NEGLIGENCE 1

Duty of care
What is negligence?
More than just careless conduct
The negligence claim properly connotes
the complex concepts of duty, breach and
damage.
THE LEGAL FRAMEWORK
CLAIMANT MUST PROVE:
Duty of care owed to him or her by the
defendant
Breach of that duty by the defendant
Damage caused by that breach of duty
- causation (cause in fact)
- remoteness of damage
First established as a separate tort
Donoghue v Stevenson 1932.
Facts of the case
Ratio decidendi
Obiter Dicta
Policy
Importance of doctrine of judicial precedent
Ratio of Donoghue v Stevenson
At least 4 possible interpretations
Manufacturer owed a duty of care to
claimant
Manufacturers generally owe a duty of
care to consumers of their products
A negligence claim can be brought
irrespective of the absence of a contract
The neighbour principle should be used to
determine the existence of a duty of care


DUTY OF CARE
Who then in law is my neighbour?
Persons so closely and directly affected by
my acts or omissions that I ought
reasonably to have them in contemplation
as being so affected when directing my
mind to the acts or omissions that are
called in question.
Lord Atkin
Later extensions include:
Other products beside food
Teachers and pupils
Motorists and other road users
Doctors and patients
Employers and employees
Occupiers and people entering land
Grey areas
Psychiatric injury
Rescuers
Economic loss
JUDICIAL POLICY
The use of the word policy indicates
that the court must decide not simply
whether there is or is not a duty, but
whether there should or should not be
one, taking into account both the
established framework of the law and also
the implications that a decision one way or
the other may have for the operation of
the law in our society. Winfield
Is there a duty of care?
It has been established by precedent that
a duty of care exists in many situations.
If there is no precedent to that effect the
court must decide
Novel situations
Court must consider:
Foresight
Proximity
Whether it would be fair, just and
reasonable to impose a duty the test in
Caparo v Dickman 1980


Is there a duty of care?

Note the use of the duty concept as a
policy vehicle to extend or restrict the
development of the law by increasing or
decreasing the number of situations in
which a duty of care is owed.
POLICY CONSIDERATIONS
Economic considerations
Justice moral and ethical issues
Practical implications
Insurance
Loss allocation
Floodgates fear of too rapid an
expansion
Protection of classes of individuals
THE HUMAN RIGHTS ACT 1998
It is unlawful for public bodies (including
Courts, NHS Trusts, Health Authorities,
Local Authorities etc) to act in a way
which is incompatible with a Convention
right.
THE HUMAN RIGHTS ACT
Public Authorities must act in accordance
with Convention rights e.g.
Courts
The Government
The GMC
NHS Trusts
Local authorities
CONVENTION RIGHTS AND
MEDICAL LAW
The right to life (Article 2)
The prohibition of inhuman and degrading
treatment and torture (Article 3)
The right to liberty and security (Article 5)
The right to a fair trial (Article 6)
CONVENTION RIGHTS
(continued)
The right to respect for privacy and family
life (Article 8)
The right to receive and impart
information (Article 10)
The right to marry and found a family
(Article 12)
The right not to be discriminated against
(Article 14)
DUTY OF CARE AND HUMAN RIGHTS
An end to blanket immunities for public bodies?
Compare
Palmer v Tees HA and Hartlepool and East
Durham NHS Trust
with
Van Colle v Chief Constable of Hertfordshire
[2006] EWHC 360
and
Smith v Chief Constable of Sussex [2008] EWCA
Civ 39
Smith v Chief Constable of Sussex
[2008] EWCA Civ 39
Lord Justice Sedley examined the common
law cases in detail in and concluded:
There is nevertheless an unanswered
question as to how, if at all, the common
law of negligence is to develop in
response to the Human Rights Act and the
Convention values it imports.

PROBLEM AREAS FOR FURTHER STUDY
Good Samaritan acts
Members of an indeterminate class
Wrongful life
Police, ambulance and other emergency services
Local authorities
Psychiatric injury secondary victims
Economic loss
GOOD SAMARITAN ACTS
Doctors are increasingly reluctant to give
medical assistance on aircraft for fear of being
sued if things go wrong.
1000 incidents a week.
There is a steady fall in the percentage of
occasions when a doctor or healthcare
professional responds to a crew announcement
seeking a volunteer".
(BMJ Report 2004)
Indeterminate liability
Insufficient proximity between the parties
should not lead to a multiplicity of future
claims that are unforeseeable
Wrongful life - McKay v Essex Area Health
Authority [1982] QB 1116
Public emergency services
Police - Osman v UK (1999) 29 EHRR 245
Z v UK (2001) 34 EHRR 97
Ambulance service now settled in Kent v
Griffiths [2000] 2 WLR 1158
Other emergency services?
Public authorities

Note difficult areas of law include:
Child abuse and adoption cases duties
owed by social workers
Policy arguments around the cost of
bringing up unwanted children
Education authorities
Highway authorities



PSYCHIATRIC INJURY
Liability is limited if the claimant is a
secondary victim
Observe the early expansion of the law
Then the House of Lords imposed the
Alcock restrictions
Note later developments and modifications
Rescuers

Economic loss
Note:
Liability for careless statements
Liability for careless acts
The relationship between tort and contract
The significance of judicial policy
Expansion and restriction of the scope of
the duty
CONCLUDING COMMENTS ON DUTY OF CARE
Often argued as a preliminary point of law
Subject to policy fluctuations
Note latent and explicit policy decisions
The Caparo test provides scope for development
of the law without the restrictions imposed by
foresight and proximity
Trends can be observed but definite rules of law
may be difficult to ascertain in grey areas
Useful illustration of judicial reasoning
Human rights considerations