Winfield – ‘the breach of a legal duty to take care which results in damage, undesired by the defendant, to the claimant’
Elements required for negligence:
The existence of a duty of care owed by the defendant to the claimant
Breach of that duty by the defendant
That the claimant suffers some damage
Must also ask:
Whether the breach caused the damage (causation)
Whether the damage suffered was reasonably foreseeable (Remoteness)
The existence of a duty of care
Cannot be liable unless the law requires them to be careful in the first place
The Search for a Universal Test:
The Neighbour Test
Not until 1932 that an acceptable general statement of principle was formulated Donoghue v Stevenson:
Sued the manufacturer – before this manufacturers only liable to consumers in limited situations
Lord Atkin’s speech – developed 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’
Who counts as neighbour – ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’
Test of foreseeability = OBJECTIVE – not whether the defendant actually foresaw
Ginger beer manufacturers didn’t have to foresee Mrs D would have drunk their product, just that anyone might
Sowed seeds for general test for establishing a duty of care – became widely accepted and applied
Home Office v Dorset Yacht Co: Home Office’s liability for the carelessness of prison officers who allowed juvenile delinquents to escape and cause damage to boats and property in Poole Harbour – found that the Home Office did owe a duty of care – Lord Reid said that Lord Atkin’s well-known speech ‘should be regarded as a statement of principle’
Expansion and the two-stage test
in Anns v London Borough of Merton: local authority’s liability for the negligent inspection of building works
Lord Wilberforce:
asked firstly if the parties satisfied requirements of the neighbour test, and if yes, if there were any policy considerations which dictated no duty existed (if society benefited as a whole)
Led to period of massive expansion of liability – test generally favoured claimants because could establish first that a duty arose, and only then consider whether policy should limit it
Peak of expansion – Junior Books v Veitchi
A period of contraction
Reservation with Anns approach voiced by Australian judge Brennan J in Sutherland Shire Council v Heyman – ‘it is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories’
Picked up in other cases:
Governors of the Peabody Donation Fund v Sir Linday Parkinson & Co and others
The incremental Approach or the Three Stage Test
2 cases - Caparo Industries plc v Dickman (1990) and Murphy v Brentwood (1991)
Recent authority – Sutradhar v Natural Environment Research Council
In Caparo:
Acknowledgement that the Anns test was obsolete – criticised expansion of liability
Need for cautious, incremental approach based on existing authority: need to examine the facts on an incremental approach rather than using a ‘set test’
But now known as the three stage test to establish duty of care:
Foreseeability
Proximity
Whether it is fair, just and reasonable to recognise a duty in the circumstances
Murphy v Brentwood – decision in Anns finally overruled
Watson v British Boxing Board of Control:boxer’s claim that immediate medical attention should have been available at the ringside was upheld – injury was foreseeable, the boxing licensing system meant there was close proximity, and it was fair, just and reasonable to impose a duty
Law Society v KPMG Peat Marwick: CA stated that a firm of authors did owe a duty of care to the Law Society to prepare accurate reports for a solicitors practice as required under the professional code of conduct
Whilst appearing to present a more –pre-Anns approach – next 2 cases have found scope for further development:
Spring v Guardian Assurance plc & Others :illustrated difficulties in formulating a common approach to determining existence of DOC – identified DOC to give careful job references about the plaintiff
White v Jones – did a solicitor owe DOC to the proposed beneficiary of a will – it WAS found to exist – claimed they had used the incremental approach but also stressed need to find practical justice
Restricted Duty Situations
Lawyers
Previously had immunity – Rondel v Worsely
But landmark decision – Hall v Simmons:
Unanimously decided that immunity no longer stood for civil case OR criminal cases
The Police
Liable for operational but NOT policy:
Rigby v Chief Constable of Northhamptonshire: police had negligently fired a canister of CS gas into the plaintiff’s shop which was under siege – didn’t take precautions – negligent operational act
But in Hill v Chief Constable of West Yorkshire – mother of the last victim of Sutcliffe – sued police for negligently failing to capture the Yorkshire Ripper – HofL refused to impose a DOC: policy issue
Confirmed recently in appeal concerning the friend of the murdered Stephen Lawrence – Duwayne Brooks v Commissioner of Police for the Metropolis
Alexandrou v Oxford – plaintiff’s actions failed – local police owed no DOC to check his property or respond to message from burglar alarm
Leach v Chief Constable of Gloucester – plaintiff was lay witness and suffered post-traumatic stress – no DOC – would impose too onerous burden on police to psychologically test every potential person for position
But – NO BLANKET IMMUNITY FOR POLICE
Swinney v Chief Constable of Northumbria (no. 2):pub landlady had provided info on the basis that she has anonymity, but police file was left unattended and stolen – she then suffered psychological illness when...
Ambitious and intelligent students
choose Oxbridge Notes.
©2024 Oxbridge Notes. All right reserved.