[UNIT 2] Negligence: Duty of Care and Breach of Duty

The neighbour principle ---------------------------

The neighbour principle ---------------------------

* Res Ipsa Loquitur * In what case will the Latin maxim (or phrase) res ipsa loquitur will assist the claimant?

the circumstances in which the damage occurred will be such that a court may be prepared to draw an inference of negligence against the defendant without hearing detailed evidence of what the defendant did or did not do. In such a case the Latin maxim (or phrase) res ipsa loquitur will assist the claimant. This translates as 'the thing speaks for itself'.

Once the courts have decided that a duty of care exist in a given situation what is established?

this establishes a precedent NOTE: These are described as established duty situations

We have already said that the tort of Negligence has been developed by the courts and continues to develop by use of judicial precedent. Thus, in the case of Donoghue v Stevenson [1932] what was Lord Macmillan able to say?

'The categories of Negligence are never closed'. It was in this landmark case that the accepted test was laid down for considering whether a duty should be owed in any given novel situation.

* Breach of Duty: Summary *

* Breach of Duty: Summary *

* Established Duty Situations *

* Established Duty Situations *

* Liability for Omissions to Act *

* Liability for Omissions to Act *

* Novel Duty Situations *

* Novel Duty Situations *

* Relevant Factors in Determining the Standard of Care *

* Relevant Factors in Determining the Standard of Care *

* The Standard of Care *

* The Standard of Care *

* The Tort of Negligence *

* The Tort of Negligence *

* The current state of knowledge * -------------------------- Based on the case of Roe v Ministry of Health [1954] which of the following dates was the relevant one for assessing whether the risk of injury to the claimant was foreseeable? ▪ 1947 (when the accident occurred); or ▪ 1954 (when the case was heard).

1947 is the correct answer. Whether the risk of injury is foreseeable must be judged in the light of knowledge available to the defendant at the time of the event. As Denning LJ expressed it, 'the court must not look at the 1947 accident with 1954 spectacles'.

We have seen that the greater the risk of injury, the greater the steps the courts will expect defendants to take in reducing or eliminating the risk. But what if a defendant lacks the necessary resources? To what extent will the courts take account of the defendant's resources when deciding the issue of fault?

As a general rule, if a defendant's failure to exercise reasonable care is attributable to his lack of resources, the courts will not allow the defendant to use this as an excuse. Impecuniosity is not a defence.

TRUE OR FALSE: The general rule is that you owe a duty to the world for your omissions ie for doing nothing to prevent harm

FALSE The general rule is that you do NOT owe a duty to the world for your omissions, ie for doing nothing to prevent harm.

Careless acts always give rise to liability in Negligence when they cause damage.

FALSE some careless acts do not give rise to liability in Negligence even though they do cause damage.

Exceptions: occasions where there is a duty to act positively --------------------------------------- TRUE OR FALSE: There is no duty to act positively in tort if a person has some sort of power or control over the other person or object

FALSE: There is a duty to act positively in tort if a person has some sort of power or control over the other person or object

TRUE OR FALSE: Only children 10 and over can be found liable in Negligence

FALSE: There is no fixed age below which it can be said that a child cannot be liable in Negligence, but very young children are rarely found liable. NOTE: The younger a child is, the less likely the child is able to foresee harm to others.

When the law does provide compensation for harm cause by carelessness, what is the relevant tort?

Negligence

* Defendant's Purpose * TRUE OR FALSE: The value to society of the defendant's activities is a factor which the courts consider in determining their reasonableness.

TRUE

* Purpose of Defendant's Activity * ------------------------------- In Watt v Hertfordshire County Council [1954] Is this case authority for the proposition that the purpose of saving life or limb justifies the defendant taking any risk?

The case is not authority for this proposition. The emergency services could, therefore, still be liable in Negligence for, say, ignoring a red traffic light and/ or failing to use their sirens.

The neighbour principle is one of close relationship or proximity. Explain this statement.

This does not mean proximity in the physical sense but in the sense of having the other person in mind when you do a certain act. The criterion for establishing the duty is whether this particular defendant ought reasonably to have foreseen the likelihood of injury to this claimant.

When do we need to apply the Caparo test?

We do need to apply the Caparo test when it is not clear that there is an existing established duty which is applicable on the facts.

When is a duty of care usually owed?

Whenever harm is caused by one individual to another by a positive act of wrongdoing and that harm is foreseeable physical injury to the person or physical damage to property NOTE: We can say this because the Caparo criteria of foreseeability, proximity, and fair, just and reasonable are very likely to be satisfied in cases of this kind.

Discuss the Carmarthenshire County Council v Lewis [1955] case

a 4-year-old child strayed from a nursery school run by the local education authority. The claimant's husband, a lorry driver, was killed when he swerved to avoid hitting the child. The court held that the education authority owed a duty to prevent the child endangering others. It had assumed responsibility for controlling the child.

Proximity The second requirement in the Caparo test is proximity. a) What does proximity relate to? b) In Caparo why did the claim for damages fail? c) Lack of proximity between the parties may be regarded as what? c.1) The duty of care may be limited under what circumstances?

a) Proximity relates to the relationship between the claimant and the defendant. b) because the relationship between the claimant and the defendant was not sufficiently close. c) the basis for special limitations upon the duty of care owed in certain types of cases. c.1) Thus the duty of care may be limited in the case of: ▪ omissions, such as the failure of the local authority to improve the road junction; ▪ pure economic loss, such as the loss of investments caused by the journalist; ▪ pure psychiatric harm, such as that suffered by the victims of the train crash.

This special relationship of control can arise in what type of way

eg employer and employee; schools and children; parents and children; instructors and pupils. The list of special relationships is endless, as each case could produce a new scenario.

For a defendant to be liable in the tort of Negligence, what must he owe?

he must not only owe the claimant a duty of care, but must also be in breach of that duty. This means that the defendant must be at fault by failing to come up to the standard required by law for fulfilling the duty.

Why is the case of Donoghue v Stevenson an extremely important case?

it sets out the test for establishing whether a duty of care exists in any novel situation.

Marc Rich v Bishop Rock Marine also illustrates an important point about how the three limbs of the Caparo test work together. Explain how

it was accepted that the first two limbs of the test were satisfied. Lord Steyn first noted that it was agreed that it was foreseeable that lack of care by the classification surveyor was likely to expose the cargo to danger of physical damage. Then he added: 'I am willing to assume (without deciding) that there was a sufficient degree of proximity in this case to fulfil that requirement for the existence of a duty of care.' Thus, he concluded: 'The critical question is therefore whether it would be fair, just and reasonable to impose such a duty.' - No In other words, this case shows us that there may be a foreseeable claimant, with a sufficiently proximate relationship to the defendant, but the court may still decide that the fair, just and reasonable requirement is not satisfied. Thus it denies a duty of care on policy grounds.

The decision in Bolton v Stone recognised what?

that it is justifiable not to take steps to eliminate a real risk if the risk of injury is small and if the circumstances are such that a reasonable person would think it right to neglect it.

However Bolton v Stone should not be regarded as what?

the authority for the view that it is always reasonable to ignore a small risk. NOTE: The risk must be measured against other factors which we will consider shortly - in particular, the purpose of the defendant's activity and the practicability of precautions.

What does it mean if we say Negligence is a common law tort?

the law governing it is made by the courts. It is not contained in an Act of Parliament. The courts continue to develop it by use of judicial precedent, and you will be asked to look at cases as the course develops.

Based on the scenario with the driver and the pedestrian, whenever considering a possible claim in the tort of Negligence, what elements & in what order should always be considered?

▪ Did the defendant owe the claimant a duty of care? ▪ Was the defendant in breach of that duty? ▪ Did the defendant's breach of duty cause damage to the claimant? ▪ Are any defences available to the defendant?

In asking how the defendant ought to have responded to that risk, what ate the factors that need to be considered?

▪ How easy would it be to take precautions and how much would they cost? ▪ Why was the defendant carrying out the risky activity? ▪ Did the defendant take the kind of precautions commonly taken for that activity? ▪ How much should the defendant have known about the risk he was taking given the current state of knowledge?

▪ INTRODUCTION TO NEGLIGENCE ▪

▪ INTRODUCTION TO NEGLIGENCE ▪

▪ PROVING BREACH OF DUTY ▪

▪ PROVING BREACH OF DUTY ▪

▪ The Civil Evidence Act 1968▪

▪ The Civil Evidence Act 1968▪

Whether a defendant has breached a duty of care is a question of fact for the judge to decide. The issue of breach therefore involves the application of a two-stage test. What is it?

▪ The court first assesses how the defendant ought, in the circumstances, to have behaved, ie what standard of care the defendant should have exercised (a question of law). ▪ The court then decides whether the defendant's conduct fell below the required standard (a question of fact).

Based on your answer from question 2 in the last flashcard. 1) Without more, this could lead to what? 2) Therefore, case law has recognised that it is always for the court finally to decide whether or not a skilled defendant has acted reasonably. What case was this established in?

1) this could lead to a situation in which members of the relevant profession were the judges of negligence rather than the court itself. 2) This was established in the case of Bolitho v City and Hackney Health Authority [1997]

If the defendant's behaviour, therefore, is in the public interest, how would the defendant hold in Negligence? When is a claimant more likely to succeed?

- the defendant is less likely to be held liable in Negligence. - A claimant is more likely to succeed where injured in the course of a commercial enterprise carried on by the defendant than in the course of a life-saving enterprise. NOTE: The point is that the degree of risk which a defendant justifiably can take is determined to a large extent by the purpose of the defendant's activity.

*The nature of the 'reasonable person' test* ---------------------------------- 1) The reasonable person has been variously described as what? and what does it mean? 2) The defendant must meet the standard of care which would be expected of a reasonable person - the person in the street. Does this mean that the test is an objective one or a subjective one?

1) 'the man on the Clapham omnibus', or 'the man on the street'. The reasonable person, therefore, is the average person. That is, someone who is neither very intelligent nor very stupid; neither overly cautious nor unduly optimistic, etc. 2) The test is an objective one. As Lord MacMillan said in Glasgow Corp v Muir [1943], the test is impersonal. The issue to be decided is not 'What did this defendant foresee?' but 'What would a reasonable person have foreseen in the particular circumstances?' Similarly, it is not a question of whether the defendant did his best, but whether he came up to the standard of the reasonable person.

* Special standards: children * -------------------------------- 1) What is the standard of care expected for a child? 2) What does Hutchinson LJ say?

1) A child defendant will be expected to show such care as can reasonably be expected of an ordinary child of the same age. The standard is adjusted only for the child's age. 2) '... the question for the judge is not whether the actions of the defendant were such as an ordinary prudent and reasonable adult in the defendant's situation would have realised gave rise to a risk of injury, it is whether an ordinary, prudent and reasonable 15-year-old schoolgirl in the defendant's situation would have realised as much.'

* The Skilled Defendant * ----------------------------- 1) Would you expect a doctor exercising his profession to show the same degree of skill and care as the reasonable person in the street? 2) Where was this test established?

1) A doctor must show a greater degree of skill and care than the reasonable person in the street. A doctor must show the same degree of skill as a reasonable doctor. 2) This test was established in Bolam v Friern Hospital Management Committee [1957] Doctors must meet the standard of their profession.

1) Lastly, as regards a child's ability to be sued, a child under 18 cannot be sued (or sue) unless... 2) What is the adult known as? 3) What is important to bear in mind when suing children?

1) He has an adult to represent him 2) litigation friend 3) it may not be worthwhile suing a child if he has no money with which to pay the judgment.

* Common practice * ----------------------------- 1) Defendants sued in Negligence may be able to escape liability if they can show that they complied with what? 2) Compliance with an accepted trade practice is strong evidence of what? 3) Although it is comparatively rare for courts to condemn a commonly accepted practice as negligence, they did so in what case?

1) the accepted practice in their trade or profession. NOTE: We have already seen an example of this in the case of Bolam v Friern Hospital Management Committee (1957) 2) that a defendant has not been negligent, but it is not conclusive. 3) the case of Re The Herald of Free Enterprise (1987) Independent, 18 December. This case involved a cross- Channel ferry sinking.

Positive Duty to Exercise Control --------------------------------------- Listen to the scenario and answer the questions A group of young offenders who are currently incarcerated in a young offender institution are taken on a work party at a local harbour. During the day they are working on a repair project within the harbour. At night the officers in charge of the young men go to bed and leave them unsupervised. The boys 'escape' and board a yacht which they set in motion. This yacht collides with the claimant's yacht and causes extensive damage. The claimant sues the officers' employer for their negligence. 1. Is a duty owed by the officers to the claimant? If so, why? 2. Why does the claimant not bring his claim against the young offenders? 3. What case does this scenario mirror?

1. A duty of care is owed by the officers to the claimant because they should have foreseen the harm to the claimant's yacht when they failed to supervise the boys who all had criminal records. The damage which occurred to the claimant's yacht was due to omission to act for which ordinarily no duty would be owed. In this case however a duty was imposed because the officers had control over the boys 2. The claimant would not have wanted to pursue the boys themselves for his damages as they would not have had the means to pay for the damage which had occurred. NOTE: When considering questions in tort, you should always bear in mind what remedy the claimant will be seeking (eg damages) and, therefore, who will be the best person to sue. 3. Home Office v Dorset Yacht Co Ltd [1970]

Lord Bridge in Caparo Industries plc v Dickman [1990] 1. In Caparo the House of Lords set out a three-part test to determine whether a duty is owed in any novel situation. What are the three questions to be considered? 2. Compare this test with the neighbour principle from Donoghue v Stevenson. What is the difference between the two tests?

1. Caparo states that in a claim for Negligence, to establish whether a duty of care exists the courts must consider three points: ▪ Reasonable foresight of harm to the claimant. ▪ Sufficient proximity of relationship between the claimant and defendant. ▪ That it is fair, just and reasonable to impose a duty. 2. This three-part test was said to re-define the neighbour principle and make it easier to apply. It appears, by directly comparing the two tests, that the first two parts of the Caparo test are simply a different way of expressing the neighbour principle. There is no direct equivalent to the third part of the Caparo test, but 'fair, just and reasonable' is simply another way of providing the courts with the ability to reach a conclusion based on policy matters.

Hill v Chief Constable of West Yorkshire [1989] and Kirkham v Chief Constable of Greater Manchester Police [1990] 1. What was the decision of the court in the case of Hill? 2. Why did the court find that a duty was owed in Kirkham but find that no duty was owed in Hill? What is the distinguishing feature of these cases?

1. In Hill the police were exonerated from liability on the basis that they did not owe a duty of care to any individual as their duty is to the public at large. 2. The decision in Kirkham is different because the police had assumed a responsibility towards the prisoner. There was far greater proximity between the police and the prisoner than between the police and the claimants in Hill. In Kirkham the claimant was more than a member of the public - he was someone who had been entrusted to the care of the police.

Based on the case of Latimer v AEC Ltd [1953] 1. Why was the defendants' decision not to close down the relevant part of the factory a reasonable one? 2. What would have required a closure?

1. In Latimer v AEC Ltd, the defendants' decision not to close down the relevant part of the factory was a reasonable one, given the relatively small risk of injury and the potential consequences of a closure. 2. If the risk of injury to the employees had been sufficiently great, a reasonable employer would have closed down.

Lord Atkin in Donoghue v Stevenson 1. The case adds one more specific relationship to the list of established duty situations. What new duty was established in this narrow sense? 2. The case also laid down a wider rule for determining when a duty of care exists in any novel situation. Highlight the passage in Lord Atkin's judgment which you consider lays down this wider principle for establishing whether or not a duty of care exists.

1. The case is responsible for establishing what is known as the narrow rule in Donoghue v Stevenson, which is that a manufacturer owes a duty of care to the ultimate consumer of the goods. 2. More importantly, the case establishes the 'neighbour principle', which is used to determine whether or not the defendant owes a duty of care in any novel situation which may come before a court. The passage from Lord Atkin's judgment which is of most importance is the one which sets out this neighbour principle: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. He then goes on to define 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 in question.

Listen to the scenario and answer the questions The claimant owns and occupies property which is adjacent to property owned by the defendants. The property owned by the defendants is a cinema which is due for demolition and redevelopment. The defendants have commenced work, but leave the building empty and unattended but locked. Teenage vandals break in from time to time and start small fires which are dealt with. On one occasion they break in and start a fire which spreads to the claimant's property and causes extensive damage. The claimant sues the defendants for the damage caused. 1. Do the defendants owe a duty of care to the claimant? If not, why not? 2. Assuming the vandals are caught, why does the claimant not bring a claim against them? 3. What case does this scenario mirror?

1. The defendants do not owe a duty of care to the claimant because the duty on an occupier would be too wide if it was held responsible for damage caused to neighbouring property by third parties entering the occupier's property, when it had no control over those third parties. An occupier's duty generally does not extend to keeping his premises locked up so securely as to prevent vandals getting in and damaging adjoining property. 2. Again, even if the vandals were caught, the claimant is unlikely to bring a claim against them because they would be unlikely to have the means to pay the claimant's damages. 3. Smith v Littlewoods Organisation Ltd [1987] NOTE: In reaching this decision the court found that the defendants were not aware of the previous break-ins or attempts to start fires, neither had they left inflammable materials unattended on the premises. The important point about this case was that the defendants did not have any control over the vandals who were breaking in. There was no special relationship between them.

Hill v Chief Constable of West Yorkshire [1989] and Kirkham v Chief Constable of Greater Manchester Police [1990] 3. Do you think the courts may have made these decisions based on policy? 4. In Hill an obiter comment was made about circumstances in which the police may be liable for failing to apprehend a criminal. According to that comment, when might a police force be liable for failing to catch a criminal?

3. Both of the decisions appear to be policy decisions. If a duty had been imposed on the police in the case of Hill, the duty owed to the public would be too wide. Every time the police failed to apprehend a criminal or prevent a road traffic accident they would be liable in a civil claim. The duty would be too onerous. Equally, the decision in Kirkham was also based on policy. If a prisoner dies or is injured in custody there will be an enquiry. Cases of this type also attract a lot of publicity and can generate a lot of feeling in the public at large. In such circumstances the courts must take the view of the public into account. Finding the police liable shows the public that whilst the police are enforcers of the law, they are not to be considered above the law. 4. In Hill it was said that if the police failure to apprehend a criminal created an exceptional risk, different from the risk to the public at large, it might be possible to impose a duty. In Hill, for example, if the victim had received threats and it was known that she was in danger then the case might have been decided differently.

What Duty is Owed if you Decide to Act although you are not under a Duty to Act? --------------------------------------- A) What case explores this question? B) What happened in this case? C) Did the House of Lords find the defendant liable? D) Would the principle apply to someone who acts as a rescuer?

A) East Suffolk Rivers Catchment Board v Kent and another [1940] B) Land belonging to the claimant was flooded when a sea wall was breached. The defendant had no duty to repair the wall but it did have a statutory power to do so. The defendant did decide to repair the wall. However, it took a long time to do so, during which the claimant's land remained flooded. C) The House of Lords said that there was no liability in tort. Their Lordships said the Board was guilty of an omission, not a 'positive negative act'. Thus, if you do not owe a duty to act but you do decide to intervene, you will not be liable in Negligence even if you do act carelessly, unless you make matters worse. D) This principle would apply to someone who acts as a rescuer. As a general rule there is no duty to rescue someone whom you see in danger. If you do try to rescue such a person, you will be liable in Negligence only if you positively make the situation worse.

Another example of the general rule is to consider someone you see drowning. If you see a stranger drowning and you fail to do anything about it, you could not be sued in Negligence as you do not owe the stranger a duty to act positively on his behalf. However in what situation would you owe a duty of care to someone you saw drowning?

An exception would arise if you had a special relationship with the person drowning, eg you were that person's swimming instructor or a lifeguard.

Foreseeability The first requirement is reasonable foresight of harm to the claimant. Is it reasonably foreseeable that the defendant's actions will affect this particular claimant? What case is an example where harm to the particular claimant who suffered injury was not reasonably foreseeable? Explain the case in detail.

Bourhill v Young [1943] The claimant heard a collision between a motorcycle and a car, and walked to the scene. She saw blood on the roadway and claimed she suffered shock and a miscarriage as a result. She claimed damages against the estate of the dead motorcyclist whose negligence had caused the accident. the motorcyclist would owe a duty to the driver of the car involved in the accident, because damage to the driver of another vehicle on the road was foreseeable. However, Mrs Bourhill was not a foreseeable victim of the motorcyclist's negligence, so no duty of care was owed to her. Therefore, her claim for damages failed.

Scenario: Suppose that Brian drove his car carelessly along a road and caused an accident in which Harry's car went off the road and down a steep bank. Morris saw the accident and climbed down the bank to rescue Harry from the car. In doing so Morris was himself injured. The accident was entirely Brian's fault and both Harry and Morris were acting carefully. We already know that Brian owes a duty of care to other road users such as Harry. But does Brian owe a duty to a rescuer such as Morris?

Brian does owe a duty of care to a rescuer such as Morris. Where a defendant's actions have created a dangerous situation so that it is reasonably foreseeable that someone may attempt a rescue, the defendant owes a duty of care to the rescuer (Baker TE Hopkins & Son Ltd [1959]

As noted already, Donoghue v Stevenson was decided in 1932 and gave the courts Lord Atkin's 'neighbour principle' as the recognised test for establishing whether a duty exists in any novel situation. This basic concept of duty has more recently been discussed in an important case which attempted to re-define the neighbour principle. What is this case?

Caparo Industries plc v Dickman [1990]

1) In Bolam, what the further question the court also had to answer? 2) How did the court handle this?

How is the standard of care to be determined where professional opinion differs as to best practice? 2) In resolving this issue the court held that the defendant would not be in breach of his duty provided he had acted in accordance with a practice accepted as proper by a responsible body of doctors skilled in that particular art. In other words, as long as a defendant's actions are supported by a reasonable body of professional opinion, they should not be judged to be negligent.

* Cost and practicability of precautions * ------------------------------- In deciding whether the defendant has done all that a reasonable person would have done in the circumstances to guard against the risk of injury, the courts will consider what practical measures the defendant could reasonably have taken to reduce the risk of injury and the cost of those measures. Discuss this in further detail

If the risk of injury could have been substantially reduced at a low cost to the defendant, the defendant will have acted unreasonably if he fails to take the necessary precautions. If, on the other hand, the defendant would incur great expense which would produce only a very small reduction in risk, it will be reasonable for the defendant to do nothing. NOTE: However, great expense will not excuse a defendant where the risk of injury is great.

Against what standard will a defendant's conduct will be judged?

In Blyth v Birmingham Waterworks (1856), Alderson B stated that: Negligence is the omission to do something which a reasonable man ... would do, or doing something which a prudent and reasonable man would not do. So the defendant must meet the standard of 'the reasonable man'.

The principle established in Bolam does not just apply to doctors. Who else does it apply to?

It applies to anyone who exercises a special skill.

Fair, just and reasonable The final requirement - whether it is fair, just and reasonable to impose a duty What case demonstrates this point?

Marc Rich v Bishop Rock Marine Co Ltd [1996] The claimant's valuable cargo was lost at sea when the ship carrying it sank. The claimant made a claim against the ship owner, Bishop Rock Marine, and also against a ship classification society, NKK. (case continued on page 75)

This immunity from civil claims which has been afforded to the police by the courts has been called into question. Which two cases discusses this?

Osman v UK (1999) the Court of Appeal had held the police owed no duty to a claimant they knew was being harassed by a third party. However, the European Court of Human Rights found that this policy of 'blanket' immunity for the police investigating a crime was a violation of Article 6 of the European Convention on Human Rights. Article 6 provides the right to a fair trial, and the Court found that the police immunity was a disproportionate restriction on the rights of access to a court. In the more recent case of Z v UK (2002), however, the European Court of Human Rights reviewed its decision in Osman and concluded that the domestic courts' approach in Negligence claims does not breach Article 6. The test of 'fair, just and reasonable' and the inclusion of policy within that decision does not infringe the individual claimant's human rights.

*Special Standards * List situations where it would be unfair to measure the defendant's conduct against that of the reasonable person in the street

Special standards might be required in the following cases: ▪ Where the defendant holds himself out as possessing a particular skill. For example, you would expect a higher standard of an electrician you employ to re-wire your house than you would expect from the reasonable person in the street who does not have the skills of a qualified electrician. ▪ Where the defendant is a child. ▪ Where the defendant suffers from a disability. NOTE: In cases like these the courts do still apply the 'reasonable person' test but they set special standards by modifying the test. The standard of care required is that of a reasonable person in the defendant's position.

What should be noted about Robinson v Chief Constable of West Yorkshire Police [2018] ?

Supreme Court made significant inroads into the principle that the police cannot be sued in negligence save in exceptional circumstances as a result of alleged failures in their core operational duties. In Robinson, the Court considered that there was a key difference between positive acts (a duty will be imposed) and omissions (no duty imposed). The act of arresting someone was a positive act. Where an arrest is negligently performed, the police are liable not only for any injury caused to the person being arrested, but also for any injury that the person who is being arrested causes to another person, so long as that injury is a foreseeable consequence of the police's positive actions.

The general rule is that you do not owe a duty to the world for your omissions, ie for doing nothing to prevent harm. What case demonstrates this? Explain the case

The case of Stovin v Wise [1996] demonstrates this. Here, the highway authority knew that a road junction was dangerous but failed to exercise its powers to reduce the danger. An accident occurred at the junction and it was alleged that the highway authority should contribute towards compensating the injured party. However, it was held that the authority owed no duty of care to road-users to alleviate the danger.

How then do courts determine whether or not a defendant should be held responsible to an injured claimant for his carelessness?

The courts deal with this question by asking whether or not the defendant owed the claimant a duty to take care

* Likelihood of Injury Occurring * ------------------------ Why did the claimant succeed in Negligence in Miller v Jackson but fail in Bolton v Stone?

The crucial distinction between the two cases was the frequency with which the cricket balls were hit out of the ground. In Bolton v Stone, only approximately six balls had been hit out of the ground in 28 years, none causing injury. On the other hand, in Miller v Jackson, cricket balls were hit out of the ground eight or nine times a season, damaging the claimant's property on a number of occasions.

The duty of care and policy -------------------------------

The duty of care and policy -------------------------------

* Risk of Greater Injury * ---------------------------- Based on the case of Paris v Stepney Borough Council [1951] Would the defendants have escaped liability if they had (reasonably) been unaware of the claimant's existing disability?

The key factor in the decision was that the defendants knew that the claimant was blind in one eye. An injury to the claimant's good eye, therefore, would produce a much more serious consequence than a similar injury to a fully- sighted person. Had the defendants (reasonably) been ignorant of the claimant's disability, they would have escaped liability, unless the risk of injury generally was such that goggles should have been provided for fully-sighted workers. (The issue of whether goggles should have been provided for two-eyed workers was not decided by the House of Lords in the case.)

Scenario: A driver travelling at 60 mph in a 30 mph zone knocks over and injures a pedestrian. ---------- Assume that the driver does owe a duty of care to the pedestrian. What else would the pedestrian needs to prove?

The pedestrian also needs to prove that the driver failed to take care for his safety, so was in breach of his duty of care, and that the driver's failure to take care was the cause of the damage suffered by the pedestrian. So, on the facts of this example we could say: ▪ the driver owed the pedestrian a duty to take care; ▪ the driver was in breach of his duty - by driving over the speed limit; ▪ the driver caused harm to the pedestrian by knocking him over and injuring him. Lastly, we would need to ask whether or not there were any defences available to the driver. For example, was the pedestrian guilty of contributory negligence by failing to take care?

In the case of Scott v London and St Katherine Docks Co (1865) what 3 conditions had to be satisfied before a claimant will be assisted by the maxim 'res ipsa loquitur'.?

The three conditions for the application of the maxim 'res ipsa loquitur' are: ▪ The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible. ▪ The accident must be such as would not normally happen without negligence. ▪ The cause of the accident is unknown to the claimant - so that the claimant has no direct evidence of any failure by the defendant to exercise reasonable care.

How will this Act help a claimant? illustrate your answer with an example

This provision will help a claimant where the offence of which the defendant has been convicted involved careless conduct. The claimant can rely upon the conviction as evidence that this careless conduct did take place. The claimant does not need to prove that behaviour again in the civil proceedings Suppose, for example, that a car accident occurs and the defendant is convicted of driving without due care and attention. The claimant in a subsequent civil claim can use the conviction as evidence that the defendant failed to take reasonable care when driving.

Will the provision always help the claimant? illustrate your answer with an example

This provision will not always help the claimant. Suppose that a driver is convicted of driving without insurance. This does not provide the claimant with any evidence that the defendant failed to drive carefully.

Negligence may be defined as what?

a breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant

What is the effect of s 11 of the Civil Evidence Act 1968?

a defendant who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings, to have committed that offence.

* The limitations of 'reasonable' * ---------------------- Illustrate the following statements about the duty is only to do what is reasonable with cases a) a defendant's duty is to guard against 'reasonable probabilities not fantastic possibilities'. b) However, a rare event is not necessarily a 'fantastic possibility'. c) the position of a defendant who suffers from an unexpected disability. d) Similarly, a driver suffering a sudden unexpected heart attack is not in breach

a) his is taken from the case of Fardon v Harcourt-Rivington [1932]. In this case the defendant left his dog in a parked car. The dog broke a window. The claimant passer-by was blinded by a splinter of glass. This was a fantastic possibility and the defendant was not liable. b) In Carmarthenshire CC v Lewis [1955], a 4-year-old child strayed from a school playground, causing a lorry to swerve. The driver was killed. Despite its uniqueness, this was a reasonable possibility. c) Mansfield v Weetabix [1998] A defendant driver may suddenly suffer from some impairment of consciousness, being previously unaware that he suffered from such a condition. In those circumstances the driver will not be in breach if he has met the standard of the reasonable driver who is unaware of this condition d) (Waugh v James K Allen [1964]

a) in practical terms, when it applies what is the position for the defendant? b) what are the two ways the defendant can provide this?

a) it raises a prima facie inference of negligence against the defendant. The defendant then has to provide a reasonable explanation of how the accident could have occurred without negligence. b) how the accident actually happened and that this was not due to negligence on his part; or if he cannot show how the accident actually happened, that he had at all times used all reasonable care.

The test for duty in novel situations: conclusions --------------------------------------- If it is clear that there is an established duty situation, what is not necessary ?

to go further and consider the Caparo test.

▪ BREACH OF DUTY ▪

▪ BREACH OF DUTY ▪

▪ DUTY OF CARE ▪

▪ DUTY OF CARE ▪

When a court is assessing the care which an ordinary reasonable person might take what is the court likely to ask?

▪ How much risk did the defendant's activity involve? ▪ How should the defendant have responded to that risk?

* Special standards: the under-skilled defendant * ------------------------------- How would you summarise the position on defendants who hold special skills and those who lack skill or experience

▪ In each case the court will determine the standard required for the activity or task in question. The defendant must meet that standard and no allowance will be made for his lack of qualification, skill, or experience. ▪ It is relevant to look at whether the defendant has held himself out as possessing a particular level of skill. If a defendant presents himself as a specialist, eg a consultant surgeon rather than a general practitioner, then he will be expected to meet that higher standard. ▪ If a defendant does not profess to have a particular professional skill (as in Wells v Cooper), he may not be required to meet a higher professional standard. However, he must still meet the minimum standard required by the task undertaken. Moreover, if he undertakes a task which requires a special skill which he does not possess, that in itself is likely to be negligent.

List 5 of many factors which the court might take into account in determining a case which could be considered to be policy factors.

▪ The 'floodgates' argument - ie if one case is allowed to succeed, the floodgates will open to admit hundreds of other similar cases. ▪ Deterrence of a certain type of behaviour may be a consideration - the courts may feel that in order to deter others from acting in a way they consider wrong or anti-social, they should rule in favour of the claimant. ▪ Resources - the courts know that when a claimant succeeds against a defendant, money will pass from one to the other. The courts are also aware that in the majority of cases it is not the defendant, personally, who will pay the compensation awarded but the defendant's insurers, or his employer's insurers. The cost of this payment is then met by an overall increase in premiums, funded by society in general. Equally, the court will consider a decision very carefully if the defendant has no insurance to meet an award of compensation . ▪ Public benefit - the court may take into account any benefit to the public as a result of its decision, eg increased public safety. ▪ Upholding the law - on occasions, adhering strictly to the rules of law may produce a result which appears to be unjust in the eyes of the public. Nevertheless, it must be part of the court's policy to uphold those legal rules, despite public criticism, or the law would lose its power.

*Summary* Can you summarise on proof of breach?

▪ The claimant has the burden of proving that the defendant was negligent. ▪ The claimant needs to prove this on the balance of probabilities. ▪ In limited circumstances, the maxim res ipsa loquitur may help the claimant. ▪ In other circumstances, a relevant criminal conviction will assist the claimant.

Can you summarise on breach?

▪ The claimant must show that the defendant has breached his duty of care. ▪ The standard of care is that of the reasonable person in the defendant's position. ▪ This is an objective standard. For example, if the defendant is a driver, the defendant needs to reach a standard of the reasonable competent driver. ▪ To know whether there has been a breach, you need to look at the facts.

Please summarise the duty of care

▪ The claimant must show that the defendant owes him a duty of care. ▪ This may be a duty already established by case law, eg doctors owe their patients a duty of care. ▪ If the duty is not already so established then this is a novel situation and the claimant needs to apply the three-part test in Caparo to show that a duty is owed. ▪ Generally there is no duty with omissions to act. There are exceptions to this, such as in Dorset Yacht, where the officers had control and a duty to act positively.

By contrast there may not be a duty of care in what cases?

▪ harm is caused by a public body, such as a local authority or the police (as opposed to an individual); or ▪ harm is caused by an omission to act (as opposed to a positive act of wrongdoing); or ▪ the harm caused is pure psychiatric injury (as opposed to physical injury); or ▪ the harm caused is pure economic loss (as opposed to physical damage to property). NOTE: The Caparo criteria are less likely to be satisfied in this kind of case. For example, we have already seen from case law that it may not be fair, just and reasonable to impose a duty of care on a public body such as the police. Also, as we shall see, case law has established special rules in relation to omissions to act, pure psychiatric harm and pure economic loss. Each of these might be seen as instances where there is insufficient proximity between claimant and defendant, as required by the Caparo criteria.

In summary, in assessing whether or not a defendant has fallen below a reasonable standard of care, the court needs to weigh up:

▪ the risk created by the defendant's activities; and ▪ the precautions which the defendant ought reasonably have taken in response to that risk.