Tort - DOC

Tort definition

“a civil wrong which entitles the injured party to a remedy” OR “a breach of a duty that is primarily fixed by law and which is owed to persons generally”

Duty of care definition

A legal obligation placed on a person to take reasonable care when performing an activity

Donoghue v Stevenson [1932] AC 562

• ginger beer consumed with snail in it

• if Donoghue purchased the drink instead of the friend, she could claim against the shop owner but as the friend purchased it, the friend can’t bring a claim in terms of Donoghue’s losses

• Stevenson at fault but there was no contract so there is no authority imposing duty

• Donoghue lost in Scottish courts and in the Scottish COA

Consequences of Donoghue v Stevenson

• manufacturers owe a DOC to the foreseeable ultimate consumer of their goods

• the goods must reach the consumer in the same condition that they left the manufacturer

• duty only arises when there is no opportunity for intermediate inspection

• nobody could check the contents of the bottle because it was opaque

neighbour principle - obiter per lord atkin

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

Hedley Byrne v Heller [1964] AC 465

• Hedley Byrne (advertising agents) asked bank about the creditworthiness of the customer

• Bank said ‘without responsibility, the customer is considered good for its ordinary business engagements’

• Customer went into liquidation and HB lost £17000

• HB sued the bank

• HOL said defendant would owe DOC if they had undertaken responsibility for the accuracy of their information

• HB lost as bank didn’t take responsibility

Lord wilberforce’s criteria

1. Is there a sufficient relationship between the neighbour where it could cause sufficient harm to the neighbour, if so, there is a duty of care

2. Are there any considerations which reduce the scope of duty to whom it’s owed?

Novel duty cases

situations where legal principles can not be applied to give a clear answer

Caparo v Dickman [1990] 2 AC 605

• Caparo want to buy another company that is owned by 2 brothers and audited by Touche Ross (report back to shareholders about the company)

• Caparo read accounts given by Touche Ross as good but the financial position was worse than stated

• Touche Ross didn’t notice this issue so they have been careless

• Caparo sue 2 brothers for the money lost and win

• They sue Touche Ross

Incrementalism in Caparo

• Is it reasonably foreseeable that damage may cause issues?

• Is it fair, just and reasonable?

• What is the proximity of the relationship between the defendant and claimant?

Caparo formula - NOT A TEST

• foreseeability

• proximity

• fairness, justice and reasonableness

Robinson v CC of West Yorkshire [2018] UKSC 4

• knocked over on street whilst police tried to arrest a drug dealer

• COA held that the police didn’t owe a DOC

• UKSC said it was foreseen by officers that harm would be caused if the drug dealer tried to escape

Principles surronding Caparo

• precedent should be followed in most cases and we don’t need the caparo factors

• only cases without a clear answer need to be decided whether it’s appropriate to enforce a duty

• this is done by looking at close analogies and ensuring the law remains consistent and retains coherence

Damage caused by acts - Robinson

• We owe a DOC not to act carelessly if that carelessness could cause foreseeable injury

• If you can foresee physical harm, act carefully to make sure the physical harm doesn’t come into fruition

Not novel situations

• damage caused by acts

• injury caused by shock

• damage caused by omissions

• public authorities

• pure economic loss

Robinson ruling - court decision making quote

“In cases where the question of whether a DOC arises has not been previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a DOC would be just and reasonable”

Incrementalism

basing law case by case and developing our knowledge

factors that influence the decision to develop (or not) the law via an incremental step:

• would it open the floodgates?

• would it fill a lacuna in the law?

• would it lead to the defendant having divided loyalties?

• would it enhance or harm the consistency and coherence of the law?

• would it enhance or harm individual autonomy?

• would it enhance or harm society?

Would it open the floodgates?

If you impose a DOC, you will cause the defendant to be liable for damages in circumstances where their culpability isn’t that significant or where the presence of liabilities would make it impossible for activities to persist e.g. Ultramares Corporation v Touche [1931] 174 N.E. 441, us

Would it fill a lacuna in the law?

• fill a legal gap which would mean that the claimants that have been harmed would be unable to receive compensation

• e.g. White v Jones [1995] 2 AC 207

• HOL says solicitors owe a DOC when making a will to the client AND the intended beneficiaries

• Fills a gap in the law and allows claimants to have what they are owed if the solicitor hadn’t been careless

Would it lead to the defendant having divided loyalties?

courts are often reluctant to impose a DOC

D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151; [2004] QB 558

D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151; [2004] QB 558

• defendants responsible for a child being taken into care

• claim brought by the child + father; doctors and social workers accused the father of abusing the child

• Held that they did owe a DOC to the child

• father said DOC was novel duty and COA said it wasn’t fair, just and reasonable to develop a law in this case

Explanation of D v East Berkshire: Poole BC v GN [2019] 2 WLR 1478

If they owe a DOC to the father, they might be reluctant to protect the child and it’s better there is no divided loyalties for both the parents and the child, instead the only duty should be to the child

Divided loyalties argument failing: Sebry v Companies House [2015] EWHC 115 (QB)

• put a notice on their registry that ‘Taylor and Son Ltd’ had gone into liquidation

• company lost their assets and were liquidated as a result of the ad

• owner brought claim against companies house and argued that it became a divided loyalty to have accurate info to the public AND companies

• Court rejected this argument and stated that being pushed to get info right is the same by claimants and public; everybody wants an accurate register

Would it maintain or harm consistency and coherence?

• Negligence and contract

• Negligence and other torts (Spring v Guardian Assurance)

• Negligence and statute

^ If a contract is established for bargains to be given to each party, the court doesn’t want to establish DOC as bargains have been established

Spring v Guardian Assurance plc [1994] UKHL 7

• Mr Spring asks his former employers for a reference

• He doesn’t get a job because of how carelessly written the reference is

• Defendants argue there is no DOC as if he brought the claim in defamation, he wouldn’t win

• No evidence that Guardian Assurance knew what they were writing is false

• SC rejects this argument and say defamation has a different purpose and it would be fair to develop the law to protect people like Mr Spring

Consistency and coherence with considerations relating to the conduct of litigation (James-Bowen v Commissioner of the Police of the Metropolis [2018] UKSC 40

• party autonomy

• legal privilege

• encouraging settlement

• avoiding satellite litigation

• avoiding delay and disruption in proceedings

Courts don’t like making people do things e.g. waiving legal documents

Would it maintain or harm consistency and coherence with statutory obligations?

• cases where physical harm or property damages is caused by the exercise of statutory powers

• exercise of powers will amount to an act, and generally a duty will be owed if the harm is foreseeable (Stovin v Wise [1996] AC 923, 947)

• But, Parliament must have intended for the powers to be exercised so no duty if there is an act within the scope of the statutory power (Dorset Yacht v Home Office [1970] AC 1004)

Would developing the law harm individual autonomy? Calvert v William Hill [2008] EWCA Civ 1427

• Calvert is a gambling addict who asks William Hill to stop allowing him to acces

• They fail to block his account and he brings a claim against them

• COA don’t propose a DOC to gambling platforms to stop problem gamblers

• Even though there is an addiction, they still have autonomy to take action in their own lives

Would imposing a duty be harmful to society as a whole?

• combat immunity e.g. Smith v Ministry of Defence

• won’t impose a duty onto army in regards to their actions during armed conflict

Court willing to incrementally develop the law: Rihan v Ernst & Young Global Ltd [2020] EWHC 901 (QB)

• a duty to take reasonable steps to prevent the claimant from suffering loss of earnings by reason of the defendants failure to perform an audit in an ethical and professional manner

• factors taken into account include consistency and coherence (that the duty to perform an audit in an ethical manner is consistent with pre-existing professional duties

Courts unwilling to incrementally develop the law: McFarland-Cruikshanks v England Kerr Hands Solicitors Ltd [2021] EWHC 525

• alleged duty owed by barrister not to cause financial loss to solicitor acting for same client in the same action

• court refused to develop the law

• “For this court to then impose a DOC at common law would run counter to the parties’ agreement. That is not a course which the court should take” - para [66]