Negligence: A breach of a legal duty of care, owed to a claimant that results in harm
to the claimant, undesired by the defendant.
There are 3 elements which a claimant has to prove in negligence cases:
• Did the defendant owe the claimant a duty of care?
• Was the defendant in breach of that duty?
• Did the defendant’s breach of duty cause damage or harm to the claimant?
Duty of Care
• A defendant will be liable, only if they are under a legal duty to take care of the
person who is injured.
• Duties can only be relied upon by a claimant when they have suffered physical
damage – either personal injury or damage to property.
Established Duty of Care
• Where it is clear from case law that a duty of care is owed, usually when there is
a relationship between the parties.
No duty owed: Police to a suspect regarding the way in which the police conduct
their investigation. (Hill v Chief Constable of West Yorkshire)
Examples of duty owed:
• Doctor and Patient (Cassidy v Ministry of Health)
• Employer and Employee (Wilsons & Clyde v English)
• Road users to other road users and pedestrians (Nettleship v Weston)
• Occupier to visitors (Occupiers’ Liability Act 1975)
• Occupier to trespasser (Occupiers’ Liability Act 1984)
• Manufacturer to end user (Donoghue v Stevenson)
• Where a defendant’s actions have created a dangerous situation where it is
reasonably foreseeable that someone may attempt a rescue, the defendant
owes a duty of care to the rescuer (Baker TE Hopkins and Son Ltd)
• Tutor to Tutee
• Teacher to Pupil
Novel Duty
• Where the court has to decide whether or not a duty of care should be imposed.
The Neighbour Principle
• Donoghue v Stevenson sets out the test for establishing if a duty of care exists
in a novel situation.
, • Lord Atkin: ‘You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour.
• Neighbour: A person who is so closely and directly affected by your act that you
ought reasonably to have them in your contemplation when committing the
breach.
Cases which the court is reluctant to impose new duty situations:
• A negligent police investigation.
• A careless omission to act by a local authority.
• A negligent statement by a journalist causing economic loss; and
• Psychiatric injuries caused by a major train crash.
The Caparo Test (Novel Duty)
The neighbour principle was redefined in Caparo Industries plc v Dickman. The
House of Lord set out a three-part test to determine whether if a duty is owed in novel
situations:
1. Reasonable Foresight of Harm to the Claimant.
Is it reasonably foreseeable that the defendant’s actions will affect this
particular claimant?
Bourhill v Young –
• It was found that the harm to the claimant was not reasonably foreseeable.
• The claimant sued the estate of the dead motorcyclist whose negligence caused
a car crash for the shock and miscarriage that she suffered as a result of
witnessing the crash.
• Whilst the motorcyclist owed a duty of care to the car it hit in the accident
because damage to the driver of a vehicle on the road is foreseeable. The
claimant was not a foreseeable victim, hence, no duty of care owed.
2. Sufficient Proximity of Relationship between the Claimant and
Defendant.
• Proximity relates to the relationship between the claimant and the defendant.
3. That it is Fair, Just and Reasonable to impose a duty.
,This part allows the court to reach a conclusion based on policy matters when
determining whether a novel situation is ‘fair, just, and reasonable’.
Policy:
• The floodgates argument – If one case is allowed to succeed, the floodgates
will open.
• Deterrence – the court may feel that to deter others from acting in a way that
they consider wrong or anti-social, they should rule in favour of claimant.
• Public benefit – the court may consider benefit to the public because of the
decision, e.g., increase public safety.
• Resources – In majority cases, the defendants’ insurers or his employers’
insurers will pay for the compensation. This will result in increase in premiums,
funded by the society. Similar, the court will consider their decision where
defendants do not have insurance to meet an award.
• Upholding the law – It is court’s policy to uphold legal rules, despite public
criticism, or else, the law would lose its power.
Examples:
• The police only owe a duty to the public at large (so no liability for failing to
investigate). (Hill v Chief Constable of West Yorkshire).
o Unless they have assumed responsibility (Kirkham v Chief Constable
of Greater Manchester Police).
o Or unless they harm a third party, and the injury was reasonably
foreseeable (Robinson v Chief Constable of West Yorkshire Police).
• The Fire Service only owe a duty to the public at large (no obligation to
respond). (Capital & Counties plc v Hampshire County Council and other)
o Only duty when there is a negligent positive act by them which makes
the situation worse that it would have been if they just did not respond.
• The coastguard does not have a duty to respond to calls from people (OLL
Ltd v Secretary of State for Transport).
• The Ambulance Service does have a duty to respond to emergency calls,
seen as an extension of the NHS (Kent v Griffiths).
Omissions to act
• General rule: A duty of care is not owed for omission i.e., failing to act to prevent
harm to the claimant.
• Stovin v Wise – The highway authority knew that a road junction was dangerous
but failed to exercise its powers to reduce the danger and an accident occurred.
It was held that the authority owes no duty of care to road users to alleviate the
danger.
, Exceptions
1. Duty not to make the situation worse.
• If someone decides to act, they have a duty not to make the situation worse.
• East Suffolk Rivers Catchment Board v Kent and another – If a defendant
does not owe a duty to act but nevertheless decides to intervene, there is no
liability in negligence even if defendant does act carelessly, unless they
make matters worse.
2. Special Relationship Rule
• Where there is a special relationship, one party may have a duty to take
positive action to safeguard another.
• There is a duty to act positively if a person has some sort of power or control
over the other person or object.
• Where one person has relationship of control over another, they may have
a duty to take positive action to prevent harm being caused to third
parties.
o Home Office v Dorset Yatch Co Ltd – The damage occurred to the
claimant’s yatch was due to an omission to act, for which ordinarily no
duty would be owed. In this case, a duty was imposed because the
officers had control over the boys.
• Special relationships examples:
o Employer and Employee
o Schools and Children
o Parents and Children
o Instructors and Pupil