WS2 Negligence (Duty and Breach)

STEP 1: State: the Claimant can consider suing the Defendant for [insert harm] in the tort of NEGLIGENCE

• Claimant v Defendant [insert relevant names]

• Negligence may be defined as: a breach by the defendant of a legal duty of care owed to the claimant that results in actionable damage to the claimant unintended by the defendant.

• For a negligence claim, run through the four elements: Duty of Care, Breach, Causation, Defences.

STEP 2: Consider whether the Defendant owes the Claimant a legal DUTY OF CARE

1. ESTABLISHED DUTY SITUATIONS: Established duties of care exist in the following situations: (a) One road user to another (b) Teacher to pupil (c) Doctor to patient (d) Manufacturer to the ultimate consumer of the product (e) Defendant to RESCUER, where the Defendant has created a dangerous situation so that it is reasonable that somebody may attempt rescue (Baker v Hopkins) (f) Driver to pedestrian (Nettleship v Weston) (g) Referee to sport player (Vowles v Evans) (h) Parent/adult in loco parentis to child (i) Advocate to client (Arthur J S Hall v Simons) (j) Road users to road users (Upson) (k) In limited circumstances: Ambulance service to emergency callers (Kent v Griffiths)

Established duties of care do NOT exist in the following situations: (a) Soldier to colleague (Mulcahy v Ministry of Defence) (b) Fire service to emergency caller (Capital & Counties v Hampshire County Council)

222 TORT LAW COPYRIGHT YOURGDL 2014 YOURGDL.CO.UK Do the POLICE owe a duty of care?

General rule – public policy driven: The police do NOT owe a duty of care to individuals, only to the public at large (Hill v Chief Constable of West Yorkshire; confirmed in: Brooks v Commissioner of Metropolitan Police; Osman v UK; Smith v Chief Constable of Sussex Police).

Exceptions:

• Where the police have assumed responsibility for someone or someone has been entrusted to their care, the police owe a duty of care to that person (Kirkham v Chief Constable of Greater Manchester – suicidal prisoner, taken into police custody)

In addition, the police may owe a duty of care:

• to take action with reasonable care (Rigby v Chief Constable of Northamptonshire)

• to keep the ID of informants safe (Swinney v Chief Constable of Northumbria Police)

2. NOVEL DUTY SITUATIONS (a) Starting point: Donoghue v Stevenson wide rule (AKA 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’. (b) Explain how Donoghue v Stevenson ratio was redefined in Caparo Industries v Dickman and apply the three-part test for whether a duty of care is owed: (i) Is it REASONABLY FORESEEABLE that the Defendant’s actions will affect this particular Claimant? (ii) Is there sufficient PROXIMITY OF RELATIONSHIP between the Claimant and the Defendant? (iii) Is it FAIR, JUST AND REASONABLE to impose a duty? (iv) E.g. it may not be fair if the Defendant is a non-profit organisation/acting in a quasi- public capacity (Marc Rich v Bishop Rock Marine)

Omissions: Is there a duty to act positively? General rule - Stovin v Wise: There is no liability for pure omissions, and you do not owe a duty to the world for doing nothing to prevent harm. This rule applies if you decide to act despite no duty to do so, even if you act carelessly – UNLESS you make matters worse (East Suffolk Rivers v Kent) Exception: Home Office v Dorset Yacht: there is a duty to act positively in cases where a person has a special relationship of control over another (Smith v Littlewoods – but this duty does not extend to cover actions of third parties who are OUTSIDE the Defendant’s control)

COPYRIGHT YOURGDL 2014 YOURGDL.CO.UK TORT LAW 223 STEP 3: Consider whether there has been a BREACH of this duty of care: Apply 2 stage test

1. How OUGHT the Defendant have behaved? (identify the standard of care expected in the circumstances; a question of law) (a) General standard: standard of the REASONABLE PERSON (Blyth v Birmingham Waterworks). (i) This is an objective test (Glasgow Corporation v Muir) (b) Where the Defendant is a PROFESSIONAL: the standards of the Defendant’s profession/a reasonably competent professional in the circumstances (Bolam v Friern Hospital). (i) The courts will consider compliance with common practice in the relevant profession as strong evidence that the Defendant is not negligent (Bolam). BUT – (ii) The final decision whether a skilled Defendant’s behaviour is reasonable is the courts (Bolitho v City and Hackney) (iii) Common practice won’t necessarily justify the taking of risks, as the courts can reject ‘expert evidence’ and condemn commonly accepted practice as negligent (Re Herald of Free Enterprise) (c) Where the Defendant is INEXPERIENCED: There is no allowance for inexperience (Nettleship v Weston) (i) E.g. car drivers must meet standard of a reasonably competent driver, even if learners (Nettleship). Exception: where the Defendant suffers from an unexpected disability (Mansfield v Weetabix) (ii) Rule also applies in cases of professional inexperience (Wilsher v Essex Health Board) (iii) Rule applies in cases for home DIY (Wells v Cooper) (d) Where the Defendant is a CHILD: Reasonable child of the Defendant’s age (Mullin v Richards)

2. How DID the Defendant behave? (identify whether the Defendant fell below the relevant standard of care; a question of fact). Consider the following factors in deciding whether there has been a breach: (a) Bolton v Stone: if the RISK OF HARM is particularly small, and neglect is reasonable, it is justifiable not to take steps to mitigate But – if the risk of harm is HIGH, one must take such steps (Miller v Jackson) (b) Paris v Stepney: If there is a risk of VERY SERIOUS HARM, one must take appropriate steps to mitigate (c) Latimer v AEC: consider the COST AND PRACTICABILITY of solutions. If taking precautions would have been impracticable and incurred great expense, this may excuse the Defendant for not doing so, provided the risk of harm is small (d) Watt v Hertfordshire CC: If the Defendant’s actions are in the PUBLIC INTEREST/have substantial social utility, this may justify the Defendant taking greater risks (e) Fardon v Harcourt Rivington: There is no duty on the Defendant to protect against ‘fantastic’ possibilities

224 TORT LAW COPYRIGHT YOURGDL 2014 YOURGDL.CO.UK (f) Waugh v James K Allen: the Defendant is not liable if his actions were due to a sudden incapacity (g) Scott v London & St Katherine Docks: Res ipsa loquitor – the Defendant may be liable even if there is no conclusive proof of blame (in limited situations only) (h) Civil Evidence Act 1968, s.11: If guilty in criminal proceedings, the Defendant is also presumed liable in tort (i) Roe v Ministry of Health: the Defendant’s conduct should be considered in relation to the state of knowledge at the time of the event only

For Causation (STEP 4) and Defences (STEP 5), see WS3 Negligence (Causation and Defences)