Negligence: duty of care

Recognised duty of care between: - Employer and employee - Solicitor and client - Doctor and patient - One road-user and another - Manufacturer and consumer
No liability for failing to act when a stranger is in peril (except in special relationships see below), but if you intervene, and make matters worse, you can be found liable in negligence: East Suffolk Rivers Catchment Board v Kent [1941].

Special relationships exist between:

Prison officers and prisoners Employer and employee Occupier and visitor Parent and child

Donoghue v Stevenson [1932]

Modern tort of negligence begins with Lord Atkins groundbreaking judgment Friend bought the drink so unable to sue in her own right in contract Previous case, Winterbottom v Wright 1842, appeared to contain a clear rule preventing a duty of care from being established in absence of contractual relationship. The parties: manufacturer of ginger beer and eventual consumer Lord Buckminster objected to general test for establishing duty of care and specific duty in case. Destructive to commerce and would only harm consumers cost of damages in successful actions added to price of manufacturers goods. Majority rejected.

Lord Atkins judgment:

Lack of privity [def. relation between two parties, as recognised by law] of contract did not prevent the claimant from claiming Negligence was accepted as a separate tort in its own right Negligence would be proved by satisfying a three-part test: 1) The existence of a duty of care owed to the claimant by the defendant 2) A breach of that duty by falling below the appropriate standard of care 3) Damage caused by the defendants breach of duty that was not too remote a consequence of the breach A manufacturer would owe a duty of care towards consumers or users of his/her products not to cause them harm. This is commonly referred to as the narrow ratio of the case. The method of determining the existence of a duty of care: 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. Who, then, in law, is my neighbour?...persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.

From the neighbour principle, the tort of negligence is identified as being based on foreseeability of harm.

Existence of a duty of care owed by the defendant to the claimant

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Breach of that duty

Damage caused by the defendants breach

(Remoteness of damage (type of harm))

Negligence

After Donoghue v Stevenson, the tort of negligence developed incrementally, case by case, with a duty of care being established in numerous relationships. At a much later stage in time, the test was simplified. The new test did not look at past law instead, a duty would be imposed because of the proximity [legal, not physical!] of the relationship between the two parties (unless there were policy reasons for not doing so).

Anns v Merton London Borough Council [1978]

The claimants were tenants of a block of flats built in accordance with plans approved by the council. The foundations were too shallow. The tenants sued for the cost of making the flats safe, on the basis that the council either negligently approved inadequate plans or failed to inspect the foundations during construction. The decision was clearly arrived at on policy grounds. A duty of care was owed by the council, and if their inspectors did not exercise proper care and skill then the council was liable even thought the loss suffered was economic loss. Lord Wilberforces two-part test: First, it should be established that there is sufficient proximity between defendant and claimant for damage to be a foreseeable possibility of any careless act or omission. Second, if this is established, then the courts must consider whether there were any policy considerations that might either limit the scope of the duty, or remove it altogether. The problem with the two-part test is the amount of discretion given to judges, to determine whether or not a duty should exist in a given situation. After much unease with the test, it was discarded and Anns was overruled.

Caparo v Dickman [1990]

Shareholders bought more and more of Fidelitys shares until successful takeover bid. After Caparo had taken control, they realised Fidelity was in an even worse position than the accounts showed. It sued Dickman for negligence in preparing the accounts and sought to recover its losses. This was the difference in value between the company as it had and what it would have had if the accounts had been accurate. On a preliminary issue as to whether a duty of care existed in the circumstances as alleged by the plaintiff, the plaintiff was unsuccessful at first instance, but was successful in the Court of Appeal in establishing a duty of care might exist in the circumstances. Overturned by the House of Lords, which unanimously held there was no duty of care company accounts are not prepared for the purposes of people taking over a company and cannot then be relied on by them for such purposes.

Murphy v Brentwood District Council [1991]

Council approved plans for a concrete raft upon which properties were built. The raft moved and caused cracks in the walls of a property, which, as a result, was sold for 35,000 less than it would have, had it not been defective. The House of Lords overturned Anns and held that the council was not liable in the absence of physical injury. Economic loss arising from a negligent act or omission is not recoverable. Donoghue v Stevenson principles should only apply in cases of material physical damage.

Three-stage Caparo test

1) Were the consequences of the defendants behaviour reasonably foreseeable? 2) Is there a sufficient relationship of proximity between the parties for a duty to be imposed? 3) Is it fair, just and reasonable, in all circumstances, to apply a duty of care? Reasonable foresight: the defendant must have foreseen the risk of harm to the claimant at the time he or she is alleged to have been negligent.

Home Office v Dorset Yacht Co. [1970]

Borstal trainees escaped and caused damage to a yacht, at the time when their officers went to sleep, and left the trainees to their own devices. Home Office liable, but it would have been excessive to burden them with liability for all damage subsequently committed. Liability was only for harm caused at time of escape and in the vicinity. Overlap between existence of duty, causation and remoteness of damage.

Proximity: legal proximity, in the way that Lord Atkin described in his neighbour principle.

Hill v Chief Constable of West Yorkshire [1988] - Mother of Yorkshire Rippers last victim argued in court that the police had failed to use reasonable care in apprehending the murderer of her daughter. The House of Lords held that the Chief Constable of West Yorkshire did not owe a duty of care to the mother. There was insufficient proximity between the police and the public for a duty to be imposed to protect individual members of the public from specific crimes. The argument that the Rippers 13th victim would not have died but for the negligence of the police investigation was therefore rejected.

Fairness: this requirement is, in reality, identifying that there must be a limit to liability and no duty will be imposed unless it is just in all the circumstances.

Osman v UK [2000]
Obsessive teacher wounded 15-yo boy, and killed his father. The applicants had demonstrated that, in the months before the fatal attack, the police had been given information that should have made clear the extent of the danger of assault. The family claimed the police missed numerous opportunities to catch the perpetrator of these crimes. The High Court, Court of Appeal and the House of Lords rejected claim, because against public policy to hold police liable for negligence in investigation of a crime. Confirmed decision given in Hill. ECtHR held that blanket immunity of police from negligence action was breach of Article 6, ECHR everyone is entitled to hearing by an impartial tribunal.

Breach of duty
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do. (Blyth v Proprietors of the Birmingham Waterworks [1851] per Alderson, B)

Special standards of care

Skilled or professional defendants: - The standard of care applied to professionals with a particular skill, or expertise, is that of the reasonable person with the same skill or expertise. - For instance, a doctor would be expected to show a greater degree of skill and care to a patient than the man on the Clapham omnibus. - This test, now known as the Bolam test, was established in Bolam v Friern Hospital Management Committee. Has also been held to apply to other professionals (window designers in Adams v Rhymney Valley DC [2001]).

Bolam v Friern Hospital Management Committee [1957]

Claimant underwent a course of electro-compulsive therapy in hospital, as treatment for sever e depression. Application of electrical current to patients head with the aim of causing seizures. Doctor failed to provide muscle relaxants or any physical restraint claimant suffered dislocation of both hip joints, with fractures of the pelvis on each side. Standard of care for doctors is the standard of the ordinary skilled man exercising and professing to have that special skill. There were conflicting views from practitioners on the use of relaxants/restraints. As there were, therefore, doctors who would have acted the same way, the doctor treating the claimant had acted in accordance with a competent body of medical opinion not negligent.

The Bolam test has also been criticised for being too protective of professionals. In medical negligence cases in particular, it has been argued that the test allows practitioners to set their own standards, rather than having those standards set by the courts. -

Bolitho v City and Hackney Health Authority [1998]

Two-year-old boy suffering from croup. Airways became blocked. Despite being summoned on more than one occasion by nursing staff, doctor failed to attend. Child suffered cardiac arrest and brain damage as a result. Hospital claimed they were negligent, but not liable: even if she had attended, she would not have intubated him. Cardiac arrest and brain damage would have occurred anyway. Certain medical opinion accepted the practice of the doctor in question, yet House of Lords rejected the view that they were bound to accept it because of Bolam. Lord Browne-Wilkinson: if...it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge in entitled to hold that the body of opinion is not reasonable or responsible.

Despite the clarification in Bolitho, it is very difficult to prove professional negligence where there is a body of opinion which agrees that the defendant has followed an accepted practice.

Hunt v NHS Litigation Authority [2002]

Doctor failed to realise the implications of a cardiotocograph (technical means of recording foetal heartbeat and contractions). Baby had irregular heartbeat. Gave woman drugs to speed up labour, left her in care of midwives, attending periodically. Doctor should have realised something was wrong from tests, should have carried out a forceps delivery much earlier on. Baby suffered brain damage and was born with cord tight around neck.

Whitehouse v Jordan [1981]

Senior registrar carried out forceps delivery of a baby. Baby was born with severe brain damage after a difficult birth. Alleged that doctor used forceps with too much force, and that was cause of damage. The Lords found that the doctor's standard of care did not fall below that of a reasonable doctor in the circumstances and so the baby was awarded no compensation.

Unskilled defendants: - The general standard of care in negligence is an objective test, judged against the standards of the reasonable person. - No allowance is made for the inexperience or lack of skill of the defendant. Where a person undertakes an activity requiring specialist skills, they are required to reach the standard of a person reasonably competent in that skill (Wells v Cooper [1958]). -

Nettleship v Weston [1971]

A learner driver crashed into a lamp post and injured her driving instructor. The learner driver was liable, despite her inexperience. The standard of care required of all motorists is the same: that of the reasonably competent driver. Same principle has been held to apply in relation to junior doctors such that they are required to reach the standard of the reasonable competent doctor of the same rank Wilsher v Essex Area Health Authority [1987].

Children: - Child defendants are expected to reach the standard of care reasonably expected of ordinary children of the same age. -

Mullin v Richards [1998]

Two 15-year-old girls were fencing with plastic rulers. One ruler broke, and a fragment of plastic caused one girl to lose sight in one eye. The Court of Appeal held that, since such games were commonplace, and would normally not lead to injury, the injury was unforeseeable to girls of that age. No negligence.

However, the judges have been willing, on occasion, to make awards of contributory negligence against child claimants.

 Morales v Eccleston [1991]

11-year-old boy ran into a busy London road, without looking, to recover his football. Was found to be 75% to blame for his injuries Court held that he had clearly been reckless as to his own safety.

Sporting events: - The standard of care appropriate to participants in sport is the ordinary standard of reasonable care. - The level of care required will depend on the circumstances of the case, including whether the player is a professional or an amateur.

Wooldridge v Summer [1963]

Experienced rider at an equestrian event galloped his horse around a corner so quickly that the horse went out of control, plunged off the track and injured a photographer. The Court of Appeal held that the defendant was not liable for negligence, but had merely made an error of judgement in how fast he should have been going at the time. Duty of care only breached when competitor shows reckless disregard for the spectators safety.

Other factors to be considered in establishing breach

Risk: breach of duty is often linked to the probability or foreseeability of the risk eventuating.

Bolton v Stone [1951]

C hit cricket ball and seriously injured; ball travelled 100 yards before hitting her, clearing fence 17 feet high and 78 yards from batsman; ball hit out of ground only 6 times in 28 years. Not liable. Balls hit out of ground several times every season. A greater risk of damage than normal increases the standard of care required of a potential defendant. Liable.

Miller v Jackson [1977]

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B < PL: Breach occurs where cost to D, of taking precautions, is outweighed by the magnitude of the risk,
and the gravity of the possible harm to C.

Latimer v AEC ltd. [1952] - Flood caused oil to escape over factory floor. Employer sprinkled sawdust over some but not all
of floor. Did not close factory [cost too high: disproportionate to relatively small risk]. Employee slipped and was injured on untreated part of floor. D not liable acted as reasonable employer.

Severity of likely loss/injury: risk of greater damage than normal may increase obligations of potential
defendant. The greater the risk of injury, the more D has to do to reduce or eliminate that risk, even if it is costly. Impecuniosity [def. having little or no money] is not a defence to a breach of duty.

Paris v Stepney Borough Council [1951]

Mechanic with only one sighted eye. Blinded entirely by a splinter from bolt. Goggles not supplied by employer not ordinary practice in garages on the maintenance/repair of vehicles.

Although no greater risk of injury, lack of goggles increased risk of injury being more serious. Defendants owed him a higher standard of care, because they knew an injury to his good eye would cause him much more serious consequences than the same injury to a worker with good eyes. D liable.

Haley v London Electricity Board [1965]

C blind. Injured by falling down a trench, dug by D. Blind people are foreseeable, and increased risk of injury to them obliged D to take extra precautions to ensure safety. Greater risk of injury although not risk of greater injury.

Social value: Where the defendants behaviour is in the public interest, it is likely to require a lower
standard of care.

Daborn v Bath Tramways Motor Co. Ltd [1946]

Defective van used as wartime ambulance. Conversion would be expensive and difficult. Lord Asquith: the purpose to be served, if sufficiently important, justifies the assumption of abnormal risk.

Watt v Hertfordshire CC [1954]

Fire brigade responded to emergency call, requiring lifting equipment. Wrong fire engine used to carry heavy jack. Jack slipped in transit, injuring C. No liability. Where human life is at risk, a defendant may also justifiably take abnormal risks. Lord Denning: If this accident had occurred in a commercial enterprise without any emergency, there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. However, this does not mean that the defendant is justified in taking any risk. For example, emergency services must take care in passing red traffic signals, and remember to use their sirens and lights to alert other road users of their presence.

Kent v Griffiths [2000]

The emergency services do not generally owe a duty of care to the public except in certain, limited circumstances. Claimant was suffering from an asthma attack, 999 call ordered by doctor. Ambulance took forty minutes to arrive. Claimant suffered respiratory arrest. The Court of Appeal held that: It was reasonably foreseeable that the claimant would suffer further illness if an ambulance did not arrive promptly The claimant and defendant were 'sufficiently proximate' once the LAS accepted the call and dispatched an ambulance, and a specific duty of care was established; there being no good reason for it failing to arrive within a reasonable time, this duty was breached. It was 'fair, just and reasonable' to allow a duty of care to exist between an ambulance service and its patients with regards to promptness of pickup (and presumably, return to the hospital) where no good reason for delay is offered. The LAS submitted to establish that to establish this duty of care was against public policy considerations which in previous cases had limited the duty of care of emergency services (Hill)

on the grounds that it would divert their resources, from ambulance provision, to fighting court cases. Compensation Act 2006, s.1 allows the court to consider whether precautionary or defensive measures might prevent socially desirable activity from being undertaken. Lord Woolf: Despite answering 999 calls, the ambulance service is part of the health service. They thus share the health service's duty of care to those in tortious proximity (people to whom an ambulance is despatched were in sufficient 'proximity'); he deemed it relevant that it only has to deal with the victim at the scene, and is not having to act with 'concern to protect the public generally', unlike the fire and police services.

Policy factors: ...the court must decide not simply whether there is or is not a duty, but whether there
should or should not be one. (Winfield & Jolowicz)

Policy factors to be considered by judges:

Loss allocation judges more likely to impose duty if party is able to stand the loss Practical considerations e.g. imposing liability so to encourage companies to avoid future liability Moral considerations Protection of professionals professionals should not be prevented from working by restrictive rulings Constitutional considerations judges are keen not to be seen as law makers (Parliaments role). The floodgates argument The beneficial effects of imposing duty for future conduct in Smolden v Whitworth and Nolan [1977] the court imposed a duty on a rugby referee who failed to properly control a scrum.

Capital & Counties PLC v Hampshire CC [1997]

Brigade switched off sprinkler system in burning building liable because of duty to take reasonable care not to make condition worse. But no common law duty to answer emergency calls, nor to fight fire with reasonable skill merely by responding to an emergency call: lack of proximity between emergency services and maker of call. Floodgates argument: number of emergency callers too great.

Proving breach of duty

The legal burden of proving breach of duty is on the claimant. This must be established on balance of probabilities. However, there are certain circumstances in which the claimant may have some assistance. These are: Where the maxim res ipsa loquitur applies Where section 11 of the Civil Evidence Act 1968 applies.

Res ipsa loquitur: Latin maxim meaning the thing speaks for itself. - In certain circumstances courts will be prepared to find a breach of duty against the defendant without hearing detailed evidence and therefore prima facie negligence. - There are three conditions which must be satisfied for the claimant to be able to use res ipsa loquitur.

Scott v London & St. Katherine Docks Co. [1865] - Claimant injured by a sack of sugar which fell from a crane operated by the defendants. - Claimant will be assessed by res ipsa loquitur if:

The thing causing the damage is under the control of the defendant or someone for whose negligence the defendant is responsible; The cause of the accident is unknown; The accident is such as would not normally occur without negligence

Res ipsa loquitur

Control Cause unknown Accident would not normally occur without negligence

The event must be within control of the defendant. In Easson v LNER [1944], child fell through door of train, whilst in motion. No evidence as to how door was opened. Held that the mere fact that door opened was not prima facie evidence of negligence against the railway company, since the railway company could not be expected to be in continuous control of the doors. A passenger could have caused the accident.

If the cause of the accident is known, RIL cannot apply. The facts do not speak for themselves. Instead, the court must decide on all the facts whether negligence is established. Barkway v South Wales Transport [1950]: A bus veered across the road and it was known that the accident was caused by a flat tire. In this case, the plaintiff could not be assisted by res ipsa loquitur and had to go on to prove that the flat tire was caused by the transport company's negligence.

Examples of such cases are: Scott v London and St Katherine Docks Co [1865]. The sack of sugar would not have fallen by itself. A customer slipping on yoghurt that had not immediately been cleaned from the supermarket floor: Ward v Tesco Stores Ltd [1976]. A patient going into hospital with two stiff fingers, and coming out with four stiff fingers: Cassidy v Ministry of Health [1951]

If res ipsa loquitur is available, then it raises a prima facie presumption of negligence against the defendant. The defendant must then explain how the accident could have occurred without negligence. If the defendant succeeds, then the claimant must try to prove the defendants negligence (difficult, as if proof could be offered, no need for res ipsa loquitur in the first place)

Civil Evidence Act 1968 (section 11) - If the defendant has been convicted of a criminal offence by a UK court, this is taken as proof that the defendant did commit it, in any associated civil proceedings, unless the contrary is provided. - If the defendant has been convicted of a criminal offence which includes negligent conduct, then the burden of proof shifts to the defendant to prove that there was no negligence.