Negligence

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

1. Duty of care

2. breach

3. damage

4. causation

5. remoteness

what is the test for remoteness?

whether the damage was reasonably foreseeable or not

what is a duty of care

defines to whom the defendant needs to be careful and in what respect

D v East Berkshire Community Health NHS Trust

'the world is full of harm for which the law furnishes no remedy.' (Lord Rodger)

The law does not provide compensation for all harms, even when there is carelessness

how does buller define duties

social duties - we owe one another duties as members of a civil society

how were duties decided before Donoghue v Stevenson

you would have to look in a practitioner's book to decide whether a duty of care was owed — there was no unifying, explanatory concept of when a duty of care was owed

how is contract law relevant in duty of care

if there was a contract, typically contractual duties take precedent over a duty of care

Donoghue v Stevenson

facts: D buys a ginger beer for her friend, who discovers a snail inside of it and suffers health issues, contract law recognised no DoC between a manufacturer and consumer

decision: introduction of the neighbour principle, a manufacturer owes a DoC to a consumer even where there is no contract between them, abolished the idea that you could not have a duty if a contractual duty was already owed

Lord Atkin's introduction of 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."

how does Atkin define neighbours

"persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation

What did Lord Macmillan say in D v S

The specific cases found in the books were not the only places where a duty of care could be recognised

The categories of negligence are never closed; one can always refine those categories by reference to existing, decided cases

what does Winfield argue about D v S

the case did not make much difference because it was all about the foreseeability of damage, which was already relevant in negligence

When asking if someone was careless, you ask if they could have foreseen that they would cause damage

what does Lawson argue about D v S

the case tells you when duties will not be recognised, and people will just have to suffer losses

What does Fleming argue about D v S

the duty of care was a control device; the courts can control the liability to whom the duty is owed.

The courts should set out in their reasoning and explain overtly why a duty was not owed

Hedley Byrne v Heller

hen a claimant has suffered only financial loss, the general Donoghue v Stevenson principle of owing a duty of care to your neighbour does not apply

Home Office v Dorset Yacht Co Ltd

facts: a group of young offenders were taken to an island for rehabilitation and ran away and crashed a yacht

decision: the principles in D v S does not apply when the defendant fails to prevent harm to the claimant

what did the courts argue in Arns v Merton LBC

neighbour test should be expanded, courts should ask:

- whether D ought to have foreseen that C would have been harmed

- whether there were any external factors which would exclude the duty

Criticisms of Arns v Merton

This causes the courts to consider matters of policy, which were matters for the parliament, not for the court

Caparo Industries plc v Dickman

There are 3 factors to consider for duty:

1. foreseeability of damage

2. proximity of relationship

3. it needs to be fair, just and reasonable to recognise the duty

proximity of relationship

There has to be a sufficiently direct or close relationship between the claimant and defendant

Hill v Chief Constable of West Yorkshire

facts: C argued if the police were quicker, they would have caught a serial killer and her daughter would not have died

decision: There was not a significant enough relationship of proximity between Mrs Hill's daughter and the police - the serial killer targeted a large class of potential victims so there relationship was not direct enough for a DoC

Robinson v Chief Constable of West Yorkshire Police *current duty method

- first consider whether the duty was already in one of the existing categories

- only if it were not, should you consider whether it was fair, just and reasonable to say there was a DoC (Caparo)

- proximity is under the fair, just and reasonable assessment

James-Bowen v Commissioner of Police

facts: C was a police officer, accused of using excessive force. The Met settled the case without investigating and C sued because they did not investigate, impacting his reputation

decision: DoC was not owed as it was not under a recognised category and Although it was fair, just and reasonable to say there was a duty of care since it was reasonably foreseeable for them to know that there could potentially be reputational damages, there is already a tort for reputational interests (defamation)

Darnley v Croydon Health Services

facts: C asked a receptionist how long it would take for him to be seen for a head injury, and she said several hours. He went home, where he suffered permanent injuries. The info the receptionist gave was inaccurate, and he would have been prioritised for his head injury. If he had stayed in the hospital and been treated, he would not have had permanent injuries

decision: workers in a hospital are a recognised category so a DoC was owed

categories

we must follow what the Supreme Court states are recognised categories -> in PQs explain why we think a circumstance may be part of an existing category

Poole BC v N

facts: X caused damage to C and C alleged D should have taken steps to prevent this

decision: the general approach of focusing first on categories applies the same way in cases of failures to act as it does in positive action

XA v YA

facts: C sued his mother for marrying a sadist who abused him and said she should have taken care to prevent the abuse

decision: no DoC as the law differentiates between moral and legal duties

- performing the duty would have required the couple to break up and the law cannot impose that as a standard of care

- the violent father was also violent to the mother, it is undesirable to shift liability from one victim to another

McFarlane v Tayside Health Board

facts: C had an unsuccessful vasectomy, and his wife got pregnant, the couple sued for the cost of bringing up a child

decision: it would not be fair for the law to provide compensation to people for the blessing of having a child when others could not

could not impose a duty of care here for policy reasons

Mulcahy v Ministry of Defence [1996]

facts: C was a soldier and retrieved an item that fell in front of a gun on his CO's orders. The gun went off, damaging his hearing

decision: no DoC due to combat immunity - not fair, just and reasonable to impose a duty on the military

Smith v Ministry of Defence [2013]

facts: C was a soldier who travelled in a Land Rover, which was bombed by the enemy

decision: Ministry of Defence had negligently failed to provide better equipment, which did not fall under combat immunity, as it was about provisions, not injury in warfare

Hill v Chief Constable of West Yorkshire [1989]

- It would not be fair, just or reasonable to impose a duty on the police

- The police already operate on the highest standard that they can operate on

- The police's operational freedom may be restricted due to fears of negligence claims

- If you impose liability on the police for failing to stop a crime, you would be essentially saying they should stop all other work and just focus on crime prevention

Michael v Chief Constable of South Wales [2015]

facts: C had a violent ex who broke into her house and kidnapped her boyfriend. She called the police and they marked her as not urgent. The ex returns to the house and killed her

decision: No duty of care was owed on these facts — the police have operational freedom