The Duty of Care (II)

(D) Economic Loss, (E) Psychiatric Harm

Textbook

Lunney, Nolan, Oliphant, Tort Law: Text and Materials (6th ed., 2017), pp.340-360, 381-387, 394-
404, 409-420, 436-443

(or Steele, Tort Law: Text, Cases, and Materials (4th ed., 2017), Ch.6 (Sections 1-2) or McBride and
Bagshaw, (6th ed., 2018), Chs. 4 and 5).

Cases

(D) Economic Loss

12. Spartan Steel v Martin [1973] Q.B. 27

13. Hedley Byrne v Heller [1964] AC 465
14. Murphy v Brentwood DC [1991] 1 AC 398

(E) Psychiatric Harm

15. McLoughlin v O'Brian [1983] AC 410

16. Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 17. Page v Smith [1996]
AC 155

Questions

1. What is the present test for the existence of a duty of care in the tort of negligence? (See
Caparo) How does this test differ from preceding approaches? Does it have any (a)
advantages, or (b) disadvantages, when compared with them?

Caparo starts from the assumption no duty is owed unless the three-stage test is satisfied:
foreseeability, proximity and whether it is fair, just and reasonable to impose such a duty

harm must be reasonably foreseeable as a result of the defendant's conduct (as established in
Donoghue v Stevenson),

the parties must be in a relationship of proximity, and

it must be fair, just and reasonable to impose liability

Wilber force test established in the case of anns v merton LBC [1977] – reversed decision in
murphy

It requires first a ‘sufficient relationship of proximity based upon foreseeability’;

and secondly considerations of reasons why there should not be a duty of care.
Also exists the case of Donoghue v Stevenson : The rule that you are to love your neighbour
becomes in law you must not injure your neighbour, You must take reasonable care to avoid
acts or omissions which you can reasonably foresee would be likely to injure your neighbour

Negatives of donoughe : Isolated instances where duties existed

The independence of negligence from contract was in doubt

No ‘unified’ tort of negligence

What is the negatives of the two stage test:

Too much liability?

Too much litigation over liability?

(tempting to ‘have a go’)

Too much uncertainty among risk-takers?

Unprincipled decision-making?

(Can vague policy reasons be used to rebut a prima facie duty?).

Public interest interfering with claimant’s, right?

This objection is more important since HRA 1998 (Article 6 problems)

Insufficient attention to specific issues in different fields of negligence

Negatives of Caparo

The ‘criteria’ are described (with the exception of foreseeability) as mere labels.

The guiding principle seems to be pragmatism.

Is this an appropriate way of determining legal questions?

Are the questions moral ones about duty, or distributive ones about risk and risk-bearing?

Postives of Caparo

Caparo requires a positive justification for duty of each case

Look at the case of bournhill v young – this is about what foreseeability means
2. “[T]he third stage of the Caparo approach can be regarded as the general repository for a
miscellaneous set of policy arguments, undefined in nature and unlimited in number, which to date
have been invoked haphazardly and in an ad hoc fashion by the courts in determining whether a duty
of care should arise.”

Critically evaluate this statement. –

The 3rd stage of the Caparo test can be seen as the general source for various set’s of policy
arguments, undefined in nature and unlimited in number, which so far have been random(messy) and
in an adhoc(not expected or planned) fashion by the courts in determining if a duty of care is in
existence.

Has its application created a mess or not? use case law to compare and contrast

But now known as the three stage test to establish duty of care:

1) Foreseeability

2) Proximity

3) Whether it is fair, just and reasonable to recognise a duty in the circumstances

Murphy v Brentwood – decision in Anns finally overruled

- Watson v British Boxing Board of Control:boxer’s claim that immediate medical attention
should have been available at the ringside was upheld – injury was foreseeable, the boxing
licensing system meant there was close proximity, and it was fair, just and reasonable to
impose a duty

Law Society v KPMG Peat Marwick: CA stated that a firm of authors did owe a duty of care
to the Law Society to prepare accurate reports for a solicitors practice as required under the
professional code of conduct

Scope for further developments:

o Spring v Guardian Assurance plc & Others :illustrated difficulties informulating a common
approach to determining existence of DOC – identified DOC to give careful job references
about the plaintiff

o White v Jones – did a solicitor owe DOC to the proposed beneficiary of a will – it WAS
found to exist – claimed they had us

Hill v Chief Constable of South Yorkshire Police [1987] UKHL 12 – Yorkshire ripper case,
established that the police did not have a reasonable duty of care in this circumstance – but
how do the police not have a duty of care – does in fact lead to confusion.

Kent v Griffiths [2000] 2 All ER 474 : ambulance does owe a duty of care, but the police
doesn’t, it is in fact rather strange how the 3rd part of the Caparo test has been used.

Decisions must be reached autonomously – the criteria is essentially about public policy,
what is in the public interest
http://www.scotslawblog.com/scots-law/margaret-aitken-v-scottish-ambulance-service-and-
greater-glasgow-health-board-2011-csoh-49/ - the different conclusions that have arisen
whilst applying the same Caparo test

3. Can a public law duty in a statute ever be the source of a private law duty of care? Can a statutory
power be the source of a private law duty of care? Can private law duties of care coexist with
statutory powers and duties? (Gorringe, Stovin v Wise)

Stovin v Wise

Gorringe v Calderdale: It was not possible to impose upon a local authority a common law
duty to act based solely on the existence of a broad public law duty. A common law duty of
care could not grow parasitically out of a statutory duty not intended to be owed to
individuals. The drivers had to take responsibility for the damage they caused and
compulsory third-party insurance is intended to ensure that they would be able to do so. In
the instant case, where the complaint was that the authority had done nothing, the action had
to fail. Stovin v Wise [1996] applied.

Weather from the provisions and structure of the statute, can an intention be gathered for
what is meant.

Omission can’t create a claim in duty of care in negligence

When the relevant local authority ‘do nothing at all’ (omission to act), can the existence of a
statutory power or statutory duty give rise to a duty of care in common law? – ask for a
clarification on this quote, what is actually going on

Stovin v Wise: Trial judge: Council, as highway authority, had not breached any statutory
duties, but was in breach of common law DoC. Council was 30% to blame, and Mrs Wise
70%. Held (HL): Local authority owes no DoC (either in public law or in negligence)
to take positive steps to remove the bank.

HL: NO! Existence of a power or a purely public law style duty does not provide a short cut
to finding a duty at common law.

Judicial review is the most obivious remedy

X v Bedfordshire County Council [1995]

Facts Appeal against the council by children who had suffered parental abuse or neglect

Issue Did the council have a common law duty to take care over these children

Decision No duty

Reasoning Where there is statutory discretion imparted upon the authority, this discretion is
not actionable at common law

4. ‘As far as negligence liability is concerned, the English courts have always been protective of the
police. Following the seminal House of Lords decision in Hill v Chief Constable of West Yorkshire,
their standard response to any allegation of police negligence-no matter how loosely related to the
investigation or prevention of crime-is to pull out the policy card, and to use a simple defensive
practice argument to deny the existence of a duty of care.’ C McIvor, ‘Getting Defensive about Police
Negligence: The Hill Principle, the Human Rights Act 1998 and the House of Lords’, (2010) 69
Cambridge Law Journal, at 133.

Critically discuss the above statement with reference to relevant sources.

Hill v chief constable of south Yorkshire police [1987] – it was argued that the police did not owe a
duty of care - No improvement in police standards: recognition of a DoC is unlikely to improve
performance Judicial examination of police strategy: issues unsuitable for determination by the courts
Defensive policing Diversion of police resources=Police immunity

Why did the court deny a claim in negligence: she was not in anymore danger than any other person
in the area – Caparo test – no proximity – how can you have a duty of care to everyone

Police role is to suppress crime- not look out for each individual

Swinney v chief constable of Northumbria [1997] - Proximity shown by police assuming

responsibility, and Pl relying upon that assumption of responsibility, for preserving the information
which, if it fell into the wrong hands, was likely to expose Pl and members of her family to special
risk of damage from criminal acts of others, greater than general risk which ordinary members of
public must endure with phlegmatic fortitude.

Osman v Ferguson [1993] - CA accepted that case was different from Hill: Could argue that there was
proximity and special relationship between parties But struck out on policy arguments Blanket
immunity: no action against the police could succeed in respect of 'investigation and suppression of
crime' No appeal to HL permitted. A. Osman then appealed to ECtHR... ECHR: no violation of Art 2
and 8, but violation of art 6.

Michael v chief constable of south wales police [2015]: Police not liable: The common law
does not impose liability for pure omissions

It is speculative whether the addition of potential liability would make a practical difference
to the conduct of police officers and support staff in domestic violence cases

Not in the public interest for the police to determine their priorities according to the risk of
being sued

Would have significant financial implications for the police if they were liable to compensate
victims of violence on the basis that they should have prevented it

Not necessary to develop the law of negligence to comply with ECHR

Lady hale disagreed – make sure you check lecture 6

UKSC decision: Commissioner of the Police of the Metropolis v DSD and another
(respondents) [2018] UKSC 11 : Because police benefit from immunity from negligence
claims, 2 victims of John Worboys brought claims against the Metropolitan police under Art
3 ECHR (‘no-one shall be subjected to torture or to inhuman or degrading treatment or
punishment’)UKSC in 2018: Breach of Article 3
Lord Kerr: Failure to conduct a proper inquiry into behaviour amounts to a breach of article 3
[20, 54-58].

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 : Where a third
party such as a pedestrian is injured as a result of a negligent arrest on the street by a
police officer, the police are liable in negligence where that injury was a reasonably
foreseeable consequence of the police’s actions.

Immunity of police narrowed: police is liable for third party acts if those acts are
foreseeable consequences of acts of the police

It is rather inconsistent as the cases constantly shuffle from if there is a police duty of
care to if there is not a set rule, the facts are often the reason to establish if there is a
duty or not, look at each case and determine.

5. Victoria who has been living in Manchester for years bought a house in Plymouth constructed by
John. The house, as constructed by John, was structurally safe, but its internal walls sloped. Victoria
decided to sell the house only days after she bought it and before even arranging to move in, because
she received an attractive offer to work as a taxi driver in Manchester. Tom was interested in buying
the house and instructed Sally, a surveyor, to survey it for him. Sally did not notice the problem with
the internal walls and produced a very favourable report on the house. After reading Sally’s report,
Tom purchased the building from Victoria. After he moved in, it became obvious that the walls
sloped.

In Manchester, on her first day as a taxi driver, Victoria drove a taxi owned by Nick. She fell asleep
at the wheel and crashed into a café owned by Mark. Claire, a customer, suffered a serious leg injury.
The damage caused to the café required its closure for repairs for three months during which it was
obviously not possible for Owen, the waiter of the café, to provide his service to Mark. Robert who
witnessed the taxi hitting the café, suffered a psychiatric shock, while Claire started suffering from
depression as her injured leg never recovered fully.

Discuss any claims in tort.

Murphy v Brentwood District Council [1991]

Facts: The claimant bought a house built and sold by a company. The council approved the design of
its foundations. Later, cracks appeared in the walls of the house. The cracks were due to the defective
foundations. The claimant was not in a position to pay for repairs and decided to sell the house. The
house could not be sold but only £35,000 less than its value would be if there were no cracks.

Issue: Does the council (the defendant) owe to the claimant a duty to take care not to approve the
defective foundations, and, thus, to prevent the economic loss of £35,000?

Decision: No! The economic loss of £35,000 was only ‘pure economic loss’ (note that the occurrence
of cracks had not caused property damage or bodily/physical injury)  The basic exclusionary rule
applies (see Spartan Steel) irrecoverable pure economic loss.

Evaluation: Murphy reversed Anns v Merton London Borough [1978]. But see the differences: the
cracks in the house in Anns were found (a) to cause a ‘present or imminent danger to health or safety’
and (b) to count as ‘material physical damage’; (c) the claimant asked for the recovery of repair costs
(not for a reduction of the house’s market value).

Sally: is she liable for tort of breach of duty of care, sally is not liable because of the ratio in
the murphy v Brentwood District council case. There is no duty of care present, must just
take what is covered by pure economic loss

Nick v Victoria : she fell asleep at wheel : damaged his car and therefore damage of property
: pure economic loss – cant use his taxi which will most certainly cause economic damage
Authority : spartan steel v Martin

Mark V Victoria: she crashed into his café : he most certainly suffered pure economic loss : it
was non-physical harm – use the case of spartan steel v martin [1973] economic loss was
suffered
- Not liable for the 3 month closing period – first of cant calculate the damage, and
secondly that is a consequential harm not a pure economic loss.

Robert v Victoria : suffered a shock – he is a secondary subject to the case

Not liable for psychiatric shock because he must satisfy terms, that he simply fails to do so
Witness to an injury/ situation where the person has been put in fear of injury

- The claimant must to satisfy the demand for psychiatric harm as a secondary victim
Not be overly susceptible to psychiatric harm – bournhill v young [1983] miscarriage (not be
overly vulnerable)
Jaensch v coffey {1984] – would a normal person be equally harmed

- Harm must be suffered through shock

North Glamorgan walters v nhs trust

- Have been in physical proximity of the accident/aftermath

Direct immediate perception – Alcock v CC of south Yorkshire [1992] – saw it happen on tv

- Have enjoyed a close personal/familial relationship with the victim

White v cc of south Yorkshire
Must be seen if he is a primary or secondary victim – had to have had a relationship with
someone involved

Victoria v Claire : she injured her leg and as a result suffered depression – she is liable for
this

Page v Smith [1973]

Facts: Minor car crash caused by the defendant’s negligence. The claimant was in danger
(he was involved in the car crash), but suffered no bodily/physical injury. However, the
result of the emotionally traumatic experience of the car crash triggered the recurrence of
a psychiatric/mental condition, a chronic fatigue syndrome, that had also troubled him in
the past.
Issue: Does the defendant owe to the claimant a duty not to make him suffer or trigger the
re-emergence of a psychiatric harm?
Decision: Yes! (a) The claimant was a primary victim; (b) a type of personal harm (physical
or psychiatric) was foreseeable –this suffices for a duty of care to apply, that is, it is not
necessary that a specific (either physical or psychiatric or both) type of harm is foreseeable.

For psych one must first establish if there is a duty that exists

Problem questions have one tricky bit – focus on that

If it asks about duty no need to set out each term – instead say that it is satisfied

Tom v john – no proximity established – brentwood v murphy