Negligence

Law of Tort

what is the law of tort?

the law of civil wrongs, and it covers a wide range of conduct

what does various torts protect?

• your reputation (tort of defamation)

• your bodily integrity (the trespass to the person torts)

• your right to enjoy your land in a reasonable way (private nuisance)

• tort of negligence

what must there be?

an actionable damage to an identifiable individual if there is to be liability

what are the requirements of negligence?

• duty of care: D must owe C a duty of care

• breach: D must breach that duty

• causation: D breach must cause harm, and harm must not be too remote

what is misfeasance?

until the 1930’s, the courts would only recognise a duty of care between the defendant and the claimant if the defendant had assumed responsibility for the claimant by entering into a contract with them

what case changed misfeasance?

the seminal case of Donoghue v Stevenson (1932) AC 582

how did the Donoghue v Stevenson case change this?

• snail in an opaque bottle of ginger beer

• narrow ratio/the rule of law

what is the neighbour principle (obiter)?

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

what was the initial reaction to the neighbour principle?

initially there was reluctance, but it grew in judicial popularity from the 1960’s onwards, and during this period, it was applied to a wide range of situations

what was the neighbour principle originally confined too?

cases concerning physical injury or property damage, but it was extended to encompass pure financial loss and pure psychiatric injury

why is the Anns v Merton (1978) AC 728 case important to the neighbour principle?

House of Lords refined the neighbour principle

what was the leading case for a long time on duty of care?

Caparo v Diskman (1990) 2 AC 605

what did many wrongly believe about the Caparo v Dickman 1990 case?

that it created a tripartite test for determining whether a duty of care should be owed in novel cases

what did the Tripartite Test consist of?

1. foreseeability of damage

2. proximity

3. whether it was fair, just and reasonable to impose a duty of care on the defendant

however, how was the Tripartite Test a misunderstanding of the case?

Caparo did not lay down a general test for establishing a duty of care

how did the retreat from Caparo begin?

in Michael v CC of South Wales (2015) UKSC, with Lord Toulson criticising the notion that Caparo had introduced a general test for establishing duty of care and instead favoured an incremental approach

what happened in Robinson v CC of West Yorkshire Police (2018) UKSC?

the UKSC fully rejected the idea that Lord Bridge had laid down a general test in Caparo. it held that if precedent covers a situation, then that precedent must be followed. in novel situations, the courts must develop the law ‘incrementally and by analogy with established authority’

what is the 1st step of the current law under Robinson v CC of West Yorkshire Police (2018)

look for a direct precedent either establishing a duty of care e.g. (doctor-patient) or holding that no duty of care is owed. if there is a precedent, then follow that precedent

what is the 2nd step of the current law under Robinson v CC of West Yorkshire Police (2018)

2. if there is no direct precedent, then assess whether it was reasonably foreseeable that someone in C’s position may suffer damage if the D failed to take reasonable care. if the answer is no, then no duty is owed

what is the 3rd step of the current law under Robinson v CC of West Yorkshire Police (2018)

if the answer is yes, then look for precedents which are closely analogous to the facts at hand and consider whether developing the law as to recognise a duty of care in this case and would be fair, just and reasonable

what are the established duty categories?

• we all owe a duty not to cause each other direct or physical harm

• a doctor/healthcare practitioner owes his or her patients a duty of care

• road users owe each other a duty to take reasonable care for each other’s safety

• teachers and schools owe a duty to students to protect them from injury

• employers owe a duty of care to employees to ensure the workplace is reasonably safe

• occupiers of premises owe a duty to make sure their visitors are reasonably safe

• jailers owe a duty to take reasonable care for the safety of their prisoners

what case supports that we all owe a duty not to cause each other direct or physical harm?

Donaghue v Stevenson (1932) AC 582

which case supports that a doctor/healthcare practitioner owes his or her patients a duty of care?

Sidaway v Bethlem Royal Hospital (1984) 1 All ER 1018 & Darnley v Croydon Health Services NHS Trust (2018) UKSC 50

which case supports that road users owe each other a duty to take reasonable care for each other’s safety?

Nettleship v West (1971) 2 QB 691

which case supports that teachers and schools owe a duty to students to protect them from injury?

Carmarthenshire CC v Lewis (1955) AC 549

which case supports that employers owe a duty of care to employees to ensure the workplace is reasonably safe?

Wilson & Clyde v English (1971) 2 QB 691

which act supports that occupiers of premises owe a duty to make sure their visitors are reasonably safe?

Occupiers Liability Act 1957

which case supports that jailers a duty to take reasonable care for the safety of their prisoners?

Ellis v Home Office (1953) All ER 149

what is an omission?

a failure to act, and, in this jurisdiction, there is generally no duty to act for the benefit of/rescue others. thus, there is generally no liability for pure omissions

what case supports no liability for pure omissions?

Smith v Littlewoods Organisation (1987) AC 241

what does the case Yuen Kun You v Attorney General of Hong Kong (1988) AC 175, 192 per Lord Keith say about omissions/non-feasance?

“there is generally no liability in negligence on this part of one who sees another about to walk over a cliff with his head in the air and forbears to shout a warning”

however, what is the general rule subject to?

some exceptions

what are the exceptions to the rule on omissions?

1. where D assumes responsibility towards C. these relationships normally arise out of contract, or the relationship bears the hallmarks or being a contractual one. C must detrimentally rely on D’s assumption of responsibility

2. where C is under the care or control of D (D ought to owe a duty). Schools must protect students against injury

what’s it like between omissions and third parties?

generally, a D will not owe a duty of care to prevent a third party from causing harm to C, but this general position is subject to some exceptions

what are the exceptions to omissions and third parties?

• Smith v Littlewoods Organisation (1987) AC 241 per Lord Goff

• Mitchel v Glasgow City Council (2009) UKHL 11

which cases support the special relationship between D and C?

• Stansbie v Troman (1948) 2 KB 48

• Barrett v Ministry of Defence (1996) 1 WLR 1217

which cases support the relationship between D and the third party?

• Home Office - Dorset Yacht (1970) AC 1004

• Perl (exporters) Ltd v Camden LBC (1984) QB 342

what supports duty of care and omissions?

• creating a source of danger which is ‘sparked off’ by a third party (Haynes v Harwood (1935) 1 KB 146)

• adopting a risk/failing to take reasonable steps to abate a danger created by an third party (Smith v Littlewoods (1987) AC 241, Contrast Goldman v Hargrave (1967) 1 AC 645)

what duty of care does fire service and coastguard owe?

owes no duty of care to an individual to turn up when called. they owe a duty to the public at large

what case supports the duty of care of the fire service and coastguard and what does it say?

Capital & Counties Plc v Hampshire CC (1997) QB 1004 v Sec of State (1997) 3 All ER 897: owes no duty of care to turn up to emergency when called to do so. a duty may be owed if they do a positive act which makes a situation worse

what duty of care do ambulance’s owe?

acceptance of 999 call created a duty of care

what case supports ambulance’s duty of care?

Kent v Griffiths (2001) QB 36

what duty of care do police obtain?

used to be viewed as having an immunity from liability, but this is no longer the case. police are subject to the ordinary rules of negligence

what cases support police’s duty of care?

• Hill v Chief Constable of West Yorkshire (1988) 2 All ER 238

• Robinson v Chief Constable of West Yorkshire Police (2018) UKSC 4

• Tindall and another v Chief Constable of Thames Valley Police (2024) UKSC 33