At one point Lord Atkin’s test was simplified by Lord Wilberforce in Anns v Merton LBC 1978 into a two part test. Is there sufficient proximity between defendant and claimant to impose a prima facie duty?If so, does the judge consider that there are any policy grounds which would prevent such a duty being imposed?The Anns test was always seen as too broad because:It creates a general duty based only on proximityIt gives judges too much power to decide on policy aloneA long line of cases expressed dissatisfaction with the Anns Test eg, Governors of Peabody Donation Fund v Sir Lindsay Parkinson 1985. The test was finally overruled in Murphy Brentwood DC 1990.
Subsequent cases have approved this incremental approach Spring v Guardian Assurance 1995Jones v Wright 1994
Fardon v Harcourt – Rivington1932The court set out the reasonable man test for forseeability: "If the possibility of danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions'."
John Munroe v London Fire and Civil Defence Authority 1997[Tort – negligence - duty of care – no duty situations - public policy – no duty owed in operational matters] D employed fire fighters who wrongly thought all the fires at C’s premises had been put out. One of the fires flared up again, causing damage to C’s premises. C sued D and others, alleging negligence.Held: D owed no duty of care to C. The considerations set out in Hill are applicable as much to the fire brigade as to the police. Imposing a duty of care would not improve the efficiency of the service but would lead to defensive fire fighting. Above all, the imposition of a duty of care in this situation would lead to a flood of claims, since many fires were created by Acts of God or acts of criminals and lunatics, leaving only the fire service to be sued.C lost.Hill v Chief Constable for West Yorkshire(1988) HL [Tort – negligence – duty of care – no duty situations - foreseeability - breach - acts of third parties - public policy]D the police failed to catch the "Yorkshire Ripper". C, the mother of the lat (13th) victim sued the police for negligence alleging inefficiency and errors in their handling of the investigation.Held: The police owed no duty of care towards the daughter to protect her from the Ripper. Some further ingredient is invariably needed to establish the requisite proximity of relationship between the complainant and the defendant; she had been at no greater risk than most other members of the public had. C lostFor application of proximity in establishing a duty of care see:Bourhill v Young  AC 92Bourhill v Young  AC 92 is a Scottish delict case, on the subject of how extensive an individual's duty is to ensure others are not harmed by their activities. The case established important boundaries on the scope of recovery for bystanders, or those uninvolved with physical harm. Where a woman suffered psychiatric harm after walking onto the scene of a motorcycle accident, she was deemed not to be a foreseeable victim, having not been in immediate danger of physical harm.
Hemmens -v- Wilson Browne (A Firm)  4 All ER 826rofessional Negligence, Legal professionsA solicitor was not liable in negligence, where his mistake might be yet be rectified; this was an inter vivos transaction and the parties could still resolve the position. Though a solicitor had a duty to the beneficiary of a settlement, the settlor could still perfect the deed.Ephraim -v- London Borough of NewhamNegligence, Local Government A Local Authority was liable for its negligent reference of a homeless person to unsafe premises.Housing Act 1985 65(4)
Negligence – 1. Duty of Care• DUTY OF CARE• BREACH OF THE DUTY OF CARE• CAUSATION• LOSS OF INJURY
Duty of Care The first consideration is to establish whether the claimant was owed a duty of care by the defendant. The category of duty of care owed Traditional Categories (patient/doctor relationship, driver and passenger, driver and other road users, manufacturer and consumer, lawyer and consumer) Novel Cases, not yet categorized then the test for determining duty of care must be applied, establishing that one or more of the three factors is present. – foresight, proximity and justice/fairness
The traditional/established categories Consumers : - Donoghue and Stevenson, Grant v Australian Knitting Mills Road Users: - A driver of a car owes a duty of care to other road users including pedestrians. The Plaintiff must still prove that a duty of care was owed to him specifically by the defendant to the road user. The court will not duty of care if the P fails to prove it. Users and Purchasers of premises : - An occupier of care towards visitors, whether invited or trespassing, whose presence is lawful or otherwise, who suffers injury during the course of their visit to the occupier’s premises. (see Occupiers Liability Act 1984)
The traditional/established categories The unborn Child :- A duty of care can be owed by the defendant to a plaintiff who was an unborn child at the time of the accident. Watt v Rama 1972 – (Australian Case) – P’s mother who was pregnant with her suffered injuries as a result of a motor accident due to D’s negligent driving. P was subsequently born and she suffered from brain damage and epilepsy. It was alleged that P’s handicap was due to the injury sustained by her either in the accident while unborn or in the course of her birth as a result of injury to her mother . D denied that he owed a legal duty of care to P while she was still in her mother’s womb. Victorian Supreme Court held that since was born as a handicap because of the injuries sustained by her as the result of the accident involving her mother who was pregnant with her at the time of the accident, D owes P a duty of care. It was immaterial whether at the time of the negligent act whether the victim was in existence or not, so long as the victim was the member of the class reasonably likely to be adversely affected by that act.
The Unborn Child Lynch v Lynch 1991– (Australian Case) – P was born disabled as a result of injuries sustained by P’s pregnant mother, when she lost control of her truck which she was driving and crashed into a bank. P sued her mother for negligence. Court held that a mother owed a duty of care to her unborn child not to cause him to suffer injury as a result of her conduct and the child can bring an action against the mother where her negligence has caused P to suffer the alleged injury.
Rescuers A defendant who owes a duty to another will also owe duty to those who might foreseeably attempt to rescue that other from the acute danger in which D’s negligence has placed the other. HAYNES V HARWOOD 1935 D’s delivery man left his horse-drawn van unattended on the street A boy mischievously threw a stone at the horse which ran away A policeman who saw the runaway horses posing a danger to the lives of a woman and a number of children decided to give a chase and seize the horses. P was successful in seizing the horses but he was severely injured when a horse fell on him. COA held that D owed a duty of care to the plaintiff because it was reasonably foreseeable that D’ conduct of leaving the horses unattended in a place where mischievous children may be about and where something may happen to cause the horses to run away and thereby endangering the public and rescuers like P might be attracted to help the situation. If such a rescuer should be injured in the course of such a rescue then D shall be liable for the injuries.
Chapman v Hearse 1961 An accident was caused by Chapmans negligent driving. Dr. Cherry, the plaintiff went to help Mr. Chapman who was thrown free fro his car and was lying injured on the road. While Dr. Cherry was attending to Chapman, Dr. Cherry was run over and killed by another which was driven by Hearse. Dr. Cherry’s estate sued Hearse for negligently causing Dr. Cherry’s death and Hearse joined Chapman as a third party alleging that Dr. Cherry’s death caused by Chapman’s initial negligent driving. The issue before the court was that Chapman owed a duty of care to Dr Cherry, his rescuer. Held: Chapaman owed a duty of care to Dr. Cherry because it was reasonably foreseeable that Chapman’s negligent driving would attract rescuers like Dr. Cherry who would foreseeably be harmed due to Chapman’s failure to take reasonable care in driving.
What if the “P” is abnormal? In general the duty is owed to a foreseeable plaintiffs. A duty is not normally owed to an “abnormal plaintiff” unless they were within a foreseeable class. Levi v Colgate Palmolive Ltd 1941 P, a woman aged 21 received from D free box containing their samples of its products. One was an envelope of bath salts. She dissolved most of the contents of the envelope in a bath of warm salt, in which she soaked herself in it for 2o minutes. While in the bath she felt a tingling sensation to her skin and by the time she emerged from her bath, her face and other parts were all red. The redness continued and the itch developed and the P sued D for negligence. HELD: D does not owe P a duty of care. Where the act is incapable of injuring an ordinary normal person, or is so done that, it is incapable of injuring and ordinary normal person, the person who does it owes no duty to do more by reason only of the possibility that a person of abnormality accentuated susceptibility may be affected by it.
HALEY V LEB 1965 D with statutory duty excavated a trench in the street. D took precautions for the protection of passerby’s which was sufficient for normal sighted people but P, who was blind suffered injury because the protection taken by D were insufficient for P. HELD: In the view of the blind persons who go about the streets alone was sufficient to require D to have them in contemplation and to take precautions appropriate to their condition. LORD REID, “ In deciding what is reasonably forseeable one must have regards to common knowledge. We are all accustomed to meeting blind people walking with their stick on the city pavements, no question can arise in this case any diffciculty in affording adequate protection to the blind. In considering what is adequate protection one must again have regard to common knowledge.”
Duty of Care and Omissions The rule in negligence is that the defendant owes a duty of care not to harm his neighbor but he does not owe a duty of care to save his neighbor. However, the situation is different, if it is an omission that is giving rise to a duty to act. This is where some special or exceptional relationship exists between the parties which give rise to the liability for failure to act such as control and supervision role, duty of protection – school and student, parent and child. Home Office v Dorset Yacht Co Ltd 1970 7 boys from a reform school who were working on an island under the control and supervision of 3 prison officers Boys escaped from the island at night and boarded a yacht owned by P Boys cast the yacht adrift and damaged it. Owners of the yacht sued the prison authority alleging that the damage to the yacht had been caused by the prison officers negligence in allowing the boys to escape. The issue was whether D owed any duty of care to P. HELD: D did owe P a duty of care not to cause damage to his yacht. The relationship between the prison officers and the boys imposed on the former a duty to control the latter, that the duty was owed to all those whom it was reasonably foreseeable might suffer to injury if the boys were allowed to escape.
TEST for determining the existence of Duty of Care Neighborhood principle established in Donoghue and Stevenson The two stage test and open discussion of policy The re-treat from the two stage test The current test: foresight, proximity and fairness
Neighborhood PrincipleCase of Donoghue and Stevenson in 1932 – appellant brought an action against the manufacturer of ginger beer bottle. She drank some of the ginger beer bottle and some was poured into her glass she noticed the remains of what appeared the decomposed snail floating out of the opaque bottle into her tumbler. Appellant claimed damages for personal injury from having suffered gastroenteritis and nervous shock At that time, an action can be brought against the manufacturer if there is a pre- existing contractual relationship between the parties. However the basis of this case was that a manufacturer owed a duty of care to the consumers to take care that there was no harmful substance in his product Lord Buckmaster (dissenting) said if the case is decided on the favour of the appellant, it was difficult to see how trade could be carried on. However Lord Atkin (Majority) emphasized the need for proximity which limits the range of claimants and the “neighborhoods principle” which focuses on the foreseeability.
Significant in the case of Donoghue and Stevenson Negligence is a separate tort in its own right Claim for negligence can exist regardless whether there is a contract between the manufacturer and the injured party A claim for negligence can exist if the claimant can prove that there is a duty of cared by the defendant to him, and that there is a breach of that duty of care and it has resulted in damage which is not too remote. In order to establish duty of care, the “neighborhood principle” based on reasonable foresight must be applied. The manufacturer owes a duty of care to the consumer by not allowing foreign bodies to contaminate the products by negligence on his side This decision was confirmed in Grant v Australian Knitting Mills 1936 – claimant suffered dermatitis caused by a chemical used in a manufacture of woolly underpants made by the defendant. It was held that a duty of care was owed to him and the defendant were liable even though the illness he suffered was extremely rare.
Two Stage Test and Open Discussion to Policy Developments in the law of negligence that followed. Anns v Merton Borough Council 1978 – Lord Wilberforce made a statement which established the famous two-stage test / which was responsible for the expansion of the law of negligence in relation to nervous shock and economic loss in 1980’s “Firstly one has to ask whether, as between the alleged wrong doer and the person who has suffered the damage, there is sufficient relationship of proximity or neighborhood such that, in the reasonable contemplation of the fomer, carelessness on his part maybe likely to cause damage to the latter in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative or to reduce or limit the scope of duty of the class of the person to whom it is owed or the damages to which a breach of it may give rise.”
Retreat from the “two-stage test” Governors of the Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd 1985 – Lord Keith, “a relationship of proximity in Lord Atkin’s sense must exist before any duty of care can arise, but the scope of duty must depend on all the circumstances of the case, in determining whether or not a duty of care of particular scope was incumbent upon a defendant it is material to take into account considerations of whether it is just and reasonable that it should be so” Leigh and Sullivan Ltd v Aliakman Shipping Company Ltd 1985 – Lord Oliver expressed the view that the two stage test should not be regarded. “Nor, as it seems to me, can it properly be treated either as establishing some new approach to what the policy for of the law should be or as conferring upon the court a free hand to determine for itself in each case what limits are to be set.” Yuen Kun-yeu AG of Hong Kong 1988 – Lord Keith, “The two stage test formulated by Lord Wilberforce for determining the existence of a DOC has been elevated to a degree of importance greater than its merits and greater perhaps than its authors intended” Rowling v Takaro Properties Ltd 1988 – Lord Keith again expressed fears about the application of the two stage test as a general principle of the grounds that to attach too much importance to policy matters might detract from real issues in a case, so that important and relevant considerations might be overlooked. (This test was overruled in Murphy v Brentwood DC because duty too general based on policy only and gave judges too much power. )
Current test ; foresight, proximity and fairness. The courts now appear to favour what has been described as the incremental approach recommended in Caparo Industries v Dickman 1990 and it deals with the question in four stages; First Stage is to consider whether the consequences of the defendant’s act were reasonably foreseeable Second stage is to ask whether there is relationship of proximity between the parties Third Stage is to consider whether in all the circumstances it would appear to be fair, just and reasonable that the law should impose a duty of a given scope upon one party to the benefit of other.
First Stage: Foresight The notion of foresight is derived from the case of Donoghue v Stevenson 1932 in which - the claimant as a member of group who is likely to suffer harm as a result of the defendant’s acts or omissions was notionally of importance as a deciding factor for liability. Topp v London Country Bus (South West) Ltd 1993, - the claimant was unsuccessful because he was unable to establish that the defendant ought reasonably to have foreseen that a joy-rider would has stolen the bus which his employee left unattended in a lay by. His wife was killed through the negligence of the unidentified joy rider when he collided with her and knocked her off her bicycle. Margereson v JW Roberts Ltd, Hancock v Same (1996) – it was held that the owner of an asbestos factory should reasonably have forseen that who children who played near the factory might later in life develop plumatory injury through dust contamination. A DOC was owed to them.
Second Stage: Proximity This concept was considered in the case of Donoghue v Stevenson itself, this is an important device for controlling the existence and scope of the duty of care in personal injuries cases. In Yuen Kun Yeu v Attorney General of Hong Kong 1988, Lord Keith referred to proximity as a synonym of foreseeability on the one hand, and on the other as referring to the whole concept of the relationship between the claimant and the defendant as described in Donoghue and Stevenson by Lord Atkin. In Sutradhar v Natural Environment Research Council 2006, is an example of a case in which the HOL decided that there was insufficient proximity between the parties to establish the existence of the duty. On the defendant’s departments, BGS has conducted a survey of water supplied in Bangladesh . In keeping with the usual practice, it did not test the water for arsenic. The result of the survey was sent to various organizations. The claimant alleged that he had sustained serious injuries as a result of drinking water contaminated by arsenic. HOL held that there was insufficient proximity between the parties , in the sense of control over responsibility for the danger to give rise to duty of care. In any event, there was no duty to test for arsenic. There was also no implied representation from BGS that the water was arsenic.
Third Stage; What is fair, just and reasonable that the law should impose a duty Considerations of “what is fair, just and reasonable” are in reality co- extensive with policy arguments. In conclusion, while the courts maybe disinclined to take on the role of legislators, they do have to take steps to keep the tort of negligence within reasonable bounds and it is the use of policy considerations which allows them to do this. Winfield and Jolowicz defined policy as; “ The use of the word “policy” indicates no more than that the court must decide not simply whether there is or is not a duty, but whether there should or should not be one, taking into account both the established framework of law, and also the implications of a decision that one way or the other might have for the operation of law in our society.” What this means is that judges can and do make up law as they go along in response to changing social conditions.
Factors which influence judges may include the following non-exhaustive list:- Loss of allocation, which party can best afford to bear the loss? Nettleship v Weston 1971 The Floodgates argument. This involves the fear that a flood gate of claims may follow a particular decision and is found in a number of “grey areas” of negligence, such as nervous shock. Moral considerations Practical considerations such as forward planning for manufacturers. The notion that professional people like doctors and barristers need to be protected from the threat of negligent actions which could inhibit their professional skills and the judgment. Hatcher v Black 1954 The respective constitutional roles of parliament and the judiciary Judicial reluctance to create new common law duties where none previously existed.