doc negligence

8/13/2019 Doc Negligence

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NEGLIGENCE 1

Duty of care


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What is negligence?

More than just careless conduct The negligence claim properly connotes

the complex concepts of duty, breach anddamage.


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THE LEGAL FRAMEWORK

CLAIMANT MUST PROVE:

Duty of care owed to him or her by thedefendant

Breach of that duty by the defendant Damage caused by that breach of duty- causation (cause in fact)

- remoteness of damage


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First established as a separate tort

Donoghue v Stevenson 1932.

Facts of the case

Ratio decidendi

Obiter Dicta

Policy

Importance of doctrine of judicial precedent


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Ratio of Donoghue v Stevenson

At least 4 possible interpretations

Manufacturer owed a duty of care toclaimant

Manufacturers generally owe a duty ofcare to consumers of their products

A negligence claim can be brought

irrespective of the absence of a contract The neighbour principle should be used to

determine the existence of a duty of care


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DUTY OF CARE

Who then in law is my neighbour?Persons so closely and directly affected by

my acts or omissions that I oughtreasonably to have them in contemplationas being so affected when directing my

mind to the acts or omissions that arecalled in question.

Lord Atkin


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Later extensions include:

Other products beside food Teachers and pupils

Motorists and other road users Doctors and patients Employers and employees Occupiers and people entering land


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Grey areas

Psychiatric injury Rescuers

Economic loss


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JUDICIAL POLICY

The use of the word policy indicatesthat the court must decide not simplywhether there is or is not a duty, but

whether there should or should not beone, taking into account both theestablished framework of the law and also

the implications that a decision one way orthe other may have for the operation ofthe law in our society. Winfield


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Is there a duty of care?

It has been established by precedent thata duty of care exists in many situations.

If there is no precedent to that effect thecourt must decide


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Novel situations

Court must consider:

Foresight

Proximity Whether it would be fair, just and

reasonable to impose a duty the test in

Caparo v Dickman 1980


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Is there a duty of care?

Note the use of the duty concept as a

policy vehicle to extend or restrict thedevelopment of the law by increasing ordecreasing the number of situations in

which a duty of care is owed.


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POLICY CONSIDERATIONS

Economic considerations Justicemoral and ethical issues

Practical implications Insurance Loss allocationFloodgates fear of too rapid an

expansion

Protection of classes of individuals


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THE HUMAN RIGHTS ACT 1998

It is unlawful for public bodies (includingCourts, NHS Trusts, Health Authorities,

Local Authorities etc) to act in a waywhich is incompatible with a Conventionright.


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CONVENTION RIGHTS

(continued) The right to respect for privacy and family

life (Article 8)

The right to receive and impartinformation (Article 10) The right to marry and found a family

(Article 12)

The right not to be discriminated against(Article 14)


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DUTY OF CARE AND HUMAN RIGHTS

An end to blanket immunities for public bodies?

Compare

Palmer v Tees HA and Hartlepool and EastDurham NHS Trust

with

Van Colle v Chief Constable of Hertfordshire

[2006] EWHC 360and

Smith v Chief Constable of Sussex [2008] EWCACiv 39


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Smith v Chief Constable of Sussex[2008] EWCA Civ 39

Lord Justice Sedley examined the commonlaw cases in detail in and concluded:

There is nevertheless an unansweredquestion as to how, if at all, the commonlaw of negligence is to develop in

response to the Human Rights Act and theConvention values it imports.


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PROBLEM AREAS FOR FURTHER STUDY

Good Samaritan acts Members of an indeterminate class

Wrongful life Police, ambulance and other emergency services Local authorities

Psychiatric injurysecondary victims Economic loss


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Indeterminate liability

Insufficient proximity between the partiesshould not lead to a multiplicity of future

claims that are unforeseeable Wrongful life - McKay v Essex Area HealthAuthority [1982] QB 1116


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Public emergency services

Police - Osman v UK (1999) 29 EHRR 245 Z v UK (2001) 34 EHRR 97

Ambulance servicenow settled in Kent vGriffiths [2000] 2 WLR 1158

Other emergency services?


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Public authorities

Note difficult areas of law include:

Child abuse and adoption casesdutiesowed by social workers

Policy arguments around the cost ofbringing up unwanted children

Education authorities Highway authorities


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PSYCHIATRIC INJURY

Liability is limited if the claimant is asecondary victim

Observe the early expansion of the law Then the House of Lords imposed theAlcock restrictions

Note later developments and modifications Rescuers


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Economic loss

Note:

Liability for careless statements

Liability for careless acts The relationship between tort and contract The significance of judicial policy Expansion and restriction of the scope of

the duty


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CONCLUDING COMMENTS ON DUTY OF CARE

Often argued as a preliminary point of law Subject to policy fluctuations Note latent and explicit policy decisions

The Caparo test provides scope for developmentof the law without the restrictions imposed byforesight and proximity

Trends can be observed but definite rules of law

may be difficult to ascertain in grey areas Useful illustration of judicial reasoning Human rights considerations

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