Introduction to Negligence and Duty of Care - Lecture 4 - Tort Law

What is negligence defined as?

Negligence is the failure to take reasonable care that an ordinary person would have completed/done.

What are the 3 consequences/sufferings of negligence occurring?

1. purely financial loss

2. physical complications

3. psychiatric illness

What are the 5 necessary elements for a cause of action in negligence?

1. Duty

2. Breach

3. Damage

4. Causation

5. Remoteness

When we discuss duty, what is the defendant required to do?

The defendant has to owe the claimant a duty of care.

When we discuss breach, what is the defendant required to do?

The duty of care has to have been breached by the defendant.

This means the defendant has failed to reach the threshold of what the reasonable person would have reacted/acted in the situation.

When we discuss damage, what is required?

There needs to be a damage caused by the breach of duty - such as physical injury, other forms of damage such as financial damage and pyschiatric illness caused.

When we discuss causation, what is required? And what is the question we should ask about the defendant and causation?

Causation is whether the damage had been caused if the defendant had been careful, so did the defendants' carelessness amount to this harm?

Causation relates to the chain of causation such as the intervention by a 3rd party which breaks the link between the defendant and claimant.

Causation has two components - factual causation which is ‘but for’ test and legal causation.

When we discuss remoteness, what is required?

Damage must not be too remote, such as whether the damage was reasonable foreseeable and if it is not, then it is far too remote.

If the defendants’ actions are too remote to have caused the said negligent harm (such as psychiatric, physical or financial harm), then the defendant will be exempt from the negligence claim made against them. In order for a negligence claim to be successful, the damage must not be too remote, such as whether the damage was reasonable foreseeable and if it is not, then it is far too remote and the negligence claim is not successful.

We must focus on whether the TYPE of injury was foreseeable, whether the BROAD TYPE of injury, we don’t have to foresee the particular type of injury.

D v East Berkshire Community Health NHS Trust provides a definition on duty of care functions, what does it outline and how does this influence our understanding of ‘duty of care’?

In D v East Berkshire Community Health NHS Trust, Lord Rodger stated ‘the world is full of harm for which the law furnishes no remedy.’

Duty of care means -

1. If you dont have a duty, you are NOT subject to a tort law claim or held accountable for the actions - the law doesnt provide compensation for all harms if they are applied reckless.

Donoghue v Stevenson provides a historical development of the general test for ‘duty of care’, what is the context + issue + outcome of the case + judges opinions? (note - this is not important case law)

Context of the case → D attends a cafe, buying herself a ginger beer, appearing in an opaque bottle. D drinks the beer to see a snail, suffering some health consequences of drinking the contaminated ginger beer.

The issue of the case → Whether the manufacturer owed her a duty of care?

Outcome of the case → There was that a duty of care was owed, based on the fact that the law of contract COULDNT exclude the liability of negligence, removing the privity of contract rules as per negligence, so negligence couldn't be disregarded or excluded from contractual dealings.

Judge’s readings on the case →

1. Lord Aktins speech outlined in English law, there must be and IS giving rise to a duty of care when they are a broader principle of loving your neighbour and recognising that we are translating moral rules into legal rules, public sentiment about what is morally wrong but in LIMITED, narrowed instances.

2. Lord Macmillian speech agreed, but took a narrow approach. He agreed to an extent that duty of care arised in different instances, but the cases were ILLUSTRATING a category of duties which exist and if they were sufficiently similar to where duties were recognised, then a duty of care arises. He believed in expanding the scope of duty but not everything can be explained by the conception of duty of care, unlike Lord Aktins who provides a general conception.

What was the academic response to Donoghue v Stevenson and it’s development of the general test for negligence? (opinions of Winfield, Lawson and Fleming)

• Winfield argued that It didn't make much difference, since it focused on foreseaability of damage which is already relevant in negligence and is already utilised - hence there was a level of skepticism by Winfield.

• Lawson argued that the case outlined when there wasnt a duty, it also identified where duties of care wont be recognised and eventually suffer without any legal recourse

• Fleming expanded on Lawson's view, outlining duty of care was a control device, the court controlling the respect of damages, whom could be subject to duty of care and who could make the claim - This allows the court to explain overtly why duties were being denied and why they have decided to not recognise a duty in particular circumstances

What does Hedley Byrne v Heller say about whether a general duty of negligence exist? Does it exist, or not?

HOL in Hedley Byrne v Heller stated when a claimant has suffered ONLY financial loss, the general Donoghue principle doesn't apply, the rules are narrower in question

What does McLaughlin v O’Brian say about whether a general duty of negligence exist? Does it exist, or not for psychiatric illness?

Issue → This case brought the question of whether the general donoghue principle applied in situations of pschyiatric illness?

Outcome → The HOC outlined no, since the rules for pscyiastric illnesses are narrower

What does Home Office v Dorset Yacht Co Ltd say about whether a general duty of negligence exist? Does it exist, or not? (include context and outcome)

Context of the case → The home office decided to take young offenders from a prison to rehabiliate them on an island for a couple of weeks to get used to intergration, normalcy in their lives and the prisoners had fled instead, stole a boat to escape and they had collided into a yacht owned by the company, the court claimed that the home office was under a duty of care to a yacht company

Outcome of the case → Though they have a duty of care, the general donoghue principle, as such a case and application of the principle is narrower in these circumstances - because the defendant failed to prevent harm to the claimant

Anns v Merton London Borough Council outlined a two-stage test for negligence, what did this outline and why is this controversial to academics? (bad law - invalidated by Caparo v Dickman, but still relevant to mention in development)

Issue → It must asked whether the defendant ought to have considered whether there are any considerations to reduce/limit the scope of the duty (such as policy considerations) -

Two-stage test/rule that Anns case set out →

1. if the claimant can show foreseaability of duty?

2. And whether there are any duties thought to exclude any duty, as a result they can try to resist an imposition of the duty?

Controversy → There were concerns in this case of Anns v Merton London Borough Council as critics argued that the court are then taking public policy roles, by asking policy questions regarding factors which would exclude any duty, this should solely be the role of Parliament to complete.

Caparo v Dickman provided a recent good law approach (contrast to Anns v Merton) - the approach being a ‘three-step approach of negligence’ to establish duty of care? What are the 3 aspects needed to establish duty of care?

Importance of this case → It outlined the three stage test for duty advanced; contrasted with previous two-stage approach within Anns v Merton London Borough Council.

This case outlines 3 aspects to establish the duty and factors the court must take into account when assessing a duty of care →

1. foreseeability of damage → (defendant ought to have foreseen damage)

2. proximity of relationship → (sufficiently close and direct relationship between the defendant and claimant)

3. fair, just and reasonable to recognise the duty in the circumstances

Hill v Chief Constable of West Yorkshire expands on the ‘three-step approach of negligence’ - what is the context, outcome and what changes did it bring to the ‘three-step approach’ created in Caparo v Industries? Reason for why Hill v Chief Constable of West Yorkshire reached the verdict it did?

Change to the Caparo Three-step approach to identifying duty of care→ It expands on concept of proximity of relationship. The 3rd requirement of proximity of the relationship between D and C, what does this mean?

Context of the case → A claim against the police on the drawn out investigation into a serial killer (yorkshire ripper) and the claim was brought by the mother of the final victim, she argued if the police had pursued the investigation in a thorough way, the yorkshirt ripper would have been caught immediately and her daughter would have survived.

Outcome of the case → The HOL rejected that claim as the police did not owe a duty of care to the claimant's daughter or claim on her daughter's behalf.

The reason was for rejecting it was → There wasnt a sufficient relationship of proximity between the daughter and the police, as the daughter was one of the potential victims who were targetted, one of many within a broad area, so many potential victims of the yorkshire ripper - a large class of potential victims to give rise to a duty of care

Robinson v Chief Constable of West Yorkshire Police provides the correct application of the Caparo ‘three-stage approach’ of finding duty of care - what was the context, issue and outcome? And how did Robinson v Chief Constable of West Yorkshire say we should apply the Caparo ‘three-stage approach’?

Context of the case → A lady had been knocked over by an altercation between others, two of those men were plain clothes officers targetting another man suspected of drugs offence, hence resisting arrest. The lady brings a claim of negligence, making the Chief Constable liable through vicarious liability (employer is liable for tort committed by employees in the course of the work).

Issue of the case → Was there a duty of care owed?

Outcome of the case → On the facts, this was an existing instance where the duty of care was recognised and the court said yes - so it wasnt necessary to ask whether it was 'fair, just and reasonable' to impose the duty in the process of the police completing their duty - supreme court doesnt discuss proximity, but proximity is still relevant as categories of duties that use proximity to establish they exist and secondly, the proximity test is very close to the 'fair, just and reasonable' test - proximity remains even if the supreme court never mentioned it, even if the situation doesnt fit in the criteria.

How should the Caparo ‘three-stage approach’ be applied? → The court of appeal emphasised the importance of public policy, hence the duty was not owed as the police should be able to carry out their work. high court rectified this as it wasnt always necessary to establish whether it was 'fair, just and reasonable' to resume with the task as the Caparo case didnt ask to consider it in every case, interpreting the case to say that the STARTING point is to consider the categories considered and does it fall within an existing category and if it doesnt, should you go on to consider whether requirements of 'just, fairness and reasonable' give rise to a duty?

James-Bowen v Commissioner of Police of the Metropolis applied the Caparo ‘three-stage approach’ of finding duty of care, how did it apply the Caparo test? Plus what is the context, issue and outcome?

Context of the case → The police officer is the claimant suing their employer as they have arrested the suspect and claimed that the police officer used excessive force on them, the police force decided to pay and settle the case, not questioning the statements. The police officer sued the police, arguing that they should have took the claim, protecting him against the allegation of excessive force on his reputation and his future economic career and professionaldevelopments.

Issue of the case → Does the police owe a duty of care to the police officer?

Outcome of the case → NO, it was not a situation of duty of care being recognised, we must look at the reasonable foreseeability that it would implicate his future career but the negligence shouldnt recognise a new duty.

Application of Caparo test → It didn’t fulfill the ‘foreseeability of damage’ stage, hence it failed to advance into the later stages of the test, so a duty of care was not found.

Why did the court decide as they did in James-Bowen v Commissioner of Police of the Metropolis? There are 4 reasons, what are they?

The reason why the court ruled the way they did? →

1. law of tort already had a mechanism of protecting people's repuation aka defamation

2. conflict of interest arising as the employer wants to deal with the matter efficiently as possible, while the employee wants to fight to clear their name

3. important to give parties freedom to decide to clear claims against them - you must choose to settle the claim against you

4. public duty of the police constable to impose a duty of the police to oprotect the repitational interests of one officer especially when the behaviour isnt sarisfactory, so it isnt good use of police funding

Darnley v Croydon Health Services NHS Trust is a case which applies the Caparo ‘three-stage test’ for determining duty of care, what is the context and outcome?

Context of the case → The claimant goes to hospital, claimimg a head injury and the receptionist claims several hours waiting and the claimant decides to go home, suffering a collapse from the head injury and when the ambulance arrives to take him to the hospital, he gains a disability and it was admitted, if he had stayed in the hospital and fainted, he wouldve been treated and not been disabled - but the receptionist had made a negligent statement because there was a nurse specialising in tiraging and head injuries and it was only half an hour wait.

Outcome of the case → The court argued whether he was entitled to a duty of care and they argued that he was owed a duty of care, and one shouldnt subdivide staff into medical and non-medically qualified staff.

Poole Borough Council v N utilised the Caparo ‘three-stage test’ for determining duty of care, what is the outcome and ruling?

Outcome of the case → The third party caused damage to the claimant and the defendant ought to have taken greater steps to prevent the third party from cayusing damages - the categories of care approached the same and THEN as the other cases where there are positive steps taken by the defendant. This applies just as much to positive acts and failures to act (as per the three former cases above in the current duty method).

XA v YA discussed parent’s duty to child, why was there an absence of duty/no duty of care in this case? What is the context, issue and outcome of XA v YA?

Context of the case → This was a case relating to a man and his mother, the man had suffered harm during his childhood, his mother marrying an abusive man who abused him and he sued her as the mother shouldve taken more steps to defewnd him against abuse by the man.

Issue of the case → Is there a duty of care of the mother towards her son?

Outcome of the case →

• There is NO legal duty of care here, difference between moral and legal duties

• performing the duty of care requires the mothet to speerate from the man and it isnt obvious that the law should set that as a standard of care which isnt desirable to impose

• The violent man was also a violent husband towards the mother and it is unfair to impose liability on one victim to another victim of abuse also subject to the same person - public policy reasons to not impose liability or duty of care.

McFarlane v Tayside Health Board discussed parent’s claim for costs of unintended child, why was there BOTH an absence of duty, and an duty of care in this case? What is the context, issue and outcome of McFarlane v Tayside Health Board?

Context of the case → F decides to have a vasectomy operation which is completed and assured that he couldn't have children again, but his wife falls pregenat with a child again.

Outcome of the case →

• WHY A DUTY EXISTED → A claim in negligence is brought against the health authority - the heads of damage is the physical pain/discomfort of pregnancy and childbirth which suceeeds where a duty of care is owed by the health board to the wife

• WHY A DUTY DIDN’T EXIST → The 2nd head is sueing for the costs of bringing up an extra child and the HOL said there was no duty of care in respect of costs

Advice from judges’ handling of duty of care → The way to approach the question is think about distribitive justice of beneifts and burdens and important to think about people who wiah to have children so it wouldnt compensate people for having a child when there are other people who would love to have a child but cannot, so as a matter of distributive justice, it wouldnt be fair to recognise this duty of care.

Hill v Chief Constable of West Yorkshire discussed police duty to victim of crime, why was there an absence of duty? What is the summary and reasons for ruling?

Summary of the case → There was no duty owed by police to the mother of a murder victim for negligence in failing to apprehend the serial murderer earlier.

Reason for the outcome → Based on the Caparo ‘three-step test’ for determining duty of care, it wouldnt be fair, just or reasonable to impose such duty to the police and for the following reasons

• the police already operate at the higjest standards they can operate at and the police would have to complete their role in a detrimentally defensive way,

• constraining their freedom by being worried about a potential negliegence claim if something goes wrong and

• imposing a duty in preventing a criminal from doing a crime means moving resource to allocations away from areas such as diverting resources away from educational activities, just focusing on crime prevention itself - HENCE the basic position that the police wont owe a duty of care when it comes to preventing crimes.

Van Colle v Chief Constable of Hertfordshire discussed police duty to victim of crime, why was there an absence of duty? What is the issue and outcome?

Issue of the case → If the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?

Outcome of the case → The police don’t owe a duty of care. The police do not owe a positive duty of care to a victim to prevent a threat to the victim’s life from manifesting.

Michael v Chief Constable of South Wales discussed police duty to victim of crime, why was there an absence of duty? What is the context, issue, outcome and importance of Michael?

Importance of the case → This case reaffirmed the Hill case - police still owe no duty of care.

Context of the case → M was in a relationship with a violent man, broken up with him and got a new partner. The violent ex broke into her place, taking away the new partner, saying that he'll come back for her and she calls the police and the police grade the call as medium urgency and in the half hour, the violent ex came to murder the woman.

Issue of the case → Do the police owe a duty of care to this woman and to attend promptly?

Outcome of the case → The supreme court applies the same reasoning from the Hill case, arguing that those basic points about leaving the police to decide how to allocate resources and operational freedom away from a detrimentally dfensive mind still remain solid and good law.

Michael v Chief Constable of South Wales discussed police duty to victim of crime, and no duty of care was found. Why was there controversy/criticisms amongst the judges (Lord Kirk and Lady Hale) and what did they say?

Lady hale and Lord kirk criticised the notion of 'fair, just and reasonable' within negligence as this varies over time.

They argued that we must consider it over time whether to deny or allow a duty of care.

Smith v Ministry of Justice discusses Combat Immunity (Ministry of Justice/MoD related), what is the context and outcome? And why was duty of care denied in Smith v Ministry of Justice?

Context of the case→ Claims were made relating to injuries when soldiers were travelling in landrovers in Iran and the landrovers were targetted by explosive devices, killing or badly injuring soldiers. It was alleged that the ministry had failed to provide better equipment.

Outcome of the case → The supreme court argued that this did not fall within the conbat immunity doctrine, but others argued that it did and not relating to operations in the heat of war, but providing better equipment and provisions for military - a question of policy, there are limits to combat immunity and whether to expect expenditure of resource to reach a higher standard of safety, this raised the question of when it is fair, just and reasonable to impose duties on the military.

Mulcavey v Ministry of Justice discusses Combat Immunity (Ministry of Justice/MoD related), what is the context and outcome? And why was duty of care denied in Mulcavey v Ministry of Justice?

Context of the case → A soldier in the Iraq War and he had been told to retrieve the items in front of the gun, the gun went off when he was infront of it, he wasnt physically impacting but he did suffer massive hearing loss because of this, he brought a claim against the ministry.

Outcome of the case → Combat immunity was upheld, the duty of care cannot be afforded to soldiers in active warfare or thinking about the potential harm faced by soldiers when completing military manuevers

Which case stipulated there is no generalised principle of duty of care?

Wilson case

In terms of PQ, when do we mention Donoghue v Stevenson? And under what circumstances?

• Unless it is a consumer dynamic and relationship, you can use Donoghue v Stevenson as authority within the PQ

• If you have an essay question regarding duty of care, you can argue that Donoghue v Stevenson is a foundational aspect, mentioning it as influencing the current day precedent. THOUGH when addressing a PQ on duty of care, Donoghue v Stevenson is bad law and has been superseded by various different cases.

How does the case development for negligence/duty of care change? (5 cases over the span of development)

1. Donoghue v Stevenson is the initial case

2. Anns v Merton provides a two-step test of determining whether there is a duty of care

3. Murphy v Brentwood CC overruled Anns v Merton as bad law, hence the two-step test for finding negligence/duty of care is invalid

4. Caparo v Dickman emerged, establishing the three-step process of determining duty of care and remains good law (GOOD LAW)

5. Robinson v Chief Constable of West Yorkshire elaborated on the implementation of the Caparo ‘three-stage test’ for finding duty of care (GOOD LAW)

How do we make sense of Caparo Industries v Dickman ‘three-step test’ and Ann v Merton ‘two-step test’ for determining duty of care?

Caparo Industries outlined the three stage test for duty advanced; contrasted with previous two-stage approach within Anns v Merton London Borough Council. The 3-stage test acting as a replacement to the subsequent 2-stage test advanced in Anns v Merton London Borough Council, since concerns were raised regarding the court taking on a public policy role, which is believed to solely be the role of Parliament to complete.

Caparo Industries case outlined 3 aspects to establish duty and factors the court must considere when assessing duty of care which are →

1. foreseeability of damage - defendant ought to have foreseen damage

2. proximity of relationship - sufficiently close and direct relationship between the defendant and claimant

3. fair, just and reasonable to recognise the duty in the circumstances

What does Robinson v West Yorkshire Police advise to do when applying the Caparo ‘three-step test’ for determining duty of care?

The Robinson case is a case where foreseeable physical injury caused by a positive act - this is an established category, it is not novel so it doesn’t apply the Caparo principle. BUT …

Robinson tells us we have two different approaches, looking to see if parties fall within a specific category (such as foreseeable physical injury caused by a positive act) AND if we cannot find the specific category and it is novel, then we must incrementally extend it to the Caparo principle and the 3-step test outlined. If it is VERY novel, then we must heavily rely on policy, but if it is aligning to a specific category, then we will heavily rely on case law.

Was the existence of a duty of care dependent on applying the Caparo test - discussed in Robinson v West Yorkshire Police? Was there a general rule that the police were under no duty of care when performing operational duties? Was the act an omission or positive act? Did the appeallant’s injuries triggered by the officer’s breach of their duty? Did the police owe a duty of care in Robinson?

Duty of care does not depend on applying the Caparo test. Caparo rejected the idea that there was a single test for determining the existence of a duty of care and urged an approach based on common law, precedent. Applying that approach, it had been established in many situations that no duty of care was owed. Only in novel cases, where established principles did not provide an answer, would courts need to go beyond established principles to decide whether to recognise a duty of care.

• In the instant case, the existence of a duty depended on the application of established principles of negligence, not on the Caparo test.

No, there is no general rule that police have no duty of care, it was argued that the Hill case was misunderstood, the general duty of the police to enforce the law did not carry with it a private law duty towards individuals. The common law did not normally impose liability for omissions, or, more particularly, for failure to prevent harm caused by third parties.

• Hence, it was concluded that police officers might be under a duty of care to protect individuals from a danger of injury which they themselves had created, but had no duty to protect against dangers caused by the conduct of third parties

It was found to be a positive act. The officers had acted carelessly in circumstances where it was foreseeable that carelessness would result in injury. It was not a case where they had played no active part in critical events.

• Yes, the police officers did owe a duty of care. It had been reasonably foreseeable that the suspect might resist arrest, and the officers had foreseen it. The reasonably foreseeable risk of injury in attempting an arrest when pedestrians were close by was enough to create a duty of care.

• Yes, the officer’s breach of duty did cause the appellant’s injuries. The chain of events had been initiated by the officers. A third party's voluntary act, particularly a criminal act, would often constitute a new intervening cause, but not when the act was the very one which the defendant was duty bound to guard against.

Context, outcome and summary of Darnley v Croydon Health Services NHS Trust - was there a duty of care?

Context of the case → The claimant goes to hospital, claimimg a head injury and the receptionist claims several hours waiting, when in actuality it would be a 30 minute wait to be triaged by a nurse as per NHS standards, and the claimant (based on the receptionist’s misleading information) decides to go home, suffering a collapse from the head injury and when the ambulance arrives to take him to the hospital, he gains a disability and it was admitted, if he had stayed in the hospital and fainted, he wouldve been treated and not been disabled - but the receptionist had made a negligent statement because there was a nurse specialising in tiraging and head injuries and it was only half an hour wait.

Outcome of the case → The court argued whether he was entitled to a duty of care and they argued that he was owed a duty of care, and one shouldnt subdivide staff into medical and non-medically qualified staff.

Summary of agreement and consensus → Initially, the Court of Appeal dismissed the appeallant’s appeal holding by a majority that neither the receptionist nor the trust acting by the receptionist had any duty to advise about waiting times and it was agreed that the appeallant themselves had broken the chain of causation by leading A&E when he did. THOUGH … Supreme Court overturned the ruling

• The case fell within an established category of duty of care for NHS Trusts. Those running A&E departments owed a duty to take reasonable care not to cause physical injury to those who presented themselves complaining of illness or injury, and that duty existed before the patient was treated.

Context and outcome of Kent v Griffiths?

Context → A doctor called for an ambulance for their pregnant patient and was assured that it was on its way and the doctor phoned again to have the same respobse, but the ambulance did not arrive until well after ‘target’ time. As a result, C suffered respiratory arrest. C sued D ambulance service for negligence. The doctor gave evidence that if she had been informed of the delay she would have driven C to hospital and therefore, would have hypothetically have survived.

Outcome → The supreme court perceived this as a positive act by the ambulance as opposed to an omission. They concluded that the trust had a duty to take care not to provide misinformation and could not avoid that duty simply because the misinformation was given by receptionists rather than clinicians. There was no distinguishing between receptionists or clinicians providing the information, the duty of care remained valid irrespective of whoever it was, there was still a duty to deliver accurate information about the availability of medical assistance.

Kent v Griffiths relates to assumption of responsibility and misleading information made by medical professionals. And Kent v Griffiths acted as reinforcement for the outcome of Darnley v Croydon NHS Services Trust

What did Darnley v Croydon NHS Service Trust rule, or overturn?

The NHS trust had been in breach of it’s duty of care based on these following regards -

1. as soon as the claimant attended seeking medical attention there was a patient hospital relationship (an established category of duty of care)

2. there was a duty not to provide misleading information which may foreseeably cause physical injury

3. the standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care

What have judges said in regards to the Caparo ‘three-step test’ of determining duty of care and public policy alterations? (criticisms from Lord Mance, Lord Reid)

• Lord Reed →

  • ‘there was a time when it was thought almost indecent to suggest that judges make law - they can only declare it - but we dont live in fairy tales any more.’

• Lord Mance →

  • He references Lord Reed’s quote, and argued that the courts are not a Law Commission, but, in recognising the existence of any generalised duty in particular circumstances they are making policy choices, in which considerations such as proximity and fairness, justice and reasonableness must inhere.

  • Lord Mance here emphasises that it isn’t the courts place to make suggestions or interpretations on how to best improve the law, but instead work within the constraints given to make sure they fall within the relevant considerations outlined in the Caparo Industries 3-step rule for finding negligence and irrespective of this adherence to strict structures.

  • Inevitably, he argued that in the process of solving uncertain or grey areas of instances which don’t fit neatly into the typical narratives of duty of care (such as physical injury, psychiatric harm or financial loss), the court is nonetheless placed into a difficult position where clearing up ambiguities and implementing precedent means making public policy decisions in particular circumstances

How do we distinguish between ‘causing harm’ and ‘failing to confer a benefit’?

Lord Reed in Poole BC v GN made distinctions between acts and omissions, where ‘causing harm’ is making things worse and ‘failing to confer a benefit’ is not making things better, rather than the more traditional distinction between acts and omissions.

In regards to these particular cases, the ones which would fit into the general approach to duty of ‘causing harm’ and ‘failing to confer a benefit’ would probably be -

‘Causing harm’ (meaning making things worse) would be closest to the case of Darnley v Croydon Health Service NHS Trust.

‘Failing to confer a benefit’ (not making things better) would be harder to confer a case to in application, besides the case of Dorset Yacht Co Ltd v Home Office.

Darnley v Croydon NHS Service Trust - Was there a negligent breach of duty? Was it reasonable to anticipate reasonable care by the trust? Was causation found?

Was there a negligent breach of duty, and was it reasonable to anticipate reasonable care by the trust? → While it was impossible for A&E receptionists to give each patient accurate information as to precisely when they would be seen by a clinician, it was not unreasonable to require them to take reasonable care not to provide misleading information as to the likely availability of medical assistance.

Was causation found? → The appellant/patient’s decision to leave had not broken the chain of causation. Three findings made by the trial judge were critical in that regard.

• First was the finding that it was reasonably foreseeable that a person who believed they were facing a four or five hour wait to see a doctor might decide to leave, the provision of such misleading information by a receptionist was negligent

• Second was the finding that had the appellant been told that he would be triaged within 30 minutes, he would not have left, his collapse would have occurred within the hospital, he would have undergone surgery sooner than he did, and he would have made an almost complete recovery.

• Third was the finding that the appellant's decision to leave had been based at least in part on the information given to him by the receptionist