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