Obligations, Tort - Negligence, Duty of Care

Torts

Civil wrongs of which you can be liable, with backwards facing remedies, including damages and injunctions, etc. Negligence requires proof of harm like most, whereas land trespass and nuisance do not require damage to be done.

It aims to promote corrective justice, compensation, deterrence, and vindication.

Negligence and Duty of care

The first aspect of negligence is to establish a duty of care. There must be a duty of care owed between the defendant and claimant, and it must be owed in respect of the harm that has occurred.

Risk aversion and social utility

In 2015, PM David Cameron commissioned a report that we have a damaging compensation culture, creating the fear of being sued.

However, there is a limit, including when social utility is concerned. For example, a case concerning a £60,000 claim against Go Ape after a mother shattered the bones in her leg was dismissed, since the social utility of the environment outweighs the need for compensation.

Pre-1932 negligence

There was no existing general duty of care, with some pockets of duty between road users, occupiers and visitors, or contractual relationships.

Donoghue v Stevenson (1932)

Two friends go out for a drink, and C orders a ginger beer float, which comes in an opaque bottle, and poured half of it into a glass to drink, then later the rest - this is when a decomposed snail comes out. She developed severe gastritis and went to hospital, and sued - though there was no contractual relationship between her and the manufacturer, as her friend had bought the drink.

Lord Atkin (leading judge) referenced taking care not to injure our neighbours - people we ought to have in our contemplation when carrying out an act.

This only ruled there was a duty, however, and C died before retrial on facts (snail was unconfirmed).

Effects of Donoghue v Stevenson (1932)

Pre-contractual relationships no longer needed for negligence, and manufacturers owe consumers a duty of care. Lord Atkin also introduced the need for duty, breach, and causation, and the neighbour principle - where C must suffer a reasonably foreseeable injury, and be proximate to D in some way.

Anns v Merton London Borough Council [1978] and the two-part test

A local authority failed to secure a flat’s foundations, which were too shallow, devaluing the property and creating a health and safety risk. C sued successfully, and a two-part test was created to determine duty of care.

The first stage was that D owes C a duty to take reasonable care, and that there is sufficient proximity. The second part excluded circumstances where policy reasons limit the scope of duty.

Criticism for the two-part test

Cast the net of liability very wide, so not popular! lord Goff (in Smith v Littlewoods [1987]) said it is easier to find where there is not liability. Most things are reasonably foreseeable, so duty is almost presumed. It was overruled in Murphy v Brentwood District Council [1991]

Caparo v Dickman PLC [1990] and the incremental approach

C depended on negligent accounts prepared by D for a company C wished to buy. D had no duty to C, only to management of the company - C suffered losses, but could not claim. Lord Bridge suggested an incremental approach to creating duty of care in law.

The incremental approach followed, looking for established precedent first to apply- or the closest analogy, then the tripartite test for novel cases.

Incremental approach in Darnley v Croydon Health Services (2018)

C suffered a head injury, and was falsely advised by a receptionist that medical assistance at the hospital was 4-5 hours wait, when he would be seen by triage nurse in 30 minutes for a head injury. He left, and suffered severe and paralysing left haematoma, Supreme court ruling liability for the NHS, since they already had a duty to patients when they enter the hospital - not a novel case.

Incremental approach in Robinson v Chief Constable of West Yorkshire (2018)

Elderly woman knocked over and injured when police apprehended a suspect - was ruled to be under normal police duties to not harm the public, test not needed.

The Tripartite test

For novel cases ONLY (these are very rare). It includes looking at the reasonable foreseeability that D’s act would harm C, the relationship of proximity between the parties, and whether the duty’s recognition would be fair, just, and reasonable.

Established Teacher-Pupil duty of care established in:

Carmarthenshire CC v Lewis [1955] - Nursery aged child ran out into the road, causing a collision between cars and almost being hit. The nursery was found liable in breaching their duty of care towards him.

Established Road users’ duty of care in:

Nettleship v Weston [1971] - W was a learner driver, but remained held to the same standard of the average road user, so was held liable for damages.

Established Occupier-Visitor duty of care in:

Occupier’s Liability Act 1957 and 1984

Tripartite Test - Foreseeability, Haley v London Electricity Board [1965], and Islington LBC v UCL Hospital NHS Trust [2005]

D must foresee or reasonably foresee (any reasonable person would), this is measured objectively.

Haley v London Electricity Board [1965] - work was being done with no warnings for those with visual impairments. House of Lords found D liable as it was reasonably foreseeable that someone with visual impairments could be hurt.

Islington LBC v UCL Hospital NHS Trust [2005] - A receptionist was calling patients to inform them surgeries weren’t going ahead, and told a patient to stop taking their blood thinner. The patient had a stroke - she could not have foreseen this, but the trust were held liable, as they should have proper arrangements to inform people of cancelled appointments.

Tripartite Test - Proximity

Includes:

Geographical proximity, such as physical contact when I hit you with my car.

Temporal proximity, such as closeness between damage and breach, leading to harm - see Alcock and first responders.

Relational proximity, where C may be vulnerable or D has power over them, like a police officer and a detained person.

Causal proximity, where D prevents something which would have protected C from harm, as in Webster v Ridgway Foundation School and no fencing allowing attacks.

Tripartite Test - fair, just, and reasonable? Policy, McFarlane v Tayside Health Board [2000] and Parkinson v St James and Seacroft University Hospital NHS Trust [2001]

This includes considering wider implications on society, subject to social, political, and economic factors. Policy can change rapidly through time, and can affect socially-funded bodies, as well as the ‘opening of the floodgates’. This is done by weighing the detriment to the public interest against the total loss of any and all plaintiffs. There is no answer for what to do in novel cases - it is a mere guide.

McFarlane v Tayside Health Board [2000] - Botched vasectomy resulted in the birth of a child, for which pregnancy costs were compensated, but not the costs of raising a child, as it would not be fair for the NHS to compensate for this.

Parkinson v St James and Seacroft University Hospital NHS Trust [2001] - Botched sterilisation resulted in a child being born, compensation given for the costs of additional needs for the disabled child, but not the ordinary costs of raising a child.

Tripartite Test in Watson v British Boxing Board (2001)

Watson v British Boxing Board - C knocked out in boxing match, was not given oxygen while waiting for ambulance, and the recommended 2 doctors were not present. He experienced brain damage as a result. The incremental approach could not apply, so the test was applied, and courts found it was fair, just and reaosonable to impose a duty due to the nature of boxing.