Elements of the Tort of Negligence:
Duty of Care
Breach
Causation
Defences
Duty of Care:
A duty of care is a duty one person owes to some other person to take reasonable care not to cause a particular sort of injury.
In Donoghue v Stevenson, D found a snail in their ginger beer after drinking it. D became ill. D’s friend had bought their drink, but D still sued the manufacturer (S). The HL held that S owed D a duty of care. Prior to the case, duties of care were only ever found where there was precedent to do so.
Tests for a Duty of Care:
Neighbourhood Principle:
Donoghue v Stevenson established that people owe a duty of care to those who would be affected by the defendant’s reasonably foreseeable actions.
‘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? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question’ [1]
Neighbourhood Principle Revised:
Anns restated the principle established in Donoghue and added a requirement for courts to make policy considerations while establishing a duty of care.
‘First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter—in which case a prima facie duty of care arises. Secondly, … it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise’ [2]
Even if a duty of care is found, a court is entitled to deny it.
In Hill, H’s daughter was killed by a serial killer. H sued the police for their negligence in not finding the killer soon enough. Court held that the police did not owe a general duty of care to prevent crime. If they were liable, they would police in a ‘detrimentally defensive’ way and would be a diversion of vital public funds when paying successful litigation claims.
2 Test System (Caparo):
Caparo established 2 ways of establishing a duty of care. Currently, it is the most authoritative source on finding duties of care.
In Caparo v Dickman, C bought shares in a company (F) that D had audited. D’s audit was incorrect and F’s profits did not match their projected earnings. C lost money and sued D for their negligence. The HL found no duty of care.
3 Stage Test:
Damage must be Foreseeable
Relationship of Proximity or Neighbourhood between C and D
Fair, Just and Reasonable to Impose a Duty of Care on D
‘[I]n addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other’ [3]
Issues:
Proximity is rather vague and ambiguous. The courts have a fairly wide discretion to interpret the scope of liability.
Reasonableness relates to policy issues. This is a rather subjective issue, which could lead to inconsistency and unfairness when courts find duties of care.
In The Nicholas H, C’s ship was damaged at sea. C decided to undertake temporary repairs with the view to fully repair when they returned home. D, a member of the classification society, was employed to approve the repairs, which they did. The ship sunk and lost its cargo. The cargo owners sued D, but the court held that D owed no duty of care to them. This decision was formed from the policy concern that classification societies may be discouraged from doing their job and that all of the cargo was insured regardless.
Incremental Approach:
Duties of care are developed by analogy to precedent of existing recognised duties.
Issues:
If case law does not cover a specific issue, the claimant would be unable to claim that the defendant owed them a duty of care. The law would remain stagnant when it ought to evolve.
Where there is existing precedent, this should be used to find a duty of care, using the incremental approach. Where there is no established precedent, the 3-stage test should be applied.
‘Properly understood, Caparo … achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.’ [4]
Police Issues:
In Michael, a woman sued the police when they did not respond urgently enough to a potential domestic abuse 999 call. The SC decided that the police are not liable.
Often mistaken to mean that the police never owe a duty of care.
In Robinson, R was knocked over and injured while police officers were attempting to make an arrest on a busy high-street. R sued for the police’s negligence. The SC held that the police were in breach of a duty of care.
Resources:
References:
[1] Donoghue v Stevenson [1932] UKHL 100 (Atkin LJ) [2] Anns v Merton London Borough Council [1977] UKHL 4, [1978] AC 728 [3] Caparo Industries plc v Dickman [1990] 2 AC 605 (HL) (Bridge LJ) [4] Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736 (Reed JSC)
Cases Mentioned:
Donoghue v Stevenson [1932] UKHL 100
Hill v Chief Constable of South Yorkshire Police [1990] 1 W.L.R. 946
Caparo Industries plc v Dickman [1990] 2 AC 605 (HL)
The Nicholas H (Marc Rich & Co Ltd v Bishop Rock Marine Co Ltd) [1996] AC 211 (HL)
Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732
Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736
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