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Lecture # 3

Duty of care

By: Salik Aziz Vaince

[0313-7575311]

Introduction

Negligence is essentially concerned with compensating people who have suffered damage as a result

of the carelessness of others, but the law does not provide a remedy for everyone who suffers in this

way.

One of the main ways in which access to compensation is restricted is through the doctrine of the duty

of care. Essentially, this is legal concept which dictates the circumstances in which one party will be

liable to another in negligence: if the law says you do not have a duty of care towards the person (or

organization) you have caused damage to, you will not be liable to that party in negligence, no matter

how serious the damage.

It is interesting to note that in the vast majority of ordinary tort cases which pass through the court

system, it will usually be clear that the defendant does owe the claimant a duty of care, and what the

courts will be looking at is whether the claimant can prove that the defendant breached that duty –

for example, in the huge numbers of road accident cases that courts hear every year, it is already

established that road users owe a duty to other road users, and the issues for the court will generally

revolve around what the defendant actually did and what damage was caused.

Negligence has three main elements: 1) A duty of care, 2) Breach of the duty, 3) Damage caused by

the breach.

Definition

A requirement that a person act toward others and the public with watchfulness, attention, caution

and prudence that a reasonable person in the circumstances would. If a person's actions do not meet

this standard of care, then the acts are considered negligent, and any damages resulting may be

claimed in a lawsuit for negligence.

Duty of care

The first element of negligence is the legal duty of care. This concerns the relationship between the

defendant and the claimant, which must be such that there is an obligation upon the defendant to

take proper care to avoid causing injury to the plaintiff in all the circumstances of the case.

Duty of care is a legal concept which dictates whether one party can be liable to another in

negligence.

The idea of a duty of care in the tort of negligence has developed through judges making decisions in

cases. This started in a negligence case of Donoghue v Stevenson (1932) where the claimant (Mrs.

Donoghue) went to a café with a friend. The friend bought her a drink of ginger beer and ice cream.

The bottle of ginger beer had dark glass so that the content could not be seen. After drinking some of

it, Mrs. Donoghue poured the rest out and then saw that it contained a dead (and decomposing) snail.


This appalled Mrs. Donoghue and she became ill as a result of the sight and the ginger beer she had

already drunk.

Mrs. Donoghue had no direct claim against the manufacturer or the shopkeeper based on contract

because she did not buy the ginger beer. Mrs. Donoghue’s friend could claim against the café in

contract, but had not suffered any loss apart from the fact that she had bought defective goods; she

could get her money back, but nothing for Mrs. Donoghue’s illness. Therefore, Mrs. Donoghue claimed

damages against the manufacturer, Stevenson. Her claim was for the resulting shock and stomach

upset, which she claimed was caused through drinking the ginger beer.

The court had to decide whether her claim against the manufacturer of the ginger beer could succeed.

This led to Lord Atkin’s famous statement: “The rule that you are to love your neighbour becomes in

law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a

restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably

foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems

to be: persons who are so closely and directly affected by my act that I ought reasonably to have them

in contemplation as being so affected when I am directing my mind to the acts or omissions which are

called in question.”

Duty of care refers to the circumstances and relationships which the law recognises as giving rise to a

legal duty to take care. A failure to take such care can result in the defendant being liable to pay

damages to a party who is injured or suffers loss as a result of their breach of duty of care. Therefore it

is necessary for the claimant to establish that the defendant owed them a duty of care. The existence

of a duty of care depends on the type of loss and different legal tests apply to different losses.

The neighbor principle

In Donoghue v Stevenson (1932), the claim of Mrs. Donoghue was successful. This case established the

modern law of negligence and established the neighbor test.

What Is the Neighbor Principle?

Neighbor Principle is a principle that states that everyone must take sensible care to avoid acts or

omissions which can be foreseen reasonably that are likely to injure a neighbor. A neighbor is a person

who is so closely and directly affected by your actions that you ought to reasonably have them

contemplate as being so affected. Neighbor Principle was developed by Lord Atkin from the famous

case of Donoghue v Stevenson.

The neighbor principle explains how we should apply reasonable care not to injure or hurt anyone,

who comes into direct relationship with us or with whom we are involved with.

The concept of the neighbor relationship outlines the practical boundary in which we owe a duty of

care.

Explanation

The common law position regarding negligence recognized strict categories of negligence. This position

was significantly changed in the case of Donoghue v Stevenson, in 1932, which established that a duty

of care applied despite no prior relationship or interaction and was not constrained by privity of

contract. Here, a duty of care was found to be owed by a manufacturer to a consumer, for negligence


in the production of his goods. Mrs. Donoghue's claim for damages for gastroenteritis and nervous

shock were allowed, where a ginger beer manufacturer had negligently allowed a snail into a bottle,

which she had consumed. Lord Atkin established liability on the basis that a neighbor principle existed

between the two parties, to ensure reasonable care was taken in the production of the ginger beer, so

as not to cause Mrs. Donoghue any unreasonable harm:

Lord Atkin's speech established a neighbor principle, or a general duty that individuals must take

reasonable care in their actions or omissions, so as not to cause harm to others proximate to them. It

did not matter that Mrs. Donoghue was unidentified or unknown to the manufacturer; as the type of

harm which occurred was foreseeable through the negligence of the ginger beer manufacturer.

Duty of care for personal injury and property damage

The existence of a duty of care for personal injury and property damage was originally decided by Lord

Atkin's neighbour test from Donoghue v Stevenson.

Prior to Donoghue v Stevenson, a claimant would have to establish an existing duty relationship in

order to be successful. The neighbour test taken in its widest sense could be very broad allowing

liability in a whole range of situations, however, subsequent cases narrowed down its application to

only where a consumer was suing a manufacturer. However, in Anns, Lord Wilberforce sought to

resurrect an all embracing test for duty of care:

Anns v Merton London Borough Council [1978] AC 728 House of Lords

Facts: The claimants were tenants in a block of flats. The flats suffered from structural defects due to

inadequate foundations which were 2ft 6in deep instead of 3ft deep as required. The defendant

Council was responsible for inspecting the foundations during the construction of the flats.

Held: The House of Lords held that the defendant did owe a duty of care to ensure the foundations

were of the correct depth. Lord Wilberforce introduced a two stage test for imposing a duty of care.

This has since been overruled by Caparo v Dickman.

Lord Wilberforce's two stage test (Anns test)

"In order to establish that a duty of care arises in a particular situation, it is not necessary to bring the

facts of that situation within those of previous situations in which a duty of care has been held to exist.

Rather the question has to be approached in two stages.

1. Examine whether the loss was reasonably foreseeable and there existed a relationship of

proximity. If so a prima facie duty of care arises.

2. The defendant may put forward policy considerations to negate liability.

The first stage was essentially the elements of the neighbour test, however in order to address the

fears of the floodgates ("Open the floodgates" is a phrase used to indicate or argue that if a court

recognizes some cause of action it will lead to a dramatic increase in litigation. (Imagine the flood gates

of a dam with large amounts of water coming out. The water is a metaphor for the litigation.)), this was

subject to the second stage which provided a get out clause for defendants where there existed policy

reasons for denying the imposition of a duty of care.

Comments: Overruled by House of Lords in Caparo case; because it was seen as creating too broad

a concept of duty of care and negligence (and therefore growth in the scope of liability).


Back to the incremental approach

Despite the efforts to allay fears of the floodgates, the Anns test was still considered too wide. In

Caparo, the House of Lords overruled Anns and went back to the incremental approach whereby the

claimant may only bring their action where they can establish an existing duty situation. In novel

situations the question of whether a duty of care is now subject to the Caparo test.

Caparo Industries Plc v Dickman [1990] 2 AC 605 [Facts: Caparo Industries purchased shares in Fidelity

Plc in reliance of the accounts which stated that the company had made a pre-tax profit of £1.3M. In

fact Fidelity had made a loss of over £400,000. Caparo brought an action against the auditors claiming

they were negligent in certifying the accounts.

Held: No duty of care was owed. There was not sufficient proximity between Caparo and the auditors

since the auditors were not aware of the existence of neither Caparo nor the purpose for which the

accounts were being used by them.] Lord Bridge's three stage test for imposing a duty of care, known

as the Caparo test:

The general test set in Caparo requires three elements to be demonstrated:

1. It was reasonably foreseeable that a person in the claimant’s position would be injured,

2. There was sufficient proximity (closeness) between the parties,

3. It is fair, just and reasonable to impose liability on the defendant.

It can be seen that the first two stages are taken directly from the original neighbour test. Fair, just

and reasonable relates to the same policy considerations under the Anns test.

In fact the Caparo test contains the same elements as Anns. The main difference being, that under

Caparo it is the claimant that must put forward policy reasons for imposing liability whereas under

Anns, liability would arise once the claimant had established reasonable foresight and proximity and

the defendant had to demonstrate policy factors for negating liability.

All parts of the test must be satisfied if there is to be a duty of care owed by the defendant to the

claimant. Each part must be explained and proved separately.

Caparo Test

1. The First Part – Foreseeability

This is an objective test: would a reasonable person in the defendant’s position have foreseen that

someone in the claimant’s position might be injured? In Donoghue v Stevenson (1932) it can be seen

that failing to stop a snail getting into a bottle will affect the consumer (Mrs. Donoghue) of the

contents. This is a consequence of producing food that has foreign bodies in it, and a reasonable

person in the defendant’s position (a soft drink manufacturer) would foresee that the claimant (a

consumer) might be injured.

In Kent v Griffiths (2000) a doctor called for an ambulance to take a patient suffering from a serious

asthma attack to hospital immediately. The ambulance control centre replied ‘okay, doctor’. The

ambulance, without a satisfactory reason, failed to arrive within a reasonable time. The patient

suffered a heart attack which could have been avoided if she had been taken to hospital earlier. It was

reasonably foreseeable that the claimant would suffer harm from the failure of the ambulance to

arrive.


In Jolly v Sutton London Borough Council (2000) a boy, aged 14, was paralysed when a boat he was

attempting to repair slipped on top of him. The boat had been abandoned on land belonging to the

council by a block of flats. The council knew that the boat was in dangerous condition and that

children were likely to play on it. The House of Lords held that attempting to repair the boat was not

so very different from normal play, so the injury to the claimant was reasonably foreseeable.

In some cases the courts have decided that is not reasonably foreseeable that the claimant would

suffer harm. For example, in Bourhill v Young (1943) a motorcyclist going too fast, crushed into a car

and was killed. Mrs. Bourhill, who was eight months' pregnant, was about 50 yards away. She did not

actually see the events take place but had heard the incident take place. When she saw the blood on

the road, she suffered shock and her baby was stillborn. She claimed against the motorcyclist’s estate.

The court decided that the motorcyclist did not owe her duty of care as he could not have reasonably

foreseen that she would be affected by his negligent driving.

2. The Second Part – Proximity

Even if the harm is reasonably foreseeable, a duty of care will only exist if the relationship of the

claimant and the defendant is sufficiently close. This can be seen in the case of Osman v Ferguson

(1993) where the police officers knew that there was a real risk of an attack on victim. The victim was

the murdered by the attacker. The court held that there was a sufficiently close relationship between

the police and the victim. However, the case did not succeed because it was ruled that it was not fair,

just and reasonable to impose a duty of care on the police (which is the third part of the test).

It involves the notion of nearness or closeness, and relationship.

It embraces physical proximity (in the sense of space and time) between the two parties or their

property.

It also concerns proximity in relationships such as employer and employee or of a professional man

and his client.

It also includes in the sense of the closeness or directness between the particular act or course of

conduct and the loss and injury sustained.

It may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury,

loss or damage to another, or where a party relies on such care.

Each case will be different.

Proximity serves as a touchstone and control of the categories of case in which the common law will

adjudge that a duty of care is owed.

No proximity without foreseeability?

It appears there can be no proximity without foreseeability, but foreseeability alone will not create a

duty of care.

Bourhill v Young [1943] HL (Sometimes referred to as "The Case of the Pregnant Fishwife")

Mrs. Bourhill getting out of a tram she heard the noise of the collision but was in no danger. She went

to the accident spot and saw the blood on the road and suffered nervous shock (she was pregnant at

the time).

She was not in proximity to Mr Young, so he could not reasonably foresee that his action of riding the

motor cycle negligently would affect her.


Rondel v. Worsley [1969] HL

A client who lost his case sued his barrister for negligently conducting the case in court.

Applying the neighbour test, the client is the barrister's neighbour whose actions or omissions in court

would affect his client's case.

The client lost because for reasons of public policy, the House of Lords held that barristers should have

immunity from action for negligence in court.

This decision was overruled in Hall v Simons [2000]

Facts: One of several cases (conjoined cases) on similar issues, where claimants had done less well than

they would but for negligence of their legal advisers.

Held: It was no longer in the public interest that advocates should enjoy immunity from being sued for

negligent acts concerned with the conduct of litigation whether in civil or criminal proceedings.

3. The Third Part – Fair, just and reasonable

The third part of the test, whether it is fair, just and reasonable to impose a duty of care is really a

matter of public policy. The courts are usually reluctant to impose a duty on public authorities, as

seen in the case of Hill v Chief Constable of South Yorkshire (1990) where it was pointed out that

imposing a duty on police could lead to policing being carried out in a defensive way which would

divert attention away from the suppression of crime, leading to lower standards of policing, not higher

ones.

However, in some circumstances the police do owe a duty of care. In the case of MPC v Reeves (2001)

the police took a man into custody who was a prisoner known to be at risk of committing suicide.

Whilst in custody he hanged himself in his cell. The court found that the police owed him a duty of

care.

Human Rights Act 1998 has a significant effect on duty situations

Alexandrou v Oxford [1993] CA

"The police were alerted by a 999 telephone call, followed by a recorded message. If as a result of that

communication the police came under a duty of care..., it must follow that they would be under a

similar duty to any person who informs them...of ...any crime."

Watson v BBBC [2000] CA

Michael Watson a boxer suffered severe brain damage during a fight with Chris Eubank had there been

better medical care ringside his injuries would not have been so severe had there been additional

medical care available

The system of licensing boxers with the British Board of Boxing Control (BBBC) created proximity of

relationship.

Psychiatric damage (Nervous Shock)

A claimant who has suffered psychiatric damage (previously referred to as nervous shock) may make a

claim in Negligence. The rules are refined to take account of the special nature of psychiatric damage,

compared to personal injury or damage to property. Personal injury damages may include the head of

damage for pain and suffering, including mental, if it flows from the original physical injury. Therefore

the psychiatric damage rules apply where there is no physical injury.


General restrictions

A claim for psychiatric damage is limited by two requirements:

1. that the harm suffered is a medically recognised condition

2. that it is sudden rather than gradual damage

These restrictions aim to: help determine genuine claims, prevent opening the floodgates and

therefore limit possible liability for defendants.

Medically recognised condition

A claim for psychiatric damage must be based on the claimant suffering a medically recognised

condition, induced by shock.

Alcock v Chief Constable of South Yorkshire [1992] AC 310 House of Lords

Facts: This case arose from the disaster that occurred at Hillsborough football stadium in Sheffield in

the FA cup semi-final match between Liverpool and Nottingham Forest in 1989. South Yorkshire Police

had been responsible for crowd control at the football match and had been negligent in directing an

excessively large number of spectators to one end of the stadium which resulted in the fatal crush in

which 95 people were killed and over 400 were physically injured. The scenes were broadcast live on

television and were also repeated on news broadcasts. Sixteen claims were brought against the

defendant for nervous shock resulting in psychiatric injury. At trial ten of the claims were successful.

The defendant appealed against the findings in nine and the unsuccessful claimants appealed. The

Court of Appeal found for the defendants in all of the claims. Ten appeals were made to the House of

Lords. These included claims made by brothers, sisters, parents, a grand-parent and a fiancé. Two of

the claimants had been at the ground but in a different area. Some had seen the events unfold on the

television, some had heard about the events in other ways. Some had identified bodies at the

makeshift mortuary.

Held: The appeals were dismissed.

Lord Oliver set out the distinction between primary and secondary victims. A primary victim one

involved mediately or immediately as a participant and a secondary victim one who is no more than a

passive and unwilling witness of injury to others. The claimants were all classed as secondary victims

since they were not in the physical zone of danger.

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

The first two types of claimant can claim under the normal rules of negligence. For secondary victims,

three further tests apply:

1. Do they have a recognized psychiatric illness, caused by a sudden shock?

2. Are they within a class of people that the law allows to claim compensation for psychiatric

injury as a secondary victim?

3. What was their proximity to the shocking event?

For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria:

1. A close tie of love and affection to a primary victim

2. Witness the event with their own unaided senses

3. Proximity to the event or its immediate aftermath


4. The psychiatric injury must be caused by a shocking event

Lord Ackner: "'Shock', in the context of this cause of action, involves the sudden appreciation by sight

or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness

caused by the accumulation over a period of time of more gradual assaults on the nervous system."

Chadwick v British Railways Board [1967] 1 WLR 912

Facts: This case arose from a horrific train crash in Lewisham in which 90 people were killed and many

more were seriously injured. Mr Chadwick lived 200 yards from the scene of the crash and attended

the scene to provide some assistance. He worked many hours through the night crawling beneath the

wreckage bringing aid and comfort to the trapped victims. As a result of what he had witnesses he

suffered acute anxiety neurosis and received treatment as an inpatient for 6 months.

Held: His estate was entitled to recover. The defendant owed Mr Chadwick a duty of care since it was

reasonably foreseeable that somebody might try to rescue the passengers and suffer injury in the

process.

LEACH V CHIEF CONSTABLE OF GLOUCESTERSHIRE CONSTABULARY [1999] 1 ALL ER 215

FACTS: The claimant suffered post traumatic distress disorder (PTSD) after acting as an appropriate

adult during police interviews of Fred West, a notorious child murderer.

ISSUE: Is PTSD a medically recognised condition?

HELD: PTSD is a medically recognised condition.

KRALJ V MCGRATH [1986] 1 ALL ER 54

FACTS: The plaintiff suffered pathological grief after her child died at birth.

ISSUE: Is pathological grief a medically recognised condition?

HELD: Pathological grief is a medically recognised condition. However, normal grief is not.

VERNON V BOSLEY (NO 1) [1997] 1 ALL R 577

FACTS: The plaintiff suffered distress after witnessing firemen trying to rescue her children from car

wreckage.

ISSUE: Is distress a medically recognised condition?

HELD: Distress is not a medically recognised condition.

HICKS V CHIEF CONSTABLE OF THE SOUTH YORKSHIRE POLICE [1992] 2 ALL ER 65

FACTS: The victims were killed at the Hillsborough disaster. The claim was fear suffered prior to their

deaths.

ISSUE: Is fear a medically recognised condition?

HELD: Fear is a not medically recognised condition as it is a normal emotion.

Sudden event

The psychiatric damage must be brought on by a sudden event. Even, if it is foreseeable that the

claimant, under strain, may gradually suffer psychiatric harm.

ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 AC 310

Lord Ackner: ... 'Shock', in the context of this cause of action, involves the sudden appreciation by sight

or sound of a horrifying sight or sound or a horrifying event, which violently agitates the mind. It has

yet to include psychiatric illness caused by the accumulation over a period of time of more gradual

assaults on the nervous system....


W V ESSEX COUNTY COUNCIL [2001] 2 AC 592

FACTS: The claimants suffered psychiatric damage after being told that their foster child had sexually

abused their children.

ISSUE: Was the damage too remote?

HELD: The House of Lords declined to strike out the claim on the basis that the claimants had only been

told about, rather than witnessed the incident or its immediate aftermath.

Therefore, all claims for psychiatric damage must be based on the claimant suffering a medically

recognised psychiatric illness, or shock induced physical condition, caused by sudden shock.

Is there a recognized psychiatric injury?

Psychiatric injury is known as ‘nervous shock’. The term implies that claimants can seek damages

because they are shocked as the result of the defendant’s negligence, or perhaps upset, frightened,

worried or grief stricken. This is not the case. In order to claim for so-called nervous shock, a claimant

must prove that they have suffered from a genuine illness or injury.

McLoughlin v O’Brian (1983) HL

Facts: D a driver who caused an accident, which injured C’s family. C visited hospital saw injured

husband and daughters. What she saw and heard from witnesses caused severe nervous shock.

Distance and time are factors, but not legal restrictions.

Held: Although not present at the accident, it was a reasonably foreseeable consequence of the

defendant's negligence.

C won

Duty of care: primary victims

The duty of care element is the difficult to prove in cases of psychiatric damage. A duty will only be

owed if the claimant is a reasonably foreseeable victim. Therefore, claimants who suffer psychiatric

damage (a medically recognised condition suddenly induced by shock) are categorised as primary or

secondary victims. The classification is in relation to their proximity to the incident with slightly

different criteria applied to determine if a duty of care is owed.

The leading case on primary victims is a House of Lords decision, looking at a case involving pure

psychiatric damage.

PAGE V SMITH [1996] AC 155

FACTS: The plaintiff was involved in a minor car accident, caused by the defendant's negligence. The

plaintiff suffered no physical injuries but since the accident he was unable to work due to chronic and

permanent ME (muscle and joint pain). The plaintiff had previously suffered from mild, sporadic ME.

ISSUE: Was a duty of care owed?

HELD: A duty of care was owed. The plaintiff was a primary victim because he was involved in the

accident.

Lord Lloyd: .. A primary victim is someone was in the actual area of danger or reasonably believed he

was in danger. A secondary victim is someone who witnesses injury to another or fears for the safety

of another....


Primary victims are owed a duty of care in relation to pure psychiatric damage, if the risk of physical

injury was foreseeable. The risk of psychiatric harm itself does not need to be foreseeable.

Lord Lloyd: .. In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it

would not be sensible to commit the law to a distinction between physical and psychiatric injury, which

may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained

by treating them as different 'kinds' of personal injury, so as to require the application of different tests

in law....

A case decided prior to the distinction between types of victim, shows the same underlying principles.

The victim was essentially a primary victim.

DULIEU V WHITE & SONS [1901] 2 KB 669

FACTS: The defendants negligently drove a horse drawn cart into a pub. The plaintiff, a pregnant

barmaid, suffered shock leading to her having a miscarriage.


HELD: A duty of care was owed. It was foreseeable that the defendants' negligence would cause the

plaintiff to reasonably fear for her own safety. The plaintiff suffered a shock induced, recognised

physical condition, a miscarriage.

Therefore, a defendant owes a primary victim a duty of care not to cause pure psychiatric damage, if

the risk of physical injury was foreseeable.

Duty of care: secondary victims

A secondary victim is a person less closely involved in the incident than a primary victim. Therefore,

the test for establishing a duty of care is more stringent. As with all victims, a secondary victim must

have suffered a medically recognised condition, as a result of sudden shock.

The additional requirements for secondary victims are set out in the leading case, relating to the

Hillsborough disaster. A large number of football supporters were killed and injured in the incident,

which was caused by the negligence of police officers who allowed overcrowding in the stands. Many

successful claims for damages were brought on behalf of those who suffered personal injuries at the

football ground and primary victims who suffered pure psychiatric damage.


The defendants, the police force, admitted negligence in allowing overcrowding but denied owing a

duty of care to the spectators in relation to pure psychiatric harm.


HELD: The defendant's did not owe the plaintiffs a duty of care. Therefore, the plaintiffs could not

recover damages for the psychiatric harm.

Lord Ackner: .. While it may be very difficult to envisage a case of a stranger, who is not actively and

foreseeably involved in a disaster or its aftermath, other than in the role of rescuer, suffering shock-

induced psychiatric injury by the mere observation of apprehended or actual injury of a third person in

circumstances that could be considered reasonably foreseeable, I see no reason in principle why he

should not, if in the circumstances, a reasonably strong-nerved person would have been so shocked. In

the course of argument your Lordships were given, by way of an example, that of a petrol tanker


careering out of control into a school in session and bursting into flames. I would not be prepared to

rule out a potential claim by a passer-by so shocked by the scene as to suffer psychiatric illness....

The House of Lords laid out test which must be satisfied in order to impose a duty of care to secondary

victims:

1. It must be reasonably foreseeable that a person of normal fortitude in the plaintiff's position

would suffer a psychiatric illness (foreseeability of psychiatric harm).

2. The plaintiff must have a close relationship of love and affection with the person endangered by

the defendant's negligence (proximity of relationship).

A secondary victim must have a close relationship of love and affection with the 'immediate victim'

(the person endangered by the defendant's negligence). There is a presumption of such close ties if

the relationship is that of a parent, child, and spouse and probably finance. However, the

presumption is rebuttable if the defendant can produce evidence to the contrary. Similarly, the

claimant may make representations to show that a sufficiently close relationship did exist. The

House of Lords suggested the relationship of a bystander may be sufficient.

3. The plaintiff must be present at the incident or the immediate aftermath (proximity in time and

space).

A secondary victim must be present at the incident or the immediate aftermath and must see or

hear it with his own senses. The need for proximity of time and space was established in an earlier

case, approved in Alcock.

MCLOUGHLIN V O'BRIAN [1982] 2 ALL ER 298

FACTS: The plaintiff suffered psychiatric harm after her husband and children were involved in a

serious road traffic accident, caused by the defendant's negligence. The plaintiff was informed of

the accident buy a friend who had witnessed the crash. The plaintiff arrived at the hospital about

an hour after the crash and found family receiving medical attention.

ISSUE: Was there sufficient proximity in time and space?

HELD: There was sufficient proximity in time and space because the plaintiff saw her family in the

immediate aftermath of the accident. It was within an hour of the crash and the victims were still in

the same condition (covered in mud, oil and blood).

Lord Ackner in ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992]: .. it is clear

from McLoughlin's case that there may be liability where subsequent identification can be regarded

as part of the 'immediate aftermath' of the accident... Even if this identification could be described

as part of the 'aftermath', it could not in my judgment be described as part of the immediate

aftermath... there was not sufficient proximity in time and space to the accident....

Therefore, a secondary victim does not have to be present at the incident but must experience the

immediate aftermath. The question of immediacy is determined on a case by case basis.

GALLI-ATKINSON V SEGHAL [2003] EWCA CIV 697

FACTS: The claimant identified her daughter's body in a mortuary, approximately two hours after she was killed in car accident.


ISSUE: Was there sufficient proximity in time and space?

HELD: There was sufficient proximity in time and space, the claimant suffered psychiatric damage as a result of experiencing the immediate aftermath of the accident

The proximity of time and space is also linked to the claimant's proximity of perception.

MCLOUGHLIN V O'BRIAN [1982] 2 ALL ER 298 Lord Wilberforce: .. The shock must come through sight or hearing of the event or of its immediate aftermath....

The question of whether watching live television coverage can amount to sufficient proximity of perception has been considered.

4. The plaintiff must see or hear the incident, or the immediate aftermath, with his own senses

(proximity of perception).


FACTS: Some of the plaintiffs watched a live broadcast of the incident on television.

ISSUE: Was proximity of perception satisfied by watching the incident on television?

HELD: The plaintiffs did not have proximity of perception. The television broadcast did not include

suffering of identifiable individuals as the broadcasting ethics code prevented such images being

shown. The plaintiffs watching footage from the stadium was not equivalent to seeing and hearing

the event or its immediate aftermath.

Lord Ackner: .. the simultaneous television broadcasts of what occurred cannot be equated with

the 'sight or hearing of the event or its immediate aftermath'. Accordingly shocks sustained by

reason of these broadcasts cannot found a claim... simultaneous broadcasts of a disaster cannot in

all cases be ruled out as providing the equivalent of the actual sight or hearing of the event or its

immediate aftermath…

The requirements narrow a defendant's liability towards secondary victims.

Duties of care: economics loss

Introduction

A claimant's pure economic loss resulting from a defendant's carelessness can only give rise to a claim

in Negligence if a duty of care is proved.

For a duty of care to be owed by the defendant to a claimant there must be sufficient proximity in

their relationship.

Cases where the damage caused is pure economic loss are known as limited duty situations. This

means that a claimant may only recover for pure economic loss exceptionally where it is possible to

show a sufficiently close relationship between the claimant and defendant.

Pure economic loss may arise in cases where there is no physical damage but loss has been caused by

a negligent statement, rather than a negligent action. A claimant's pure economic loss resulting from a

defendant's carelessness can only give rise to a claim in Negligence if a duty of care is established.

Until 1964, the common law position was that there was no remedy for a negligently false statement in

Negligence.


Definition

The general rule is that a defendant does not owe any duty of care to a claimant not to cause pure

economic loss. Therefore, in general, if pure economic loss is the only damage suffered it is not

recoverable.

If a claimant suffers personal injury or damage to his property this may lead to economic losses, such

as loss of income or cost of hiring a substitute, such losses are categorised as consequential economic

loss. If a claimant suffers no personal injury or damage to property then his losses are purely economic.

Therefore, pure economic loss is loss which is not consequential from personal injury or damage to

property.

In relation to economic loss:

“One of the most important distinctions always to be observed lies in the law's essentially different

approach to the different kinds of damage which one party may have suffered in consequence of the

acts or omissions of another. It is one thing to owe a duty of care to avoid causing injury to the person

or property of others. It is quite another to avoid causing others to suffer purely economic loss… To

hold the maker of the statement to be under a duty of care in respect of the accuracy of the statement

to all and sundry for any purpose for which they may choose to rely on it is not only to subject him, in

the classic words of Cardozo C.J. to "liability in an indeterminate amount for an indeterminate time to

an indeterminate class"

Restricting liability

The theory underlying limiting claims for pure economic loss is that these losses are potentially

limitless. Without the special rule for economic loss, the floodgates would be open for an

indeterminate number of claimants making claims for limitless amounts.

CANDLER V CRANE CHRISTMAS & CO [1951] 2 KB 533

FACTS: The plaintiff lost money on his investment after relying on the defendant's carelessly compiled

audit reports.

ISSUE: Could the pure economic loss be recovered?

HELD: The plaintiff could not bring an action because there was no contractual relationship between

the parties.

Hedley Byrne rule

The common law position was significantly changed by this House of Lords decision. It created an

exception to the general rule that pure economic loss could not be recovered in tort if caused by

negligent statements.

HEDLEY BYRNE & CO LTD V HELLER & PARTNERS LTD [1964] AC 465

FACTS: The plaintiffs, an advertising firm, extended credit for a third party (Easipower) on the basis of

creditworthiness reference provided by the defendants, Easipower's bank. The reference was an

innocent but negligent misrepresentation. Easipower went out of business and the plaintiff sought

damages for pure economic loss from the defendants.

ISSUE: Does the duty of care apply to statements that cause pure economic loss?


HELD: The lower courts found that the pure economic loss could not be recovered as the defendant did

not owe the plaintiff a duty of care. The House of Lords found that a duty of care was owed. However,

the defendants had used an effective disclaimer of liability, so the losses were not recoverable.

The Hedley Byrne rule states that a duty of care is owed if there is a special relationship between the

claimant and defendant. A special relationship arises if there is an assumption of responsibility by the

defendant (if the defendant knows the claimant is relying on their special skill) and the claimant

reasonably relies on the defendant's statement.

Application

The Hedley Byrne decision has been applied in a number of cases.

CORNISH V MIDLAND BANK PLC [1985] 3 ALL ER 513

FACTS: The plaintiff agreed to guarantee her husband's loan application, by signing a second mortgage

on her house. The bank clerk, employed by the defendant, advised the plaintiff of the implications of

signing the mortgage. However, the clerk inadequately explained the document and failed to highlight

that signing meant the plaintiff was liable for informed all her husband's past, present and future

borrowings. Shortly after the mortgage was signed the marriage broke up. Despite being aware of the

marriage breakdown the defendant made further loans to the husband. When the mortgage was

redeemed the plaintiff was left with very little money from the sale of the house.


HELD: A duty of care was owed as the bank clerk had taken it upon himself to advise the plaintiff, it

was reasonably foreseeable that she would rely on the advice and he should have made sure it was

complete and correct.

CHAUDHRY V PRABHAKAR [1989] 1 WLR 29

FACTS: The plaintiff asked the defendant, a friend who claimed to be knowledgeable about cars, to

help her purchase a vehicle. The plaintiff bought a car after the defendant recommended a car which

he stated had not been in any accidents. The car had visible damage and the defendant had not

enquired about the cause. The car was in fact unroadworthy, due to a previous accident.


HELD: Court of Appeal found that a duty was owed by the defendant as he knew the plaintiff had relied

on his advice, on the basis of his claim that he was knowledgeable about cars.

The decision in Chaudhry v Prabhakar [1989], has been criticised as it seems to contradict dicta in

Hedley Byrne that suggested a duty could only arise where the advice was sought and given in a

business context.

WELTON V NORTH CORNWALL DISTRICT COUNCIL [1997] 1 WLR 570

FACTS: The plaintiff spent money on extensive refurbishment of their guest house, after being

negligently informed by an environmental health officer, employed by the defendant, that the

premises would be shut down if the work was not carried out.


HELD: A duty of care was owed. It was reasonable for the plaintiffs to rely on the advice of the

environmental health officer, who was in a position of authority.


Therefore, the case law followed the Hedley Byrne rule and found that a special relationship, would

give rise to a duty of care in relation to negligent statements.

Refining the rule

JAMES MCNAUGHTON V HICKS ANDERSON [1991] 2 QB 295

FACTS: The plaintiff was negotiating with a third party about a takeover bid. The third party instructed

the defendant, their accountants, to prepare accounts as quickly as possible. The plaintiff relied on the

accounts which were carelessly drawn up to make a bid. The plaintiff subsequently made a loss.


HELD: The Court of Appeal found that the defendant did not owe a duty of care to the plaintiff. There

was insufficient proximity for a special relationship as the defendant did not know the accounts would

be sent to the bidder for the particular transaction.

MORGAN CRUCIBLE V HILL SAMUEL [1991] CH 295

FACTS: The plaintiffs were bidding to take over a third party company, to whom the defendants were

advisers. During the bidding process a number of negligent representations were made, which led to

the plaintiff making a loss.


HELD: The defendants did owe a duty not to negligently mislead the plaintiff. There was sufficient

proximity because the plaintiff's identity and the nature of the transaction were known.

Extending the rule

The exception seems to have been extended in some specific circumstances, where the Hedley Byrne

and Caparo requirements have not been satisfied.

HENDERSON V MERRETT SYNDICATES LTD [1995] 2 AC 145

FACTS: The plaintiffs made substantial losses through investing in Syndicates, negligently managed by

the defendants.


HELD: The House of Lords found a duty of care existed as the defendant had negligently performed a

professional service. Furthermore, damages could be recovered for a negligent omission in the

performance of a professional service which led to pure economic loss.

SPRING V GUARDIAN ASSURANCE PLC [1995] 2 AC 296

FACTS: The plaintiff was not employed due to a negligent reference provided by the defendant, his

previous employer, to a third party (prospective employer).


HELD: The House of Lords found that a duty of care was owed. The case is not a traditional Hedley

Byrne case, as the defendant did not provide the plaintiff with advice which he relied upon.

However, Lord Goff reasoned that the scope of the Hedley Byrne rule could be extended, as the

decision was originally based on the fact that the defendant had assumed responsibility for the

plaintiff's economic welfare. Therefore, he put forward that the plaintiff in this case had entrusted his

affairs to the defendant tasked to write the reference.

WHITE V JONES [1995] 2 AC 207


FACTS: The defendant, a solicitor, was asked to prepare a will, but negligently failed to do so before

the testator died. The plaintiffs would have been beneficiaries had the will been completed.


HELD: The House of Lords found that the defendant's assumed responsibility to the testator could be

extended to the plaintiffs.

Therefore, the courts have extended the Hedley Byrne rule, based on the assumption of responsibility,

beyond the original scope of negligent statements and have included negligent provision of services.

The reasoning for these extensions have been varies however, there seems to have developed two

tests for establishing a special relationship either: the Hedley Byrne and Caparo principles in negligent

statement cases or the broader assumption of responsibility test in relation to the provision of

services.

Disclaimers

The most common defence to a claim to recover damages for pure economic loss caused by a

negligent statement is that a valid disclaimer exists. This defence was relied upon in Hedley Byrne.

However, there are now statutory limitations on defendant's attempting to exclude liability for

negligence.

SMITH V ERIC BUSH AND HARRIS V WYRE FOREST DC [1990] 1 AC 831

FACTS: The conjoined cases involved plaintiffs who were house buyers who suffered pure economic

loss. The houses were negligently valued by the defendants, who were surveyors employed by third

parties, the mortgage lenders. The defendants argued that disclaimers exempted them from liability.

ISSUE: Were the disclaimers valid?

HELD: The House of Lords found that the defendants owed a duty of care to the plaintiffs as they were

proximate third parties. The UCTA 1977 applied as the valuations were provided in the course of

business. The courts found that the disclaimers were unreasonable.

Lord Griffiths highlighted the following factors as important in determining whether a disclaimer is

reasonable:

Did the parties have equal bargaining power?

Would it have been reasonably practicable to obtain the advice from an alternative source taking into

account considerations of costs and time?

How difficult is the task being undertaken for which liability is being excluded?

What are the practical consequences of the decision in relation to the parties' ability to bear the loss

involved, especially with regard to insurance?

Damage to a third party's property

Damage to a third party's property may result in pure economic loss. For example, if A borrows an item

from B and this item is damaged due to the defendant's negligence. B may make a claim for the

damaged property. However, A may not make a claim for any pure economic losses incurred, such as

having to hire a substitute item.

SPARTAN STEEL & ALLOYS LTD V MARTIN & CO LTD [1973] 1 QB 27


FACTS: The plaintiffs owned a factory where they manufacture stainless steel. The factory's electricity

was supplied by a direct cable owned by a third party (Midlands Electricity Board). The defendants

were contractors, who carelessness carried out road works and damaged the cable supplying electricity

to the factory. Therefore, the Electricity Board had to shut down the electricity supply, to mend the

cable; this took fourteen and a half hours overnight.

The factory was usually working continuously, twenty four hours a day. When the power was shut off,

there was metal being melt processed in a furnace. The melt process required a constant temperature

and therefore needed electricity supply.

If the plaintiff had left the mixture in the furnace without any power supply it could damage the

machinery. Therefore, the plaintiff used an alternative method to melt the metal, using oxygen,

however, this produced material worth a lot less money (the physical damage was assessed at £368

and the loss of profit £400). The plaintiffs also lost the opportunity to load the furnace a further four

times during the time that the power supply was cut (losing £l 767 in profit).

ISSUE: Which losses could the plaintiff recover?

HELD: The plaintiff could recover for the damage to the melt in the process underway when the

electricity was cut and the loss of profit on that melt (£368 and £400). This was the cost of physical

damage to the plaintiff's property (the melt) and consequential economic loss (the lost profit).

However, the plaintiff could not recover for the loss of profit during the whole period that the

electricity was off. This was pure economic loss caused by damage to the property of a third party (the

damaged cable belonged to the Electricity Board).

Lord Denning: .. I think the question of recovering economic loss is one of policy. Whenever the courts

draw a line to mark out the bounds of 'duty' they do it as a matter of policy so as to limit the

responsibility of the defendant....

Therefore, if a defendant negligently damages property belonging to a third party, which leads to A

suffering pure economic loss, there is an insufficiently close relationship between the defendant and A,

so no duty of care is owed and losses are not recoverable.

No physical damage

Pure economic loss may arise where there has been no physical damage.

WELLER & CO V FOOT & MOUTH DISEASE RESEARCH INSTITUTE [1966] 1 QB 569

FACTS: The foot and mouth disease virus was negligently released by the defendant. The plaintiff

operated a cattle market, which had to close due to the foot and mouth outbreak. Therefore, the

plaintiff lost revenue, through the market closure.

ISSUE: Could the plaintiff recover for the loss?

HELD: The plaintiff could not recover the loss, as it was not caused by physical damage, it was pure

economic loss and no duty of care was owed by the defendant.

Therefore, pure economic loss without physical damage is not recoverable.

Defective goods or property

The general rule is that a claim for defective goods can be made under contract law.


ANNS V MERTON LONDON BOROUGH COUNCIL [1978] AC 728

FACTS: The plaintiffs were tenants in a block of flats. The flats had structural damage due to

subsidence. The plaintiffs decided not to sue the builders, who they had a contract with, as the firm did

not have many resources and instead made a claim against the defendant. The plaintiffs argued that

the defendant, the local council, had negligently approved the plans and or negligently failed to inspect

the building works.

ISSUE: Could the plaintiffs recover in tort?

HELD: The House of Lords found that the plaintiffs could recover from the defendant, despite there

being no contract between the parties, because the structural damage was material damage to

property.

The decision in Anns v Merton London Borough Council [1978], is controversial as there was no

contract and the traditional view is that property damage only applies to someone's existing property,

in this case the original property was defective.

JUNIOR BOOKS V VEITCHI [1983] 1 AC 520

FACTS: The plaintiffs had defective flooring laid in their new build factory and lost money during the

refit. The plaintiffs had a contract with the main builders. However, the plaintiffs decided to make a

claim against the defendants, who were the negligent specialist sub-contractors. The defendant had

been present at meetings with the builders and plaintiff to discuss the flooring required.

ISSUE: Could the plaintiffs recover in tort?

HELD: The plaintiffs could recover from the defendants, confirming the Anns v Merton London

Borough Council [1978], view of property damage.

The decisions in Anns v Merton London Borough Council [1978] and Junior Books v Veitchi [1983] have

been heavily criticised. Firstly, the decisions open the floodgates to unlimited claims, where a

defendant may have no relationship with the claimant. Secondly, allowing the claims in tort interferes

and undermines with contract rights and law.

The House of Lords considered claims for defective items in a further key case.

MURPHY V BRENTWOOD DISTRICT COUNCIL [1991] 1 AC 398

FACTS: The plaintiff bought a new build house but due to defective foundation design the ceiling and

water pipes cracked. The cost of repairs was estimated at £45 000. The plaintiff sold the house

unrepaired for £30 000, which was £35 000 below the market value of the house in sound condition.

The plaintiff sought to recover damages from the defendant, the local council, who had approved the

building plans on the basis of negligent advice from an independent contractor.

ISSUE: Could the plaintiff recover from the defendant?

HELD: The House of Lords found that the loss was pure economic loss as the property was defective

when it was acquired resulting in either having to repair or scrap the property, both at economic loss.

The defendant did not owe a duty of care as it was a case of pure economic loss. The effect of the

decision is to overrule Anns v Merton London Borough Council [1978].

The complex structure theory was considered but discounted in this case. The theory states where a

large item is comprised of a number of components, if a component is defective and damages the


whole property then the damage is classed as property damage. However, it was held that this theory

cannot apply where the damage to the building was due to structural damage.

Lord Bridge: .. [no duty arises in the acquisition of defective property] in the absence of a special

relationship of proximity imposing on the tortfeasor a duty of care to safeguard the plaintiff from

economic loss....

Therefore, the decision in Junior Books v Veitchi [1983] was distinguished on the basis that the

exception was satisfied, there had been a special relationship between the defendant and plaintiff due

to the discussions about the flooring.

Therefore, pure economic loss for defective goods, may only be recovered, in tort, if there is a special

relationship between the plaintiff and defendant which gives rise to a duty of care.

Duties of care: omissions (Neglecting to do something)

As a general rule, the duties imposed by the law of negligence are duties not to cause injury or

damage to others; they are not duties actively to help others. And if there is no duty, there is no

liability. If for example, you see someone drowning, you generally have no legal duty to save them, no

matter how easy it might be to do so (unless there are special reasons why the law would impose such

a duty on you in particular, such as under an employment contract as a lifeguard).

This means tort law generally holds people liable for acts (the things people do), not omissions (the

things they fail to do).

However, there are some situations in which the courts have recognized a positive duty to act, arising

from the circumstances in which the parties find themselves. Although the categories are loose and at

times overlap, there are some situations where a defendant may be liable for an omission to act:

1. Where the defendant has a high degree of control over the claimant

2. Where the defendant has assumed responsibility for the claimant in some way

3. Where the defendant creates a dangerous situation, and fails to deal with it.

1. Where the defendant has a high degree of control over the claimant

Where the defendants have a high degree of control over the claimant, they may have a positive duty

to look after them which goes beyond simply taking reasonable steps to ensure that the defendants

themselves do not cause injury.

Reeves v Commissioner of Police of the Metropolis [1999] (HL)

Facts: D the police arrested a prisoner who was a known suicide risk committed suicide whilst in their

custody. Officers left open the hatch of the cell door and he took the opportunity to tie his shirt to it

and thus strangle himself.

The judge held that the duty of care had been breached but inter alia suicide was a novus actus

interveniens; he assessed contributory negligence at 100 per cent.

Held: Although persons of sound mind were generally taken to be responsible for their own actions, in

rare situations a duty could be owed to such persons to prevent them from self-harm. That had

occurred in the instant case.

The duty represented an exception to the rule that a deliberate act by a person of sound mind taking

advantage of the defendant's negligent act would destroy the causative link. A deliberate act of


suicide was not a novus actus interveniens (Novus actus interveniens is a Latin term which means a

new intervening act. It is an act or event that breaks the causal connection between a wrong or crime

committed by the defendant and subsequent happenings. The new event relieves the defendant from

responsibility for the happenings. The term is different from nova causa interveniens, which means a

new intervening cause.), if it were the very act which the duty sought to prevent would break the chain

of causation.

C was held contributorily negligent and damages were reduced .by 50 per cent to apportion fault

equally.

C won reduced damages

Comments: 100 percent contributory negligence is rare and arguably illogical; only a contribution

between 1 - 99 percent is possible on strict reading of the Law Reform (Contributory Negligence) Act

1945

Orange v Chief Constable of West Yorkshire [2002] CA

Facts: D, the police in whose custody the husband of C committed suicide, by hanging himself with his

belt from the gate to the cell.

Held: The police were under a duty to take reasonable steps to identify whether or not a prisoner

presented a suicide risk. The obligation to take reasonable care to prevent a prisoner from taking his

own life only arose where the police knew or ought to have known that the individual prisoner

presented a suicide risk, Reeves v Commissioner of Police of the Metropolis [2000] applied. The

deceased was not a person whom the officers knew or ought to have known was a suicide risk.

C lost

2. Where the defendant has assumed responsibility for the claimant in some

way

Although in English law people generally have no duty to actively help each other, such a duty will be

implied where the courts find that one of the parties has assumed responsibility for the other in some

way. A common reason for finding such an assumption is where a contract implying such responsibility

exists, or where such responsibility clearly arises from the defendant’s job.

Costello v Chief Constable of Northumbria Police [1999] CA

Facts: D the police force (vicariously) responsible for a police inspector who failed to help C a woman

police constable who was attacked and injured by a woman prisoner at a police station.

Held: There was a strong public policy consideration that the law should accord with common sense

and public perception, and it would be correct to say that, the public would be greatly disturbed had

the law held that there was no duty of care. In addition, the public interest would be ill-served if the

common law did not oblige police officers to do their personal best in situations such as the present. It

followed that B had been in breach of duty in law in not trying to help the claimant. The chief constable

was vicariously liable for that breach, but was not personally in breach.

C won

3. Where the defendant creates a dangerous situation, and fails to deal with

it.


Where a defendant actually creates a dangerous situation – even if this risk is created through no fault

of the defendant – the courts may impose a positive duty to deal with the danger.

Capital and Counties plc v Hampshire County Council (1996) CA

Facts: D, a fire officer negligently ordered the sprinkler system turned off in a burning building to which

the brigade had been called.

Held: There is no public policy immunity in this situation. The decision was an operational one, not a

matter of allocating only a very short time before resources, and given the brigade's exclusive control

over the situation it would be fair, just and reasonable to impose on them a duty of care to the

property owner.

C won.

Duties of care: acts of third parties

Negligence usually imposes liability only on the person, who causes damage, and so it does not usually

impose liability on one person or body for damage done by another.

P Perl (Exporters) v Camden London Borough Council (1984)

Facts: The defendant (council) owned two adjoining buildings, numbers 142 and 144. The first was

rented by the claimant, and the second was empty. There was no lock in the door of number 144,

making it possible for thieves to enter, and, by knocking a hole in the wall, some thieves got through to

number 142 and burgled it.

Held: The court of Appeal held that the council was not liable for negligence: they might have seen the

risk of harm in leaving the property without a lock, but that was not sufficient to make them

responsible for the acts of burglars.

Negligence usually imposes liability only on the person who causes damage, but there are five

situations where someone may be liable for damage done by another:

1. Vicarious liability

2. Where there is relationship of proximity between claimant and defendant

3. Where there is a relationship of proximity between the defendant and the party causing

damage

4. Where the defendant negligently creates a source of danger

5. Where the defendant knew/had reason to know a third party was creating a risk on their

property.

1. Vicarious liability; (Discussed in Lecture 2)

2. Where there is a relationship of proximity between claimant and

defendant;

The term ‘relationship of proximity’ is essentially legal shorthand for the existence of circumstances

relating to the particular defendant and the particular claimant, which may provide reasons why a

duty of care should exist between them. This is a horribly slippery concept, but becomes clearer in

following case laws:

Stansbie v Troman [1948] CA


Facts: D decorator was left alone on the premises by the householder's wife. During her absence, he

left the house to obtain wall-paper. He failed to secure the behind him. During his absence a thief

entered the house and stole property.

Held: A duty of care was created by the contractual relationship. It was a breach of that duty to leave

the front door insecure as a direct result of that breach of duty that the theft occurred.

C won

Swinney v Chief Constable of Northumbria Police (1996) CA

Facts: 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.

Held: 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.

Hill v Chief Constable for West Yorkshire (1988) HL

Facts: D the police failed to catch the "Yorkshire Ripper". C, the mother of the late (13th) victim sued

the police for negligence alleging inefficiency and errors in their handling of the investigation.

Held: The police owed no duty of care towards the daughter to protect her from the Ripper. Some

further ingredient is invariably needed to establish the requisite proximity of relationship between the

complainant and the defendant; she had been at no greater risk than most other members of the

public had.

C lost

3. Where there is a relationship of proximity between the defendant and the

party causing damage;

The main way in which a relationship of proximity can arise between the defendant and a third party

who has injured the claimant is where the defendant had a right or responsibility to control the third

party. However, this will rarely be enough in itself to create a duty of care: in addition, the claimant will

need to be someone who was at a particular risk of damage if the defendants were negligent in

controlling the third party; over and above the general risk such negligence might pose to the public at

large.

Home Office v Dorset Yacht [1970] HL

Facts: D’s, borstal (a British reform school for youths) officers allowed seven boys to escape from a

training camp in Poole Harbor (A sheltered port where ships can take on or discharge cargo) while they

were asleep. They stole C’s boat and caused damage to other boats in the harbor.

Held: the Borstal authorities owed a duty of care to the owners of property near the camp. There were

no good reasons of public policy for allowing the Crown any special immunity in this respect.


Liability restricted to the property-owners in the immediate vicinity their loss was foreseeable, and

would not have extended to others further afield.

C won.

4. Where the defendant negligently creates a source of danger;

A defendant who negligently creates or allows the creation of a risk of danger may be liable if a third

party’s actions cause that danger to injure the claimant.

Haynes -v- Harwood; CA (1935)

Facts: The plaintiff, policemen saw a horse running loose in the street among children. He ran out,

chased it and caught it but was injured.

Held: The horse owner was liable. It was foreseeable that if a horse was let loose in a crowd,

somebody, particularly a policeman under a general duty to assist, would attempt to capture it and

might be injured in the process. The defendant could not raise a plea of volenti non fit injuria in this

case. His action was an errand of mercy, and it was by reason of that activity that he fell within the

categories of persons for whom the defendant owed a duty of care.

Greer LJ said: “It is not necessary to show that this particular accident and this particular damage were

probable; it is sufficient if the accident is of a class that might well be anticipated as one of the

reasonable and probable results of a wrongful act”

In such cases it is not sufficient that the defendant creates a situation which might make it possible for

a third party to injure someone else: there must be the creation of a special risk.

Topp v London Country Bus (South West) Ltd [1993] CA

Facts: D, a bus company left a mini-bus parked in a public place with the keys in the ignition, the bus

was stolen, and, in the course of the theft, was involved in an accident in which a woman cyclist was

killed. C, her husband (and daughter) brought an action against the bus company for negligence. The

vehicle was left at a changeover point that normally took 8 minutes, on this occasion it rested there for

nine hours.

Held: The bus company may have been negligent to leave the bus with the keys in, in an easily

accessible place, they could not be held responsible for the accident as it had occurred through the

voluntary act of a third party over which they had no control.

C lost

5. Where the defendant knew/had reason to know a third party was creating

a risk on their property

Where a defendant knows, or has the means of knowing, that a third party has created a risk to others

on the defendant’s property, the defendant has a duty to take reasonable steps to prevent danger to

others.

Smith v Littlewoods Organization Ltd [1987] HL

Facts: D owned a disused cinema where a fire was started by vandals (Someone who willfully destroys

or defaces property) the fire caused damage to neighboring properties. The question was were the

cinema owners under a duty of care to prevent the unlawful entry by vandals and whether the fire

damage was reasonably foreseeable by the cinema’s owners. The owners of the damaged properties


had not informed either the cinema’s owners or the police about the regular entry into the cinema by

unauthorized persons and the evidence of attempts at starting fires.

Held: There was no general duty of care, in all cases, to prevent a third party from causing damage to a

claimant or his property by the third party’s deliberate wrongdoing. But, as the cinema owners did not

know about previous acts of vandalism, the starting of the fire was not reasonably foreseeable by the

cinema’s owners and therefore, there was specific duty to prevent vandals doing what they did.

Cinema owners not liable

Duties of care: special groups

This is generally because there are thought to be policy reasons why these groups should have

immunity from certain types of action, and/or policy reasons why a duty of care should not be

imposed on them in particular types of situations. [Questioned by ECtHR under A/6 of ECHR ‘Right to

fair trial’] A number of special groups have become subject to special rules on when they will owe a

duty of care in negligence, although the Caparo test is still the basis of liability. They are:

1. The police

2. Other emergency services

3. The armed forces

4. Local authorities and public bodies

The ECtHR cases of Osman vs UK 1998 and Z vs UK 2001 have suggested that there may have to be

some restrictions on the way the courts treat special groups.

1. The police

Negligence cases involving the police generally fall into two categories:

1. Those involving operational matters, which basically means the way the police actually carry out

their work

2. Those involving policy issues, such as the allocation of resources

Where a case involves purely operational matters, police officers are liable in just the same way as

anyone else. However, where a case involves policy issues, slightly more complicated rules apply.

Rigby v Chief Constable of Northamptonshire (1985) QBD

Facts: D, the police fired CS gas canisters into C’s shop, hoping to flush out a dangerous criminal who

had taken refuge there. The shop caught fire and C sued for (inter alia (Among other things)) trespass.

Held: Taylor J said it was common ground that projecting an article such as a canister onto another

person's land from outside, without justification or lawful excuse, constituted a trespass. However, this

had been a case of necessity.

C lost

Police liability in cases involving policy decisions:

Hill v Chief Constable for West Yorkshire (1988) HL (Discussed above)

Alexandrou v Oxford (1993) CA

Facts: D, the police failed to respond effectively when C’s alarm went off and a burglar escaped.


Held: There was no sufficient "special relationship" between the shop owner and the police to create a

duty of care. If there were a duty in this case, there would be a similar duty towards anyone reporting a

crime against his person or property.

C lost

2. Other emergency services;

Liability involved – fire brigades and ambulance services. As claimant suffered a fire which severely

damaged their property and they alleged that the damage was the result of the relevant fire brigade

negligence.

Capital and Counties plc v Hampshire County Council (1996) CA

Facts: D, a fire officer negligently ordered the sprinkler system turned off in a burning building to which

the brigade had been called.

Held: 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 duty of care to the property owner.

C won.

Church of Latter-Day Saints v Yorkshire Fire Authority [1997] CA

Facts: D, the fire brigade, was unable to fight a fire at C’s, premises effectively: three fire hydrants were

out of order and another four could not be found.

Held: The damage caused to C by D's negligence was certainly foreseeable, and there was a sufficiently

proximate relationship between them, but it would not be fair just and reasonable to impose upon D a

duty of care. The fire service is an emergency service, and to allow claims such as these would impose a

burden that would distract it from its proper task of fighting fires.

It is for the individual to insure his property against fire, not for the community to do it for him, and as

a matter of public policy, the fire service should not in general be open to claims of this kind.

C lost.

John Munroe (Acrylics) Ltd v London Fire and Civil Defence authority [1997] CA

Facts: D employed fire fighters who wrongly thought all the fires at C’s premises had been put out.

One of the fires flared up again, causing damage to C’s premises. C sued D and others, alleging

negligence.

Held: D owed no duty of care to C. The considerations set out in Hill are applicable as much to the fire

brigade as to the police. Imposing a duty of care would not improve the efficiency of the service but

would lead to defensive firefighting. Above all, the imposition of a duty of care in this situation would

lead to a flood of claims, since many fires were created by Acts of God or acts of criminals and lunatics,

leaving only the fire service to be sued.

C lost.

The position of rescuers

Rescuers may suffer psychiatric damage as a result of helping at an accident caused by negligence. As

a matter of public policy, rescuers are generally encouraged and claims in Negligence tend to reflect

this.


Rescuers meaning people who suffered psychiatric injury as a result of helping the primary victims of a

shocking incident. Rescuers were traditionally thought to be a special case with regard to psychiatric

shock, and a rescuer who suffered psychiatric shock as a result would not be subject to the same

restrictions as a mere bystander(A nonparticipant spectator).

CHADWICK V BRITISH TRANSPORT COMMISSION [1967] 2 ALL ER 945

FACTS: The victim had assisted victims of a train crash, near his home, which was caused by the

defendant's negligence. He spent a couple of hours crawling under the debris and giving injections to

the wounded. As a result he suffered psychiatric damage, which eventually led to his own death.


HELD: A duty of care was owed as the victim was clearly a rescuer who had placed himself in danger.

MCFARLANE V EE CALEDONIA LTD [1994] 2 ALL ER 1

FACTS: An oil rig exploded, due to the defendant's negligence, killing over one hundred workers. The

plaintiff was a worker on the rig, however, at the time of the explosion, he was off duty and resting on

a ship approximately 100 metres away from the rig. Survivors from the incident were transferred to

the same ship.


HELD: The plaintiff was not a rescuer, no duty of care existed as he was a bystander.

WHITE V CHIEF CONSTABLE OF THE SOUTH YORKSHIRE POLICE [1999] 2 AC 455

FACTS: The plaintiffs were police officers who suffered psychiatric damage due to their experiences

rescuing victims of the Hillsborough disaster.

ISSUE: Were the police officers primary or secondary victims?

HELD: The House of Lords reversed the Court of Appeal decision in Frost v Chief Constable of South

Yorkshire [1997] 1 All ER 540, which had found that the plaintiffs were primary victims, as rescuers.

The plaintiffs were not primary victims as they we were not within the range of foreseeable physical

injury and their psychiatric harm was a result of witnessing the immediate aftermath of the incident. A

rescuer is only considered a primary victim if he is in danger of physical injury or reasonably believes

that he is.

Furthermore, no duty of care in relation to the psychiatric damage was owed to the plaintiffs on the

basis that the defendant was their employer.

3. The armed forces

No duty of care between fellow soldiers engaged in battle conditions.

Mulcahy v Ministry of Defence (1996)

Facts: A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He

was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq,

and he was standing in front of the gun when it was negligently fired by the gun commander. The

Ministry of Defence sought to have the application struck out as disclosing no cause of action. The

judge held at first instance that there should be a trial.

Held: The Court struck out the claim by application of combat immunity principles. Even on the facts

pleaded, the plaintiff did not have a cause of action in negligence against the defendant. No duty of


care can be owed by one soldier to another on the battlefield, nor can a safe system of work be

required from any employer under such circumstances.

Neil LJ said: ‘Where. . The court is satisfied that additional facts will not change the framework of the

claim and that the opposing arguments have been fully deployed the court should not shrink from

deciding whether the application to strike out is well-founded in law. At the same time the Court must

take account of Lord Browne-Wilkinson’s admonition that it is normally inappropriate to decide novel

questions on hypothetical facts. But the novelty of the question of law is not an absolute barrier. It is to

be remembered that the resolution of a question of law at an early stage in proceedings may result in a

very substantial saving of costs.’

Bici v Ministry of defence (2004)

Facts: Soldiers taking part in United Nations peacekeeping operations in Kosovo deliberately fired on a

vehicle full of people when they had no justification in law for doing so, killing two and injuring others.

Held: The soldiers were liable in negligence to two of the claimants. They owed a duty to prevent

personal injury to the public and had breached that duty by firing without justification. There was no

objective evidence that they were about to be fired on by the claimants. They were in breach of duty,

not due to the manner in which they fired their weapons, but in firing at all. Furthermore, the

claimants were not contributorily negligent

Self-defence is available in negligence if it is reasonable belief (in criminal law it is an honest belief) the

defendant’s conduct was not reasonable.

Combat immunity which was raised in Mulcahy has no place in this claim. Combat immunity is not a

defence but removes the action from the jurisdiction of the court is:

"It is relied upon when a person is injured or their property is damaged or destroyed in circumstances

where they are the “innocent” victims of action which is taken out of pressing necessity in the wider

public interest arising out of combat."

C won in part

Obiter: Had the soldiers been acting in lawful self defence, their firing, inaccurate as it was, would not

have been considered negligent in the circumstances

Comment: This was the first claim for compensation involving British peacekeeping forces abroad.

4. Local Authorities and Public bodies

This Practice Note deals with what constitutes a public authority, its significance and the distinction

between public and private acts. Public authorities undertake public functions which can give rise to a

public liability. When services are provided to members of the public, e.g. maintaining a highway, the

public authority owes the public a duty of care. The public authority can also be exposed to a private

liability, e.g. when employing an individual. Public authorities therefore owe both a private and public

liability.

Local authorities and other public bodies pose special problems regarding negligence actions, for two

main reasons. The first is that even where foreseeability and proximity can be established, there will

very often be reasons why imposing a duty of care may not be just and reasonable: in particular;

- Police & fire brigades

- Democratically elected bodies


This is the question of ‘justiciability’ (Justiciability concerns the limits upon legal issues over which a

court can exercise its judicial authority) which simply means suitability for examination by court.

The powers given to Public bodies to act, but allowed discretion as to how, when and even whether

they exercise those powers. Discretion may depend on many factors:

- Availability of resources

- Aims and objectives

- Preference given to methods of solving a problem need.

Barrett v Ministry of Defence [1995] CA

Facts: A naval airman became so drunk at the Royal Navy Air Station where he was serving that he

died. The duty Petty Officer had the rating placed on his bunk he vomited and died as a result of

inhaling his own vomit. It was alleged that D failed to enforce disciplinary regulations to prevent

drunkenness.

Held: The deceased alone was responsible for his own actions and that no duty was owed to him in this

respect.

However, the Ministry was held liable on the basis that, following his collapse, service personnel

voluntarily assumed a duty of care and were negligent in that capacity.

Foresight of harm alone was not sufficient to create a duty to guard him against his own folly.

Beldam LJ stated: "To dilute self-responsibility and to blame one adult for another’s lack of self-control

is neither just nor reasonable and in the development of the law of negligence an increment too far.”

“Until he collapsed, I would hold that the deceased was in law alone responsible for his condition.

Thereafter, when the defendant assumed responsibility for him, it accepts that the measures taken fell

short of the standard reasonably to be expected. It did not summon medical assistance and its

supervision of him was inadequate”.

Airman's widow won

Jebson v Ministry of Defence [2000] CA

Facts: D the army with whom C, a former Grenadier Guard, attended an off duty trip to relax. They

travelled in a lorry and C attempted to climb onto the roof of the lorry but lost his footing and fell,

sustaining severe injuries.

Held: While ordinarily drunkenness did not create a duty on others to exercise special care, that rule

was not immutable.

It had been foreseeable that the soldiers would behave in a rowdy manner on the return trip thereby

placing themselves at risk from some form of injury, and that the MOD had failed in their duty to

supervise them. Furthermore, the conduct of C had been within the genus of behaviour which had

been foreseeable. It was not necessary that a precise injury should be foreseen; instead it was

sufficient to show that an injury of a given description was likely to occur.

The MOD had a 25 per cent liability for C's injuries.

X & Others v Bedfordshire County Council (1995) HL

In X it was decided that where a statutory discretion (in public law) was conferred on a public authority

(in respect of children), nothing the authority did within the ambit of that discretion was actionable at

common law, in other words, the statutory discretion did not automatically create a tort of negligence.


Again, the "floodgates argument" was relevant because the system was already overstretched.

In Barrett v Enfield LBC [1999]. Keith Barrett (aged 27) attributed his personality disorder to the

treatment he received as a child when in the care of the local authority, and succeeded because the

authority had acted, rather than whether they ought to have acted.

In any event. X could not survive the Human Rights Act and was overturned by D v East Berkshire

Community NHS Trust and others [2003] CA

D v East Berkshire Community NHS Trust and others [2003] CA

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 (Z v United Kingdom (2001) ECHR)

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.

Also, where child abuse is suspected and removing the child from the parents was justified, no duty of

care was owed to the parents.

Phelps v Hillingdon London Borough (2000) HL

Facts: 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. Held: Local education authorities could be vicariously liable for breaches by educational psychologists and teachers of their duty of care to pupils with special educational needs.

C won

Stovin v Wise (1996) HL

Facts: D (the local authority) failed to order the removal a railway bank on railway land adjacent to the road. It had the power order the removal to improve road safety; it restricted visibility at the junction. C a motorcyclist was injured by a car that emerged from a side road.

Held: D had no duty of care to C in respect of this hazard. Even a statutory duty does not automatically give a private right of action.

A statutory power does not create a common law duty to be exercised. Unless it would be irrational not to exercise that power.

There must be exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because it is not exercised. C lost

Peabody Fund v Parkinson [1984] HL

Facts: D the local authority approved building plans for 245 houses which included flexible drains. C installed rigid drains instead of flexible drains, on his architects' advice. The local authority's inspector was aware of the departure from the plans, but he did no use his power to require C to relay the drains. Two years later the drains had to be re-laid resulting in loss of probably £1,000,000 to C.

Held: It was material to consider whether it was just and reasonable to impose a duty of care. C were responsible for ensuring that their own drains conformed with the approved plan. The local authority owed no duty to C to exercise their powers which exist for the protection of other persons - not for that of the person in default. It was not reasonable or just to impose upon them a duty to pay for C's loss arising through the advice of their own architects and contractors C could not say after the event "You knew what we were doing; you should have required us to stop." That would allow the owner,


without seeking new approval from the council, to throw that system to the winds in favour of a defective system, and then visit the consequences upon the council for not stopping him.

Lord Wilberforce in Anns v Merton London Borough Council [1978] said it was: "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 ..."

C lost

Bradford-Smart v West Sussex CC [2002] QBD

Facts: D, the local authority of the school which C attended. C was alleged to have been bullied on the bus to and from the school and on the estate where she lived. C suffered psychiatric harm.

Held: A school could be in breach of duty for failing to take steps to combat bullying by one pupil against another when they were outside school.

However, a school would not be in breach of its duty if it failed to take steps which were unlikely to do much good.

If a reasonable body of opinion would not have taken any steps then the school could not be liable for its failure to act. Bolam v Friern Hospital Management Committee [1957] applied

Approving the words of the trial judge: "I have come to the conclusion that granted a school knows that a pupil is being bullied at home or on the way to and from school, it would not be practical let alone fair just and reasonable, to impose upon it a greater duty than to take reasonable steps to prevent that bullying spilling over into the school ...."

C lost

List of the cases; Duty of care

- AB v Leeds Teaching Hospital NHS Trust [2004] QBD

- Alcock v Chief Constable of South Yorkshire [1991] HL

- Alexandrou v Oxford (1993) CA

- Anns v London Borough of Merton (1977) HL

- Barber v Somerset County Council [2004] HL

- Barnett v Chelsea Hospital Management Committee (1969) QBD

- Barrett v Ministry of Defence [1995] CA

- Barrett (AP) v Enfield London Borough Council (1999) HL

- Beasley v Buckinghamshire CC (1997) QBD

- Bici v Ministry of Defence [2004] CA

- Blyth v Birmingham Waterworks (1856) Exch

- Bolam v Friern Barnet Hospital Management Committee (1957) QBD

- Bolitho v City & Hackney Health Authority [1997] HL

- Bolton v Stone [1951] HL

- Bourhill v Young (1943) HL

- Bradford Corporation v Pickles [1895] HL

- Bradford-Smart v West Sussex CC [2002] CA

- Carmarthenshire CC v Lewis [1955] HL

- Caparo v Dickman (1990) HL

- Capital and Counties plc v Hampshire County Council (1996) CA

http://sixthformlaw.info/02_cases/mod3a/aqa/_cases_tort_1duty.htm#Bolam v Friern Barnet Hospital Management Committee (1957) QBD


- Chadwick v British Railways Board [1967] QBD

- Church of Latter-Day Saints v Yorkshire Fire Authority [1997] CA

- Clunis v Camden & Islington Health Authority (1998) CA

- Clay v Crump [1963] CA

- Costello v Chief Constable of Northumbria Police [1999] CA

- D v East Berkshire Community NHS Trust and others [2003] CA

- Donachie v The Chief Constable of the Greater Manchester Police (CA) [2004]

- Donoghue v Stevenson (1932) HL

- East Suffolk Rivers Catchment Board v Kent [1941] HL

- Farrell v Avon Health Authority [2001] QBD

- Froom v Butcher [1975] CA

- Gates v McKenna (1998)

- Gibson v Orr CCof Strathclyde [1999] (OH) Outer House Scotland

- Gorringe v Calderdale Metropolitan Borough Council [2004] HL

- Griffiths v Brown and Lindsay [1999] QBD

- Hale v London Underground Ltd [1993] QBD

- Haley v London Electricity Board (1965) HL

- Hall v Simons (2000) HL

- Harris v Evans (1998) CA

- Heaven v Pender (1883) CA

- Hedley Byrne & Co Ltd v Heller & Partners Ltd ]1963] (HL)

- Hill v Chief Constable for West Yorkshire (1988) HL

- Hollywood Silver Fox Farm v Emmett [1936] QBD

- Home Office v Dorset Yacht [1970] HL

- Hotson v East Berkshire Health Authority [1987] HL

- Hughes v Lord Advocate (1963) HL

- Hunter v Canary Warf Ltd and London Docklands Development Corporation (1997) HL

- Jebson v Ministry of Defence [2000] CA

- Jobling v Associated Dairies [1981] HL

- John Munroe (Acrylics) Ltd v London Fire and Civil Defence authority [1997] CA

- Jolley v Sutton LBC (1998) HL

- Junior Books v Veitchi (1983) HL

- Kent v Griffiths [2001] CA

- Kirkham v. Chief Constable of the Greater Manchester Police [1990] CA

- Knight v Home Office (1990) QBD

- L and another v The CC of the Thames Valley Police [2001] CA

- Langley v Dray (1998) CA

- Latimer v AEC Ltd [1953] HL

- Law Reform (Contributory Negligence) Act 1945 s.1 (1)

- Leach v Chief Constable of Gloucester (1998) CA


- Mahon v Osborne [1939] CA

- Mansfield v Weetabix (1997) CA

- Margereson & Hancock v JW Roberts Ltd (1996) CA

- Marc Rich Co AG and Others v Bishop Rock Marine Co Ltd and Others [1996] HL

- Marshall v Osmond [1983] CA

- Matthews v Ministry of Defence [2003] HL

- McFarlane v EE Caledonia Ltd [1997] CA

- McKay v Essex AHA (1982) CA

- McLoughlin v O’Brian (1983) HL

- McWilliams v Arrol [1962] HL

- Mercer v South Eastern and Chatham Railway Companies' Managing Committee (1922) KBD

- Mulcahy v Ministry of Defence (1996) CA

- Mullaney v CC West Midlands [2001] CA

- Mullin v Richards [1997] CA

- Murphy v Brentwood District Council [1991] HL

- Nettleship v Weston [1971] CA

- Newman & others v United Kingdom Medical Research Council (1996) CA

- Ogwo v Taylor [1987] HL

- OLL v Secretary of State for the Home Department (1996) QBD

- Orange v Chief Constable of West Yorkshire [2002] CA

- Osman v Ferguson (1993) CA

- Osman v United Kingdom (1998) ECHR

- Palsgraf v Long Island Railway Co (1928) New York Appeals

- Palmer v Tees HA [2000] CA

- Paris v Stepney BC [1951] HL

- Peabody Fund v Parkinson [1984] HL

- Perrett v Collins (1998) CA

- Phelps v Hillingdon London Borough (2000) HL

- R v Corydon Health Authority (1997) CA

- Reeves v Commissioner of Police of the Metropolis [1999] (HL)

- Rigby v Chief Constable of Northamptonshire (1985) QBD

- Roberts v Ramsbottom [1980] QBD

- Roe v Minister of Health [1954] CA

- Rondel v Worsley (1969) HL

- Rylands v Fletcher [1866] HL

- Sayers v Harlow UDC [1958] CA

- Sirros v Moore [1974] CA

- Smith v Cribben [1994] CA

- Smith v Leech Brain & Co (1962) QBD

- Smith v Littlewoods Organisation Ltd [1987] HL


- Smoldon v Whitworth [1997] CA

- Spartan Steel v Martin [1972] CA

- Stansbie v Troman [1948] CA

- Stovin v Wise (1996) HL

- Sutherland Shire Council v Heyman [1985] High Court of Australia

- Swinney v Chief Constable of Northumbria Police (1996) CA

- The Wagon Mound (1961) PC

- Overseas Tankship v Morts Dock (The Wagon Mound (No 1)) [1961] PC

- Overseas Tankship v Miller Steamship (The Wagon Mound (No 2)) [1966] PC

- Thompson v Blake-James (1998)

- Thompson v Smith Shiprepairers (North Shields) (1984) QBD

- Three Rivers DC v Bank of England (No.3) [2000] HL

- Topp v London Country Bus (South West) Ltd [1993] CA

- Ultramares Corporation v Touche (1931) New York

- Vaughan v Menlove (1837)

- Vowles v Evans and Welsh Rugby Union Ltd [2003] CA

- W v Essex County Council (1998) HL

- Ward v Tesco Stores Ltd [1976] CA

- Watson v BBBC (1999) CA

- Watt v Hertfordshire PP [1954] CA

- Wells v Cooper [1958] CA

- White and others v Chief Constable of South Yorkshire and others [1998] HL

- Wilson v Governors of Sacred Heart RC Primary School, Carlton (1997) CA

- Wisniewski v Central Manchester Health Authority (1998) CA

- X & Others v Bedfordshire County Council (1995) HL

- Yuen Kun Yeu v Attorney General of Hong Kong (PC) [1988]

- Z and others v The United Kingdom (2001) ECHR

Class Activity

Learners read and summarise the article in the website opposite. Discuss – How far do you agree with

the points it makes – What points of your own would you add?

Learners make a timeline of all important cases such as Anns, Murphy, Caparo, and Hill. Learners

produce a synopsis of each case and show how the test developed in each decision.

Debate – ‘This house believes that the modern law of negligence is fit for purpose’ – activity chaired by

teacher.

Using the website opposite learners construct a claim which they think would be successful. Learners

work with a partner and write down how they would defend the claim.

Quiz test – use key facts – this can take the form of a competition.

Exam questions – both essay and hypothetical problem/case study questions can help learners to

develop their skills.


Teacher information of the specific area of negligent misstatement

– use Hedley Byrne v Heller (1963) as a starting point. Use the law on the web website to gain an

overview of this area of law.

Learners make a group presentation to other learner groups.

Revision activity – learners make a mind map of the key elements in the tort of negligent misstatement

(the practical law website may be useful). Link each point to at least one relevant case.

Learners choose one case and using www.bailii.org write a summary of the facts and principles of law

in the case, relating back to the wider points in the article they have read. Learners present findings to

other learners.

Teacher information on nervous shock – focus on types of victims and the evolution of the law – use

Alcock v CC South Yorkshire (1991) as a starting point.

Learners use the cgqc website opposite to make a timeline using leading cases to show how law has

changed – learners do this in groups with each looking at a different area of nervous shock.

Essay task – Discuss the extent to which the law on nervous shock is influenced more by policy than by

legal principle.

Exam questions – both essay and hypothetical problem/case study questions can help learners to

develop their skills.

Questions from past papers

Q1. The Law of Torts encourages us to take care in what we do and discourages us from doing anything likely to be dangerous to others. Critically assess whether these aims are achieved by the rules that determine the standard of care in the tort of negligence. [October/November 2004]

Q2. ‘One purpose of the law of torts is to encourage people to take care and to discourage actions likely to endanger others.’ Critically assess whether the rules used to determine the standard of care in negligence cases achieve this aim. [May/June 2008]

Q3. Most torts require an element of fault. Explain the forms that fault may take and critically assess the reasons for and against this requirement. [October/November 2011]

lecture # 3 duty of care - vlcvlc.com.pk/law of tort lot/lot 3 duty of care.pdf · lecture # 3 duty...

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