Tort 3 :Negligence: duty of care and breach of duty

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Tort

4 attempts to establish framework for duty of care

The neighbour principle
two-stage test in Anns v Merton London BC† [1978
The current test: foresight, proximity and fairness
alternative test: assumption of responsibility

neighbour principle
Donoghue v Stevenson [1932]: importance on 2 points

1. HL recognised a new relationship as giving rise to a duty of care, that between manufacturers and the ultimate consumers of manufactured products (in this particular case a bottle of ginger beer). This is sometimes called the narrow rule in Donoghue v Stevenson: it still survives but has in practice been superseded by a new kind of liability established in the Consumer Protection Act 1987

2. Lord Atkin: broad principle of liability. A duty was owed to 'persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected...' He described such people as 'my neighbours': so his definition of the duty is called the 'neighbour principle'.

redefinition of the neighbour principle.
two-stage test in Anns v Merton London BC[1978]

first question was whether there was a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the D carelessness on his part may be likely to cause damage to the C. If so, a prima facie duty of care arose.

The second question was whether there were any considerations which ought to negative or reduce or limit the scope of the duty of care or the class of persons to whom it was owed. This test came under criticism in the following years as being too expansive and indeed the Anns case was itself overruled in 1991 (

current test: foresight, proximity and fairness
C has to show three things if there is to be a duty of care:

Caparo Industries v Dickman [1990]
decision of the CA was overruled by the HL

It was reasonably foreseeable that a person in the C's position would be injured.

There was sufficient proximity between the parties.

It is fair, just and reasonable to impose liability.

NOTES:
Tests are general
Policy considerations are explicit in the second and third tests, but are implicit in Lord Atkin's test as well. Notice his use of 'ought' and 'reasonably'. There is a large moral component to his test. It is not just about what can be foreseen, but about what 'ought' to be foreseen.

of most use when the law is uncertain.

Once a duty situation is recognised, the test in a sense drops out of the picture. So, in an examination context, there is no need to go through the Caparo test unless either the situation is a novel one, where there are no clear precedents, or you are trying to argue that the law ought to be changed (as was done by the HL in respect to the liability of lawyers;

alternative test: assumption of responsibility

whether there had been a voluntary assumption of responsibility by the D for the C. This test is particularly used in cases of liability for omissions, for mis-statements and for economic loss

duty concept has been seen as serving two separate functions:

Is there a duty at the abstract level (the notional duty or duty in law): e.g. does a motorist owe a duty of care to other road users? Or do barristers owe a duty of care to their clients?

Is the particular C within the scope of the duty of care (duty in fact or the problem of the unforeseeable C): e.g. was this particular road user owed a duty by this particular motorist? NOTE: duty in fact can be also looked at either as a matter of breach of duty or as a matter of remoteness of damage.

An important problem is how far the D owes a duty to stop or prevent another person (X) injuring the C

examples affecting 3P

Should a school (or a parent) owe a duty of care to passing motorists to see that a child does not run out of the school and cause an accident?

Should a host at a party owe a duty of care to prevent a guest driving home drunk and injuring a pedestrian?

Should a car owner owe a duty of care to keep it locked up to prevent a thief stealing it and knocking down a pedestrian?

English law and duty

As a general rule English law does not impose a duty on 3P but exceptionally duty may arise: 2 questions to ask:

What is the relationship between X (3P) and D? Does D have some responsibility over X?

What is the relationship between C and D? Does it involve some obligation on D's part to protect C against harm?

Home Office v Dorset Yacht Co [1970]
Some young offenders were doing some supervised work on Brown Sea Island under the Borstal regime. One night the Borstal officers retired for the evening leaving the boys unsupervised. Seven of them escaped and stole a boat which collided with a Yacht owned by the C.

The Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm would result from their inaction.

Home Office were vicariously liable for the Ts of the borstal officers. But the borstal officers were not vicariously liable for the Ts of the boys: they were primarily liable for their own Ts in allowing the boys to escape and cause harm.

Carmarthenshire County Council v Lewis

Local Authority employed a teacher who left a 4-year-old child alone for about ten minutes while she did other things. The child left the classroom onto a busy road, where he caused a lorry driver to swerve and collide with a telegraph pole. The lorry driver was killed and his widow sued the education authority.

education authority had taken charge of the child and had a duty to take reasonable care to prevent him from causing harm to others.

Topp v London Country Bus (South West) Ltd [1993]

D, a bus company left a mini-bus parked in a public place with the keys in the ignition, the bus was stolen, and, in the course of the theft, was involved in an accident in which a woman cyclist was killed. C, her H (and daughter) brought an action against the bus company for negligence. The vehicle was left at a changeover point that normally took 8 minutes, on this occasion it rested there for nine hours.

bus company may have been negligent to leave the bus with the keys in, in an easily accessible place, they could not be held responsible for the accident as it had occurred through the voluntary act of a 3P over whom they had no control

Attorney- General of British Virgin Islands v Hartwell [2004]

PC Laurent was still on probation and was subject to daily supervisory visits by a police sergeant from a nearby larger island. As the sole officer, PC Laurent had a key to the police station's strongbox which contained a gun. One night he took the gun and went to a restaurant where his W was associating with another man (the C). He then fired four shots injuring the two in addition to a tourist in the restaurant. The C brought an action against the police for allowing a probationary officer to have access to a gun.

A duty of care is owed by the police authorities in entrusting officers with guns.

Lord Nicholls:
owe to the public at large a duty to take reasonable care to see the officer is a suitable person to be entrusted with such a dangerous weapon lest by any misuse of it he inflicts personal injury, whether accidentally or intentionally, on other persons. no distinction is to be drawn between personal injuries inflicted in the course of police duties and personal injuries inflicted by a police officer using a police gun for his own ends. If this duty seems far-reaching in its scope it must be remembered that guns are dangerous weapons. The wide reach of the duty is proportionate to the gravity of the risks."

both vicarious liability and primary liability were considered as alternative causes of action.

Jebson v Ministry of Defence [2000]

soldier, suffered severe injuries after a night out drinking C was transported with other soldiers in the back of an army vehicle with a canvass roof. On the return journey the C and other soldiers were very drunk. The senior officer travelled in the front of the vehicle and was unable to see what was going on in the back of the vehicle. The C climbed on to the tailgate and attempted to climb on to the roof. He fell and was struck by a lorry. The trial judge held that whilst it was foreseeable that an injury may occur by high spirits and stumbling inside the vehicle it was not foreseeable the C would attempt to climb on the roof and therefore the damage was too remote as it had not occurred in a foreseeable manner.

It was foreseeable that injury (whether slight or serious) would occur as a result of the drunken and rowdy behaviour of the passengers, including the danger that someone would fall from the vehicle as a result, such wider risk being apt to include within its description the accident which actually happened.

Duties of lawyers

until recently it was thought that no duty was owed by barristers (and later solicitors also) in respect of work closely connected with the presentation of their case in court. Putting it in terms of the Caparo test, it would be said that, while there was foresight and proximity, it was not fair, just and reasonable to impose liability.

Caparo test,
Caparo Industries plc v Dickman [1990]

three-fold test". In order for a duty of care to arise in negligence,
harm must be reasonably foreseeable established in Donoghue v Stevenson as a result of the defendant's conduct
the parties must be in a relationship of proximity
it must be fair, just and reasonable to impose liability

Arthur J. S. Hall v Simons [2002]
e case involved N advice.

HL has now decided that in contemporary conditions there are no policy reasons sufficient to justify this immunity and it should be abolished:

Lawyers not the only professionals who have to balance their duty to an individual client and a code of ethics. It is essential to the proper administration of justice that barristers should be prepared to defend even the most unsavoury characters, who might well wish their lawyers to use all possible means, ethical or not, to secure their acquittal. These characters may wish to sue if they are acquitted on appeal.

Moy v Pettman Smith (a firm) [2005]
circumstances in which a duty is owed for lawyers

Damages were claimed against a barriste After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the door of the court to accept an offer. The claimant was not advised as to potential difficulties in having essential evidence admitted, and the evidence was not admitted, and a much lower sum was received. CA had found the advice itself not to be negligent, but that she should have given the client more detailed advice.

question whether her advice was N has to be judged in the light of the choices that were available in the light of her assessment. She had to balance the possibility of her client's desire to achieve a full settlement against the loss of a chance to sue the solicitors for N. 'it is the substance of the advice, not the precise wording used to convey it, that needs to be examined in order to judge whether it was N. The significance of Miss Perry's failure to tell Mr Moy that the prospects of getting the evidence in were 50/50 has to be measured against what she did tell him, which was that she was hopeful that the judge would admit the evidence'. The CA had been wrong to disturb the finding that the barrister had not been N: 'it was not incumbent upon the appellant to spell out all her reasoning, so she was not in breach of her duty of care to the C in the advice which she gave.

Hall v Simons VIMP

What policy reasons previously were thought to justify the immunity? Why are those policy reasons no longer thought enough to justify it?

reasons for having the immunity: (i) the fact that lawyers in court owe a duty to the court that may sometimes conflict with the duty to their clients; (ii) that the prospect of being sued in N might adversely affect the quality of their argument by e.g. raising every conceivable point in their clients' interests; (iii) that suing the lawyer would to some extent reopen the correctness of the original decision. The HL thought these reasons no longer applied in 2002 (although there was a disagreement about whether the immunity should remain in criminal cases). A main reason was that the public would not understand why lawyers had an immunity that other professions did not enjoy.

Congenital Disabilities
(Civil Liability) Act 1976.
Human Fertilisation and Embryology Act 1990

These Acts impose liability only where the damage caused the disability from which the baby suffers when it is born. They do not allow an action where the N caused the baby to be born, but did not cause the disabilities. A doctor may, for example, Nly carry out a sterilisation procedure on either a man or a woman, or may fail to recommend an abortion: any child born as the result of this N has no claim.

ethical reasons do not apply where the claim is by the father or mother (or both) who have to bring up the child.

wrongful conception: claim that sterilaztion was N=> birth

wrongful birth: cases, where opportunity to terminate a pregnancy was lost, born due to N in an abortion.

where the child is healthy and is being raised in a loving family (McFarlane) HL 2000 $ not recoverable, policy distributive justice.

where the child is disabled (Parkinson) N sterilisation. damages awarded for maintenance.

where the child is healthy but the mother did not want children because of her own disability (Rees).CA awards damages, but HL confirms McFarlane. but gives award.

Emeh v Kensington 1984: CA damages awarded, including loss of future earnings and maintenance, note public policy, if this is denied, it will encourage late term abortions.
also hard to say pregnancy is NOT unwanted due to prevalent use of birth control.

McFarlane v Tayside Health Board [2000] VIMP
Cs were advised to take contraceptive precautions until sperm samples were analysed. P1 was later told that his sperm count was negative and he no longer needed to take contraceptive precautions. The Cs followed this advice and P2 became pregnant.

decided that in claims for wrongful conception and wrongful birth maintenance costs are pure economic loss and are not recoverable in T. Three of five Law Lords based their arguments on principle of distributive justice while other two argued that liability was not " . . fair, just and reasonable" . . . All five relied heavily on " . . morality" . . to justify their conclusion that Cs should not recover. However, since pregnancy was a type of " . . physical" . . damage Cs were allowed to recover for all losses that flowed directly from that pregnancy. All their Lordships denied that public policy had a role in decision. A further difficulty with decision is that it might also jeopardise recovery for maintenance of a handicapped child

4 possible outcomes of
McFarlane v Tayside Health Board [2000]

No recovery for either wrongful conception or birth;

Recovery allowed both for wrongful conception and wrongful birth (full recovery - the UK position prior to this case);

Full recovery for the wrongful conception but recovery for the wrongful birth should be offset against the benefits gained from having a healthy child (the benefits rule);

Recovery only allowed for the wrongful conception. No recovery for the wrongful birth (the limited damages rule).

McFarlane v Tayside Health Board [2000]
criticism of :
Full recovery for the wrongful conception but recovery for the wrongful birth should be offset against the benefits gained from having a healthy child (the benefits rule);

Two of their Lordships' opinions were based on it being not " . fair, just and reasonable" . to impose a liability on the doctor and Health Board. Lord Clyde argued that it would not be fair to award damages for the birth of the child without taking into account the benefits gained from having the child. Since " . the value which is to be attached to these benefits is incalculable" . they cannot be offset against the damages so damages cannot be awarded because they would unjustly enrich the Cs. Unfortunately, their Lordships failed to consider that the detrimental side of childrearing is not purely economic. There are many practical detriments such sleepless nights, supervisory responsibilities, providing a taxi service etc. As Donnelly argues " . Non-pecuniary benefits should be offset against non-pecuniary damages... Because neither ... can be assessed with certainty, one should be presumed to cancel out the other. Thus the court will not have to become involved in the unhappy exercise of evaluating parental distress and children's worth. Instead, a court can arrive at a figure which is fair compensation for the economic loss of the parents" . (Donnelly 1997, p21). Their Lordships' failure to consider these non-pecuniary detriments must raise doubts about their conclusions on fairness.

McFarlane v Tayside Health Board [2000]
Recovery only allowed for the wrongful conception. No recovery for the wrongful birth (the limited damages rule).

two judges opted for an argument based on the " . fair, just and reasonable" . criterion. The others, however, chose the road of distributive justice. In doing so they continued a line of argument that had been used by Lord Steyn in Frost v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509 to prevent police officers involved in the Hillsborough disaster from recovering for psychiatric damage when the victims' families had not. Lord Steyn stated in McFarlane, " . It is possible to view the case simply from the perspective of corrective justice. It requires somebody who has harmed another without justification to indemnify the other. On this approach the parent's claim for the cost of bringing up Catherine must succeed. But one may also approach the case from the vantage point of distributive justice.

pecifically declined to consider whether the decision would be different for a handicapped child. However, given Lord Steyn's argument about ensuring that the law should be coherent with that regarding wrongful life there must be some doubt about whether the parents of a handicapped child can recover for the cost of raising their child. This is especially so since their Lordships considered the benefits/detriments balance as an all-or-none process. Could any court find that a handicapped child could never offer any joy to the family?

Concurrent with McFarlane, an English court awarded £1.3 million to the parents of a severely disabled child born after a failed sterilisation. Francis states: " . It is at least arguable that there is no difference in principle between the two cases. However the moral case in favour of providing the parent of an unwanted...

distributive justice

focus on the just distribution of burdens and losses among members of a society" . (McFarlane v Tayside HB [2000] SLT 154 at 165). This, he argued, is a moral theory that required an answer to the question: " . Should the parents of an unwanted but healthy child be able to sue the doctor or hospital for compensation equivalent to the cost of bringing up the child?" .

Lord Steyn notes (at 165) " . T law is a mosaic in which the principles of corrective justice and distributive justice are interwoven" . . Even in this case their Lordships have adopted a mixed approach. Having labelled the cost of raising the child as pure economic loss they have applied corrective justice principles to the " . physical" . damage of pregnancy and distributive justice principles to the pure economic loss of raising the resultant child. There appear to be six reasons for the decision that the parents should bear the full cost of child maintenance:

Child maintenance is pure economic loss;
The unjust enrichment that would result from compensating the parents for child maintenance costs;
The moral intuition ascribed to the "traveller on the Underground";
The potential scale of the damages;
The incoherence of allowing a claim for wrongful birth but not wrongful life;
Judicial disquiet with the award of maintenance damages.

Child maintenance is pure economic loss; (Spartan Steel cannot claim for PEL)

distinction between pure and consequential economic loss is artificial and irrelevant since the " . conception and birth are the very things that the defenders'... were called upon to prevent. In principle any losses occasioned thereby are recoverable however they may be characterised

unjust enrichment that would result from compensating the parents for child maintenance costs;

suggestion that the " . traveller on the underground" . will conclude that the parents of a healthy child should not be compensated when the child is conceived through the N of the doctor is a spurious claim which is completely unsubstantiated by any evidence. It is, in reality, their Lordships' personal pro-life view disguised to appear objective. This judicial sleight-of-hand fools no-one. Furthermore, the substance of the moral answer is questionable. As Dickens notes, " . Underlying judicial refusal to award damages to cover costs of rearing a healthy child... is the view that all human life is a gift or blessing... However, this celebration of children denies the compatible social and legal reality that many conscientious, responsible couples do not want children either at all or at particular times" .

No court would be moved by the argument coming from a putative father that he should not be required to provide financial support for the child he has fathered on the grounds that he has bestowed on the mother a priceless blessing

Scale of damages

concern was simply that the potential scale of the damages could be excessively high. It was fuelled by Benar v Kettering Health Authority (1988) NLJ 179 in which Hodgson J. allowed damages for the cost of the future private education of the child. This worry, however, does not necessitate the complete negation of liability. Instead the court could assess damages objectively rather than subjectively

wrongful birth

parents have not been warned that a child will be born with a specific disability, and if they had been warned would have terminated the pregnancy. It may include such things as wrong advice about the risks of a child being born with sickle cell disease, or simply forgetting to offer screening for Down's Syndrome to a woman at risk.

Parkinson v St James and Seacroft
University Hospital NHS Trust [2001]

C underwent a sterilisation procedure, but this was unsuccessful and she conceived a fifth child, with severe learning difficulties. She brought a claim against the health authority and the matter came before the CA.

problem with McFarlane was that the five members of the HL had spoken with five different voices. Brooke LJ considered the distinction between "failed sterilisation" cases and "wrongful birth" cases, where the opportunity to terminate a pregnancy was lost.

no valid policy argument against parents being recompensed for the costs of extraordinary care in raising a deformed child to majority. Brooke LJ found this argument persuasive. He would apply the following principles:-

The birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon's careless failure.
ii) There was a very limited group of people who might be affected by this negligence.
iii) The surgeon should be deemed to accept the proposition that the surgeon should be deemed to have assumed responsibility for the foreseeable consequences.
iv) The purpose of the operation was to prevent the Claimant from conceiving any more children.
v) Parents in the Claimant's position were entitled to recover damages in these circumstances for 15 years between the decisions in Emeh and McFarlane. This was not a radical step into the unknown.
vi) For the reasons set out in (i) and (ii) abaove, the tests of foreseeability and proximity were satisfied, and an award of compensation which was limited to the special upbringing costs associated with rearing a cild with a serious disability would be fair, just and reasonable.
vii) In terms of "distributive justice" ordinary people would consider that it would be fair for the law to make an award in such a case, provided that it was limited to the extra expenses associated with the child's disability.


Note Hale: Lady Justice Hale in dealing with issue of parental responsibility. She stresses that mother has automatic parental responsibility for child as she gives birth to child =>legal duty.parental responsibility goes beyond $ benefits of healthy child cancel out costs involved in rearing child. cases in which parents have actively sought sterilisation as a means of preventing pregnancy in first instance a claim for compensation will not succeed.

Rees v Darlington
Memorial Hospital NHS Trust [2003]


C s wished to undergo a sterilisation procedure. This was carried out by the D Nly as a result of which she conceived a son, who was born healthy. She claimed for the cost of rearing the child. CA ruled that she could claim for the additional costs that she would incur, which were attributable to her disability. The D argued that this decision was inconsistent with the HL decision in McFarlane v Tayside Health Board [1999] 3 WLR 1301. The C argued that the decision in McFarlane was wrong.

By a majority, the House of Lords held that Mrs Rees was not entitled to recover any of the child rearing costs including those associated with her own disability. Instead, a conventional award of £15,000 would be ordered to reflect the fact Mrs Rees had been the victim of a legal wrong, in addition to general damages for the pregnancy and birth.
COMMENT: This decision will come as welcome news for defendants and their insurers who may now consider reducing their reserves for wrongful birth claims. By overturning the Court of Appeal, the House of Lords has reinforced the decision in McFarlane largely on policy grounds. The decision in Rees also casts a shadow over the correctness of the Court of Appeal decision in the wrongful birth case of Parkinson v St James and Seacroft University Hospital NHS Trust (2000)

Rees v Darlington
Memorial Hospital NHS Trust [2003]
judges opinions

Lord Hope agreed with the CA in Parkinson that the question of whether the extra costs of raising a seriously disabled child were recoverable raised a separate issue. In principle, these costs constituted an extra and distinct burden on the parent who had suffered damage as a result of the Tfeasor's N. His view was that the fact that the child's parent is a seriously disabled person did provide a ground for distinguishing McFarlane and that it would be fair, just and reasonable to hold that such extra costs were within the scope of the T feasor's duty of care and were recoverable.

Lord Scott said that in his opinion the mother's visual disability did not take the case out of the exception to normal principle established by McFarlane, which was correctly decided. The question of how the McFarlane principle should be applied to a case in which the mother was health but the child was born with a disability was not one that needed to be resolved on this appeal. However Lord Scott felt that where the parents had no particular reason to fear that if a child was born to them it would suffer from a disability, he did not think that there was any sufficient basis for treating the expenses occasioned by the disability as falling outside the principles underlying McFarlane. Lord Scott doubted that the birth of a child with disabilities was reasonably foreseeable, and that the CA's conclusion in Parkinson was consistent with McFarlane. He would allow this appeal, but would agree with Lord Bingham that the C should be awarded £15,000.

Mulcahy v Ministry of
Defence [1996]

serving soldier deployed in Saudi Arabia during the first Gulf War. His unit was operating long-range artillery, firing shells at targets in neighbouring Iraq. The C alleged that his injury had been caused by the N of the gun command during the live-firing of rounds. The C was ordered by his commanding officer to fetch water stored at the front of the gun. As the C was in front of the gun his commanding officer ordered it to fire. The force of the weapon firing threw the C to the ground, causing him to suffer serious injuries in the process.

CA held, in striking out the C's claim, that Mulcahy had been in a war zone taking part in warlike operations, and that as a soldier in these circumstances did not owe a fellow soldier a duty of care when engaging the enemy in battle conditions in the course of hostilities, the C did not have a cause of action against the Ministry of Defence. This was therefore a case where the Court felt that there was a sufficient link between the act of N and the military context within which the accident occurred (Mulcahy's unit were actively attacking the enemy when the accident occurred).

Vowles v Evans [2003]

a rugby referee, appealed against a decision ([2002] EWHC 2612, Times, December 31, 2002) that he had owed a duty of care to V, a rugby player who had sustained an injury in an amateur match that he was refereeing, and that he had breached that duty and the breach had been a cause of V's injury. E was left with permanent incomplete tetraplegia and confined to a wheelchair as a result of the injury he sustained when two front rows failed to engage cleanly in the final set scrum of the match. The match in question was being played under the 1997 version of the 'Laws of the Game' as issued by the Council of International Rugby Football Board. However the judge below found that on making a substitution the referee had failed to comply with Law 3(12) in that he had allowed a player who had lacked suitable training and experience to play in the front row. The issue before the court was whether it was 'fair, just and reasonable' that a duty of care towards the players be imposed on an amateur referee. E submitted that if referees were potentially liable in N for injuries to players, the supply of volunteers who served as referees would diminish. He went on to contend that it was not fair, just and reasonable that amateur referees who received no remuneration for their services risked being ruined by legal liability.

dismissing the appeal, that a rugby referee owed a duty of care to his players. Rugby was a dangerous sport and the rules of the game were designed to minimise the dangers. Players were dependant for their safety on the rules being enforced, and enforcement of the rules fell to the referee. Rugby was no exception to the fact that the law rarely if ever absolves from a duty of care a person whose actions or omissions were capable of causing physical harm to others in a structured relationship into which they had entered. In the instant case, E had failed to ask the team captain before the substitution was made whether the team had another player on the field suitably trained to play in the front row. Had E asked the team captain, the captain would not have been able to give an answer. Furthermore, both E and the captain did not ask the player himself whether he was suitably trained or experienced to play front row. In abdicating responsibility to the team captain, E was in breach of his duty to exercise reasonable care for the safety of the players.

Scope of the duty of care: cases

Bourhill v Young
Haley v London Electricity Board [1965]
Urbanski v Patel (1978)
Goodwill v British Pregnancy Advisory Service [1996]

Bourhill v Young

Young had been Nly riding a motorcycle along a road, and was involved in a collision with a car, fatally injuring him. At the time of the crash, Mrs Bourhill was about to leave a tram which she had been riding, around 50 ft from the scene of the accident. Mrs Bourhill heard the crash, commenting " . I just got in a pack of nerves, and I did not know whether I was going to get it or not." . [1] Following the removal of Mr Young's body from the road, she approached the scene of the accident, seeing the blood remaining from the crash. Mrs Bourhill, at the time eight months pregnant, later gave birth to a stillborn child, and claimed she had suffered nervous shock, stress and sustained loss due to Mr Young.

HL denied that Mrs Bourhill had been foreseeable to Mr Young, at the time of the accident. Lord Russell stated: " Can it be said that John Young could reasonably have anticipated that a person, situated as was the appellant, would be affected by his proceeding towards Colinton at the speed at which he was travelling? I think not. His road was clear of pedestrians. The appellant was not within his vision, but was standing behind the solid barrier of the tramcar.

owed no duty to the appellant, and was, therefore, not guilty of any N in relation to her.

Haley v London Electricity Board [1965]

Some workmen were digging a trench in a pavement. They went off to lunch. They had nothing to fence of the trench so they left a shovel and pick at one end and a punner at the other end to warn pedestrians. The C, a blind man, tripped on the punner and fell hitting his head. As a result of the fall he became deaf. The D argued they had done all that was necessary to warn an ordinary person of the danger and there was no need to take extra precautions for blind persons as it was not foreseeable that a blind person would be walking unaided down that street.

D was in breach of duty. It was foreseeable that a blind person might walk down the street and they should be given appropriate protection.

Urbanski v Patel (1978)
surgeon, removed the only kidney of Shirley Firman believing that it was an ovarian cyst. As a result, she had to be placed on dialysis until she could find a kidney. Urbanski, Shirley's father, tried to donate his kidney to her, but it was rejected. Urbanski brought an action for the losses he experienced from the removal of his kidney.

Wilson found that in the medical world, the donating of a kidney is accepted as a usual solution to a problem of this type. As a result, Urbanski was acting perfectly reasonably. This case, therefore, follows the ratio of Haynes v Harwood and Urbanski was entitled to recover.

Goodwill v British Pregnancy Advisory Service [1996]

Ds told a vasectomy patient that there was no need to use contraception. later the patient began a sexual relationship with a woman. She fell pregnant, gave birth to a healthy girl, and sued the Ds for the expenses of the birth, the costs of bringing up her daughter, and the loss of income resulting from her reduced working hours.

CA held that the Ds owed no duty of care to the woman. Lord Justice Gibson wrote: "The Ds were not in a sufficient or any special relationship C . no knowledge of her, she was not an existing sexual partner of but was merely, like any other woman in the world, a potential future sexual partner of his.

Haynes v Harwood servant brought a two horse carriage into a residential neighbourhood and parked it across street from a police station while he was off doing work. Servant away, children upset horses and broke free and were on a path to injure people. Haynes, a police officer, ran out and stopped horses, however one of them fell and injured him.

court holds that in cases such as these, the volenti non fit injuria maxim does not apply. If someone acts to help those in danger as a result of a person's negligent actions, that person is liable for damages resulting from their actions as long as they are reasonable in the circumstances. Taking risk upon yourself is not applicable in rescue circumstances.

doctrine of the assumption of risk does not apply where the plaintiff has, under exigency caused by the defendant's wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is owed a duty of care by the plaintiff or not.

Donoghue v Stevenson
DOC test
The neighbour test

neighbour test for establishing a duty of care can be broken down in to two requirements:
1. Reasonable foresight of harm
2. A relationship of proximity

Lord Aitken:
The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question " .

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 so affected when I am directing my mind to the acts or omissions which are called in question." .

Anns v Merton London Borough Council [1978]

Cs were tenants in a block of flats. The flats suffered from structural defects due to inadequate foundations which were 2ft 6in deep instead of 3ft deep as required. The D Council was responsible for inspecting the foundations during the construction of the flats. The HL held that the D did owe a duty of care to ensure the foundations were of the correct depth. Lord Wilberforce introduced a two stage test for imposing a duty of care. This has since been overruled by Caparo v Dickman.

Anns v Merton London Borough Council [1978] 2 stage test

Lord Wilberforce's two stage test (overruled by Caparo v Dickman)



1. Examine whether the loss was reasonably foreseeable and there existed a relationship of proximity. If so a prima facie duty of care arises.


2. The defendant may put forward policy considerations to negate liability.

first stage was essentially the elements of the neighbour test, however in order to address the fears of the floodgates, this was subject to the second stage which provided a get out clause for Ds where there existed policy reasons for denying the imposition of a duty of care.

Anns test was still considered too wide.

Caparo Industries Plc v Dickman [1990]
Lord Bridge's three stage test for imposing a duty of care, known as the Caparo test:

Under the Caparo test the claimant must establish:

1. That harm was reasonably foreseeable

2. That there was a relationship of proximity

3. That it is fair, just and reasonable to impose a duty of care

It can be seen that the first two stages are taken directly from the original neighbour test. Fair, just and reasonable relates to the same policy considerations under the Anns test. In fact the Caparo test contains the same elements as Anns. The main difference being, that under Caparo it is the C that must put forward policy reasons for imposing liability whereas under Anns, liability would arise once the C had established reasonable foresight and proximity and the D had to demonstrate policy factors for negating liability.

Duty of Care - Policy factors (Fair, just and reasonable)
Loss allocation:-
floodgates
The practical effects of imposing liability

Loss allocation:-
Who can afford to bear the loss?

Which of the parties have insurance/ is the situation one subject to compulsory insurance?

Is the defendant a publicly funded body?

The floodgates:-
Will imposing liability lead to a high volume of new claims?

What effect would this have on cost of insurance or its availability?

Will the courts be able to cope with the volume of cases?

The practical effects of imposing liability
Will the imposition of a duty of care act as a deterrent or raise standards?

Will imposing a duty have an adverse effect on decision making?

Will it effect the allocation of resources away from necessities?

D is gardening at the front of her house. She goes into the house to pour herself a drink and leaves a spade lying in the garden. X, a passer-by, picks it up and attacks C, D's neighbour. Is D liable to C? (In answering this question, think about various possibilities as to who X is, which might affect your answer.)

what was said in Home Office v Dorset Yacht and other cases. Normally in such a case there would be no liability, but you consider exceptional cases, e.g. if X was another neighbour who was known to be violent and aggressive where it is arguable that the result might be different.

To what extent is there (and should there be) liability:
iv. if a person negligently injures a pregnant woman and the child is born dead

(i) Remember to consider that, although there is no liability to the estate of the dead child, there may be liability to the mother and the damages would include the suffering sustained by the loss of her baby;

v. a doctor negligently fails to identify a risk that a foetus has been damaged
and does not suggest an abortion: the child is born disabled

(ii) neither the Congenital Disabilities Act nor the CL allows an action by the child: for the claim by the parents see McFarlane and later cases;

i. a mother takes drugs throughout pregnancy: the child is born with a severe
problem of drug dependency.

(iii) the Congenital Disabilities Act does not allow a claim by the mother. Ask yourself why mothers are not generally liable for damage to their unborn C, but are liable if they injure them by careless driving.

Clarissa thinks that she may be pregnant and consults a pregnancy advisory service. They confuse her records with those of another client and inform her that she is not pregnant. By the time she discovers that she is pregnant, it is too late for an abortion. Advise her.

No doubt the advisory service has a duty of care. Do you think that the reasoning in McFarlane etc. applies also to these facts? (In McFarlane etc. the negligence caused the pregnancy and not the failure to terminate it).

Breach of duty
Has the D actually been negligent?
basic rule is that the D must conform to the standard of care expected of a reasonable person.
Blythe v Birmingham
Waterworks (1856) N defitnion

Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonable and prudent man would not do.

Glasgow Corporation v Muir [1943] VIMP
Lord Macmillan
FACTS
highlighted two important aspects of the test:

consider the behaviour of an ordinary person in ordinary circumstances (not involving special skill or knowledge)

one simple question. Should Mrs Alexander, the manageress of a teashop, have told her child customers to stand outside while two people carried an urn of hot tea through the shop? The answer depends on what dangers a reasonable person would have expected and what steps (if any) such a person would have taken to avoid them. Lord Macmillan's words are appropriate whether you think of this primarily as a question of breach of duty or as a question of remoteness of damage.

held that the manageress in charge owed a duty of care, generally, to everyone in the tearoom. However, she did not owe a duty of care to the Sunday school, to take additional precautions to prevent their being injured as a result of her allowing them to enter. So long as the tearoom was run in the same manner as it was day to day, and to the same safety standards, she was not required to take extra steps to prevent the incident which occurred. It was not reasonably foreseeable that allowing the C to come into the premises would result in one of them being scalded. As such, the incident was put down as an accident which could not have been prevented.

Glasgow Corporation v Muir [1943] VIMP
Lord Macmillan

highlighted two important aspects of the test:

a. 'The standard of foresight of the reasonable man is an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.'

b. objective test. (cf subjective in Goldman v Hargrave.) The abstract reasonable person is put into the shoes of the D, who is expected to have the same general knowledge and understanding of risks as the reasonable person. The actual D may be stupider or more ignorant, or may be cleverer or more knowledgeable, but is still judged by this abstract impersonal standard.

c. 'It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation. Here there is room for diversity of view. What to one judge may seem far-fetched may seem to another both natural and probable.' The outcome is therefore to that extent unpredictable even in the tiny minority of cases that are resolved in court.

Defendant with special skills or qualifications

ask whether a reasonable 'person' would have driven the car, removed the appendix or designed the building in the same way as the actual motorist, surgeon or architect who is being sued. In such cases the D is to be compared to a reasonable person with the relevant skill or qualification

doubt as to exactly what skill or qualifications the D professes to have.

there may be doubt as to whether a large group (say car drivers or doctors) should be sub-divided into smaller categories for the purpose of comparison with reasonable members of the group.

In these cases the problem was one of defining the group to which the D belonged:

Phillips v Whiteley [1938] 1 All ER 566. Did the D, who had pierced the C's ears, have to show the care of a reasonable surgeon or of a reasonable jeweller?

Shakoor v Situ [2000] 4 All ER 181† there is an interesting analysis of how to treat a practitioner of traditional Chinese medicine working in England. Was he to be compared to a reasonable orthodox doctor, a reasonable traditional doctor practising in China or a reasonable traditional doctor practising in England?

Nettleship v Weston [1971] : Many cases involve car drivers. The only standard of care is that of a reasonable driver, whether the actual driver is highly experienced, newly qualified or even just a learner. It is irrelevant that the learner driver D was doing as well as she could, given her lack of experience, if a reasonable driver would have done better:

Shakoor v Situ [2000]

considered the argument that a herbalist should be held to the same standard as a normal NHS doctor, but disagreed.

"The Chinese herbalist, for example, does not hold himself out as a practitioner of orthodox medicine. More particularly, the patient has usually had the choice of going to an orthodox practitioner but has rejected him in favour of the alternative practitioner for reasons personal and best known to himself and almost certainly at some personal financial cost. Those reasons may include a passionate belief in the superiority of the alternative therapy or a fear of surgery or of reliance (perhaps dependence) on orthodox chemical medications which may have known undesirable side effects either short- or long-term or both.[3]

So long, said Livesey QC, as the herbalist complies with the UK's laws, does not prescribe prohibited or regulated substances under the Pharmacy and Poisons Act 1933, the Medicines Act 1968 or the Abortion Act 1967, so long as the herbalist takes steps to keep abreast of pertinent information in the "orthodox" medical journals, it is appropriate to hold his standard of care to that of what a reasonable herbalist would do. In this case the prescription had not been inappropriate for a reasonable herbalist, and accordingly Mr Situ of the Eternal Health Co. was not liable for the death of Mr Shakoor.

Phillips v Whiteley [1938]
employed a man to pierce C's ears, two weeks later she developed an infection that caused an abscess on her neck that required surgical draining.

A jeweller is not bound to take the same precautions as a surgeon would take, and D had taken all reasonable precautions. C was unable to prove that the operation was negligently performed, and that the abscess which formed in her neck was due to the negligence.

Medical negligence

D is to be compared with a reasonable person of the same specialism and status: a general practitioner is not judged by the same standards as a consultant cardiologist

often no single 'right' way of proceeding. Faced with a particular patient, one doctor might recommend surgery, but another might recommend treatment with drugs.

Bolam test
Bolam v Friern Hospital Management Committee [1957]

courts do not insist that one of these approaches must be right and the other wrong: they require that the D has acted in a way that would be supported by 'a body of respectable medical opinion'

allows the medical profession to some extent to determine appropriate standards for itself, but the courts reserve the right to strike down a medical practice as unreasonable (Bolitho)

Bolam v Friern Hospital Management Committee [1957] VIMP
C was undergoing electro convulsive therapy as treatment for his mental illness. The doctor did not give any relaxant drugs and the C suffered a serious fracture. There was divided opinion amongst professionals as to whether relaxant drugs should be given. If they are given there is a very small risk of death, if they are not given there is a small risk of fractures. The C argued that the doctor was in breach of duty by not using the relaxant drug.

Held:

The doctor was not in breach of duty. The House of Lords formulated the Bolam test:

"a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."

Bolitho v City and Hackney
Health Authority [1998] VIMP

A 2 year old child was admitted to hospital suffering from breathing difficulties. A doctor was summoned but did not attend as her bleep was not working due to low battery. The child died. The child's mother brought an action claiming that the doctor should have attended and intubated the child which would have saved the child's life. The doctor gave evidence that had she attended she would not have intubated. Another doctor gave evidence that they would not have intubated. The trial judge applied the Bolam test and held that there was no breach of duty. The C appealed.

The HL held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is 'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the profession. However, Lord Browne-Wilkinson held that the court would hold a practice that was in conformity with a sound body of expert opinion to be negligent only in " . a rare case" .

In applying the Bolam test where evidence is given that other practitioners would have adopted the method employed by the D, it must be demonstrated that the method was based on logic and was defensible.

Maynard v West Midlands Regional Health Authority [1984]

I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectablebody of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.

Wilsher v Essex Area Health Authority [1987

D hospital, initially acting through an inexperienced junior doctor, negligently administered excessive oxygen during the post-natal care of a premature child who subsequently became blind. Excessive oxygen was, according to the medical evidence, one of five possible factors that could have led to blindness. On the " . balance of probabilities" . test, the hospital would not be liable, since it was more likely that one of the alternate risks had caused the injury. The CA applied the " . material increase of risk" . test, first espoused in McGhee v National Coal Board. The Court found that since the hospital breached its duty and thus increased the risk of harm, and that the plaintiff's injury fell within the ambit of that risk, the hospital was liable despite the fact the plaintiff had not proved the hospital's negligence had caused his injury.

Bolam test :where it is alleged that the doctor failed to give the patient sufficient warning of the risks of the proposed

asks whether the information given was in accordance with what a respectable body of medical opinion would have done, but Australian courts have taken a view more generous to the patient and ask what a reasonable patient would expect to be told.

UK: approach is sometimes criticised as showing a 'doctor knows best' attitude and ignoring the autonomy of the patient. The professional bodies now encourage greater openness and encourage doctors to explain the advantages and disadvantages of particular treatment unless there is a good reason for not doing so.It will now be more difficult for a doctor to argue that a reluctance to be open about the advantages and risks of treatment is in accordance with medical opinion.

case analysis for medical claims

Most cases are based on the idea that the individual doctor (or nurse, etc.) is negligent and that the health authority or private hospital is vicariously liable.

In some cases it may be appropriate to consider arguing whether the health authority or hospital is itself negligent, e.g. by enTing a procedure to an inappropriately junior doctor, or by overworking its staff so that they are too tired and make mistakes.

Edward Wong Finance
Co Ltd v Johnson, Stokes and Master [1984]

D's solicitors completed a M in "Hong Kong style" rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the borrowers subsequently to hand over the executed documents. This allowed a dishonest solicitor for the borrower to abscond with an advance without providing the documents.

Even though completion in Hong Kong style was almost universally adopted in Hong Kong and was in accordance with a body of professional opinion there, the D's solicitors were liable for negligence because there was an obvious risk which could have been guarded against. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible.

here the body of professional opinion was rejected, cf Balom, also Vowles and rugby professionals

Mullin v Richards [1998]
plaintiff and the D, two female friends of fifteen years old, were fencing with plastic rulers in their classroom. One of the rulers shattered and a piece of plastic flew into the plaintiff girl's eye, partially depriving her of sight

CA found that the standard to be expected of a 15-year-old child was not the standard of a reasonable person, but that of a reasonable and " . ordinarily prudent" . 15-year-old. It was held that an ordinary prudent 15-year old could not have foreseen any injury when playing with rulers and the D was therefore found not liable in negligence.

Blake v Galloway [2004]
injured eye between young

In the context of 'horseplay' there is a breach of the duty of care only where the D's conduct amounts to recklessness or a very high degree of carelessness. The D had consented to the risk of injury occurring within the conventions and understanding of the game. Lord Justice Dyson: " . If the D in the present case had departed from the tacit understandings or conventions of the play and, for example, had thrown a stone at the C, or deliberately aimed the piece of bark at the C's head, then there might have been a breach of the duty of care. But what happened here was, at its highest, " . an error of judgment or lapse of skill" . (to quote from Diplock LJ), and that is not sufficient to amount to a failure to take reasonable care in the circumstances of horseplay such as that in which these youths were engaged. In my view, the D's conduct came nowhere near recklessness or a very high degree of carelessness." .

Mansfield v Weetabix Ltd [1998]

D drove his lorry into a shop owned by the C. At the time of the incident the D was had a malignant insulinoma which resulted in him being in a hyperglycaemic state although he was unaware of this. On the day of the crash he had also been involved in two minor incidents.

D drove his lorry into a shop owned by the C. At the time of the incident the D was had a malignant insulinoma which resulted in him being in a hyperglycaemic state although he was unaware of this. On the day of the crash he had also been involved in two minor incidents.

D may be liable even if he was doing his incompetent best. But if his behaviour was the result not of inexperience or incompetence, but of illness or other external forces, then he may be found not liable.

Eliminating harm must be proportional to the danger: guidelines

a. likelihood of injury
b. seriousness of injury
c. difficult/cost to eliminate risk?
d. urgency of D action?

Wagon Mound (No. 2) [1967]
D's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour due to the failure to close a valve. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The fire spread rapidly causing destruction of some boats and the wharf.

defendants were in breach of duty. Although the likelihood of harm was low, the seriousness of harm was high and it would have cost nothing to prevent it.

findings show that he ought to have known that it is possible to ignite this kind of oil on water. and that the ship's engineer probably ought to have known that this had in fact happened before. The most that can be said to justify inaction is that he would have known that this could only happen in very exceptional circumstances. But that does not mean that a reasonable man would dismiss such a risk from his mind and do nothing when it was so easy to prevent it. If it is clear that the reasonable man would have realised or foreseen and prevented the risk then it must follow that the appellants are liable in damages.

does not establish a principle that small risks can be ignored, but rather that the risk must be balanced against the defendant's purpose in carrying on its activities and the practicability and cost of taking precautions.
cf BOlton v Stone

Bolton v Stone [1951]
Stone was injured when she was struck by a cricket ball outside her home. She brought an action against the cricket club in nuisance and negligence.

No breach of duty. The likelihood of harm was low the defendant had taken all practical precautions in the circumstances. The cricket ground had been there for 90 years without injury and provided a useful service for the community.

Latimer v AEC [1952
C worked in the D's factory and slipped up on the factory floor. The factory had become flooded due to adverse weather conditions. The D's had put up warning signs mopped up and placed sawdust in the most used places to make it as safe as possible. The trial judge held that there had been a breach of duty as the Ds should have closed the factory if it was unnsafe. However, no argument had been advanced on this.

no breach of duty. There was no duty to close the factory. The D only had to take reasonable precautions to minimise the risk which they had done. There was no need to go to great expense to eliminate any possible risk and thus no obligation to close the factory.

Paris v Stepney BC [1951]

A Local Authority employed Mr Paris as a garage mechanic. Mr Paris had lost the sight of one eye during the war. In order to loosen a stiff bolt he struck it with a hammer; a piece of metal flew off and (because he was not wearing goggles) struck him in his good eye, causing him to become totally blind. After the accident, Mr Paris successfully claimed damages for his injury but this was overturned on appeal. Mr Paris then appealed to the HL.

probability of such an event was very small, but its consequences were very serious, his employers, knowing of his disability, should have taken extra care to provide goggles for him. The more serious the possible damage, the greater the precautions that should be taken. Stepney Borough Council owed a special duty of care to P and had been negligent in failing to supply him with goggles, even though sufficient equipment was not given to other employees. Held, Mr Paris won

Watt v Hertfordshire CC [1954]
fireman, was sent out on a truck to help a woman who was trapped under a heavy vehicle. The regular truck which carried a heavy jack was not available and there was nothing on the truck to lash it to. The truck stopped suddenly at a red light and Watt was injured. Watt was unsuccessful at trial which he appealed

Lord Denning states that another factor must be considered: one must balance the risk against the end to be achieved. He states that the saving of " . life or limb" . , which the firemen were doing, justifies taking a considerable risk and here the risk outweighs the risk that was taken by the fire department.

D is to be judged by how a reasonable person with the same skill, etc. would have behaved at the same time and in the same circumstances.
D must not be judged with the benefit of hindsight (making use of knowledge not available at the time of the alleged T) and allowance must be made for any special circumstances affecting the D (e.g. having to act under pressure or with limited time for full consideration). cases

Roe v Minister of Health [1954]
Luxmoore May v Messenger,
May- Baverstock [1990]
Moy v Pettman Smith [2005]

Roe v Minister of Health [1954]
Two Cs had been given an anaesthetic for minor operations. The anaesthetic had been contaminated with a sterilising fluid. This resulted in both Cs becoming permanently paralysed. The anaesthetic had become contaminated during storage. The anaesthetic was stored in glass ampoules which were emerged in the sterilising fluid. It transpired the ampoules had minute cracks which were not detectable with human eye. At the time it was not known that the anaesthetic could be contaminated in this way and the hospital followed a normal procedure in storing them this way.

no breach of duty. The risk was not foreseeable as it was an unknown risk at the time.

Luxmoore May v Messenger, May- Baverstock [1990]

D valued two Stubbs paintings at £30; they eventually sold at auction for £88,000. Valuation of a picture of was not an exact science and in deciding not to attribute the picture to a particular artist a valuer was not necessarily guilty of professional negligence

Are decisions on breach questions of fact or law?

Once these principles have been applied, however, the decision on the particular facts of a case does not constitute a binding precedent. The fact, say, that it was held in a particular case that an employer was negligent in failing to ensure that an employee wore a particular kind of safety equipment does not mean that all other employers will also be held negligent if they behave in the same way. The issue will have to be decided in the light of the particular facts each time it occurs.Qualcast v Haynes [1959]

not very helpful to potential Ds such as building contractors, who do not want to know that they have to take reasonable care, but do want to know exactly what instructions, equipment and so on they have to supply. So it is very common for regulations under the authority of various Acts of Parliament to set out detailed rules on such matters.

Qualcast v Haynes [1959]
There is no jury in civil cases the decision is made by the judge. Previous cases can give guidance as to the criteria to be used and the objective test will be applied.

a thirty-eight year old who had been a moulder all his working life was casting moulding boxes, the ladle of molten metal which he was holding slipped, and some of the metal splashed on to his left foot and, as he was not wearing protective spats or special boots, his foot was injured. He lost because he was experienced and should have guarded against the danger.

Proving breach of duty
res ipsa loquitur : 2 things to consider
elements of duty of care and breach can be sometimes inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved.

doctrine applies only exceptionally. You should not make use of it in answering questions unless there is a clear suggestion that there is no explanation for what has happened and the only inference is that the D must have been negligent.

a. when it is legitimate to use the maxim

b. what the effect of invoking it is.

Scott v London

Scott v London

There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the D or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, accident arose from want of care

Henderson v Henry E. Jenkins [1970]
House described the burden of proof in a claim for negligence and the doctrine of res ipsa loquitur:

In an action for negligence the plaintiff has BOP, that the accident was caused by negligence on the part of the Ds. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the Ds, and if he is not so satisfied the plaintiff's action fails. The formal burden of proof does not shift." . However: " . if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the Ds, the issue will be decided in the plaintiff's favour unless the Ds by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation there is said to be an evidential burden of proof resting on the Ds.

Ng Chun Pui v Lee Chuen Tat

D bus driver in Hong Kong suddenly crossed the central reservation and into oncoming traffic, there were a number of injuries. The Cs didn't call for oral evidence from the D but instead relied on res ipsa loquitur. The Ds argued that a car cut in front of the driver and he had to swerve.

Privy Council found for the Ds as the Cs had failed to answer the defence put forward. The court emphasised that the principle was not really a doctrine per se but rather simply a way of expressing a common sense idea: that the D probably caused the accident. The burden was on the C to prove a prima facie case which the D could then rebut.

What is the level of the duty of care to be shown by:

a newly qualified solicitor

a learner driver

a 12-year-old child?

Nettleship v Weston (reasonable driver) and Blake v Galloway (horesplay normal risk for children of that age).
think about these cases and general principles would apply to the case of a newly qualified solicitor.

What standard of care would have to be shown by Deirdre, an ambulance driver, (i) when taking a seriously ill patient to hospital and (ii) when driving her family to the seaside in the family car?

When driving to hospital she still has to drive 'with reasonable care'. In an emergency it may be legitimate to drive in a way that is not ordinarily acceptable, but it still has to be reasonable in the circumstances. On going to the seaside, she is judged by the standards of an ordinary driver. She is not penalised because, as a highly trained driver, she might have been expected to do better in the circumstances.

D is a general practitioner. He prescribes certain tablets for his patient C, who is very fat. A recent article in a specialist journal of cardiology has suggested that there may be some risks in giving these tablets to overweight patients. C has a heart attack. Is D liable?

Examine the cases on standard of care to be shown by medical practitioners. You might note the following elements in the facts: (i) as a general practitioner, should he know about things discussed in a specialist journal? (some help perhaps from Shakoor v Situ, though only by analogy); (ii) should he tell the patient about the risks? (consider Chester v Afshar and decide whether the facts are in any respects different).

D parks his car on a hill and walks away. Shortly afterwards, the car moves off downhill and strikes C. It is not clear why this has happened. Advise C

his might be one of the exceptional situations in which the maxim res ipsa loquitur can be applied.

Chester v Afshar

VIMP, case where BOD without direct causation=>liable C suffered back pain became severe unable to walk or control her bladder. An MRI scan revealed that disc protrusion ,advised surgery. 1-2% risk that even if it was performed without N operation could worsen rather than improve her condition. Her consultant neurosurgeon Mr Afshar was under a duty to warn,failed. it worsened her condition. judge found that surgeon had not been N in performing operation but his failure to warn her of risk was a BOD. C argued that if she had been warned she would not have taken decision to have operation straight away but other options,eval risks, discuss with family,did not say she would never have had operation. judge held that if she had operation on another occasion it may have been successful. D appealed to HL on grounds of causation in that she was likely to have consented to operation and that even if it had been on a different occassion it carried same risk. To leave patient who would find decision difficult without a remedy, as normal approach to causation would indicate, would render duty useless in cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined operation once and for all if they had been warned. I would find that result unacceptable. function of law is to enable Rs to be vindicated and to provide remedies when duties have been breached.

Sutradhar v Natural Environment Research Council [2006]

Bangladeshi suffering from arsenical poisoning action against Natural Environment Research Council for N arising from a geological report that, according to him, had induced health authorities in Bangladesh not to take steps that would have ensured that his drinking water was not contaminated by arsenic.

no connection with drinking-water project that had revealed presence of arsenic, and no one had asked it to test water for potability. It had owed no duty to government or people of Bangladesh to test water for anything. fact that a person had expert knowledge did not in itself create a duty to whole world to apply that knowledge in solving its problems. Moreover, fact that B had chosen to run tests for some elements could not create a duty to test for other elements. B had therefore owed no positive duties to government or people of Bangladesh to do anything. As to terms of report, relevant question was whether it was arguable that B owed a duty to population of Bangladesh not to publish a report that, although containing useful info about many other matters, implied, by what it did not say, that B shared then conventional wisdom about arsenic, namely that its presence was so unlikely that it was not necessary to test for it. question only had to be stated to show how improbable it was. necessary relationship of proximity was absent. B had no control whatever, whether in law or in practice, over supply of drinking water in Bangladesh, nor was there any statute, con or other arrangement that imposed on it responsibility for ensuring that water was safe to drink.

nature of damage
Rothwell v Chemical

Ct considered a number of test cases in which Cs had been exposed to asbestos dust. This had resulted in (i) pleural plaques which were symptomless and invisible, (ii) possibility of developing an asbestos-related disease in future and (iii) anxiety that they would suffer such a disease. It was held that head (i) did not amount to damage and that it was not possible to establish a claim by aggregating three heads, none of which on its own amounted to damage.

(c) Psychiatric illness Rejected

The Lords considered separately the appeal of Mr Grieves, who claimed that he had suffered a recognisable psychiatric illness (a depressive illness) as a result of knowledge of his pleural plaques and the risk of future illness. Lord Hope explained that the evidence given showed that Mr Grieves had a long-standing fear of developing an asbestos-related disease and one of the medical experts, Dr Menon, described his case as "relatively unique". The House upheld the decision of the Court of Appeal, concluding that the Appellant did not have a cause of action for his psychiatric illness because it was not reasonably foreseeable that pleural plaques would cause psychiatric injury.

The case of Page v Smith [1996] AC 155 was distinguished by the House. The principle established in this case was that as long as a defendant can reasonably foresee that his conduct will expose a claimant to a risk of personal injury, the claimant will be entitled to recover for such injury, without establishing a further duty in relation to psychiatric harm. However, in Rothwell the Lords have held that this principle is of limited scope. The Lords confirmed that Page v Smith should be confined to situations where the psychiatric injury arises as an immediate foreseeable consequence of an accident exposing the claimant to the risk of immediate physical injury. Mr Grieves' psychiatric injury was held to be too remote, as his psychiatric illness was caused by his anxiety at the risk of future illness only.

Everett v Comojo (UK)

duty with 3Ps, relationship between mgmt of a nightclub and its guests, proximate to justify doc, risk of one guest assaulting another was foreseeable. DOC owed for actions of 3Ps on its premises, scope and standard of that DOC had to be just, fair and reasonable in circumstances. CA held that as between nightclub management and its guests, there should not be a higher degree of forseeability than is required pursuant to OLA 1957. for a DOC to exist. They also found that consumption of alcohol can lead to loss of control and violence, meaning a foreseeable risk that one guest might assault another. well established duty to visitors as an occupier in respect of condition of premises, it was fair, just and reasonable to extend that duty in relation to acts of a 3P, scope would vary . Applying that test, no BOD - this was a respectable club where violence was virtually unheard of, patron was a regular who had never caused a problem, no indication violence was imminent. Cases where liab can arise: entrants often have weapons=>search, if outbreaks of violence common, security personnel to be present at all times within areas where people congregate.

Jones v Kaney [2011]UKSC 13; [2011] 2 All ER 671, where Supreme Ct refused by a majority to recognise a principle that an expert witness had an immunity from liability in N to client (but witness was still entitled to absolute privilege in defamation).

Expert witnesses can now be sued for providing N expert EV just as they could be sued for Nly providing any other service. decis ion ends previously absurd position that, for example, a consultant neurosurgeon could be sued for Nly conducting brain surgery, but in any proceedings for clinical N his fellow consultant neurosurgeons would have immunity for any negligenc e while acting as expert witnesses. risk of liability for performing operation but immunity for talking about it.

Harris v Perry [2008]
No BOD by parents when child injured by being accidentally kicked by another child on bouncy castle at children's party. Discussion of standard of supervision to be expected.

standard of care required was to act as a reasonable provider and supervisor of inflatable equipment for young children, or, which was same thing, that which a reasonably careful parent would have shown for his or her own children. Some activities involved a greater degree of risk and therefore a greater degree of supervision so as to restrict risk to an acceptable level, but that would depend on all circumstances, critically risks that reasonable parent ought to foresee would be involved in activity. Ds' duty was to protect against a foreseeable risk of physical harm. not reasonably foreseeable that collision between Sam's unshod heel and C's forehead would result in a serious injury, let alone one of severity suffered by C. nothing in hire document that Ds had read to inform them that such a risk existed. CA were not convinced that reasonably careful parent ought to have concluded that children should not somersault on castle, but in any event, in light of conclusion that it was not necessary to keep constant surveillance on children, this issue was academic. did not accept that reasonably careful parent should have prevented children of differing sizes from playing together on bouncy castle.

George v Eagle Air Services [2009]

Apply test in Scott v London 1. clear that aircraft was under respondents control 2. without N accident would not have happened. This is not necessarily case as many complex causes can come together to cause an aircraft to crash and not by any means are these always due to N. where decision is most open to challenge i as a D may well be able to produce EV of air crash analysis which at least raises a question over issue. no EV on point before Ct . 3. no arguments were raised that there were alternative explanations for accident IMPACT: decision should be of assistance in cases where Tfeasor holds all cards in terms of investigating incident and can simply sit back and invite injured party to prove their claim or even establish that they have a claim at all.

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