214 terms

tort 5 : negligence special problems

tort 5 : negligence special problems
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Terms in this set (...)

Duty of care in complex and problematic situations:
Pure economic loss
Negligent misstatements
Psychiatric injury
Omissions
Inspectors and regulators
Rescuers
Impact of Human Rights legislation
Pure economic loss and negligent misstatements
don't always go together
Hedley Byrne v Heller [1964]

HL in Hedley Byrne held that there could be a duty for careless words

problem with the case was that allowing duty of care for careless words, opens floodgates. prior to this, C had to show dishonesty.
pure economic case, courts are cautious in this situations since it opens the doors to fraud.

here disclaimer was found to be sufficient enough to discharge any duty created by Heller's actions.
distinguished Derry v Peek. that case based on tort of deceit=> not binding in N.
Derry v Peek [1889]
a company prospectus the defendant stated the company had the right to use steam powered trams as oppose to horse powered trams. However, at the time the right to use steam powered trams was subject of approval of the Board of Trade, which was later refused. The claimant purchased shares in the company in reliance of the statement made and brought a claim based on the alleged fraudulent representation of the defendant.
statement was not fraudulent but made in the honest belief that approval was forthcoming.

Lord Herschell defined fraudulent misrepresentation as a statement which is made either:

i) knowing it to be false,
ii) without belief in its truth, or
iii) recklessly, careless as to whether it be true or false.
Hedley Byrne v Heller [1964]
facts:

The case was considered by the HL, as leading case in stating liability for pure economic loss arising from a T. It introduced the basic idea of an " . assumption of responsibility" . . Issue Whether and under what conditions a person can recover damages for loss suffered by reason of his having relied on an innocent but negligent misrepresentation.
Hedley was responsible for any amount which was not paid by Easipower since they have to pay for advertising orders. Later on Hedley became curious about a financial position of Easipower to afford another advertising which Hedley may give them on credit.
The bank of Easipower [the defendant] gave a report of Easipowers financial position that they have enough resources for ordinary business proceedings, but stated that the report was given "without responsibility." Based on the report which was given by the respondents, Hedley added r orders on behalf of Easipower which later on were not covered by sufficient resources. It meant a loss of £17,000 for Hedley Byrne. Hedley sued the respondents for damages under the tort of negligence.
Hedley Byrne v Heller [1964]
conclusion
Requirements to recover pure economic loss
Special relationship and reasonable reliance
Special skill or knowledge
Formal considered advice

it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise. The fact that the service is to be given by means of, or by the instrumentality of, words can make no difference. Furthermore if, in a sphere in which a person is so placed that others could reasonably rely on his judgment or his skill or on his ability to make careful inquiry, a person takes it on himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance on it, then a duty of care will arise.

NOTE: on the facts of the case disclaimer was found to be sufficient enough to discharge any duty created by Heller's actions. "without responsibility"

For a time after the decision in the Hedley Byrne case it was thought that damages for economic loss might be recoverable as readily as for physical damage, but this did not happen.
Pure economic loss
physical damage
courts are happy to find DOC
physical damage=broken leg, computer
Spartan Steel
Spartan Steel could only recover the damages to their furnaces, the metal they had to discard and the profit lost on the discarded metal. They could not recover the profits lost due to the factory not being operational for 15 hours. Their main reasoning for this was that while the damage to the metal was "physical damage" and the lost profits on the metal was "directly consequential" upon it, the profits lost due to the blackout constituted "pure economic loss".
Spartan Steel
Statutory utility providers are never liable for damages caused by their negligence.
A blackout is a common hazard and a risk which everyone can be expected to tolerate from time to time.
If claims for pure economic loss in such cases were allowed, it might lead to countless claims, some of which may be spurious (the "floodgates" argument).
It would be unfair to place the entire weight of many comparatively small losses upon the shoulders of one person in such cases.
The law does not leave the claimant without remedy by allowing him to recover the economic losses that are directly consequential upon physical damage.

other reasons

Hard to calculate
Hard to verify
Open the floodgates
Fraudulent exaggerated claims
policy reasons:
encourage correct actions
role of insurance
role of personal protection/responsibility
pure economic loss
not directly linked to physical damage:
forms
purely $: Hedley Byrne v Heller
Ross v Caunters [1980]; loss of inheritance for Bs

2. Loss of profit : Spartan

3. Cost of repairing inherently defective property or reduction in value on discovering property is inherently defective
e.g. a house.
Murphy v Brentwood [1991] rejects
Anns v London Borough of Merton [1978]
Anns v London Borough of Merton [1978]
rejected by Murphy v Brentwood [1991]
as it lacked precision and created a duty of care of general application.


plaintiffs were leasees of flats in Wimbledon. The borough of Merton approved a set of plans to build a block of flats. Eight years after building was complete and the flats were rented the foundation started to deteriorate. The tenants brought an action against the city for the cost of the repairs. The plaintiffs sued the local authority on the grounds that their predecessor's inspectors had either not inspected the foundations or, if they had, had done so negligently. The HL held that the local authority owed the plaintiff a duty of care. It was in this case the lord Wilberforce established a two stage test:
First one has to ask, as between the alleged wrong doer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part maybe likely to cause damage to the latter- in which case a prima facie duty of care rises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise
Murphy v Brentwood [1991]

D Brentwood District Council failed to inspect the foundations of a building adequately, with the result that the building became dangerously unstable. The C, being unable to raise the money for repairs, had to sell that house at a considerable loss, which he sought to recover from the district council. The plaintiff's actions failed and it was held that the Ds did not owe duty of care to the Ps.
The decision in Murphy exposed the reality that until physical injury is caused to something other than the building or to a person, the loss is economic only and in such circumstances the test formulated in Anns was not a sufficient basis for the imposition of a duty of care to avoid causing economic loss. Since it is rare for buildings to be so badly built or, more accurately, for such defects to remain undiscovered until the building begins to collapse, it looked as if the days of multi-party litigation were over.

pure economic loss not recoverable for building defects
Negligent misstatements
generally pure economic loss not recoverable
BUT
Hedley Byrne v Heller
need special relationship and reliance

special relationship:
-requires special skill or knowledge (not ordinary people) D is better position to understand than C
MLC v Evatt [1971]
factors for determining special relationship in Hedley Byrne
Assumption of responsibility by statement maker

Circumstances such that it is reasonable for recipient to accept and rely on statement.

Speaker knew or ought to have known that the recipient intended to rely on the information

Reasonable for recipient to seek or accept and rely on speaker's advice.


This decision was subsequently appealed to Privy Council where a more restrictive approach was taken namely, that the speaker must carry on business of giving advice or let it be known of their claims to special skills in the field.

held the plaintiff can't claim their economic cost loss cause by the negligent misstatement to the defendant. Because the defendant was Insurance Company although they give an advice but the financial advice they had given was not an expert in their professional. (Barbara Ann Hocking, pg73)

After this case happened, it restricted the "special relationship" principle that establish in the case Hedley Byrne. In this case Privy Council added another condition that needed to constitute the special relationship.
Esso v Mardon [1976]
] Mr Mardon entered a tenancy E, experts estimated sales which were prepared prior to planning application. planning permission changed prominence which would have an adverse affect on sales rate. Esso made no amendments to estimate. rent under tenancy was also based on erroneous estimate. Consequently it became impossible for Mr Mardon to run petrol station profitably. Sold less.
Court of Appeal held that there was no action for misrepresentation as the statement was an estimate of future sales rather than a statement of fact. However, the claimant was entitled to damages based on either negligent misstatement at common law or breach of warranty of a collateral contract.
Chaudhry v Prabhakar [1988]
court of appeal held that the duty of care will arise on the defendant who are the friend of plaintiff that give negligent advice to the plaintiff to selection of a second car. The defendant will liable on it, although defendant not as a professional in the mechanic area. Here however D made himself out as more knowledgeable than C.

buying a 2nd hand car. here it was to a friend, but clear that it could have financial consequences.
Caparo v Dickman [1990] restricts Hedley
cannot be a DOC to a statement made at large, would be too onerous.
need Specific advice for specific purpose and C uses advice for purpose
James McNaughton v Hicks Anderson [1991]
factors for determining if a statement made can be considered N and lead to liability
The statement must be made for a specific purpose, other wise there would be no special realtionship.

(1) the purpose for which the statement was made. (2) the purpose for which the statement was communicated . (3) the relationship between the advisor, the advisee and any relevant third party. (4) the size of any class to which the advisee belongs. (5) the state of knowledge of the advisor. (6) reliance by the advisee.'
Smith v Bush [1990]: "without responsibility"
from Hedley is subject to UCTA
business cannot avoid liability unless reasonable.

NOTE in Hedley byrne advice was free so maybe reasonable but if pay for advice, probably unreasonable
RELIANCE
if C would have done same thing no reliance
JEB Fasteners Ltd v Marks Bloom
Yianni v Edwin Evans
young and experienced buyer relied on advice.

judge found the surveyor liable, even though the building society, and not the P, had employed him. The surveyor knew, however, that the advance would be granted only if his report were favourable and that it was unlikely the P would obtain his own survey. The surveyor was therefore held to have a duty to both Yianni and to the building society. Since this decision, lenders have made valuation surveys available to prospective Ps, thus widening the liability of surveyors.
Stevenson v Nationwide Building Soc [1984]
(EXPERT) in field=> more responsibility required. harder to claim reliance.

total disclaimer of liability for professional negligence of a surveyor undertaking a M valuation survey contained in a notice to the potential Mor is effective. The special features of this case should, however, be carefully noted.
3 features of case:
(a) the fact that the court was considering a disclaimer that was used as a metter of standard practice;
( b) the fact that the effects of the disclaimer were fully and clearly explained and a course of action made available to circumvent these effects; and
(c) not a member of the general public unused (EXPERT) to the implications of opting for a mere mortgage valuation report rather than the more comprehensive (and more expensive) intermediate type of survey and valuation or full structural survey, but, on the contrary, was an estate agent and insurance broker well acquainted with property transactions and their risks.
DOC cases with statements
D makes statement to X
X reliance causes loss to C
Ministry of Housing v Sharp [1970]
duty because D breached satutory duty

Ross v Caunters [1980]
DOC breached concerning fid duty, witnessing a will. instructions to Testator but loss to C

Spring v Guardian Assurance plc [1994]
ex employer owed DOC concerning to employee for reference letter. relied upon by future employer. policy consideration around importance of these letters and defamation claims

Henderson v Merrett Syndicate Ltd [1994]
providing prof services.



White v Jones [1995]
solicitor assumed responsibility to prepare will in time before death. caused damage to Bs since will was not prepared in time.
Henderson v Merrett Syndicate Ltd [1994]
in the present case, hurricanes in America had led to unprecedented losses for insurers. After the hurricanes, Lloyd's called upon the investors to cover their share of these losses. Litigation followed in which the names sued the people running the underwriting agents for negligent management of the investment fund. Mr Henderson was one of the names and Merrett Syndicates Ltd was one of the underwriting agents.
It was accepted that the underwriting agents had a duty
Merrett Syndicates was liable to both types of shareholders, as there was enough foreseeability to extend pure economic loss liability to "un-proximate" third parties. The major significance here was, however, the allowance of claims in both contract and tort, which blurred the divide between the two. Some of the first party Names claimed in tort to overcome the three-year limit in which an action must be taken in contract. to .exercise due care and skill.

TEST is objective
Weller v. Foot and Mouth Disease Research Institute [1966]
similar to Spartan Steel
another case where no compensation for pure economic loss.

unable to sell cattle due to foot and mouth disease due to N from Ds.
Junior Books Ltd v Veitchi Co Ltd [1983]

D, specialist-flooring contractors negligently laid a floor in C's factory.
D as specialist flooring contractors knew what products were required and were alone responsible for the composition and construction of the floor. C suffered loss and damages, such as the cost of removal of machinery and loss of profits while the floor was being re-laid.

VIMP for 3 requirements
however scope has been limited
exceptions for PEL
flooring laid badly.
cost of replacing flooring was PEL, normally unrecoverable
HL says can be recovered if:
1. proximity (cf Spartan Steel where there was no proximity, parties were randomly thrown together)
2. PEL reasonably forseeable
3. no policy reasons to preclude recovery.
Muirhead v Industrial Tank Specialities [1985]

manufactured motors for pumps which were incorporated in a tank for the storage of lobsters which was installed at the plaintiff's fish farm. The motors, being unsuited to UK voltages, cut out and the plaintiff's entire lobster stock died from lack of oxygen. The plaintiff claimed, inter alia, damages from the third D in negligence for the loss of the lobsters and the economic loss, including loss of profit, resulting therefrom. The trial judge held that the third D was liable to the plaintiff in respect of the pure economic loss. The third D appealed.
refines Junior books by adding that some reliance is also required

said that damages in negligence for pure economic loss could be recovered only if there were such a very close proximity of relationship between the parties and reliance by the plaintiff on the D that the D was to be taken voluntarily to have assumed direct responsibility to the plaintiff. The ultimate P of goods supplied unde a chain of ordinary sale contracts could recover such damages only from his immediate V, since such proximity and reliance would not arise between him and the manufacturer, and accordingly the plaintiff could not recover his economic loss from the third D.
Simaan General. Contracting Co v Pilkington Glass [1988] policy considerations for compensation of PEL
limits Junior Books

plaintiffs, the main contractors under a contract for a new building in Abu Dhabi, sub-contracted the supply and erecton of curtain walling. The Ds contracted to supply green glass units for incorporation in the curtain walling. They were not in contractual relationship with the plaintiffs. The units were alleged by the building owner to be defective in their colouring. The plaintiffs eventually rejected them and instructed the sub-contractors to replace them with approved panels. The plaintiffs claimed against the Ds damages for negligence in respect of the loss they had suffered as a result of the supply of the defective units. The question whether the Ds, as specified suppliers of the units, owed to the plaintiffs, as the main contractors, a duty to take reasonable care to avoid defects in the units which had caused them loss was tried as a preliminary issue. Judge Newey answered it in favour of the plaintiffs. The Ds appealed.
CA Junior books can only be used if it was not being used to circumvent valid chains of contractual obligations. C did not want to sue main contractor because did a lot of work together so tried to sue D in tort. loss is PEL and CA said this is not a subject of duty.

cf Junior there was no valid contractual relationship because main contractor had gone bankrupt.
D
HL said that Junior Books was so far dependent on the 'unique' relationship between the C and the D that it cannot be regarded as laying down any general principle in the law of T. Junior Books has been distinguished by the CA on a number of occasions:

Muirhead v Industrial Tank Specialities [1985] 3 All ER 705 Simaan General Contracting v Pilkington Glass (No 2)

Anns, he said 'that in so far as the case is authority for the proposition that a builder is liable in tort . . . for damage occurring through his negligence to the very thing . . . constructed, such liability is limited directly to cases where the defect threatens the health or safety of occupants or of third parties . . . possibly other property'. The damages then recoverable are limited to the cost of averting that danger. 'The case cannot properly be adapted to support the recovery of damages fr pure economic loss going beyond that. Such loss is not in principle recoverable in tort unless the case can be brought within the principle of reliance established in Hedley Byrne.'
Murphy v Brentwood [1991]
The defendant local authority failed to inspect the foundations of a building adequately, with the result that building became dangerously unstable. The claimant, being unable to raise any money for repairs, had to sell the house at a considerable loss, which he sought to recover from Brentwood District Council. This action failed as the loss was identified as a Pure Economic loss.
range of factors that may be relevant to the denial of a duty of care. For example, a duty of care may not exist where:
1. The claimant is the author of his own misfortune (Philcox v Civil Aviation Authority

2. A duty of care would lead to unduly defensive practices by Ds seeking to avoid claims for negligence with detrimental effects on their performance of some public duty (Hill v CC of West Yorkshire [1988] 2 All ER 238, and X (minors) v Bedfordshire CC [1995]

3. Awards of damages against a public authority exercising a public function would have an impact upon the resources available to the authority to perform its duties, both in terms of the damages and costs, and in terms of the resources required to investigate and defend spurious claims (X (minors) v Bedfordshire CC [1995]

3 A duty of care would cut across a complex statutory framework established by Parliament for regulating particular circumstances, such as the regulation of financial markets (Yuen Kun-yeu v AG of Hong Kong [1987] 2 All ER 705) or the protection of C at risk (X (minors) v Bedfordshire

4. There is an alternative remedy available to an aggrieved C, such as a statutory right of appeal from the decision of a government officer or department, or judicial review, or another source of compensation, such as the criminal Injuries Compensation Scheme, or another cause of action, such as a claim for breach of contract, even where the action would be against a different D.

5. Where a DOC would tend to undermine the requirements of other causes of action, particularly in the case of complex commercial contracts where the parties have had the opportunity to negotiate a detailed structure of contractual negotiations
Liability for psychiatric injury : old label nervous shock
Dulieu v White
that the statement of claim disclosed a good cause of action against B. Mere fright not followed by consequent physical damage will not support an action, but if it is followed by consequent physical damage, then, if the fright was the natural result of the Ds' negligence, an action lies, and the physical damage is not too remote to support it. Per Phillimore, J.: Where there is a legal duty on the D not to frighten the plaintiff by his negligence, then fright with consequent physical damage will support an action. .
psychiatric injury: general rule
harm suffered by a perception of events will not be treated as a DOC.
only arises when the loss is a medically recognized condition.
Page v Smith [1996] primary v secondary victims
primary: was in the area and in danger of being harmed physically. D must take V as he finds him. must not show that V is as ordinary man.
courts have kept this category limited

2ndary V are onlookers
must show that nervous shock was reasonably forseeable to a P of customary flem.
policy restrictions in McLoughlin
McFarlane v. EE Caledonian Limited [1994]
could only claim if
1. if they escaped by a whisker
2. because of sudden and terrifying nature, reasonably believer they were in danger
3.went into danger as a rescuer
White v Chief Constable of South Yorkshire Police [1999]

D the Chief Constable and employer of 4 officers, C who had all suffered post traumatic stress disorder as a result of their involvement in the aftermath of the Hillsborough Football Stadium disaster.



D admitted that the disaster had been caused by police negligence.
rejects primary V claims from employees against employers
against rescuers not in danger
court felt there would be public outcry to allow police to succeed in this case

D owed officers under him a duty analogous to that of an employer to care for the safety of employees and to take reasonable steps to protect them from physical harm, but there was no extension of that duty to protect from psychiatric injury where there was no breach of the duty to protect from physical injury.

It was not possible to classify C as primary victims, since none of them were at any time exposed to personal danger nor reasonably believed themselves to be so.

Recognition of C's claims would significantly widen the established categories of cases for which damages could be recovered for pure psychiatric harm and to allow the claims would not fit easily with the decision in Alcock v Chief Constable of South Yorkshire [1992] to deny compensation to bereaved relatives of victims of the disaster who had not witnessed events at first hand or acted as rescuers.
McLoughlin v. O'Brian [1983]
not at scene of accident, case was unique at time because C suffered injuries away from scene of accident and hours after accident occurred. a friend came to C's (C's) house to tell her of a serious accident involving her H and three children, two hours after it had occurred. He drove her to hospital where she saw her daughter dead and her H and two other children seriously injured, all still covered in oil and mud. suffered nervous shock.
policy restrictions for 2ndary V
Dearness, hereness and nearness
Vs were still in same bloody state

(Lord Wilberforce delivering the leading speech) gave judgment in favour of the plaintiff and laid out a test to determine whether somebody not directly involved in the accident could recover for nervous shock.

test required firstly a close relationship between the plaintiff and the victims of the accident, a criterion met in this case due to the close family ties. requires close ties must show strength of relationship, ok for husband wives or parents, but extra evidence required for other claims.


The test further required that the plaintiff was in close proximity to the accident in time and place. Although McLoughlin was not at the scene of the accident, it was held that witnessing the immediate aftermath, as she had done, was sufficient: '[insisting] on direct and immediate sight or hearing would be impractical and unjust'. A final requirement was that there was 'proximity by sight or hearing' to the accident or, as in this instance, to its immediate aftermath.
Alcock v Chief Constable of South Yorkshire Police [1992]
A further action following the Hillsborough tragedy brought by those that helped at the scene. cf White
obiter:that may be DOC in a particularly horrific accident, but this was rejected in McFarlane

Rescuers should continue to qualify on policy grounds even though they were not in a close relationship with the victim. Friends and relatives raised the spectre of the "floodgates" argument, and the fear of opening up unlimited liability.

3 "control mechanisms" which limit those who can recover damages for psychiatric injury brought upon by the death or injury to loved ones. These are, close ties of love and affection, presence at the event or its aftermath and causation of the shock by direct perception of the event. Also need to have "nervous shock" i.e. the sudden appreciation by sight or sound of a horrifying event. (Lord Ackner.)
One of the Alcock claimants failed as he did not produce evidence of his ties of love and affection to the two brothers that he had witnessed dying.

Lord Oliver openly used the word "policy" in explaining his decision.

established that not sufficiently proximate if through TV screen.
Bourhill v Young

subject of how extensive an individual's duty is to ensure others are not harmed by their activities. The case established important boundaries on the scope of recovery for bystanders, or those uninvolved with physical harm. Where a woman suffered psychiatric harm after walking onto the scene of a motorcycle accident, she was deemed not to be a foreseeable victim, having not been in immediate danger of physical harm.
In order to succeed in her claim, Mrs Bourhill had to establish a duty of care had been owed to her by Mr Young. To find such a duty, the claimant must be foreseeable, or proximate to the scene of the accident.[3] The House of Lords 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.
Greatorex v Greatorex and Others [2000]

D, while drunk, drove an uninsured car on the wrong side of the road. He was involved in a collision and was trapped in his car. His father (a leading fire officer) went to the scene in the course of his employment and was subsequently diagnosed suffering from severe post-traumatic stress disorder. He bought a claim against his son for damages. The court rejected the claim.
Justice Cazalet came to the conclusion that the policy requirements affecting duty of care clearly outweighed the arguments in favour of there being such a duty. He found that there was no duty of care owed by a primary victim of self-inflicted injuries towards a secondary party who suffered psychiatric illness as a result of those injuries.

A primary victim does not owe a duty of care to a third party in circumstances where his self-inflicted injuries caused the third party psychiatric injury
Alcock v Chief Constable of South Yorkshire
4 rules for 2ndV to claim
The claimant who is a "secondary victim" must perceive a "shocking event" with his own unaided senses, as an eye-witness to the event, or hearing the event in person, or viewing its "immediate aftermath". This requires close physical proximity to the event, and would usually exclude events witnessed by television or informed of by a third party, as was the case with some of the plaintiffs in Alcock.
The shock must be a "sudden" and not a "gradual" assault on the claimant's nervous system. So a claimant who develops a depression from living with a relative debilitated by the accident will not be able to recover damages.
If the nervous shock is caused by witnessing the death or injury of another person the claimant must show a "sufficiently proximate" relationship to that person, usually described as a "close tie of love and affection". Such ties are presumed to exist only between parents and children, as well as spouses and fiancés. In other relations, including siblings, ties of love and affection must be proved.
It must be reasonably foreseeable that a person of normal fortitude in the claimant's position would suffer psychiatric damage. The closer the tie between the claimant and the victim, the more likely it is that he would succeed in this element. However, once it is shown that some psychiatric damage was foreseeable, it does not matter that the claimant was particularly susceptible to psychiatric illness - the defendant must "take his victim as he finds him" and pay for all the consequences of nervous shock (see "Eggshell skull" rule).
Alcock v Chief Constable of South Yorkshire
criticism
too much floodgates influence
excessively harsh on the Cs
not fully corresponding with medical knowledge regarding psychiatric illness brought about by nervous shock. reform has been widely advocated and a legislative proposal to mitigate some of the effects of Alcock was drafted by the Parliamentary Law Commission in 1998, the decision in Alcock represents the state of the law in the area of liability for psychiatric harm as it currently stands.
Dooley v Cammell Laird
plaintiff was entitled to recover in those circumstances. Cammell Laird were in breach of the regulations. one of which was made as a protection against the risk of bodily injury which included injury to the nerves, the nerves being a part of the body.
Donovan J said: "I suppose I may reasonably infer that his fellow workmen down the hold were his friends," Mr Dooley was the unwitting agent of the defendant's negligence. He was the crane driver who, without any fault, was party to an accident which could have killed his fellow workers. It was his activity in operating the crane which caused the actual and potential damage. It was that activity which brought him into the category of persons for whom the defendants owed a duty of care, not really any question of relationships of friendships.
Hunter v. British Coal Corporation [1998]
A workman, who did not see an accident, but suffered shock after thinking that he had caused the death, was not able to recover damages. His injury was too remote from the accident.
Attia v British Gas Plc [1988]
British Gas plc were to install central heating in the Mrs Attia's home. Whilst installing the system, an employee of British Gas negligently started a fire, which largely destroyed the home and contents within. At first instance, Attia's claim that British Gas had caused her mental shock and distress was denied, with the trial judge holding that damages could only be recovered for psychiatric harm where physical harm to an individual is found.
establishing that nervous shock from witnessing destruction of personal property may be actionable. Prior to this case, NO when no personal injury or witnessing of such an event. CA ruled that D L for subsequent shock and depression of Mrs Attia, following near total destruction of her home and POSs. could recover damages for psychiatric harm, consequent on damage to her home. Bingham LJ noted that decision was breaking new ground, but nevertheless held it was a modest extensio. Insistence that psychiatric damage must be reasonably foreseeable, coupled with clear recognition that a C must prove psychiatric damage as I have defined it, and not merely grief, sorrow or emotional distress, will in my view enable good sense of judge to ensure, Debatable if this can hold after decision in Alcock, PI fails for loss of bro, here house succeeds!!
Rescuers
White: rescuers cannot claim as a Primary Victim
disallowed claims of police rescuers, they were professionals, they were paid and had generous pensions.
police should not be able to claim if personal relatives and friends fail.
unclear if it extends to private rescuers
Proximity in time and space
cases from 2nd criteria in McLoughlin (Dearness, Nearness, hereness)
some inconsistency
Boardman v Sanderson [1964]
Walters v North Glamorgan NHS Trust [2002]
Galli-Atkinson v Seghal [2003]
Boardman v Sanderson [1964]
succeeds hearing the accident
C's infant son had had an epileptic fit as a result of admitted N of D T, which caused irreparable brain damage and death when child's life support system was turned off, and as a result of which C suffered a pathological grief reaction, it was held that period of 36 hours from moment epileptic fit started to decision to turn of life support machine, could be seen in law as a horrifying event, appreciation of which brought C within class of secondary Vs and as such was entitled to recover damages for PI
Walters v North Glamorgan NHS Trust [2002]
The claimant's 10-month-old son was in hospital suffering from liver failure which was the result of the defendant's admitted negligence in failing to diagnose his condition. The claimant was with her son when he had an epileptic seizure which the defendant's doctors told her was very unlikely to have caused any serious damage. The child's condition deteriorated and he was taken by ambulance to another hospital for a liver transplant, followed by the claimant in her car. On arrival she was told that her son had in fact suffered severe brain damage, which she was told on the following day was so severe that he would have no quality of life. She agreed to his life support system being turned off and he died. It was agreed that the claimant had suffered shock and a recognised psychiatric illness, namely pathological grief reaction, as a result of what she had witnessed and experienced over a period of some 36 hours between her son's seizure and his death. Could this be categorised as injury by shock - that is 'sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind'? Yes, held the Court of Appeal. A realistic view should be taken of what constitutes the necessary 'event'. In this case there was a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for the claimant was undoubtedly one drawn-out experience. Accordingly, the 36-hour period constituted one entire event, albeit made up of discreet events. It was a short step for the Court to find that such a step was 'horrifying'
Galli-Atkinson v Seghal [2003]
Claimant's 16 year old daughter killed in a crash. Claimant arrived after daughter removed from the scene. Hysterical, taken to mortuary, saw the body, which was badly disfigured.
n the present case, the immediate aftermath, in my view extended from the moment of the accident until the moment that the Appellant left the mortuary. The Judge artificially separated out the mortuary visit from what was an uninterrupted series of events, quite unlike the visit to the mortuary in Alcock.If the whole of that sequence of events played a part in producing the illness then the Appellant is entitled to succeed in her claim."

Causation by direct perception

cf Alcock established that not sufficiently proximate if through TV screen.

This contradiction has been criticized as arbitrary.
W v Essex [1997]
does not fit well into Wilberforce criteria, nor 1ary 2ary Vs. here DOC was found, but hard to reconcile, special case.


D, the council placed a known sex offender with foster parents C. C's children were abused. C made it clear that they were anxious not to put their children at risk by having a known sex abuser in their home, the social worker and D knew that and also knew that the boy placed had already committed an act or acts of sex abuse. The risk was obvious and the abuse happened.
It was plainly arguable that there was a duty of care owed to the parents and a breach of that duty by the defendants.
3rd Wilberforce criteria from Alcock
Manner of perception
need to see accident
not sufficient to be told of bad news, or witness in mortuary
must witness accident not consequences
in Altcock, television is not sufficient.
Generally in television cannot generally tell the result. Not a sufficient manner of perception.
Liability for pure economic loss and for negligent mis-statements
a number of leading cases involve mis-statements that caused financial or economic loss to the C. It is therefore convenient to discuss them together although you will discover that there are cases about economic loss that do not involve careless advice or information.
Hedley Byrne
a. DOC for advice/info
b. extends to purely economic losses.
Assumption of resp
No requirement of deceit
Derry v Peek (1889)
could be no liability where the D had not lied or been reckless, but had merely spoken carelessly.
meaning of consequential economic loss cf PEL
A C suffers personal injuries: damages are recoverable for the economic consequences of the personal injuries, such as lost wages or salary if the C is unable to work because of the injuries.

The C's property is damaged. The C can recover for the economic consequences, which might be: the reduction in the value of the property or the cost of repairing it and might include the loss of profit from the use of the property.
Pure economic loss by contrast arises:
where there is no physical injury to any person or to any property

where there is physical injury to a person other than the C or to the property of some person other than the C.
recovery of pure economic loss: policy considerations
D was not liable for purely economic loss. The principle is illustrated by Simpson
Candler v Crane, Christmas [1951]
relied on the case of Derry v Peek to refuse a remedy to the plaintiff, holding that loss resulting from negligent misstatement was not actionable in the absence of any contractual or fiduciary relationship between the parties.
PEL cannot be recovered
Denning LJ delivered an important dissenting judgment, arguing for a duty of care for N statements. This was later upheld in Hedley Byrne v Heller
policy reasons that restrict the right of recovery for economic loss.
$ less worthy of protection than physical

burden on particular Ds will be unbearably high. (Imagine that the D carelessly pollutes a holiday beach. Holidaymakers stay away)

Easy to apply rule against pel

Cs can often make good their economic loss in other ways than by claiming compensation: for example, if a factory has to shut down because of loss of power, it may be possible to make up for lost production by having extra shifts later.

It may make more economic sense for potential Cs to insure than Ds

Allowing economic loss to be recovered in T muddles the boundary between contract and T, but less now because of 3P act.
Economic loss cases 4 categories
negligent mis-statements
performance of a service
damage to another's property
Defective buildings and chattels
negligent mis-statements
when does DOC arise

HL did not decide in Hedley Byrne v Heller that a person had a duty to take care in making statements whenever damage or loss was foreseeable.
'If, in a sphere in which a person is so placed that that others could reasonably rely on his judgment or his skill or on his ability to make careful enquiry...a person takes it on himself to give information or advice to or allows his information or advice to be passed on to another person who, as he knows or should know, will place reliance on it, then a duty of care will arise.
negligent mis-statements
Chaudhry v Prabhakar [1988]
unusual, although not impossible, for the duty to arise between friends in a relatively social context.

CA held that the duty of care will arise on the D who are the friend of C that give a N advice to the C to selection of a second car. The D will liable on it, although D not as a professional in the mechanic area. (Richard Card
negligent mis-statements
liab
Liability is sometimes said to result from an assumption of responsibility on the part of the D
assumption of responsibility
Lord Goff in Henderson v Merrett Syndicate Ltd
Lord Goff, in looking for the principle which underlay the decision in Hedley Byrne:

Lord Devlin had said: "I do not understand any of your Lordships to hold that it is a responsibility imposed by law upon certain types of persons or in certain sorts of situations. It is a responsibility that is voluntarily accepted or undertaken, either generally where a general relationship, such as that of solicitor and client or banker and customer, is created, or specifically in relation to a particular transaction."

Lord Goff added in Henderson : "From these statements, and from their application in Hedley Byrne, we can derive some understanding of the breadth of the principle underlying the case. We can see that it rests upon a relationship between the parties, which may be general or specific to the particular transaction, and which may or may not be contractual in nature. All of their Lordships spoke in terms of one party having assumed or undertaken a responsibility towards the other."
assumption of responsibility
TODO from textbook
Lennon v Metropolitan Police Commissioner [2004]
VIMP:impact managers HR

Even where there is an employment relationship or other contractual or similar relationship between the parties, a D may be found to have voluntarily assumed responsibility to advise the C on specific matters

btained advice regarding the transfer from the Metropolitan Police's personnel executive officer (the "Personnel Officer"), and specifically enquired about his housing allowance entitlement (the "Allowance").

The Personnel Officer made the transfer arrangements, and Lennon's employment with the Metropolitan police ceased on 11 January 1999. Before commencing employment in Northern Ireland, Lennon took three weeks leave, which he understood to be unpaid leave. In fact, this served as a break in the continuity of his employment and he lost entitlement to the Allowance.
The Court of Appeal held that the Personnel Officer was not a 'professional advisor' within the narrow definition usually required for a Claimant to recover purely economic loss, resulting from a negligent act or omission. However, the Court of Appeal said this was a managerial position, and gave access to specific knowledge of the implications to service benefits of transfers. Furthermore, the Personnel Officer had held herself out as the person responsible for the transfer arrangements, and had not notified Lennon that this was outside her usual area of responsibility.

Therefore, despite the fact that no current contract of employment existed between Lennon and the Commissioner, a similar relationship existed and a duty of care did arise. Consequently, the Commissioner, and those acting under him, were under a duty of care to give advice to Lennon which protected him from economic loss.
negligent mis-statements
When is there liability?
lack of care required
tends to focus on the existence of the duty, but
D is liable only if there is a lack of care. Much advice on economic matters turns out to be wrong without being careless. The D has the opportunity to explain the limits of his knowledge and the amount of research he has undertaken and is to be judged according to what he Pd to do. It also has to be shown that the N advice or information was a cause of the C's loss.
negligent mis-statements
To whom is there liability?
loss may be suffered by someone other than those to whom the advice or information was addressed. Two decisions of the HL can be contrasted: Smith v Eric S. Bush (a firm) [1990] 1 AC 831 and Caparo Industries v Dickman [1990]
Smith v Eric S. Bush
loss to homeowner, advice to bank
house purchaser, who wished to obtain M finance from a bank, sued a surveyor who had been commissioned by the lending institution to provide a report to the bank about the property. The surveyor was held to owe a duty to the purchaser and not just to the bank, even though buyer had been advised about the desirability of obtaining her own survey but had not done so.

exclusion words did amount to an exclusion clause and did not satisfy the test of reasonable (s.11 of the 1977 Act, unfair contracts Act).
Caparo Industries v Dickman [1990]
a firm of accountants who had carried out a statutory audit of a company were held to owe a duty to the shareholders as owners of the company but not to the Cs who launched a take-over bid for the company on the strength of the accounts.
contrast different results: Smith v Eric S. Bush (a firm) [1990] 1 AC 831 and Caparo Industries v Dickman [1990]
1. number of Cs
2. social situation

Caparo Industries v Dickman [1990]: large number of shareholders DOC owed, no DOC to Co. . in Smith Doc owed to homeowner.

policy is favoring the weak.
duty may arise in a Caparo type situation if the relationship between the claim and the purpose for which the auditors' report was prepared is close enough.
James McNaughton Paper Group Ltd v Hicks Anderson
relationship between the claim and the purpose of advice
James McNaughton Paper Group Ltd v Hicks Anderson
adopted a more restricted approach, focusing in the adviser's actual and constructive knowledge of the purpose for which the statement was made. Thus, the duty was to be limited to transactions or types of transactions where the adviser knew or ought to have known that the advisee would rely on the statement in connection with that transaction without obtaining independent advice. It also had to be shown that the advisee did in fact reasonably rely on the statement without using his own judgment or obtaining independent advice.
relationship between the claim and the purpose of advice
Morgan Crucible Co plc v Hill Samuel
where the target company of a take-over bid knows that the bidder is relying on financial information provided by itself, a duty of care arises.
relationship between the claim and the purpose of advice
Law Society v KPMG Peat Marwick.

imposition on a reporting accountant of a duty of care owed to the Law Society, for whose purposes the accountant's report was required, was fair, just and reasonable. The report was intended to assist the Law Society in deciding whether and when to exercise its powers of intervention in order to protect the Compensation Fund. The reporting accountant should be held responsible for loss to the Compensation Fund caused by that N.
(1) not self-evident that a duty was owed, as the Law Society had a number of distinct functions, both in public and private law
(2) Vice-Chancellor correctly identified the approach as being to examine the question of the DOC against Caparo
Previous cases which dealt with situations where a duty of care to protect against economic loss existed were all concerned with a potential commercial transaction. However, no difference in principle arose because here it was regulatory action which the Law Society would have taken
(5) If it was fair, just and reasonable that the accountants should be liable for the loss to the Compensation Fund then such consequences had to be accepted. There was no reason of policy why accountants should not be liable. A distinction could be made with the position of the Solicitors' Indemnity Fund, which was an insurer of solicitors and would not expect to be owed a duty by the auditors. The Compensation Fund was a fund of last resort.
(6) The Vice-Chancellor's decision did not prevent it being argued that the scale of the loss was beyond anything the auditors could have foreseen having regard to the accounts to which the report related and that therefore the loss or the whole of the loss was not recoverable
The advice may be relied on by one person but the loss suffered by someone else: Ministry of Housing v Sharp [1970]

An employee of the authority failed to exercise reasonable skill and care in searching for entries in the local land charges register. The search certificate prepared by the clerk Nly failed to record a charge
Denning MR held the local authority was liable to the Ministry for the employee's incompetence. At 268 he rejected that a duty of care only arose when there was a voluntary assumption of responsibility, rather "from the fact that the person making it knows, or ought to know, that others, being his neighbours in this regard, would act on the faith of the statement being accurate."
Spring v Guardian Assurance Ltd [1995]
writer of a reference about a former employee seeking a job was held to owe a duty of care to the employee and not merely to the prospective employer who relied on it. Notice that the D was obliged (through the rules of the regulatory system for financial institutions) to provide a reference.
Economic loss cases (ii): performance of a service
Hedley Byrne case was for long thought of as being concerned with advice or information on which the C relied. Later it was interpreted more widely and an 'extended Hedley Byrne principle' was recognised
D can be liable where there has been a voluntary assumption of responsibility (Henderson , but then Ministry of Housing) by the D towards the C either generally or for the purposes of a specific transaction. On this view liability for N mis-statements is merely an example of a wider principle and reliance is not a necessary ingredient of liability. Henderson v Merrett Syndicates Ltd [1995]
Henderson v Merrett Syndicates Ltd [1995]
groups of investors suing the people who invested their money, after the funds were negligently invested and the plaintiffs suffered a big loss.

Issue: The investors had a K with their agents. Was a duty of care excluded by the K? (Did the presence of a K prevent them from suing in tort?)

The question was whether the agents could be liable to the indirect investors (the names behind in the syndicate which had formed another syndicate). The problem was that there was a contractual relationship between the head syndicate managers and its direct members, but not necessarily a contractual relationship between the head syndicate managers and the members of the sub-syndicate. This led to the question of whether a duty could arise in T, raising the matter of " . assumption of responsibility" . .
Holding: No: "A tortious duty of care may arise not only in cases where services are rendered gratuitously, but also where they are rendered under K"

Reasoning: Lord Goff of Chieveley: Starts with reference to Hedley Byrne. Says that Hedley established that one could recover for negligence in words or deeds, and for pure economic loss. So there is authority for the type of claim that's being made here.

Furthermore, he quotes Lord Morris in Hedley: "it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of K, to apply that skill for the assistance of another person who relies on that skill, a duty of care will arise." He quotes Devlin who said that you can recover in tort for actions undertaken gratuitously that were done negligently. Reasoning by analogy: he says that the Hedley principle quoted above has been applied to a number of different categories of service-performing people, including insurance brokers and lawyers. So it can be extended to Lloyd's agents. They hold themselves out as possessing special expertise and the investors relied on that expertise.

So the remaining issue is the problem of tort or K -- can you recover in tort where there is a K? Two options: insist he sue in K alone, or allow the PL to choose between K and tort?

Examination of jurisprudence: he says that at first courts held that liability for solicitor negligence had to be pursued in K. Ditto for architects, but in Bagot v. Stevens Scanlan and Co., Devlin noted that a different conclusion could be reached where the DF had a public calling (e.g. an innkeeper, common carrier, master of a servant).

Examination of effects: Goff doesn't like the idea that consequences of the negligence of professionals can take a while to come to light, and that they might come to light more than six years (prescription) after the date of the breach of K. If they couldn't sue in tort, the PLs would be left without a way to make a claim. There are other practical problems related to remoteness of damage and serving proceedings out of jurisdiction, and we can't rewrite the law to mitigate the effects of differing sets of rules -- it's "crying for the moon."

Esso v. Madron implied that concurrent liability in K and tort was possible -- the DFs were liable in K and negligence. But there was little discussion of why. Midland Bank v. Hett is more helpful -- an examination of jurisprudence there found no unanimity in the view that solicitor liability is purely contractual. In Midland, the court quoted the famous Candler and Crane passage that appears in Hedley, and then noted that Denning was "trying to find a general principle of liability arising from relationships created by the assumption of a particular work or responsibility, quite regardless of how the relationship arose." The Midland court said that it is wholly immaterial that the DFs' duty arose because they accepted a retainer that entitled them to a fee. A review of foreign (Commonwealth) authorities shows this is the rule in Canada (Central Trust Co and Rafuse), Ireland, and Australia.

Why? The tort law is "the general law." Parties can K out of it if they wish, but that doesn't change the fact that it is the "general" (default?) law. It is not distasteful that PFs be able to take advantage of the remedy most advantageous to them.

Lord Browne-Wilkinson: Agrees in large part, looks at the problem through lens of fiduciary duty. Says there are K responsibilities, and then fiduciary ones, which must be respected regardless of the presence of a K (unless the K explicitly eliminates them)
scope of the extended principle of Hedley Byrne was explained by Lord Steyn in: Williams v Natural Life Health Foods [1998] facts
Mr Williams and his partner approached Natural Life Health Foods Ltd with a proposal. They wanted to get a franchise for a health food shop in Rugby (i.e. they wanted to use the Natural Life brand to run a new store and pay Natural Life Ltd a fixed fee). Mr Williams was given a brochure with financial projections. They entered the scheme. They failed, and lost money.
NLHF goes into liquidation, williams tries to sue manager personally.
scope of the extended principle of Hedley Byrne was explained by Lord Steyn in: Williams v Natural Life Health Foods [1998]

held that for there to be an effective assumption of responsibility, there must be some direct or indirect conveyance that a director had done so, and that a claimant had relied on the information. Otherwise only a company itself, as a separate legal person, would be liable for negligent information.
held unanimously that Mr Williams claim would fail. They emphasised that there had been no separated assumption of responsibility directly to Mr Williams, and no requisite reliance. Lord Steyn's judgment was as follows. " . . What matters is not that L of shareholders of a company => sep entity. Whether principal is a company or a natural person, someone acting on his behalf may incur personal L in T as well as imposing vicarious or attributed L upon his principal. under principal of Hedley Byrne, which requires existence of a special relationship between C and Tfeaser, it is not sufficient that there should have been a special relationship with principal. There must have been an assumption of responsibility such as to create a special relationship with director or Ee himself
scope of the extended principle of Hedley Byrne was explained by Lord Steyn
approach to be adopted wrt to assumption of risk
point was elucidated in Henderson by Lord Goff of Chieveley. He observed, at [1994] 2 AC 145, 181B-C:
"... especially in a context concerned with a liability which may arise under a contract or in a situation 'equivalent to contract,' it must be expected that an objective test will be applied when asking the question whether, in a particular case, responsibility should be held to have been assumed by the defendant to the plaintiff"
The touchstone of liability is not the state of mind of the defendant. An objective test means that the primary focus must be on things said or done by the defendant or on his behalf in dealings with the plaintiff. Obviously, the impact of what a defendant says or does must be judged in the light of the relevant contextual scene. Subject to this qualification the primary focus must be on exchanges (in which term I include statements and conduct) which cross the line between the defendant and the plaintiff. Sometimes such an issue arises in a simple bilateral relationship. In the present case a triangular position is under consideration: the prospective franchisees, the franchisor company, and the director. In such a case where the personal liability of the director is in question the internal arrangements between a director and his company cannot be the foundation of a director's personal liability in tort. The enquiry must be whether the director, or anybody on his behalf, conveyed directly or indirectly to the prospective franchisees that the director assumed personal responsibility towards the prospective franchisees

example of such a case being established is Fairline Shipping Corp v Adamson [1975]
scope of the extended principle of Hedley Byrne was explained by Lord Steyn
approach to be adopted wrt reliance
If reliance is not proved, it is not established that the assumption of personal responsibility had causative effect.
The test is not simply reliance in fact. The test is whether the C could reasonably rely on an assumption of personal responsibility by the individual who performed the services on behalf of the company.
Fairline Shipping Corp v Adamson [1975]
Cs sued the D, a director of a warehousing company, for the N storage of perishable goods. The contract was between the C and the company. But Kerr J (later Kerr LJ) held that the director was personally liable. That conclusion was possible because the director wrote to the customer, and rendered an invoice, creating the clear impression that he was personally answerable for the services. If he had chosen to write on company notepaper, and rendered an invoice on behalf of the company, the necessary factual foundation for finding an assumption of risk would have been absent.
Academic criticism of the principle of assumption of risk
criticised principle of assumption of responsibility as often resting on a fiction used to justify a conclusion that a DOC exists: For this criticism two cases which were decided on special facts are cited: Smith v Eric S Bush [1990]
White v Jones [1995] general criticism is overstated. Coherence must sometimes yield to practical justice. In any event, restricted conception of con in English law, resulting from combined effect of principles of consideration and privity of con, was backcloth against which Hedley Byrne was decided and principle developed in Henderson.
problem with allowing the assumption of responsibility to be too wide Steyn
A moment's reflection will show that, if the argument were to be accepted in the present case, it would expose directors, officers and employees of companies carrying on business as providers of services to a plethora of new T claims. The fallacy in the argument is clear. In the present case liability of the company is dependent on a special relationship with the respondents giving raise to an assumption of responsibility. Mr. Mistlin was a stranger to that particular relationship. He cannot therefore be liable as a joint Tfeasor with the company. If he is to be held liable to the respondents, it could only be on the basis of a special relationship between himself and the respondents. There was none. I would therefore reject this alternative argument.
White v Jones [1995]
Assumption of responsibility
assumption of responsibility by a solicitor towards his clients was extended to the intended B of the client's will who, as the result of the failure by the solicitor to execute the will before the client's death, was deprived of the intended legacy. The case is striking because the C did not suffer a loss, but merely failed to get a financial benefit that the deceased testator had intended her to have.
Gorham v British Telecommunications plc [2000]
Assumption of responsibility
CA follow White v Jones
Duty of care owed by financial adviser to client's dependants when advising on retirement options.
Economic loss cases (iii): damage to another's property
Weller v Foot and Mouth Disease Research Institute [1966] no for PEL
Spartan Steel
Weller v Foot and Mouth Disease Research Institute [1966]
decision against recovery of economic loss soon after Hedley Byrne v Heller
principle of the CL that a duty of care which arises from a risk of direct injury to person or property is owed only to those whose persons or property may foreseeably be injured by a failure to take care is not affected by the decision in Hedley Byrne ; in order to have a right of action for N a C must show that he was within the D's duty to take care, and he may then recover by way of damages for the direct and consequential loss reasonably foreseeable, but, though proof of direct loss is not an essential part of the claim, he must establish that he was within the scope of the D's duty of care

Held: (i) an ability to foresee indirect or economic loss to another person as the result of a D's conduct did not automatically impose on the D a duty to take care to avoid that loss; in the present case the Ds were not liable in N, because their duty to take care to avoid the escape of the virus was due to the foreseeable fact that the virus might infect cattle in the neighbourhood and thus was owed to owners of cattle, but, as the Cs were not owners of cattle, no such duty was owed to them by the Ds.
Spartan Steel
held that in this type of case the distinction between pure and consequential economic loss had not been affected by the Hedley Byrne case. If the Ds carelessly cut off power to a factory by damaging the power supply (i.e. by damaging property belonging to the power company and not to the C) then it was important to see how it came about that the factory had to close for a period. If the closure and economic loss resulted from foreseeable physical damage to the machinery or other property of the C (e.g. because the factory could not reopen until the machines had been cleaned out), then damages were recoverable for the lost production. If the closure and economic loss resulted simply from the lack of power, then it was 'pure' economic loss and damages were not recoverable.

danger of indeterminate liability because a large number of factories might be affected.
principle was also applied in cases where there was no such danger, because only one person could suffer economic loss unlike Spartan Steel
Candlewood Navigation v Mitsui OK Lines [1986] AC 1 and Leigh
Economic loss cases (iv): Defective buildings and chattels

s concerned Cs who had acquired a house or a flat that had begun to show signs (or would show signs) of physical deterioration, so that the Cs had to spend money putting it right or had to sell it for less than it should have been worth.
Dutton v Bognor Regis Building Co [1972] 1 QB 373; Anns v Merton London Borough Council [1978] AC 728; Junior Books v Veitchi [1982] AC 520 and Murphy v Brentwood District Council [1991]
Anns v Merton London Borough Council [1978]

Anns (in so far as it concerned economic loss) and most similar cases were overruled by the HL in Murphy. The Junior Books case was not overruled, although its correctness has been doubted by the HL.
held to be liability on the part of builders who had constructed buildings inadequately, and of building inspectors employed by local councils who had approved the construction, in respect of losses sustained by ultimate Ps who were not in any contractual relations with the Ds.
Economic loss cases (iv): Defective buildings and chattels: conclusions
The loss in these cases is to be classified as economic loss, even though there has been a physical effect on the building.

b. There is a clear distinction between property which is defective and thereby causes damage to people or other property (damages recoverable) and property which merely is itself defective and is therefore worth less than it should be (damages not recoverable).

c. Exceptionally such claims may be successful. In Junior Books the Ds were nominated as specialist sub-contractors to lay a floor in a factory being built for the Cs. The floor was unsuitable for its purpose and had to be replaced by the Cs. The Ds were held liable in T (they had no contract with the Cs) for the cost of replacement.
factors which might have led the HL to come to different decisions in Caparo v Dickman and Smith v Eric S Bush.
i. the social importance of the situations
ii. the sort of people likely to be involved: house Ps or takeover bidders
iii. the number of potential Cs if there is negligence.
EX D advises C to invest his money in Slushfund plc. The company collapses and C loses his money. In order to meet his immediate financial needs, he has to borrow at a high rate of interest.
Re member to ask who D is (e.g. a stockbroker or a friend), the social setting in which the advice is given and to consider separately the two different economic losses sustained.
EX D's employee, digging a hole in the road, damages a water main. The water supply has to be cut off for two days and C's factory has to close for that period. There is no production and C is late in meeting an urgent order.
Whose water main is it? Is the economic loss pure or consequential? See Spartan Steel.
EX C is given as a present a computer manufactured by D. There is a fault in the hard disk and C has to spend £500 putting it right.
Consider the cases on defective property.
EX C is given as a present a computer manufactured by D. There is a fault in the hard disk. As a result files containing the draft of his doctoral thesis are corrupted and C loses six months of his research work.
When a fault in a computer corrupts a document, is that physical damage or economic loss? Does it matter?
EX C has made a contract with X to maintain X's central heating system for a fixed sum for a year: D Nly causes extensive damage to the system.
Note that C is claiming from D in these problems. C is for example British Gas and it has to do the repairs under the maintenance contract with the customer (C) and cannot charge C. Can it recover from D in T?
psyc inj Control Devices
damages are available only for a recognised psychiatric illness and not for grief, distress, sorrow, etc.

other restrictions relate to the circumstances in which the psychiatric injury is caused. For this purpose a distinction is drawn between primary and secondary victims but there is an increasing number of claims (some successful) that do not fit within these two categories as traditionally defined
Page v Smith [1996] 1V
has been reaffirmed by the HL: Simmons v British Steel plc [2004]
It is sufficient for a primary victim to show that he was physically injured or that he was in danger or reasonably believed himself to be in danger of physical injury, and it is not necessary to show that psychiatric injury as such was foreseeable

However more restrictively physical injury (or the fear of it) is a necessary as well as a sufficient condition of liability: White v Chief Constable of South Yorkshire Police [1999]
2V
secondary victim suffers psychiatric injury not through any physical impact but through witnessing an event that causes or threatens death or serious injury to someone else. The principles are derived from two decisions of the HL: McLoughlin v O'Brian [1983] AC 410 (nearness, dearness, hereness) Page v Smith [1996] (adds ordinary flem, no special sensitivity) and Alcock v Chief Constable of South Yorkshire Police [1992]
To succeed as a secondary victim the following conditions are required
1. The C must be in a close and loving relationship with the primary victim. In the case of parents and C and spouses (and engaged couples) this is presumed, in other cases it must be established. It is not necessarily easy to establish liability outside the categories where love is presumed. Brothers were unable to establish the relationship in Alcock.

2. The C must have perceived the events or their aftermath (how soon is an aftermath?) with his own unaided senses: it is not enough to be told about it later. The notion of the aftermath derives from McLoughlin where Mrs M saw her relatives in the same state as they had been in after the accident. Should that be essential?

3. C must have suffered through an immediate sudden impact on his or her senses.

4. C must not have a special sensitivity to shock: the shock must be foreseeable in a person of reasonable fortitude (but, so long as some psychiatric injury is foreseeable, its precise form or severity does not have to be foreseen).
Greatorex v Greatorex [2000]
Where the D caused himself serious injuries by N driving (i.e. the D and the primary victim were in a sense the same person), he was not liable to his father who went to the scene as a member of the rescue services.
Greatorex v Greatorex [2000] policy reasons behind decision VIMP
policy and the potential of allowing close relatives to sue the negligent individual for damages for psychiatric injuries. Since a claim for psychiatric illness suffered by a secondary victim in consequences of injury to a primary victim is not admitted by our law unless the three elements of the control mechanism are present, it follows that it would normally only be in cases where close family ties exist between the primary and secondary victims that the particular issue with which this case is concerned will arise.

Justice Cazalet concluded, to allow a cause of action in this type of situation is to open up the possibility of a particularly undesirable type of litigation within the family, involving questions of relative fault as between its members. Issues of contributory negligence might be raised, not only when the self- inflicted harm is caused negligently, but also where it was caused intentionally. Further, where a family member suffers psychiatric harm as a result of the self-inflicted injuries of another family member, the psychiatric illness in itself may well have an adverse effect upon family relationships which the law should not astute not to exacerbate by allowing litigation between those family members. In his opinion, to permit a cause of action for purely psychiatric injury in these circumstances would be potentially productive of acute family strife.
case types with psych injury
i. Rescue cases
ii. Employees
iii. Participation in the event
iv. Damage to property
v. Assumption of responsibility: close relationship
1. Rescue cases

At one time it was thought that a rescuer who suffered psychiatric injury as the result of participating in distressing scenes could recover damages. BUT
White v Chief Constable of South Yorkshire Police
HL however held that rescuers can succeed only if they are themselves at risk of physical injury. The Cs were various members of the rescue services who suffered as the result of assisting victims at the same football match as affected the victims in the Alcock case. They could not succeed as secondary victims (because they had no ties of affection to any of the primary victims) and did not succeed as primary victims because they were not themselves in danger.
ii. Employees
In the White case the Cs argued that they could claim as employees, since the negligence involved was that of the police.
e HL held that there were no special principles attaching to the employment relationship, and the Cs (despite that relationship) had to show that they were primary or secondary victims. There is however now authority that employees may have claims against their employers in certain circumstances where they have been exposed to work-related stress
iii. Participation in the event
A C suffers psychiatric harm through fearing (as the result of someone else's negligence) that he has been the cause of an accident. It is possible that such a claim should succeed though rejected on the facts in Hunter v BCC [1998]
4. Damage to property
Owens v Liverpool Corporation [1939] 1 KB 394 and Attia v British Gas [1988]
rare cases where a C has succeeded in a claim for psychiatric harm as the result of witnessing the destruction of or damage to property:
Attia v British Gas [1988]
nervous shock from witnessing the destruction of personal property may be actionable. Prior to this case, a DOC for an individual's mental health had not been established in situations not involving personal injury or the witnessing of such an event. The CA ruled that British Gas were liable for the subsequent shock and depression of Mrs Attia, following the near total destruction of her home and POSs.
5. Assumption of responsibility: close relationship
remain a number of isolated cases with (as yet) no clear principles. Should a D be liable for causing PI by carelessly passing on wrong information, or by passing on correct information in a carelessly insensitive way? There may emerge a principle that a D should be liable if there is an assumption of responsibility to protect the C against psychiatric injury or if there is an ongoing relationship between the parties that entails such a responsibility.
W v Essex County Council [2001] 2 AC 592; A v Essex County Council [2003]
AB v Tameside and Glossop Health Authority [1997]
Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 All ER 215 and McLaughlin
v Jones [2002]
W v Essex County Council [2001]
In the W case Lord Slynn suggested that the primary and secondary victim categories could not accommodate all cases. The HL refused to strike out a claim (in other words the claim was held to be arguable) by parents to whom a local council, in breach of an undertaking, sent as a foster child a known sexual abuser. The child then abused the other C in the family causing psychiatric injury to the parents. They had some of the characteristics of secondary victims, except that they did not see the abuse taking place. On the other hand, unlike most secondary victim cases, there had been an ongoing relationship between the council and the parents as to their suitability as foster parents.
AB v Tameside and Glossop Health Authority [1997]
choice of the telephone as a means of alerting and re-assuring people, who had received treatment from a health worker later found to be HIV , was proper. The was no breach of a duty care, even though some people called had suffered distress. " . . . . once the Ds had decided to inform their patients at all, they were under a duty to take such steps to inform them as were reasonable, having regard both to the foreseeable risk that some of them might suffer psychiatric injury (or any existing psychiatric injury might be materially aggravated) upon receipt of the information " . and " . the judge has to perform the familiar role of considering the factual evidence carefully, listening to the expert evidence, and forming a view as to whether in all the circumstances these public health authorities fell below the standards reasonably to be expected of them when they selected their preferred method of communicating the information to the patients.
McLaughlin v Jones [2002]

allegation that Mr McLoughlin was a bad landlord, threatening and beating up tenants to get their rent from them in cash. He was charged for a criminal offence and sentenced to prison. He claimed that his solicitors (Jones and Others) had acted without the evidence, especially the witness-statement of a person who knew that Mr McLoughlin was not present when the beatings allegedly took place. It soon became apparent that he was actually an upstanding member of society and he suffered psychiatric injury as a result of the imprisonment and loss of reputation. (Note that solicitors have a pre-existing DOC towards their clients.
et, in some situations, psychiatric harm has been held to confer primary status where there is no "zone of danger" (McLoughlin v Jones [2002] Primary victims can recover for psychiatric harm even when it was not foreseeable; for them it suffices that "personal" injury—physical or psychiatric—was reasonably foreseeable.
Leach v Chief Constable of Gloucestershire Constabulary [1999]

D the police had asked C a voluntary worker, to act as an 'appropriate adult' (Code C PACE Codes of Practice, requiring) during interview of Frederick West (the child murderer). C suffered posttraumatic stress disorder. The police had not assessed her or trained her for such a case. No counselling was provided (as had been for West's solicitor
It was arguable that the police owed no DOC in negligence to a volunteer they called in to act as appropriate adult in harrowing and traumatic police interviews who later suffered nervous shock and stress as a result. In fact the whole point of an 'appropriate adult' is that they should act independently. However, there were well-established duties of care which the police undoubtedly owed to C just as they owed them to anyone else who was foreseeably at risk of personal injury C's claim would be allowed to proceed to trial on the issue of failure to provide counselling services but the particulars of claim so far as they related to the DOC towards C as an appropriate adult would remain struck out. C won.
D v East Berkshire Community NHS Trust [2005]
Parents sued for compensation for psychiatric harm resulting from unfounded accusations of child abuse.
X v Bedfordshire County Council [1995] (which denied a duty of care based on the "fair, just and reasonable" test) could not survive the Human Rights Act.



A duty of care could sometimes be owed to a child suspected of being abused. But each case was to be determined on its individual facts.



Where child abuse is suspected and removing the child from the parents was justified, no duty of care was owed to the parents.



One of the three children won
EX :
a) hears on the radio that there has been a mining disaster at the nearby pit where her son works?
b. she is wrongly told by D that her son has been killed in Australia (D had confused
C with the mother of the deceased)?
c. she sees her pet dog run over by a careless motorist?
Distinguish between (a) where the claim would be against the mine owner and (b) where the claim would be against the informant. As the law stands, it seems that there is no claim in (a) and there might be in (b). Would it be sensible to impose liability on a muddled informant who got it wrong and not on the people who caused the death? In (c) Attia would suggest there might be liability, but would it depend on the motorist having some relationship with C (e.g. a person caring for the dog in C's absence)?
Liability for omissions
well-known statement of the breach of duty principle (see 3.3.1) referred to both acts and omissions: so also did Lord Atkin in his neighbour principle in Donoghue v Stevenson [1932]
BUT often said to be no liability for omissions in English law.
Stovin v Wise [1996]
If there is a moral obligation to assist people in difficulty or danger, why is there no legal obligation?

Stovin suffered serious injuries when he was knocked off his motorcycle by a car driven by Mrs Wise. She had pulled out of a junction in which visibility of traffic was hampered due to a bank of earth which was topped by a fence. The trial judge held that Mrs Wise was 70% to blame for the accident and that Norfolk County Council were 30% to blame because they knew the junction was dangerous and had been negligent in not taking steps to make it safe. The Council appealed
Lord Hoffmann suggests that there are political, moral and economic reasons.

Held:

The council were not liable as liability related to an omission. There had only been three accidents in twelve years which was not enough to render the junction a 'cluster site' under the Council's policy for prioritising funding which required five accidents in three years.


Lord Hoffman on imposing liability for omissions:

"There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties or natural causes."
Stovin v Wise [1996] Hoffman policy reasons (follows East Suffolk Rivers Catchment Board v Kent)

Hoffmann followed the reasoning of East Suffolk Rivers and extended it: a public authority can be liable for carelessly failing to use its statutory power to benefit a person only if (1) 'it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act', and (2) 'there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised'
invasion of freedom
A moral version of this point may be called the " . why pick on me?" . argument. A duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than another?

In economic terms, the efficient allocation of resources usually requires an activity should bear its own costs. If it benefits from being able to impose some of its costs on other people (what economists call " . externalities," . ) the market is disTed because the activity appears cheaper than it really is. So liability to pay compensation for loss caused by N conduct acts as a deterrent against increasing the cost of the activity to the community and reduces externalities. But there is no similar justification for requiring a person who is not doing anything to spend money on behalf of someone else. English law does not reward someone who voluntarily confers a benefit on another. So there must be some special reason why he should have to put his hand in his pocket.
East Suffolk Rivers Catchment Board v Kent

Action in N; the Board's men had taken 'quite ridiculous' steps (steps that 'no reasonable man would have adopted') to mend a sea wall after the defendant's fields were flooded. The plaintiff suffered much greater flood damage than he would have if they had acted carefully and competently. The defendant had a statutory power but no statutory duty to repair sea walls. The Court of Appeal held the defendants liable for 'breach of duty to do their work with reasonable care and expedition'.
D won in the HL: there was no liability in negligence for damage that would have been avoided if they had acted reasonably. It seems that the Board would have been liable if the men had acted dishonestly, and it is clear that the Board would have been liable if they had unreasonably caused damage that would not have happened without their intervention
When may English law impose liability for an omission?
i. Is the omission a part of an ongoing physical activity? A motorist who fails to turn the steering wheel or give an appropriate signal is failing to carry out carefully the activity of driving

ii. Has the D entered into a relationship with the C to which the law attaches positive duties to see that harm does not befall the C (e.g. duties are owed by a parent to a child, by an occupier of premises to a visitor, by an employer to employees in the workplace)? See generally: The Ogopogo [1971]

iii. Has the D been thrust into a position which requires him to take some action? Goldman v Hargrave [1967]

iv. Has the D assumed responsibility for the welfare of the C in some respect?

v. If the D has assumed responsibility or otherwise a duty to assist or rescue, that duty may extend to 3Ps. Remember the example of Home Office v Dorset Yacht Co [1970] AC 1104 (3.2.1) and see also Carmarthenshire County Council v Lewis [1955]
Ogopogo [1971]
D had invited the C as a guest on his yacht. The C accidentally fell overboard. The D was not a mere bystander and was held to have a duty to take reasonable care to save the C. Did the relationship of host and guest carry a legal obligation to assist?

The case of Horsley v MacLaren, 1970, represents a controversial example of the right to compensation. A quest (Matthews) on a power boat (the Ogopogo) owned by the defendant (MacLaren) fell overboard into Lake Ontario. MacLaren tried to rescue Matthews but was unsuccessful. Meanwhile, the plaintiff Horsley (another quest) attempted to save Matthews but both men drowned. The court held that MacLaren had a duty to rescue Matthews because of a special relationship - a power boat operator owed a duty of protective care to the passengers - and if negligent, MacLaren would be liable to Matthews (or his dependents).

Horsley, on the other hand, was a good samaritan with no duty to rescue Matthews. His only recourse was against MacLaren and his right to compensation depended on whether MacLaren had been negligent to Matthews, which the Supreme Court found not to be the case. Since MacLaren was not liable to Matthews, he could not be liable to Horsley
Goldman v Hargrave [1967]
D's tree struck by lightning during a hot Australian summer: D N in simply letting it burn out. (Notice that in such a case the D may not have to show the care of a reasonable person, but only have to do what he is capable of, given his health and resources.) Likewise it would seem that a motorist whose car breaks down without any fault may have to move it or take steps to warn others of the danger.
Phelps v
Hillingdon London Borough Council [2001]
Has the defendant assumed responsibility for the welfare of the claimant in some
respect?

D a local authority employed E an educational psychologist to assess C who was under-performing at school. E did not identify C's dyslexia, C was thus not given the appropriate additional support, and C sued in negligence for the psychological and emotional harm she suffered.
Local education authorities could be vicariously liable for breaches by educational psychologists and teachers of their DOC to pupils with special educational needs.
------------
not difficult to apply when the D has undertaken an ongoing responsibility, in the course of which the omission occurs. It is not so clear what the position is if the assumption of responsibility is in respect of the single instance
Carmarthenshire County Council v
Lewis [1955]
v. If the D has assumed responsibility or otherwise a duty to assist or rescue, that duty may extend to 3Ps.


House considered the unexplained fact that in the temporary absence of the teacher (who, on the evidence, was not N) it was possible for a child of four to wander from the school premises onto the highway, through a gate which was either open or very easy for him to open, was held to disclose negligence on the part of the school authority. The teacher with immediate supervisory duties over the child was acquitted of negligence - she was called to attend an emergency elsewhere.
duty be broken was one owed to a driver in the street outside the school, who in trying to avoid hitting the child drove into a telegraph post and sustained fatal injuries. The House considered also the duty of parents to care for their C leaving school to get home. Lord Reid, (majority), said that it ought to have been anticipated by the appellants or their responsible officers that if a child was left unsupervised (for good reason or not) it might well try to get out from the school grounds onto the street and that if it did a traffic accident was far from improbable. This would have been very easy to prevent by making it difficult or impossible for such a child to be able to open the gate from the yard on to the roadway. The failure to do so led to the accident.
What is the content of the duty?
Van Oppen v Bedford Charity Trustees [1989]
Once it is decided that the D had a positive duty towards the Cs, that is not the end of the matter. You must then ask what the content of that duty was: Smith v Littlewoods Organisation Ltd [1987] AC 241 (D as occupiers of premises clearly had some duty towards their neighbours, but not to prevent vandals breaking in and starting a fire).
Van Oppen v Bedford Charity Trustees [1989]

Medical Officers of Schools Association advised schools to insue rugby-playing pupils against accidental injury. While Bedford School was still considering whether and how to insure, the plaintiff, a pupil at the school, was seriously injured in a rugby game. He claimed damages for negligence by the school in failing to take reasonable care for the plaintiff's safety on the rugby field in failing either to insure him or advising his father of the risks of rugby or of the need to insure against rugby accidents. Boreham J dismissed both claims.
Balcombe LJ said that foreseeability of harm, a sufficiently proximate relationship, and that to impose a duty would be just and reasonable, were all necessary before a DOC could arise. A parent was under no duty to insure his child against the risk of accidental injury: it was neither just nor reasonable to impose such a duty on the school. Nor did the evidence show that any parent had relied on the school for advice about such insurance, or about the dangers of playing rugby.

school owes some duty to pupils and parents but not generally to advise parents about desirability of insuring pupils against accidental injury, nor had the school assumed any such responsibility.
content of the duty?
Banque Keyser Ullman v Skandia Insurance Co [1991]

Banks had made loans against property which the borrower had said was valuable, and, also insurance policies against any shortfall on the realisation of the property. The borrower was a swindler and the property worthless. The insurers relied upon a fraud exception in the policies to repudiate liability. The banks discovered that the agent of their broker who had placed the insurance had, by an altogether separate fraud, issued cover notes in respect of non-existent policies for part of the risk. This had come to the knowledge of one of the insurers before a substantial part of the advances had been made. The banks claimed that the insurers were under a duty of good faith to disclose this information and that, if they had done so, the banks would have so disTed the brokers that they would have made no advance and therefore suffered no loss.
Assuming that a duty to disclose the information existed, the breach of duty did not cause the loss. The failure to inform the lenders of the broker's fraud had induced them to think that valid policies were in place. But even if this had been true, the loss would still have happened. The insurers would still have been entitled to repudiate the policies under the fraud exception.
content of the duty?
Reeves v
Commissioner of Police for the Metropolis [2000]
Martin Lynch committed suicide whilst in a police cell. He had attempted suicide earlier that day in the cells at the magistrates. He had also attempted suicide on previous occasions. He had been seen by a doctor at the police station on arrival who reported that he was not schizophrenic or depressed but was a suicide risk. The custody officer checked him at 1.57 pm and left the hatch open. He was found at 2.05 pm having used his shirt as a ligature secured by the open hatch. He was unable to be resuscitated and died a week later. The D argued that as Lynch was of sound mind his voluntary and informed act of suicide broke the chain of causation.
act of suicide was the very thing that the police were under a duty to prevent to treat this as a novus actus interveniens would deprive the duty of any substance. Therefore the D was liable
content of the duty?
Barrett v Ministry of Defence
[1995]
C's H was in Navy, celebrating birthday , drinking with his friends in bar provided at Naval base. was involved in a drinking competition . A senior officer saw him and told Petty Officer Wells to take him back to his cabin and look after him. He was taken back and placed in his bunk and left in recovery position. He was in a coma but tossing and turning. checked on him twice but found dead later. At trial judge held that MOD were liable for his death because of relaxed attitude towards excessive drinking at base, in that it was common for officers to drink heavily and rules and penalties relating to alcohol consumption were not being enforced. damages were reduced by 25% under Law Reform (Contributory N Act) 1945. MOD appealed on grounds that no DOC should arise to prevent a person becoming intoxicated.
MOD were liable, not through breach of a DOC to prevent him becoming dangerously intoxicated, Until the deceased became unconscious, he alone carried the legal responsibility for his own actions, however, once the senior officer assumed a responsibility for him by ordering the Petty Officer to look after him a DOC did arise. He was in breach of duty by failing to ensure the deceased received the appropriate supervision.
content of the duty?
Jebson v Ministry of Defence [2000]

claimant, a soldier, suffered severe injuries after a night out drinking organised by the MOD. The claimant was transported with 19 other soldiers in the back of an army vehicle with a canvass roof. On the return journey the claimant 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 claimant 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 claimant 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.
C will also have to show that the D was in breach of the duty of care.
breach of duty has to cause the injury or death to the C. It is necessary to compare what the position of the C now is with what it would probably have been if a reasonably competent rescue had been carried out. If the victim would probably have died even if there had been a reasonably competent rescue, the D's incompetent efforts are not a cause of death.
What should be the scope of the duty of a D who was not under a duty to act but voluntarily did so?
volunteer rescuer is liable only if the rescue makes matters worse than if nothing had been done. This is supported by East Suffolk River Catchment Board v Kent [1941] AC 74 and Stovin v Wise [1996]

NOTE: if liability for incompetent rescue, r
Kent v Griffiths: Much depends on what is meant by 'making matters worse'. If other people are deterred from trying to rescue because of the Ds' attempts, then he may have made matters worse when comparing what the position of the C is now with what it would have been if no rescue at all had been carried out.

claimant was having an asthma attack. Her doctor attended her home and called for an ambulance which arrived much later. Two phone calls had been made to enquire why the ambulance had not arrived and the operator confirmed that it was on its way. The doctor gave evidence that had she known of the delay she would have advised the Claimant's husband to drive her to the hospital.
An important feature of this case is that there is no question of an ambulance not being available or of a conflict in priorities. Again I recognise that where what is being attacked is the allocation of resources, whether in the provision of sufficient ambulances or sufficient drivers or attendants, different considerations could apply. There then could be issues which are not suited for resolution by the courts. However, once there are available, both in the form of an ambulance and in the form of manpower, the resources to provide an ambulance on which there are no alternative demands, the ambulance service would be acting perversely "in circumstances such as arose in this case", if it did not make those resources available. Having decided to provide an ambulance an explanation is required to justify a failure to attend within reasonable time...


The fact that it was a person who foreseeably would suffer further injuries by a delay in providing an ambulance, when there was no reason why it should not be provided, is important in establishing the necessary proximity and thus duty of care in this case. In other words, as there were no circumstances which made it unfair or unreasonable or unjust that liability should exist, there is no reason why there should not be liability if the arrival of the ambulance was delayed for no good reason. The acceptance of the call in this case established the duty of care. On the findings of the judge it was delay which caused the further injuries...

I would say exactly the same of the facts in this case. As in Costello they are out of the ordinary. I would hope that it is unusual in the extreme for an ambulance to be delayed as this ambulance was delayed without the crew being able to put forward any explanation.
EX: C is visiting D at D's country house. C falls ill and asks D to send for a doctor. D tells C not to make a fuss and does not do so. In what circumstances, if any, is D liable?
discussion in The Ogopogo. Consider various possibilities. D is aged 95, has no phone and snow is falling. C knew when he accepted the invitation that D did not believe in conventional medicine. D thought that C was fooling around (as he had done before) or that C was making a fuss about something trivial.
C is swimming offshore and gets into difficulties and calls for help. D, a strong swimmer, sets off to rescue him. When he sees who C is, D changes his mind and swims back to the shore. C drowns. Is D liable?
Is D a lifeguard, an adult looking after C (a child) or a stranger? If so there may be a duty? If not does he assume responsibility by setting off? Or does he 'make matters worse' by setting off and thereby deter others on the beach from trying to help? Kent v Griffiths
The Ogopogo.
held that " . encouragement by the CL of the rescue of persons in danger would ... go beyond reasonable bounds if it involved liability of one rescuer to a succeeding one where the former has not been guilty of any fault which could be said to have induced a second rescue attempt." . The Donoghue v Stevenson case doesn't touch this principle, because it says that you have a duty to avoid causing harm, not a duty to help someone else.
increased interest in exploring the possible liability of public authorities in respect of their distinctive functions that are not normally carried out by private bodies. These are typically:
The provision of benefits of various kinds to citizens.

The regulation, supervision and inspection of various activities (e.g. in relation to banking and financial regulation, food safety, education).

The protection of the public against harm (e.g. the functions of the police and fire service).

question that has concerned the courts is whether the concept of DOC (Caparo style or assumption of responsibility) could be utilised so that the functions of the state are to be regarded as carried out not just for the public as a whole, but as entailing a DOC to individual citizens.
What policy issues are relevant?

In applying the Caparo test to public functions, both the question of proximity and that of 'fair, just and reasonable' have to be considered.
Will any damages payable come out of public funds? Is this the best use of public funds?

Many cases raise issues that are problematic even when only private parties are involved: omissions, liability for acts of 3Ps, economic loss.

The public authority often has a difficult job in balancing conflicting interests. For example, a body has the job of licensing drugs. It has some indication that a drug may have harmful side effects. If it acts too slowly in banning it, new patients may have it prescribed and suffer ill effects. If it acts too slowly on what turn out to be inaccurate indications, it will harm the profits of the drug company and disadvantage patients who would benefit from receiving the drug. Similar arguments apply to social workers who have to decide whether a child is suffering abuse and should be taken into care: the interests of the child and those of the parents have to be reconciled.

Imposing a DOC may lead to an over-defensive attitude on the part of the public body.

There may be other remedies available: an action for judicial review, a claim under the Human Rights Act 1998, a complaint to an ombudsman, and these may provide justice without recourse to a T claim.
Relevance of statutes
basic question is this: how far can a CL T of negligence arise from or run alongside the statutory functions (powers or duties)? T
such a duty may (but does not necessarily) arise so long as it is not inconsistent with, and does not cut across, the statutory regime.
Sedley LJ in Home Office v Mohammed [2011]

recent authority that a statutory function will seldom if ever bring about the sort of proximity between citizen and public authority that would satisfy the second limb of the Caparo test.
striking out a negligence claim by Iraqi Kurds whose applications for indefinite leave to remain in the United Kingdom had been successful only after very long delays because of administrative failures identified in judicial review proceedings.
situations where a DOC can exist so that there is liability for damage caused by the way a duty or power was carried out:
There may be, between the public authority and the C, a pre-existing duty of care so that either the improper exercise of a power or a failure to properly exercise a power may be a breach of that duty, e.g. the duty of an employer to protect an employee from stress: Connor v Surrey County Council [2010] EWCA Civ 286; [2010] 3 WLR 1302. The CL duty and the statutory power were consistent with each other.

The public authority may carry out its duty or exercise its powers to set up some permanent organisation which then owes a DOC to those who use it. See the examples of the ambulance service and the educational psychologists below.

The public authority may be treated as having assumed responsibility to a particular individual: Barrett v Enfield London Borough Council [2001] 2 AC 550: Swinney v Chief Constable of Northumbria Police [1997] QB 464.

In carrying out its functions, the authority may be liable for a breach of an incidental DOC (see fictitious example of the environmental health officer in Home Office v Mohammed).
Barrett v Enfield London Borough Council [2001]
C was left psychologically damaged and an alcoholic when he left care of D a Local Authority.
Taking a child into care pursuant to a statutory power did not create a duty of care. However, C's allegations were largely directed to the way in which the powers of the local authority were exercised, a duty of care was owed and was broken. Whether it was just and reasonable to impose a liability for N had to be decided on the basis of what was proved. Which except in the clearest cases, required an investigation of the facts.
Swinney v Chief Constable of Northumbria Police ([1997] QB 464) and Osman v United Kingdom
balancing assessment of all the public policy considerations relevant to the question of immunity had to be carried out on the merits of the claim, and not on a strike-out application.

The Court of Appeal in Swinney had said that the interlocutory process was inapt to carry out the balancing exercise and that it should be done by a judge hearing the evidence at trial. In his Lordship's opinion, the general rule that the police, in the course of investigating or suppressing crime, were immune from suits of negligence, as a matter of public policy (see Hill v Chief Constable of West Yorkshire ([1989] 1 AC 53)) was unaffected by Swinney and Osman.

Those cases demonstrated that the general rule did not provide blanket immunity in all cases, but that in each case a balancing exercise had to be carried out.

Where it was apparent to the court that the general rule of immunity was not outweighed by other policy considerations, such as the protection of informers, the immunity continued to exist.

In his Lordship's judgment, in some cases the material for carrying out the balancing exercise was not provided by the pleadings, and the exercise fell to be performed by the trial judge after hearing the evidence.

Swinney had been such a case, since the court had not known from the pleadings whether or not the police were involved in investigating or suppressing crime at the relevant time.

In other cases there would be sufficient material evidence available on the pleadings to enable a decision to be taken at a pre-trial hearing.
Swinney v Chief Constable of Northumbria Police ([1997]

C gave information to the police D helping identify the driver X of a vehicle, which had killed a police officer. The information was given in confidence. C's name and address were left in a police car, which was stolen and the information came into the hands of X. C consequently suffered threats and psychiatric injury.
The decisions in Hill and Osman had left open a possible exception to public policy immunity where the police or CPS voluntarily assumed responsibility, as they had done in this case by receiving the confidential information. Moreover, public policy pointed not only towards police immunity but also towards the protection of informants. C won.
(D v East Berkshire Community NHS T [2005] UKHL 23; [2005] 2 AC 373) or the owners of a residential home wrongly suspected of mistreating residents (Jain v Trent Strategic Health Authority [2009] UKHL 4; [2009]
Where the statutory function is intended to benefit one group of people, there is great reluctance to accept a duty of care to other groups who may be affected by an erroneous decision
D v East Berkshire Community NHS Trust and others [2003] CA overturns X v Bedfordshire

Parents sued for compensation for psychiatric harm resulting from unfounded accusations of child abuse.
Held: X v Bedfordshire County Council [1995] (which denied a duty of care based on the " . fair, just and reasonable" . test) could not survive the Human Rs Act. A duty of care could sometimes be owed to a child suspected of being abused. But each case was to be determined on its individual facts. Where child abuse is suspected and removing the child from the parents was justified, no duty of care was owed to the parents.

Here it the statue was intended to protect the children by finding DOC on authority NOT parents
Jain v Trent Strategic Health Authority [2009]
HL unanimously held, with regret, that the Jains' appeal should be dismissed. The House noted that the exercise of powers under the 1984 Act, may often cause economic damage to the proprietors of nursing homes. The purpose of these powers, however, was to protect the interests of the residents in nursing homes. The interests of the proprietors of nursing homes that the homes should remain open for that use "are in potential conflict with the interests of ..." the residents. The House noted that there was a lamentable lack in the statutory procedures prescribed for s.30 applications of reasonable safeguards for the absent respondents against whom these applications, ex parte and without notice, can be made. The only safeguard was that the cancellation order had to be made by a magistrate. However, the clear inadequacy of that as a sufficient safeguard did not justify the creation of a duty of care.
Connor v Surrey County Council [2010]

uncertainty as to whether there can be liability in T where the allegedly careless action was clearly the lawful exercise of discretion from the public law point of view (

Erica Connor was employed by Surrey County Council as a head teacher at a mainly Muslim school. In February 2003, Paul Martin and Mumtaz Saleem, both Muslims, joined the governing body. There was increasing tension between the school and the governing body due to Martin and Saleem's actions as part of a campaign to increase the role of the Muslim religion in the school. This caused frustration and distress to Connor, who informed the council that the situation was intolerable on a number of occasions from 2004 onwards. In 2005, Martin accused Connor of racism and Islamophobia. The council commissioned an investigation which reported in August 2005. In October 2005, the council replaced the governing body with an Interim Executive Board (IEB). But in September 2005, Connor was signed off work with clinical depression. She brought a claim against the council for N.
Court of Appeal held there were marked warning signs of Connor's vulnerability from June 2004, and by early 2005 the overall situation concerning the governance of the school and the wellbeing of the staff was grave. It was clear from the evidence that the actions of Martin and Saleem had had a negative effect on both pupil and staff performance. It was reasonable for the High Court to find that the council should have issued a formal warning to the governing body of the school, and should have initiated a procedure for establishing an IEB no later than February 2005.

The Court of Appeal considered the existing case law on the interaction between statutory discretion (in this case, the discretion of the council to intervene where the actions of a governing body of a school are of concern), and the duty of care owed to the claimant, where the duty of care is independent of the action or inaction under statute. Judge Laws held that a court may require public law powers to be used to fulfil a pre-existing private law duty of care as long as it is consistent with the performance of its public law obligations.

Implications

This was an unusual case with an unusual outcome, as it is likely to be rare that damages for negligence relating to the use of a public law power will be available to claimants. But the case acts as a warning to councils that where there is conflict between a school and its governing body, the council must pay regard to its duty of care towards its employees.
obligations on public authorities, including at least some positive obligations. Article 3
not merely prevents public authorities from killing people but also requires the state to provide at least some protection against being killed by others.
Many violations of Convention Rs are of course clearly also Ts. But where they are not, the domestic courts can respond in two different ways:
They can develop or expand the CL of T to provide a remedy for the violation of the Convention right.

They can leave the CL unchanged and let the victim seek a direct action for breach of the Convention right under ss.7 and 8 of the Human Rs Act 1998. Such an action differs from the CL action in three ways: (a) they must be brought within one year (although this may be extended (s.7(5)); (b) damages are discretionary (s.8(3)); (c) the measure of damages is likely to be lower than under the CL rules.
More recently they have refused to recognize DOC and left the C to pursue a remedy under the 1998 Act.
Jain v Trent Strategic Health Authority (above) where the HL declined to recognise as CL duty on the part of the health authority because it might have a disTing effect on the nature of the duty of care even where public authorities were not involved, and in Home Office v Mohammed (above), although the CL claim was struck out, a claim for violation of ECHR Rs was left to go to trial.
HRA 1998 /EHCR scenarios
(i) Protection of the public against crime
(ii) Education and social work
(iii) Failure to exercise a power
(iv) Compatibility with statutory law
(i) Protection of the public against crime
Hill v Chief Constable of West Yorkshire [1989]
HL held in 1988 that in general the police owed no duty of care to individual members of the public to identify and arrest a serial killer before he struck again. followed by Osman v Ferguson [1993]
challenged in Osman v UK which effectively confirms decision
(i) Protection of the public against crime
Osman v UK, no violation of Article 2 right to life
held that there was no breach of Article 2 (right to life) and laid down a rather narrow rule as to the circumstances in which a state might violate the right to life by failing to protect the public (this has been relied on in subsequent domestic cases): 'It must be established that the authorities knew or ought to have known at the time of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.' T

he court also held, relying on the reference to 'police immunity', that there was a violation of Article 6 (right to a fair trial). This had for a time some influence on subsequent domestic cases, but it is now accepted that this was a misunderstanding and need not be further considered.
(i) Protection of the public against crime
following Osman v UK
case where claims failed, note policy reasons
Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24: [2005] 1 WLR 1495

Van Colle v Chief Constable of Hertfordshire Police and Smith v Chief Constable of the Sussex Police [2008] UKHL 50: [2009] 1 AC 874

Mitchell v Glasgow City Council [2009] UKHL 11: [2009] 1 AC 874.

However, such claims may potentially succeed if there is a particularly close connection between the C and D or between the third party and the D (Cf. Home Office v Dorset Yacht Co
(i) Protection of the public against crime
Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24: [2005]

Duwaine Brooks was present at the notorious racist killing of his friend Stephen Lawrence. Duwaine had also been subjected to abuse and attacks. He brought a claim against the Commissioner for the failure to provide him adequate protection, support and assistance which was generally afforded to victims of serious crimes. He suffered post traumatic stress disorder which he claimed was exacerbated by the treatment he received from the police. The Commissioner applied to have the case struck out on the grounds that there was no reasonable cause of action. The High Court granted the application holding that no duty of care arose. Brooks appealed to the Court of Appeal who allowed the appeal holding that a there was a sufficiently proximate relationship to impose a duty of care. The Commissioner appealed.
The appeal was allowed. The case of Hill v CC Yorkshire precluded the imposition of a duty of care.
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duties would cut across the freedom of action the police ought to have when investigating serious crime. The principle in Hill had to be judged in the light of legal policy and the bill of Rs, Hill applied. With hindsight, not every principle in Hill could now be supported and a more sceptical approach to the carrying out of all public functions was necessary. However, the core principle of Hill had remained unchallenged in domestic jurisprudence and European jurisdiction for many years and it had to stand. The three alleged duties of care were undoubtedly inextricably bound up with the police function of investigating crime, which was covered by the principle in Hill.
(i) Protection of the public against crime
Van Colle v Chief Constable of Hertfordshire Police and Smith v Chief Constable of the Sussex Police [2008]
Van Colle, the House reaffirmed and applied the test set out by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245, namely that there will be a breach of the positive obligation under Article 2 ECHR if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

However, in Smith, the House held (Lord Bingham dissenting) that the police do not owe a common law duty of care to protect individuals against harm caused by criminals, reaffirming the 'core principle' laid down in Hill v Chief Constable of West Yorkshire [1989]

POLICY
1. leads to 'defensive policing'
2, police resources away from combating crime in order to deal with litigation.
(i) Protection of the public against crime
Mitchell v Glasgow City Council [2009]

James Mitchell was attacked by his next door neighbour, James Drummond and he died as a result of his injuries. Both men were tenants of the local housing authority. Mr Drummond had long been an anti-social neighbour. He had previously and had threatened to kill Mr Mitchell on numerous occasions. In 2001 the city council brought proceedings against Mr Drummond to evict him from his house. They then invited him to a meeting, which he attended but he became abusive. He then calmed down and apologised, left the meeting whereupon he attacked and killed Mr Mitchell.

Mr Mitchell's wife and daughter brought an action against the city council in negligence and also under Article 2 of the European Convention on Human Rights.
Foreseeability of harm was not of itself enough for the imposition of a duty of care
The law does not normally impose a positive duty on a person to protect others
The law does not impose a duty to prevent a person from being harmed by the criminal act of a third party based simply upon foreseeability

In the case of Caparo Industries plc v Dickman [1990] 2 AC 605 Lord Bridge set out the familiar three fold test which required in addition to foreseeability and a relationship of proximity, that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.


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1.Imposing a duty might deter social landlords from intervening to reduce the incidence of anti-social behaviour.
2.s no basis for saying that the defenders ought to have known that there was a real and immediate risk to the deceased's life
List of cases where DOC was found
Haynes v Harwood [1935] 1 KB 146
Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273
Dorset Yacht Co Ltd v Home Office [1970] AC 1004

Swinney v Chief Constable of Northumbria Police Force [1997] QB W v Essex County Council [2001] 2 AC 592
R(Amin) v Secretary of State for the Home Department [2003]
Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360
(ii) Education and social work
HL decided a large number of cases involving social workers and the education services. They are all reported together as X v Bedfordshire County Council [1995] 2 AC 633. Some of the cases involved failures by educational psychologists employed by the council to correctly diagnose learning difficulties such as dyslexia. The House held that these claims should not be struck out.
n the Bedfordshire case that court ruled that there was a breach by the United Kingdom of Article 3 ECHR in that the authorities had failed to save the children from inhuman treatment: Z v UK [2001]

Subsequently the HL has held that a council was vicariously liable for the failure of its employed educational psychologist: Phelps v Hillingdon London Borough Council [2001] 2 AC 619. The employee, though exercising a statutory function, was providing a service like any other salaried professional.

necessary to follow Z v UK rather than X v Bedfordshire and to hold that a duty was owed to the child but was not owed to the parents suspected of abuse whose interests might conflict with those of their children. There was an appeal to the HL only by the parents: the House agreed that there was no duty (D v East Berkshire Community Health NHS T [2005]
MAK and RK v UK (2010) : proection for parents and ECHR
cf D v East Berkshire Community Health NHS T [2005]
In MAK and RK v United Kingdom the European Court found that the absence of a CL duty of care owed to parents by doctors falsely suspecting them of their child's abuse violated the European Convention on Human Rs. This appears to be so even where the suspicion is a reasonable and blameless one to make, all things considered. In such circumstances, the court's decision to find that a parents' Convention Rs had been unjustifiably infringed, and to order compensation accordingly, is likely to have the effect of frustrating the effective protection of children genuinely at risk of abuse.
Rowley v Secretary of State for Work and Pensions [2007]
EWCA Civ 598; [2007]
Counsel for the claimants argued on two principal grounds that 1) applying the three fold test in Caparo leads to the conclusion that the Secretary of State has a duty of care or 2) alternatively that as the claimants had to apply through a statutory scheme the Secretary of State has a duty of care. Dyson LJ rejected these submissions mainly on the grounds that the statutory scheme provides rights to appeal and to enforce maintenance of arrears and therefore there was no need to place a duty of care on the Secretary of State.
Rowley v Secretary of State for Work and Pensions [2007] : 5 considerations for scope of duty
: 1. assumed responsibility, sufficient but not necessary..? 2. Objective 3 caparo itself provides no straightforward answer in a novel situation, a party owes a DOC... 4 incremental test needs to be combined with facts of case 5. importance of reference existing cases.
Rowley v Secretary of State for Work and Pensions [2007]

whether a public authority owes a common law duty of care, it is also necessary to consider:
(i) whether to impose a duty of care would be inconsistent with the statutory scheme under which it is acting, and (ii) the relevance of the fact (if it be the case) that the statute confers no private law right of action for breach of statutory duty.
Assumption of responsibility
Barclay's Bank: assumption of responsibility, even on an objective approach, can be applied to the situation which arose between the commissioners and the bank on notification to it of the orders. Of course it was bound by law to comply. But it had no choice. It did not assume any responsibility towards the commissioners

bank had not in any meaningful sense made a voluntary assumption of responsibility. By the freezing order it had responsibility thrust upon it.
white v Jones
2 categories of cases where Assump of resp arise
(i) where there is a fiduciary relationship and (ii) where the D has voluntarily answered a question or tenders advice or services in circumstances where he knows or ought to know that an identified person will rely on his answers or advice. The involuntary nature of the bank's involvement with the commissioners made it impossible to regard the situation as one " . akin to contract" . .
Rowley v Secretary of State for Work and Pensions [2007]
cf position of SOS with that of a solicitor

application to the Child Support Agency for child maintenance for children from father ,claimed that the (i) delayed in carrying out the maintenance assessment; (ii) obtained inadequate information on which to base the assessment; (iii) made interim and final assessments that were wrong; (iv) delayed in enforcing the assessments; and (v) delayed in dealing with the claimants' appeal against the assessment. They claimed damages in negligence in respect of these failings
First, the solicitor is paid by the client and is entitled to charge a reasonable fee for providing a service to a proper standard. Issues of sufficiency of resources do not arise. Secondly, the solicitor has control over the number and identity of the clients from whom he takes instructions. Thirdly, subject only to standards of professional conduct, the solicitor has an unconditional commitment to his client's interests. In a dispute about child maintenance, he owes no duty to the other parent and no issues of balancing conflicting interests can arise. It is conceded that, if the Secretary of State owes a duty of care at all, it must be owed to both the person with care and the absent parent.

A solicitor owes a duty of care in T because, like any professional person, he or she voluntarily assumes responsibility towards an individual client.
(iii) Failure to exercise a power
The general principle is that a mere failure to exercise a power at all is a simple omission and does not give rise to liability. The problem was fully considered in Stovin v Wise [1996] AC 923 where a majority held that a council's failure to exercise its powers to remove an obstruction from private land which interfered with a motorist's view at a dangerous junction could not give rise to liability. This was further considered and qualified in Gorringe v Calderdale MBC [2004]
(iii) Failure to exercise a power
Gorringe v Calderdale MBC [2004]
D was the local authority responsible under Highways Act 1980 for the maintenance of a country road. C drove too fast towards the crest of a hill and collided with a bus suffering very severe injuries. C argued that D's failure to paint the word 'SLOW' on the road surface constituted a breach of its duty under the Highways Act and the Road Traffic Act 1988. She argued that that the statutory duties cast a common law shadow and created a duty to users of the highway to take reasonable steps in compliance with the duties in the section.
not possible to impose upon a local authority a CL duty to act based solely on the existence of a broad public law duty. A CL DOC could not grow parasitically out of a statutory duty not intended to be owed to individuals. The drivers had to take responsibility for the damage they caused and compulsory 3P insurance is intended to ensure that they would be able to do so. In the instant case, where the complaint was that the authority had done nothing, the action had to fail. Stovin v Wise [1996] applied.

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if road users used the road unsafely, then the claim should be against them rather than arising from public law duties against the local authority.
(iii) Failure to exercise a power
Kane v New Forest District Council [2001]
here danger was created by Council
restricts Stovin v Wise
The CA held that a C had `a positively powerful case' against the planning authority where the C's injuries stemmed from the fact that a new footpath created a hazard for path users where it joined the main road, and the planning authority had created the hazard, required that the footpath be provided by the developer, and had not attempted to delay the opening

A council may bring itself under an obligation to use its powers to deal with a danger on the highway where its own actions have brought about the danger:
(iii) Failure to exercise a power
Yetkin v Mahmood [2010]
street crossing accident, result similar to Gorringe, C fault is 75% so C struck out.
Capital and Counties plc v Hampshire County Council [1997]
D, a fire officer Nly ordered the sprinkler system turned off in a burning building to which the brigade had been called.
There is no public policy immunity in this situation. The decision was an operational one, not a matter of allocating scarce resources, and given the brigade's exclusive control over the situation it would be fair, just and reasonable to impose on them a DOC to the property owner.
dilemma / confusion in law over public bodies
if the body does decide to exercise its powers. The body could be treated as having assumed responsibility and therefore be liable for a failure to take care to use its power properly, but there are also situations where the duty has been held only not to make matters worse than they would have been if they had done nothing
Capital and Counties plc v Hampshire County Council [1997] cf Kent v Griffiths (slow ambulance arrival makes matters worse?)
(iv) Compatibility with statutory law
A remaining problem is whether it is ever possible to recognise a DOC that would be inconsistent with the statutory system. Connor
need for the authority to act decisively much sooner than it did arose equally from its public law and its private law duties. Although... it is the latter that give rise to this claim, it is because the former offered no obstacle that the deputy judge was entitled to find in the C's favour. What might have been the proper outcome had the two things pulled in opposite directions is a question for another day and another claim.
Home Office v Mohammed [2011]
As a general rule the proximity created by a statutory relationship did not by itself create a duty of care.


absence of an alternative form of redress, however serious its consequences, might not be enough to establish a duty of care, but its presence might be sufficient, even assuming sufficient proximity created by a statutory relationship, to make it less than fair, just and reasonable to add a common law liability in negligence.

In the instant case, X could refer their complaints to the Parliamentary Ombudsman, who could recommend payment of compensation.
Home Office v Mohammed [2011]
Sedley reasons against the abandoning of the Administrative Redress Project which sought to bring certain forms of liability to the Govt, but was rejected by Govt, furthermore Govt was not able to provide accounting information related to current compensation schemes. one key point of policy was that making public bodies L will increase compensation payouts and divert resources to litigation
Two things are worth saying about this débâcle in the context of the present case. One is that it is a troubling comment on the functioning of the separation of powers that the state's independent law reform advisory body has had to abandon a project affecting the liability of government to governed principally because the control exercised by government over Parliament would frustrate any reform, however wise or necessary, which would make government's life more difficult. The other, more directly in point, is that, whatever the reason, a faute lourde system of state liability in damages for maladministration, of the kind that has worked well in France for more than a century[5], is not on the cards in the United Kingdom. Apart from the limited private law cause of action for misfeasance in public office and the statutory causes of action in EU law and under the Human Rights Act, there is today no cause of action against a public authority for harm done to individuals, even foreseeably, by unlawful acts of public administration. The CL cause of action in negligence coexists with this doctrine and may on occasion arise from acts done or omissions made in carrying out a public law function; but it may not impinge on the discharge of the function itself, however incompetently or Nly it is performed.
Suppose that a local council has a statutory power to inspect restaurant kitchens. In what circumstances if any might it be liable in the following situations:
The council has not inspected Restaurant X for five years. A customer is poisoned by contaminated soup.

An inspector inspects a restaurant. He fails to find poison in soup. A customer is poisoned.

An inspector inspects a restaurant. He finds poison in soup and the restaurant closes. The chef cannot find employment again. There was actually no poison in the soup.

An inspector inspects a restaurant. He knocks over the soup tureen. The chef is scalded and unable to work again.
The Food Standards Agency learns of research that suggests that very large quantities of meat have been contaminated with a cancer-causing substance. They order the destruction of all stocks of this meat in supermarkets and butchers' shops. It then turns out that only a small proportion of meat was affected. Are they liable for the loss to shops?
room for speculation here. Agency is carrying out public duties and has to balance the interests of consumers and suppliers. Should it be easier to impose liability where there is damage to the economic interests of suppliers than it is where there is damage to the health of consumers? Even if there is a duty breach has to be proved and that is not easy. The Agency has acted on research (it may be its own or independent) and is not liable merely because it got it wrong.
Royal Air Force mountain rescue team are alerted to the fact that a group of climbers have gone missing in fog. The controller of the rescue service misunderstood where the climbers were and they died before they were found. Are the rescue service liable for the deaths?
There are cases in the books on various rescue services, police, fire, coastguards. Have they assumed responsibility to climbers (a) by establishing a rescue service or (b) by agreeing to send a team to the stricken climbers in this case?
Rescuers
no general duty to attempt a rescue, rescuers may have a claim for damages if injured in the rescue attempt. The courts are very ready to assume that it is foreseeable that, if someone is injured or endangered, others will go their rescue.
Haynes v Harwood [1935] 1 KB 146; Cutler v United Dairies [1933] 3 KB 297; Baker v T. E. Hopkins [1959] 1 WLR 966 and Videan v B.T.C.
Haynes v Harwood [1935]
D left a horse-drawn van unattended in a crowded street. The horses bolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and C who were in the path of the bolting horses. The police officer was injured. It was held that the D owed a DOC as he had created a source of danger by leaving his horses unattended in a busy street.
Cutler v United Dairies [1933] , here no need to intervene
cf Haynes
C was injured when he entered a field to calm some horses. His claim for compensation was unsuccessful as the horses presented no immediate danger to persons or property and there was no need for him to intervene.
Baker v T. E. Hopkins [1959

had been called to clean out a well. Hopkins tested the atmosphere in the well by putting a lighted candle down the well. The candle returned still lighted and thus he concluded the atmosphere was fine. He and Ward then took a petrol motored pump down the well started it up and left the well leaving the engine running on its own. The motor ran for 1 1/2 hours before it stopped of its own accord. Before leaving the site Mr Hopkins told Mr Ward and Mr Wileman not to go down the well until the fumes have cleared. The following morning Hopkins again told the two not to go down the well until he had arrived on the site. In breach of these orders Mr. Ward went down the well and was overcome by fumes. Mr Wileman called for assistance and went down the well after him. The C, Dr Baker, then arrived on the scene. He too went into the well to seek to rescue the two. Unfortunately all three died of carbon monoxide poisoning. The D contended that the act of the doctor acted as a novus actus interveniens and sought to invoke volenti non fit injuria.
doctors actions were not a novus actus interveniens. It was foreseeable that if a D by his negligence places another in peril that someone may come to his rescue and the doctor's actions were not unreasonable in the circumstances. The C's action was not defeated by volenti non fit injuria. He was and as such his actions did not count as freely and voluntarily accepting the risk.
volenti non fit injuria
if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in T or delict.
Videan v B.T.C. [1963]
a likelihood of trespassers was held to create a DOC
Harrison v British Railways Board [1981]
injured rescuer could sue the person who created the danger. The rescuer was found to be contributory N for not following established work procedures.
here a foolhardy and pointless act of stupidity in leaping on to a moving train.
RAF mountain rescue service are called out to rescue climbers stranded on a mountain in bad weather. The climbers had gone out with inadequate clothing and climbing equipment. Callum, one of the rescuers, is seriously injured by a fall during the rescue. Has he a claim against the mountaineers?
not clearly settled in English law. There can be liability to rescuers where the D does something foolhardy as in Harrison, but that was a foolhardy and pointless act of stupidity in leaping on to a moving train. Would it be right to deter people from engaging in risky pastimes such as hang gliding, parachute jumping, potholing, etc. by making them liable to professional rescue services who have to look for them or help them in distress.
Stovin v Wise : externalities
Price deterrence
Price deterrence has been put forward as an economic justification for imposition of T L on person who causes loss to others. Essential to concept of price deterrence is PS that if we hold a person liable for losses his behaviour causes, he will eventually be unable to afford to continue or repeat his harmful behaviour. e.g. L for pollution, If social costs represented by pollution are not Xred to factory B, there are 'externalities'.
Stovin v Wise : externalities
issue with Hoffman externalities not applicable to omissions
Factory C may produce cars without causing any pollution or danger, but if it fails to provide accurate instruction manuals with cars, this might very well lead to mishandling of cars and consequently to damage, 'externalities'. no (good) reason why economic reasons to put factory B out of business do not equally apply to factory C. Apparently, Lord Hoffmann's assumes that inaction does not cause loss, and therefore does not cause externalities. From example with instruction manuals, we see that this point of view is not always easy to maintain.
pure economic loss
Customs and Excise Commissioners v Barclays Bank HL
scope of L for economic loss, and of different tests that have been deployed to solve this problem. Although judges accepted that many FAC pointed towards imposing DOC, they decided in end for rather narrow reasons that no such duty.

Customs and Excise Commissioners, in seeking to recover outstanding amounts of VAT from two Cos, obtained freezing injunctions in respect of their assets including funds held to specified accounts in bank. injunctions were notified to bank which subsequently failed to prevent payments out of accounts in breach of injunctions. commissioners claimed DMs for N against bank.
ct exercised its injunctive jurisdiction on basis that its orders were enforceable only by its power to punish for contempt and notified party's only duty was to ct; that it would not be analogous or incremental to any previous decision if non-consensual ct order were to be recognised as giving rise to duty owed to party who obtained it; and that, since its operation would be productive of unjust and unreasonable results, it would not be fair just and reasonable to recognise DOC in such circumstances; and that, accordingly, commissioners' claim would be dismissed
Customs and Excise Commissioners v Barclays Bank
Three tests have been used in considering whether DOC is owed in T by D for pure economic loss.
1 whether, objectively, D assumed responsibility for his words or conduct vis-...-vis C, or is to be treated as having done so.
2. threefold test, requires C to show that loss was reasonably foreseeable, that relationship with D of sufficient proximity and that imposition of duty would in all circumstances be fair, just and reasonable.
3 incremental test. That test, that new categories of N should be developed incrementally and by analogy with established categories
Customs and Excise Commissioners v Barclays Bank
n cases of pure economic loss, such as present, which is closely analogous to case for provision of services,
AR TEST should be applied

Hedley Byrne
Hedley Byrne
modified in some cases of N misstm causing consequential economic loss. TEST is objective, relevant Q being whether D, by his words or conduct, should be held to have assumed responsibility for C
Caparo Industries plc v Dickman [1990]
incremental test
It is preferable, in my view, that law should develop novel categories of N incrementally and by analogy with established categories, rather than by massive extension of prima facie DOC restrained only by indefinable 'considerations which ought to -, or to reduce or limit scope of duty or class of person to whom it is owed
Customs and Excise Commissioners v Barclays Bank
Bingham 5 points for existing TESTS
1. one party can accurately be said to have assumed responsibility for what is said or done to another, paradigm situation being relationship having all indicia of K save consideration. Hedley Byrne would, but for express disclaimer, have been such case.

2. AR TEST is to be applied objectively and is not answered by consideration of what D thought or intended.

3. threefold TEST itself provides no straightforward answer to vexed Q whether or not, in novel situation, party owes DOC.

4. incremental TEST is of little value as TEST in itself, and is only helpful when used in combination with TEST or principle which identifies legally significant features of situation.

5. outcomes (or majority outcomes) of leading cases cited above are in every or almost every instance sensible and just, irrespective of TEST applied to achieve that outcome.
Customs and Excise Commissioners v Barclays Bank
AR TEST, why does it fail?
assumption of responsibility, even on an objective approach, can aptly be applied to the situation which arose between the commissioners and the bank on notification to it of the orders. Of course it was bound by law to comply. But it had no choice. It did not assume any responsibility towards the commissioners as the giver of references in Hedley Byrne (but for the disclaimer) and Spring , the valuers in Smith v Eric S Bush , the solicitors in White v Jones and the agents in Henderson v Merrett Syndicates Ltd may plausibly be said to have done towards the recipient or subject of the references, the purchasers, the beneficiaries and the Lloyd's Names.
Custom Excise v Barclay's
why were the args not successful?

recognition of a duty would in practical terms impose no new or burdensome obligation on the bank; that the rule of public policy which has first claim on the loyalty of the law is that wrongs should be remedied ( X (Minors) v Bedfordshire County Council [1995] 2 AC 633 , 663, 749); that, since there are no facts here which would found a claim for effective redress in contempt, the commissioners will otherwise be left without any remedy, that a duty of care to the commissioners would not be inconsistent with the bank's duty to the court; and that there would, in such a case, be no indeterminacy as to those to whom the duty would be owed.
injunction only enforceable by court, no case law to support
why should notification=> N liability e.g.
It would be a strange and anomalous outcome if an action in negligence lay against a notified party who allowed the horse to escape from the stable but not against the owner who rode it out.

cases which were relied on: all had Voluntary AR
Al-Kandari v J R Brown
Al-Kandari v J R Brown
A D H had on previous occasion kidnapped two children whose custody was subject of proceedings before English ct. C mother was anxious that same thing should not happen again. To reassure her H deposited his passport (on which children were entered) with his solicitor, who Nly allowed him to regain POS of passport and again remove children. W sued her H's solicitor in N, and it was held at first instance and on appeal that solicitor owed W DOC. found that solicitor had given W an implied undertaking. CA held that solicitor had accepted responsibilities towards W and had acted as an independent custodian of passport subject to joint directions of both parties as well as ct: in that case very clear and entirely vol AR by solicitor towards W.
Islington LBC v University College London [2005]
CA rejected an argument that N hospital authority owed duty to local council that was required to provide support for injured patient.
Calvert v William Hill Credit Ltd [2008] EWCA
A compulsive gambler was not entitled to DMs from telephone bookmaker which had failed to implement an agreement to prevent him from placing telephone bets. C
Robinson v PE Jones (Contractors) Ltd [2011] EWCA
A has more or less extinguished possibility of any claim in T for economic loss resulting from building that is merely defective and does not cause physical DM

The mother made an application to the Child Support Agency (CSA) for child maintenance for her three children from their non-resident father under s 4 Child Support Act 1991 (the 1991 Act). The mother and the children claimed that the CSA (i) delayed in carrying out the maintenance assessment; (ii) obtained inadequate information on which to base the assessment; (iii) made interim and final assessments that were wrong; (iv) delayed in enforcing the assessments; and (v) delayed in dealing with the claimants' appeal against the assessment. They claimed damages in negligence in respect of these failings
French v Chief Constable of Sussex Police [2006] EWCA

Cs were police officers who were involved in events leading up to an armed raid, which lead to fatal shooting of James Ashley. None of officers witnessed shooting itself. They claimed DMs from chief constable for psychiatric injuries they had suffered as result of his alleged N and his failure to operate safe and effective system for receipt, collation, management and utilisation of criminal intelligence and firearms operational capability to respond to dangerous criminals, which foreseeably led to shooting and to various disciplinary and criminal proceedings brought without justification against them.
PSY DM too remote

claim was struck out as having no reasonable prospect of success. They had no real prospect of establishing that it was reasonably forcible that corporate failings would cause them PI by chain of causation that allegedly brought about that result. untoward event of which they complained was shooting of Mr Ashley. If any who were present suffered PI as result of witnessing shooting they might be secondary Vs, but impact of death of Mr Ashley on minds and senses of Cs was not direct.
Butchart v Home Office [2006] EWCA
PI claim by Mr Butchart arising from suicide of his cell mate, Ian Holms. concluded that control mechanisms set out in Frost v Chief Constable of South Yorkshire Police do not arise because of nature of relationship between prisoner and Prison Service. C did not have to prove 'close ties of love and affection' to deceased to recover compensation for forseeable psychiatric DM.

In circumstances where prisoner is vulnerable to psychiatric harm, Prison Service therefore owes duty to take reasonable steps to minimise that risk. Further, decision to place suicidal prisoner with Mr Butchart was capable of amounting to breach of that duty even where C had consented to placement. BOD might also arise through inadequate monitoring of placement. CA commented that Prison Service's argument that risk of Mr Holm's suicide was not foreseeable failed to recognise opinion of Regional Secure Unit that Mr Holms was at 'long term risk of self harm and attempted suicide'.
impact of the Human Rights Act 1998
Rabone v Pennine Care NHS Foundation Trust [2012]
A psychiatric in-patient who was known to be at real and immediate risk of suicide was owed operational duty under article 2 of Convention for Protection of Human Rs and Fundamental Freedoms by NHS T to take preventative measures to safeguard her life even though she was vol patient
Van Colle v United Kingdom
note Osman TEST
breach of the positive obligation if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.
positive obligation to protect life under Article 2 ECHR.

The case arose from the tragic death of Giles Van Colle in 2000. His parents brought proceedings in the domestic courts alleging that the police had failed in their duties under Article 2 to protect Giles from a man against whom he was due to give evidence in a criminal trial and who had threatened Giles with violence. That man went on to murder Giles. The claims were successful in the High Court and the Court of Appeal, but the House of Lords allowed an appeal by the police. Giles' parents accordingly made an application to the European Court alleging a breach by the United Kingdom of its obligations under the Convention.

The European Court reaffirmed the test set out in Osman v United Kingdom

However, on the facts of the case, the Court held that whilst it ought to have been known to the police that there was an escalating situation of intimidation of a number of witnesses including Giles, it could not be said that there was a decisive stage in the sequence of events leading up to the murder when the police knew or ought to have known of a real and immediate risk to Giles' life.
Michael v South Wales Police [2012] VIMP cf OSMAN

V of domestic violence calls to say partner will try to kill, operator relay message without "kill"
Police downgrade and later found that she had been stabbed to death. claim for damages based in negligence and breach of art.2
Jarman J. held that there were serious issues of fact which could only be determined at a hearing of the negligence claim and the art.2 claim. The appellants appealed.
was reasonably arguable that case was different from Osman v United Kingdom (1998) 29 E.H.R.R. 245 and that there could arguably be breach of art.2 on facts where threat to injury from an already identified third party which may have been culmination of history of domestic violence.
An Informer v A Chief Constable [2012]
oncerning relationship Source may have with police, giving rise to issues of criminality, disclosure and, at heart of appeal, L for economic losses.
holding that police have DOC towards Sources in respect of physical safety and wellbeing but not to purely financial loss.
Selwood v Durham County Council [2012] CA
FACTORS for CAPARO test public interest, # of people concerned, immediate colleagues

brought an action for personal injuries against her employer Durham County Council, and two NHS trusts with whom she collaborated in the course of her work. She alleged that all three defendants had been negligent, and that as a result she was exposed to danger from a man called GB who was mentally disturbed and had threatened to harm her. In the event he attacked her with a knife, causing serious injury
assumption of responsibility was only one aspect of the wider issue of whether it was fair, just and reasonable to impose a duty of care. Where the defendant was a public authority, there were important additional factors of public policy to consider; however, there may be classes of claimant who stood in such a special relationship with the defendant local authority that it was just and fair to impose a duty of care. The judge limited his consideration of the factors relevant to fairness, justice and reasonableness to public interest factors which were applicable to the possibility of a duty being owed to the world at large. However, S was not one of the world at large; she was one of a small group of social workers, working in close proximity and co-operation with the second and third defendants' own employees. The judge erred in failing to consider properly the special position of S, and it was open to a trial judge, taking the particular relationship of the parties into account, to conclude that it was fair, just and reasonable to impose a duty of care on the NHS trusts.

It was arguable that the position of the NHS trusts was analogous to the position of the police who may be under an operational duty to warn a person who they knew was at a real and immediate risk of being killed by a person with whom they have been involved. The main consideration was whether the necessary factual nexus existed. Further, it could not be said that S had no hope of establishing that she was at real and immediate risk of a serious attack by GB, and that was a matter for the trial judge after hearing the evidence.
Why does the law distinguish psychiatric from physical injury?

Lord Steyn in White v Chief Constable of South Yorkshire Police [1998] suggests four reasons (
Evidential problems: the difficulties in drawing the line between psychiatric illnesses and mere grief, anxiety etc.

The view that allowing claimants suffering psychiatric injury to sue may act as unconscious disincentive to them recovering from their illnesses.

'Floodgates' concerns about a significant increase in the scope of tort liability if recovery for psychiatric injury was not limited.

The potential unfairness to the defendant of imposing damages out of all proportion to the negligent conduct.