Wednesday, October 11, 2006


Tuesday 10th October 2006

We began with a reminder of the two-part test from Anns v Merton B.C. [1978]. The questions to ask are:

(1) does the neighbour principle apply? If yes, there is a prima facie duty, unless
(2) there is a policy reason not to permit the claim.

One of the criticisms is that it appeared to enable the claimant to establish a prima facie duty of care very easily by reference to foreseeability of harm. The second stage presented the defendant with the task of producing policy reasons to convince the judge to reject or limit that duty.

Nowadays, it is generally agreed that in order to establish the existence of a duty of care a claimant needs to satisfy a three-part test:

  1. foreseeability of damage

  2. a relationship of “proximity” between the defendant and claimant

  3. it must be “fair, just and reasonable” to impose a duty

NOTE: a judge will not necessarily refer to them all in the same case.

This “three-stage” test was approved in Caparo Industries v Dickman (1990). As an example, see the case of Jebson v MoD [2000].

We will now look to see what the terms mean, and decide whether they are interchangeable.

FORESEEABILITY means that the defendant should have foreseen some damage to the claimant at the time of his alleged negligent act or omission. The claimant must prove that damage to him was foreseeable: Bourhill v Young (1943). The claimant was descending from a tram when she heard a motor accident. She did not see the accident, but later saw blood on the road, suffered nervous shock and gave birth to a stillborn child. Although it was reasonably foreseeable that some people would suffer damage as a result of the defendant’s negligent driving, the claimants injury was not foreseeable as she was so far from the accident. She was therefore owed no duty of care. She could not base her action on a wrong done to someone else.

It is the foresight of the reasonable man, not that of the defendant. It is an objective one.

It was thought that if the damage to the claimant was foreseeable, there would also be proximity between the parties. This may still be the position where the foreseeable type of damage is physical damage (to person or property) and in such cases the courts may be more willing to recognise a duty of care.

Some judges regard policy as the proper province of Parliament, meaning that if the politicians don’t like the decisions that are made it is they (Parliament) that is in the best position to do something about it.

However, it is possible to identify several policy considerations which have been influential in the thinking of the judiciary, for example:

FLOODGATES. Allowing a new class of defendant to succeed could lead to an overwhelming number of cases. Consider the Hillsborough disaster and the Kings Cross fire. The potential for causing harm to many people in one single tortious event is high.

ALLOCATION OF RISK AND LOSS. Some losses can be covered easily by insurance cover (e.g. contents insurance) and insurance is compulsory in some risk-creating situations (e.g. third party motor insurance). Lots of newspapers take insurance against actions for defamation. There are examples that the court may well decide that the loss should lie where it could most easily have been insured against and may refuse to recognise a duty in tort to guard against that loss arising. Something of this argument can be seen in Spartan Steel Alloys where the claimants were denied recovery for their pure economic loss because business interruption insurance would have been available to them. We will cover the case later when considering a pure economic loss.

IMMUNITIES. Some enjoy total immunity, whilst others a partial immunity. What we are seeking is the reason why the state of affairs exists.

JUDGES: they are completely immune from suit when exercising their judicial functions. Why? If a judge falls asleep and fails to hear the evidence that proved your case, and thereby the action was lost, you couldn’t sue the judge. What you can always do, however, is appeal against the decision. It is for this reason that you can’t sue the judge.

BARRISTERS: Once upon a time a barrister was immune from suit for all his work in court, and the preparatory work for the case: Rondel v Wordsley (1969) (House of Lords). By use of the 1966 Practice Statement the House of Lords changed their minds in Hall v Simons [2000], and barristers are now fully liable for their negligence.

SOLICITORS: enjoy some immunity. Compare the cases of White v Jones (1995) where disappointed beneficiaries under a will were allowed to recover for the solicitor’s negligence with Hemmens v Wilson Browne (a Firm) 1993 where policy barred a claim where there was someone else in a position to regularise matters.

CROWN PROSECUTION SERVICE: in Elguzouli-Daf v MPC (1995) the Crown Prosecution Service had discontinued proceedings after a lengthy spell of custody. It was held that there is no general duty of care owed by the Crown Prosecution Service to a defendant, its central function would be inhibited by an imposition of duty.

EMERGENCY SERVICES: POLICE. The police enjoy a limited immunity from suit in negligence. A fine example is Hill v Chief Constable Of West Yorkshire (1988) where the mother of the last victim of the so-called “Yorkshire Ripper” argued that the police had failed to use reasonable care in apprehending the murderer of her daughter. Although it was foreseeable that the murderer would kill again if not caught, the House of Lords would not recognise a duty of care to such potential victims. To do so would restrict the exercise of police discretion in their investigations and would put them in a defensive frame of mind. Lord Templeman pointed out that if a duty was recognised “every citizen will be able to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others.  The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings successfully or unsuccessfully, would distract the policeman from his duties.”

Different considerations were apparent in Swinney v Chief Constable Of Northumbria Police (1996) in which it was held by the Court of Appeal that a duty did arise to take care for the safety of an informant who had provided the police with valuable information about a violent criminal. In this situation the public interest was best served by encouraging those with information to come forward. The House of Lords was to later reverse this decision.

A rare example of success can be found in Costello v Chief Constable Of Northumbria Police (1999).

FIRE SERVICE. Generally they enjoy immunity, for otherwise they would be laid open to many thousands of claims. However, in Capital And Counties plc v Hampshire C.C. (1997) it was held that where the fire service take total control of a situation they will owe a duty of care.

COASTGUARD. The above decision was followed in a case involving the coast guard: Oll v Secretary Of State For Transport (1997).

AMBULANCE. The ambulance service are seen in a different light to the other emergency services. In Kent v Griffiths (#2) [2000] it was held that where the service accept an emergency call they must respond within a reasonable time, unless there were a conflict of priorities.

STATUTORY AUTHORITY. We will look at this as a separate tort later. Suffice to say for now that it is very difficult, if nigh on impossible, to sue a body for breaching a statutory duty. See, for example: Goodes v East Sussex C.C. [2000].

Comments: Post a Comment

<< Home

This page is powered by Blogger. Isn't yours?