Negligence: Duty of Care

what is tort negligence?

if someone suffers harm as result of another person’s careless act the may be able to claim

what are the three requirements needed for a claimant to successfully claim negligence

Duty, Breach and Damage

summarise Donoghue v Stevenson [1932]

Facts: the claimant went with her friend to a cafe, ordered ginger beer and found that there was snail remains then violently threw up, the claimant sued the manufacturer for negligence

Principle: a manufacturer owes a duty of care to the consumer who he can foresee will be injured if the product is defective.

In Donoughe v Stevenson Lord Atkin set out the:

neighbour principle

what is 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. A neighbour is someone who is so closely and directly affected by the act that you must have reasonably thought about affecting them

Summarise County Council v Lewis [1995]

facts: a four year old escaped school ran infront of lorry and lorry driver crashed and died

principle: there has to be proximity for negligence to be a valid claim

what did Lord Reid say in Home Office v Dorset Yacht Co [1970]

he made a statement about the neighbour principle, where in essence the neighbour principle should always be applied unless there is a valid reason for it too not be applied

What did Lord Wilberforce refine in Anns v Merton London Borough Council

he refined the neighbour principle into a two stage test, where:

stage 1 → essentially asking whether there is a proximity between the claimant and defendant such that the defendant ought to contemplate that his careless act will cause harm to the claimant.

if yes

Stage 2 → are there any factors which would end the duty or restrict it?

if no

A duty of care is owed

Lord Bridge set out a three-stage test for establishing whether a duty of care existed, including:

Foreseeability, Proximity, fair just and reasonableness, then there is a duty of care

what does foreseeability mean?

could the reasonable person, in the defendants position, have reasonable foreseen that the claimant would have been injured if the defendant did the particular act?

summarise Bourhill v Young [1942]

the claimant was a pregnant lady, she was getting of a tram when she heard an accident. The defendant was speeding on his motorcycle, collided with a car and was killed. accident happened 15 metres away behind another tram, she suffered from shock and causing a miscarriage and therefore sued for negligence:

Held: was not reasonably foreseeable that someone so far away would suffer nervous shock and no duty of care was owed

what does proximity mean?

this means nearness or closeness. It was derived from Lord Atkins neighbour principle, the claimant needs to prove closeness of relationship which may be proved through physical closeness, closeness of relationship or a policy reason, may also be a combination of these factors.

Summarise Watson v British Boxing Board of Control [2001]

Michael Watson was a professional boxer, he suffered a brain haemorrhage during a boxing match and therefore sued the British Boxing Board of Control (BBBC) for negligence for not providing a specialist doctor, court concluded there was enough proximity and so BBBC was in breach of duty.

Summarise Hill v Chief Constable of West Yorkshire [1988]

Facts: mother of the last victim of the ‘Yorkshire Ripper’ sued the police for negligence, claiming police should have arrested him earlier and prevented her daughters murder

Principle: daughter was one of many women at risk there was no proximity

Application: The Hill principle which is that the police do not owe a duty of care to individual members of the public.

Summarise Osman v Ferguson [1993]

Teacher, P, began to pester the claimant a 15 year old pupil, told the police he would do something mad and killed the boys father and injured the boy. but applying the Hill principle meant that the police had no duty of care.

The case was then taken to European Court of Human Rights, in Osman v United Kingdom (1998) where it was held that refusing to hear the case was a breach of Article 6 the right to a fair hearing and the family were awarded damages.

Explain Fair, Just and reasonableness

if a claimant establishes foreseeability and proximity a court may still find that in all the circumstances it is not ‘fair. just and reasonable’ to impose a duty on the defendant

Barrett v Ministry of Defence [1995]

if in the circumstances the defendant takes responsibility for the claimant then a duty to act could arise.

the defendant is in a position of responsibility when:

there is an existing relationship where the defendant is in a position of responsibility, or creates the danger/makes the situation worse. (Capital and Counties plc v Hampshire County Council [1997])

Stansbie v Troman [1948]

a contract can create sufficient proximity for claims of negligence

Hill v Chief Constable of West Yorkshire [1998]

police did not owe a duty to individual members of the public and could not be found liable for negligence in the investigation and suppression of crime (Hill principle)

Caparo v Dickman 1990

test for establishing a duty is foreseeability, proximity, fair, just and reasonableness

Haynes v Harwood [1935]

A duty is owed to a foreseeable rescuer. The defendant was liable in negligence to the police officer.

Hill v Chief Constable of West Yorkshire [1998]

In the investigation and suppression of crime the police were not liable in negligence. No duty is owed to individual members of the public. Known as the Hill Principle

Home Office v Dorset Yacht Co 1970

House of Lords said that the Home Office had control of the boys and were negligent. This is an exception to the general rule that you are not liable for the acts of a third party.

Kent v Griffiths [2004]

The court of appeal said that the ambulance service was like the NHS and once a call was accepted it did owe a duty to individual members of the public

Michael v Chief Constable of South Wales Police [2015]

The supreme court applied the Hill principle and said the police were not liable

X v Bedfordshire County Council [1995]

It is not fair, just and reasonable to make the council liable as there is a statutory system to prevent abuse.