Negligence Access Law

Introduction Law of tort covers civil actions where a claimant has been ‘wronged’ in someway and has suffered some form of damage / injury which the court will compensate them for. Tort is an umbrella term for several types of civil wrong: nuisance trespass defamation negligence

Negligence: covers situations where people suffer personal injury and / or their property may be damaged. Example: in a car crash, the car may be damaged and passengers may be injured, both types of ‘damage’ would fall under the tort of negligence

To be successful in a negligence action it is necessary to show three things: Is there a duty of care? Has there been a breach of that duty? Did the breach cause damage (that is not too remote)? The claimant must prove each part in order

Step one for negligence Duty of Care Step one for negligence

Duty of Care The modern tort of negligence with a particular regard to the ‘duty of care’ aspect comes from the case of Donoghue v Stevenson (1932) Held: in a narrow sense the ratio of this case heard ultimately by the HoL developed the principle that a manufacturer has a duty of care to his ultimate customer, whoever that may be.

But in a wider sense... the HoL developed the modern tort of negligence when Lord Atkin said, “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour…”

Who then is your neighbour? According to Lord Atkin, it is anyone who is closely and directly affected by your acts that you ought to have them in mind as being affected when you undertake your acts or omissions The duty of care aspect of negligence has been extended from Donoghue v Stevenson’s neighbour principle to a three stage test in the case of Caparo Industries v Dickman (1990)

The ‘Caparo’ tripartite test Was the damage / harm foreseeable? (this is really the same as the neighbour principle in Donoghue v Stevenson) Is there a sufficiently proximate (close) relationship between C and D? Is it fair, just and reasonable to impose a duty of care?

Was the damage / harm foreseeable? This is the factual aspect of a duty of care. The C must show that at the time of D’s negligent act it was foreseeable that some damage to that particular C was foreseeable, if it was foreseeable to someone else who is not the C then the action will fail General example: someone driving at 60mph through a 30mph zone is expected to foresee the possibility of seriously injuring or even killing someone and therefore owes a duty of care to other road users

Kent v Griffiths (2000) The claimant was suffering from an asthma attack and called a doctor who visited her at home. The doctor believed the claimant’s condition to be sufficiently serious and dialled 999 for an ambulance. The ambulance took 40 minutes to arrive, in this time the doctor had called back twice to see where the ambulance was and was told that it was on its way and would be with them shortly. The claimant’s condition worsened during the waiting time and she suffered respiratory arrest.

Kent v Griffiths (2000) Held: The doctor told the court that had she been aware that the ambulance was going to be so delayed she would have advised the claimant’s husband drive the claimant to the hospital himself. She didn’t because she had been told the ambulance was due to arrive any minute. The court held that where an ill or injured person is waiting for an ambulance to arrive and it is delayed then it is foreseeable that the claimant’s condition would become worse, therefore, harm was foreseeable to the claimant.

Is there sufficient proximity between C and D? Even if the harm is foreseeable, there still needs to be a sufficient proximity, (are the two sides adequately connected?) – in other words is there a sufficient link between the C and D? Proximity can either be in terms of physical presence and / or space ie in the vicinity of the accident – see Bourhill v Young, or in terms of closeness of relationship to the V

Case: Bourhill v Young (1943) Facts: a motorcyclist driving too fast crashed into a car and was killed. Mrs B was 8 months pregnant and was some distance (about 50 yards) from the accident on a tram and heard the collision but did not see it. She later saw the blood on the road when she got off the tram and suffered shock and gave birth to a still born child as a result. Held: no duty of care was owed to Mrs B, the motorcyclist could not have foreseen the injury to her and there was no proximity between her and the defendant, she was not in the same vicinity, so her action failed

Is it fair, just and reasonable to impose a duty of care? This is more of a public policy test, (flood gates argument) the courts are very reluctant to impose a duty of care on public authorities. In the Hill case, one reason for finding no duty of care existed between the V and the police was because the courts feared that if they found there to be a duty of care this would make policing very defensive and this might divert resources away from fighting crime if they felt they were always going to be sued potentially. The same can be said for a number of professions, it would be very difficult for police, firefighters, doctors, teachers etc to do their jobs effectively if they were in constant fear of litigation, hence the public policy decisions in many cases that do not find there to be a duty of care in existence.

Case: Hill v C. C. of West Yorkshire (1988) Facts: Mrs H was the mother of the 13th and last victim of the Yorkshire Ripper. The Yorkshire Ripper had been detained by police for questioning and released on several occasions. Mrs H claimed the police owed her daughter a duty of care because at the time of her death she alleged that the police had enough information to make an arrest but had failed to do so Held: the HoL said that her action must fail because of a number of reasons but in terms of public policy, it would not be fair, just or reasonable to impose a duty of care on the police as they cannot possibly apprehend unknown criminals. The police knew there would probably be another victim but they had no idea who that victim could be

But... Where the actions of an individual, even though they may be working for a public authority, make a situation worse then it is possible the courts will say it is fair, just and reasonable to impose a duty of care.

Case: Capital & Counties plc v Hampshire CC (1997) Facts: A fire crew attended a fire and the senior fire officer ordered that the sprinkler system be switched off – this caused the fire to spread and the damage was extensive Held: In this case the courts decided it was fair, just and reasonable to impose a duty of care on the fire brigade