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

Terms in this set (96)

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...
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.
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.
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.
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