Duty of Care

what is the neighbour principle and the narrow ratio?

Donoghue v stevenson: friend bought ginger beer for mrs donoghue → drank half of it, poured it out → found a snail inside it → got gastro reaction from the disgust → should manufacturer owe a duty even tho he didnt contract with mrs donoghue directly?

principle: yes, manufacturers can owe duty to a third party or any consumer

Donoghue principle: duty not to cause injury arises when it is reasonably foreseeable that a positive act will cause personal injury or property damage

how do we know whether a duty of care is owed?

robinson v CC West yorkshire: 76-year-old woman knocked over during street arrest of drug dealer by police officers. Officers had foreseen Williams might escape but hadn't noticed claimant nearby.

Held: Police owed a duty of care. Caparo did NOT need to be applied.

duty of care is owed if:

1. direct analogy—is there a pre-existing case with the same fact pattern where a duty of care was owed?

2. if not, it is a novel situation→ move to caparo

other principles:

• Police have no general immunity from negligence

• Police owe general duty to avoid causing personal injury by positive acts.

• This was a positive act (attempting arrest), not an omission → duty owed

• Caparo is only for novel situations where established principles give no answer

when is a duty owed in a novel fact pattern?

caparo: Auditors prepared company accounts. Investors relied on them to make takeover bid. Accounts were negligently wrong. Investors lost money.

Held: No duty of care owed to investors

principle: to determine a duty of care arising in a non-analogus situation (robinson):

1. Identify the closest analogy by identifying the ‘legally significant features’ of the case in comparison with the previous cases. 

2. Then ask whether a duty should be extended here and if it is fair, just and reasonable to do so. This is the sole situation in which open policy reasoning is required (unless C is claiming a previous authority should be overturned). As in Caparo the claimant has to show why there should be a duty.

3. triparte test is applied along with caparo

what is the caparo triparte test

Hayley v london electricty board: there was a foreseeability of harm

the nicholas h: It must be ‘fair, just and reasonable’ to impose a duty of care in this situation (the ‘policy’ question). This is a subjective question, an open opportunity for judges to decide

surtadhar v nerc: There must be a relationship of ‘proximity’ between D and C

does established duty extend to receptionists? Does leaving break causation?

darnley v croydon health services: C attended A&E with head injury. Receptionist told him 4-5 hour wait. Should have said triage nurse within 30 minutes. C left after 19 minutes without being seen. Collapsed at home. Suffered permanent brain damage.

Held: Duty existed. Causation not broken. Trust liable.

1. On duty: hospital's duty to patients is an established category — Caparo not needed.

   1. duty established as soon as patient was “booked in”

   2. Duty extended to accurate information from receptionists because the trust charged non-clinical staff with being first point of contact.

   3. Standard → averagely competent and well-informed person performing the function of a receptionist.

2. On causation: No novus actus. It was reasonably foreseeable that a person told 4-5 hrs might leave. C's departure was a direct result of D's misinformation.

Key: Can't avoid duty just because misinformation came from a receptionist not a clinician.

is a physical change that doesn't affect health actionable?

rothwell v chemical & isulating co ltd: Workers exposed to asbestos. Physical change to lung texture (pleural plaques) but no effect on health or capability.

Held: NOT actionable damage.

Principle (Lord Hoffmann): Damage = "abstract concept of being worse off, physically or economically." A physical change that has no perceptible effect on health or capability is not damage. Must not be de minimis.

Rule: Ask — is C appreciably worse off? If no → no actionable damage → no negligence.

Is it personal injury?

 Dryden & Ors v Johnson Matthey PLC: Factory workers exposed to platinum salts. Developed sensitisation (no current symptoms) but future exposure would trigger asthma/rhinitis. Lost jobs or pay as a result.

principle:

personal injury is a physical change which makes the claimant-

1. appreciably worse off in respect of his health or capability; 

2. as including an injury sustained to a person’s physical capacity of enjoying life; 

3. and as an impairment. It can also be hidden and symptomless.