Duty of care General

McKay v Essex Area Health Authority

A child cannot sue on the grounds that it should not have been born (eg: a child born disabled cannot sue on the grounds that its parents would have terminated the pregnancy had they been properly advised as to these disabilities) A duty of care in such cases would not be fjr

Ogwo v Taylor

A professional rescuer (eg: a fireman) is owed a duty of care by those who create dangerous situations just as much as an unprofessional one

Home Office v Dorset Yacht Co

A public authority owes all the duties of a private individual unless breach of these duties is explicitly or implicitly permitted by statutory authority In other words, where breach of duty is intra vires the powers of a public authority, it blocks a negligence claim, where it is ultra vires then the courts can apply a negligence standard as the public authority becomes any other citizen Therefore, where a public authority (or a private authority) has a special relationship to a third party which means he ought to control the third party (this is the key relationship of proximity) he may appropriately be found liable for damage that results through failure to appropriately exercise this control

Barrett v Ministry of Defence

A regulatory or public law duty to protect someone will not create a concurrent private law duty to someone where one did not already exist An individual will not normally be held responsible for failing to prevent a responsible adult from harming himself

White v Chief Constable of South Yorkshire

An alternative test for establishing when a duty should be owed is to simply ask- would it be in accordance with the fair distribution of resources that A bears the burden for this loss rather than B This would push towards a 'compensatory' rather than 'corrective justice' model of tort law since questions would be less about the level or nature of the wrong between the parties but more about the financial position of those in the category of the defendant and the victim Although Lord Hoffmann argues this is a good idea because corrective justice doesn't work in practice anyway, I disagree

Savage v South Essex Partnership NHS Foundation Trust

Article 2 ECHR extends the negligence liability for protection of life- whereas common law negligence will rarely impose liability for omissions, under the ECHR the state does owe a positive duty to protect life, including preventing individual's committing suicide

Smith, Ellis and Allbutt v Ministry of Defence

Article 2 provides additional protection for the right to life on top of negligence based protection- rules of negligence such as combat immunity do not automatically carry over to ECHR claims

Phelps v. London Borough of Hillingdon Anderton

Decisions relating to the special educational needs of victims may be operational in nature- the question as always is whether it is fair, just and reasonable to find a duty In these cases the victim had an antecedent relationship with the local authority and therefore the local authority was responsible for the victim's care (this generated the relationship of sufficient proximity)

Stovin v Wise

If a statutory body fails to conduct its statutory duties (is in breach of duty) and an individual suffers loss as a result this may amount to a breach of a common law duty of care The existence of the statutory duty creates the necessary proximity to make it appropriate to hold the public body responsible (since it was clearly their job to fix the problem) In addition, there must be an exceptional policy factor that makes it fjr to find a concurrent common law duty of care

Anns v Merton LBC

If the neighbour principle is satisfied (a relationship of sufficient proximity such that it is reasonably foreseeable that X would be harmed by your acts) this generates a prima facie duty of care The duty of care may then be limited if policy factors suggest that there should not be a duty of care in any given case

Gorringe v Calderdale MBC

In Stovin and Wise, it was established that where a statutory body was in breach of its statutory duties and caused loss there may be circumstances where a common law duty would lie. However, where a statutory body merely fails to exercise a statutory power (ie: something which is not actionable as a breach of statutory duty) this will not be sufficient to generate a common law duty where one would not otherwise exist (a statutory may cannot be turned into a common law ought)

White v Chief Constable of South Yorkshire

In cases of psychiatric injury, a rescuer is not given preferential treatment- they have to either be within the scope of foreseeable physical injury (ie: primary victims) or fulfill the Alcock control mechanisms for secondary victims

Michael v Chief Constable of South Wales Police

In line with Hill principle- there is not normally a duty of care owed by the police to protect victims of crime, unless there is a specific assumption of responsibility Answering a call does not amount to a specific assumption of responsibility

Barrett v.Enfield LBC

It is possible that a local authority will be liable for damage resulting from a negligently taken decision to place a child in care The question in each case is whether it is fair, just and reasonable to impose a duty (having regard to policy factors including justiciability)

Trent Strategic Health Authority v Jain

Local authorities do not owe a duty of care to owners of nursing homes for negligently made decisions about whether to shut them down- it is not fjr to impose such a duty because it would create a conflict with their primary public law duty to protect residents of nursing homes

D v East Berkshire Community NHS Trust

Local authorities do not owe a duty of care to parents of children for negligently made decisions about whether to take a child into care- it is not fjr to impose such a duty because it would create a conflict with their primary public law duty to the child

Rabone v Pennine Care NHS Foundation Trust

Negligence and ECHR both serve different purposes and both may provide different forms of protection for the same interest Therefore success of a negligence action does not bar an action under the HRA

Baker v Hopkins

People who create a dangerous environment leading to the infliction of physical injury owe a duty of care to those who come to rescue It is reasonably foreseeable that if someone is injured someone may be injured while trying to rescue them- they fall under Lord Atkin's neighbour principle A defence of volenti does not apply as rescuers are not deemed to be acting voluntarily

Sutradhar (Binod) v Natural Environment Research Council

Proximity is 'a measure of control over and responsibility for the potentially dangerous situation' Proximity is what makes the defendant, rather than anyone else, responsible for the wrong that has been committed A key factor in establishing proximity is how many potential defendants there could be. Where someone has directly inflicted physical injury, there is only one potential defendant . By contrast, where the case is one of omissions (and there is no specific relationship of control as ) then there could potentially be many defendants and the relationship of proximity is much less close

Mitchell v Glasgow City Council

Public authorities generally do not owe a duty of care to individuals of an impending danger To do so would not be fjr because it would potentially lead to defensive practices or a conflict of duties There is also an absence of proximity unless there has been a specific assumption of care to the victim

Smith v Chief Constable of Sussex Police

Suggestion by Lord Bingham that where there was a right valid under the HRA there should ordinarily be a common law right protecting the equivalent right This is wrong- as seen in the above cases. It is important to note that rights under the ECHR are fundamentally of a different nature to rights (rights under the ECHR are interests whereas negligence is not interest-based protection but rather based on corrective justice)

Everett v Comojo (UK) Ltd

The Caparo test is the test to be applied with regards to omissions and cases of public authorities- all factors simply apply to influence the second and third stages

Swinney v Chief Constable of Northumbria

The Hill case does not amount to a blanket immunity- in cases (such as this one) where there is exceptional policy factors at play (here the need to protect informers) there may be sufficient proximity and it may be fjr to find a duty of care

Osman v United Kingdom

The decision in Hill amounted to the conferral of the police of a blanket immunity to protect victims of crime- this amounted to a breach of the article 2 right to life as it meant that an individual had no remedy if a state failed to fulfil its positive duty to protect the lives of its citizens

Smith v Littlewoods

The key point is that liability for omissions is limited as it is rare that one person will be responsible for the acts of another Key factors that may create requisite proximity are a) a prior relationship between defendant and victim which means the defendant is responsible for keeping the victim safe (eg: if the victim is a visitor to the defendant's premises, or if the defendant has assumed responsibility to protect the victim, or if the defendant and the victim are neighbours) or b) a prior relationship between the defendant and the third party which means that the defendant is responsible for controlling the third party or c) a prior relationship between the defendant and the danger itself (eg: if the defendant was responsible for creating a source of danger that someone later exploits)

Michael v Chief Constable of South Wales Police

The liability principle was proposed by the minority as a way of establishing sufficient proximity in Omissions cases involving public authorities This requires i) a closeness of association between the claimant and the defendant, which can be created by information communicated to the defendant ii) the information should convey to the defendant that serious harm is likely to befall the victim if action is not taken iii) the defendant is a person or agency who might reasonably be expected to provide protection in those circumstances and iv) he should be able to provide for the intended victim's protection without unnecessary danger to himself This narrows the number of potential defendants down considerably, but was still rejected by the majority

Home Office v Dorset Yacht Co

The neighbour principle is not sufficient to establish liability in cases involving liability for the acts of third parties In such cases what is necessary is a strong antecedent relationship between the victim and the defendant (in order to generate a non-delegable duty), or a strong degree of control from the defendant over the individual who committed the tort

Hill v Chief Constable of West Yorkshire

The police are not ordinarily under a private law duty to protect victims of crime This is because there is normally insufficient proximity between the police and individual victims of crime- unless there is an antecedent relationship any number of people could potentially be harmed. Similarly, there is normally antecedent relationship between the police and the perpetrator of the crime which would mean that the police would be responsible for controlling them (it would be different if the criminals had escaped custody due to negligence of the police, as in Dorset Yacht) Furthermore, it is not fair just and reasonable to impose a duty of care on the police because it could lead to a diversion of police resources and defensive policing (it could affect the public law duty to keep the peace)

Brooks v Metropolitan Police

The principle in Hill does not constitute a blanket immunity for police- it just states that there will not normally be sufficient proximity and it will not normally be fjr to find a duty of care However it would require 'outrageous negligence' by the police and a strong degree of proximtiy to override the strong policy considerations for not generally finding liability

Marc Rich & Co v Bishop Rock Marine Co

The three stages of the Caparo test overlap and it is not always necessary to go through them in a strict manner- what is more important is the pragmatic question of whether a duty should be imposed Where there is direct physical injury or property damage a relationship of proximity and fair just and reasonable will be assumed Where there is very close proximity you need very strong public policy requirements to override this at the fair, just and reasonable stage

Donoghue v Stevenson

There must be a general principle underlying all the categories of negligence cases in which a duty of care has been found to be owed This principle can be summarised as the 'neighbour principle'- you are only liable for damage done to people who

Caparo v Dickman

Three conditions must be satisfied before a duty of care may be found in any given class of case 1) It must be reasonably foreseeable that negligence on the part of the defendant will cause harm to the victim 2) There must be a relationship of proximity between the defendant and the victim 3) It must be fair, just and reasonable to find a duty of care In practice, these are not strict principles, but simply 'labels' to add to the policy reasons why a court may or may not wish to find a duty of care in any given case

X v Bedfordshire (in the ECtHR)

Where a claim is found to be non-justiciable this does not amount to a finding of blanket immunity but rather is a statement that in that particular class of case it is not fair just and reasonable to find a duty (a rule of substantive law rather than a procedural bar) There is therefore no infringement of rights to an effective remedy

X v Bedfordshire County Council

Where a public authority acts intra vires (within discretion) they act under statutory authority and can breach private law rights Where a public authority acts unreasonably (under Wednesbury) they will be acting ultra vires and their acts will therefore no longer be acting under statutory authority However in some cases a decision will be of a policy-based nature. It is outside a courts jurisdiction to decide such policy based questions. It will therefore not be possible for the courts to reach a conclusion as to whether it is intra vires or ultra vires and the courts will therefore not be able to impose a common law duty of care. If a decision is of an operational nature and the court finds that it falls outside the discretion of the public authority, it falls to the courts to see whether an action under common law negligence (under ordinary principles) applies

S v Gloucestershire CC

Where a victim is placed under local authority control the local authority owes a duty of care to see that they are protected from potential abuse Issues of these nature are not by default non-justiciable- the question is about the nature of the decision and whether it is fjr for the court to get involved