreseeable, a duty of care to the boat owners existed. (3) He says the key point is that the criminal has been negligently allowed to escape. Therefore the police would NOT be liable if the criminal escaped and committed crimes out of habit, as opposed to crimes used to facilitate the escape itself. Nor would police be liable if they released a prisoner who then committed crimes. Foreseeability, vicarious liability, proximity and public policy are all considered in deciding whether the duty existed. Anns v Merton LBC [1978] AC 728, 751-752 (NB it's relevance to the liability of public bodies was LATER OVERRULED in Murphey v Brentwood; As a test for the duty of care it was modified in Caparo): Ps were letters of flats over which R had rights and duties of owner. Cracks appeared in the walls and Ps sued R for negligence, after R failed to carry out any inspection of the building. HL held that P could sue R for negligence: R was under a duty to consider whether an inspection was needed; that this duty required "reasonable care" to be taken. Test for duty of care: (1) is there proximity (reasonable foreseeability/neighbourhood)? if so, (2) is there any reason not to apply the duty here?
Lord Wilberforce: In order to see if a duty of care arises: "First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage

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