Negligence

The duty of care

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 REMEMBER!
• Tort of negligence:

• 3 elements required: This and

previous
1.Duty of care lecture

2.Breach of duty

3.Causation of damage
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 Refresh your memory
• How determine whether duty?

• Precedent

• Statute

• If novel situation:
– Caparo Industries
• – 3part test
1. Damage foreseeable?
2. Proximity?
3. Fair, just and reasonable to impose duty?
– POLICY question

– Floodgates argument

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 Policy considerations
‘Fair, just and reasonable’ to impose duty of care

Public Authorities’ liability

• Problematic because:

– Usually loss = pure economic loss

– Breach = usually an omission

– Public authorities, public law?

– Human Rights Act continuing influence 4

 Public Authorities’ liability
• General rule is:
– if Parliament gave power to an Authority to make
social policy decisions,
– Courts cannot interfere
– Fear = liability would hobble exercise of duties

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 Public authorities’ liability: Local
Authorities
• Local authorities
– Social policy issues not justiciable

– Leading case = X (Minors) v Bedfordshire CC [1995]

• BUT:

– Barrett v Enfield LBC [2001]

• ALSO:

– Z v UK [2001]

– Same for:
• Fire service

• Coast guard

– Ambulance service? 6
 Public authorities’ liability: Police
• No generic duty of care to individuals
– (why not?)
• Hill v Chief Constable of West Yorkshire [1988]

• BUT : Robinson v Chief Constable of West Yorkshire [2018] UKSC4

– police possibly duty of care to an individual if they themselves had

created danger to the individual
– Otherwise no duty of care to an individual, EXCEPT if:
• Assumption of responsibility

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 Human Rights influence on public
authority liability
• Osman v United Kingdom [1999]
– European Court of Human Rights (ECtHR)

– Article 6 ECHR (fair trial)

• Human Rights Act 1998

– Article 6 – duty on all public authorities to act in manner
consistent with Human Rights (=ECHR)
– BUT!!!
• Van Colle v Chief Constable of the Hertfordshire Police [2006]

• Smith v Chief Constable of Sussex Police [2008]

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 Liability for omissions?
• No general duty to act

• But law requires it in certain circumstances:

– Smith v Littlewoods Organisation [1987]
1. Assumption of liability
Eg contract

2. Relationship of control
Home Office v Dorset Yacht Club [1970]

3. Creation of danger/ failure to remove danger

Goldman v Hargrave [1967]
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 Personal v. Vicarious Liability
• General rule = personal liability
• Exception = vicarious liability

B
A(Tortfeasor)
Relationship giving rise to
vicarious liability

(Primary)
(Secondary) Vicarious
Tortious
liability
liability
C (victim)

• A & B jointly liable

• B strictly liable
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Vicarious Liability (i.e. for acts of 3 rd

parties)
• Instances:
– Employer – employee

• Topp v London County Buses [1993]

– Prison officers - prisoners

• Home Office v Dorset Yacht Club [1970]

– Parent/teacher etc - child

• Carmarthenshire County Council v Lewis [1955]

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 Employers’ Vicarious Liability

3 elements required:

1. Tort committed

2. By employee

3. Within course and scope of employment

• (Salmond test)

• “close connection test” (Lister v Hesley Hall)

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 Liability for psychiatric injury
• Traditionally, no claim for ‘nervous shock’
• Now, yes. But - Must prove:
– Recognised psychiatric condition
– Sudden event
– Primary victim (physically injured/in danger)
• If secondary victim? : ‘Alcock criteria’ (next slide)

• Occupational stress also counts as a psychiatric

condition
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 Psychiatric injury ofSecondary victims:
‘Alcock criteria’
Alcock v Chief Constable of South Yorkshire [1991]
Claimant must prove 3 elements:

1. “close ties of love and affection” with primary victim;

2. “close in time and proximity” to the negligence or its immediate aftermath and;

3. psychiatric injury must be result of a “sudden appreciation by sight or sound of a

shocking event”.

Click on photo for video

(Warning: distressing scenes)

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 (Pure(ly)) Economic loss
• What IS (pure) economic loss?
– Spartan Steel v Martin & Co Contractors Ltd [1973]

• Not generally recoverable in tort. Why NOT?

– Recoverable in contract
– Floodgates argument (limitless liability)

• Exceptions (i.e., can recover):

– Direct consequence of physical damage
• Spartan Steel v Martin & Co [1973]

– Negligent misstatement 15
 Where are we now?
• Tort of negligence:
• 3 elements required:
1.Duty of care Done!

2.Breach of duty Next

lecture

3.Causation of damage

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