DUTY OF CARE
NEGLIGENCE as a tort is the breach of a duty of care, owed by the defendant to the claimant which results in damage.
DAMAGE may be caused by MISFEASANCE or NONFEASANCE.
DAMAGE may consist of
- PERSONAL INJURY
- DAMAGE TO PROPERTY
- PURE ECONOMIC LOSS
- PSYCHIATRIC DAMAGE “NERVOUS SHOCK”
ESTABLISHING A DUTY
Donoghue v Stevenson – HofL – 1932
Seminal case, firmly established negligence as an independent tort.
Lord Atkin attempted to trace a common thread through earlier case-law to set out a principle for determining whether a duty of care exists.
“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 contemplation as being affected when I am directing my mind to the acts or omissions which are called into question.”
3 Formal requirements for establishing whether a duty of care exists
1. Foreseeability of harm
2. Proximity in relationship between Claimant and Defendant
3. Just and reasonable to impose duty
Prior to Donoghue v Stevenson, had to bring case into existing categories of relationship and find comparable case. Indeed, even today, whether a duty is capable of existing does not often cause problems since the issue will be governed by precedent. However, in a novel situation, these 3 formal requirements will have to be satisfied.
The relative significance to be attached to each requirement will depend upon a variety of factors including, inter alia:
- the status of the parties and their relationship with one another.
- the nature of the harm suffered.
- The particular way in which the harm arises.
Where positive conduct by Defendant causes direct physical injury to Claimant or Claimant’s property, reasonable foresight of such harm will generally be sufficient to satisfy the other criteria for the existence of a duty.
However, in other cases involving PURE ECONOMIC LOSS, OMISSIONS, PSYCHIATRIC INJURY, foreseeability of harm, never alone sufficient to establish duty.
PURE ECONOMIC LOSS
Financial loss consequent upon negligently inflicted injury to person or property is ordinarily recoverable.
PURE ECONOMIC LOSS courts are much more reluctant to impose liability. Courts don’t wish to burden the Defendant with liability in “ an indeterminate amount for an indeterminate time to an indeterminate class”.
PURE ECONOMIC LOSS can occur through negligent statements and/or negligent acts.
Negligent Statements
Prior to 1964 liability for misstatements existed in contract, in tort of deceit or for breach of fiduciary duty.
Hedley Byrne & Co Ltd v Heller & Partners Ltd – Hof L 1964
The Claimants wanted to know if they could safely advance credit to their client X. The Claimants’ bankers sought references from the defendants’, X’s, Bankers, who gave favourable reports “without responsibility”.
Claimants relied on information and suffered financial loss when X went into liquidation.
HELD: No duty arose because of the disclaimer. However, HofL went on to say that in appropriate circumstances a duty could arise. Requirements:
- Foresight of harm
- Special relationship
The special relationship exists where, to Defendant’s knowledge, the Claimant relied upon the Defendant’s skill and judgement or ability to make a careful inquiry and it was reasonable in the circumstances for the Claimant to do so.
Concept of REASONABLE RELIANCE.
Negligent Acts
There was originally no liability for pure economic loss caused by negligent acts.
Spartan Steel and Alloys Ltd v Martin and Co (Contractors) Ltd CA 1973
The defendants negligently damaged a power cable cutting off the electricity supply to the claimants’ factory, as a result of which the claimants suffered damage to their property reflected in loss of profit thereon, together with pure loss of profit during the interruption to the supply. The claimants succeeded in the first part of their claim but failed to recover profit they would have made but for the power cut.
Hedley Bryne v Heller made a major inroad upon the principle that economic loss was generally not recoverable.
Current position is economic loss caused by negligent acts is generally irrecoverable unless it can be brought within the parameters of Hedley Byrne.
Policy Arguments:
- Don’t want to burden Defendant with liability “in an indeterminate amount for an indeterminate time to an indeterminate class”.
- To permit recovery in tort would introduce a transmissible warranty of quality in absence of any contract.
PSYCHIATRIC ILLNESS
Alcock v Chief Constable of South Yorkshire – HofL – 1991
Lord Ackner said shock “involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind”.
- Recognisable psychiatric or physical illness: mere grief or emotional upset is not actionable.
- Can be no recovery for psychiatric illness “caused by the accumulation over a period of time of more gradual assaults on the nervous system”.
Lord Oliver said shock victims fall into one of two groups:
(i) Those who are unwilling participants in the events causing shock (primary victims)
(ii) Those who are merely passive and unwilling witnesses (secondary victims)
::::::::: Hey ! YOu have to master this issue ::::::::::: it's popular in A-levels !! Gd luck !!!::::::
HELD: With regard to those in the first group, if the Defendant’s negligent conduct foreseeably puts the Claimant into that position, it follows that there will be a sufficiently proximate relationship between them to create a duty of care.
However, for those in second group, to recover damages must prove the following:
(i) That the relationship to the primary victim was sufficiently close that it was reasonable foreseeable that he might suffer shock if he apprehended that the victim had been, or might be injured.
(ii) That he was temporally and spatially close to the scene of the accident or its immediate aftermath.
(iii) That he suffered shock through sight or hearing of the accident or its immediate aftermath.
Nervous shock cases fall within a distinct category subject to special rules and reasonable foresight of shock alone is not sufficient to give rise to a duty.
OMISSIONS
General Rule is that a Defendant does not owe a duty to take positive action to prevent harm to others. Thus, a rescuer who goes to the assistance of others in peril is under no legal obligation to do so.
Exceptions
A. The nature of the relationship between the parties may place one person under a duty to prevent harm to the Claimant caused by an independent act of a third party
- - employer/employee
- - occupier/visitor
B. May also be a special relationship between the defendant and the third party where there is a positive obligation to control the third party
- - gaoler/prisoner
- - parent/child
- - employer/employee
C. Liability might also arise where the defendant negligently causes or permits to be created a source of danger and it is reasonably foreseeable that third parties may interfere with it and thereby cause damage.
SPECIFIC IMMUNITIES
Situations arise where, for public policy reasons a duty of care is found not to exist.
Advocates
Rondel v Worsley – HofL – 1969 Held that advocates could not be sued for negligently conducting a case in court. The policy argument was that to fulfil their duty to the court and administration of justice, an advocate must be free from the threat of negligence.
This decision was overruled in the case of Hall v Simmons (Hof L 2000). Court said the public interest in advocates’ immunity in negligence must be balanced with the normal right for an individual to be compensated for a legal wrong.
Police
In performing their function of investigating and preventing crime, the police owe no duty of care to an individual member of the public.
This blanket immunity was reviewed in Osman v Ferguson – 1993. The Claimant and his father were shot by a teacher who was a known threat to his victims. The ECHR stated that the “blanket immunity” breached Art 6 of the ECHR.
English courts must not simply apply a blanket immunity but balance whether the public interest in granting such immunity is proportionate to the interference with the Claimant’s human rights.
Rescue Services
Capital & Counties plc v Hampshire County Council – CA - 1997
The Court of Appeal ruled that fire brigades are not under a common law duty of care to answer an emergency call nor under a duty to take reasonable care to do so. Unless the fire service negligently increase the damage or causes additional damage, liability in tackling a fire will not arise.
Unborn Children
In Burton v Islington Health Authority (1993) it was held that a duty of care is owed to an unborn person which becomes actionable on the birth of the child.
However, in McKay v Essex Health Authority – CA - 1982 it was held that the common law recognises no right for “wrongful life” whereby a child claims that s/he would not have been born at all but for the Claimant’s negligence. To allow a child to recover damages for pain and suffering of being alive was against public policy.
Similarly in McFarlane v Tayside Health Board - HL – 1999 it was held that claims in respect of financial costs of bringing up a healthy child following advice about or negligent performance of a sterilisation were not recoverable.
Policy – birth of normal baby is blessing not detriment.
CONCLUSION
What see in “immunities” cases is judges making decisions based on public policy considerations.
Some would say the language used by judges in dealing with the duty issue tends to mask the fact that the decision whether or not a duty exists as a matter of law is ultimately based upon public policy.
Indeed, as Lord Pearce observed in Hedley Byrne v Heller & Partners:
“How wide the sphere of the duty of care in negligence is to be laid depends ultimately on the courts’ assessment of the demands of society for the protection from the carelessness of others.”
No comments:
Post a Comment