Donoghue v Stevenson - birth of the duty of care and tort of negligence LEADING
- May M’Alister alleged that the friend purchased some ginger beer and ice cream for her to drink
and that she discovered a rotting snail in it at the end and was very sick as a result. She sued D,
the manufacturer of the ginger beer, for negligence in allowing the product to reach a consumer in
such a state. Held by majority in HL: Despite the lack of contractual relationship between them D
did owe a duty of care. Winterbottom could be distinguished.
- Neighbour principle
- A duty not to, by positive action, negligently cause physical injury to those foreseeably affected
by your negligence.
Caparo v Dickman: replaced Anns (which introduced policy) LEADING
- The ‘retreat from Anns’: Caparo v Dickman (HL, 1990)
- Facts: C owned shares in T. In reliance on annual statutory accounts prepared T’s auditors, D, C
purchased more shares. The accounts had been negligently prepared, and T was financially
unsound. C, accordingly, lost money. C claimed D owed them a duty of care as both shareholders
AND as investors. CA allowed the former but not the latter. Held: D owed no duty to C either as a
shareholder OR as an investor. The law does not permit a duty of care to be undertaken to the
whole world, without more and here C and D lacked a relationship of proximity. Equally, the
purpose for which the accounts were prepared was not to enable an individual shareholder to
purchase more shares in reliance on them.
- Caparo was then understood to have established what came to be called the ‘tripartite’ ‘test’ for
establishing a duty of care:
i. Foreseeability of the claimant suffering harm
ii. There must be a relationship of ‘proximity’ between D and C
iii. It must be ‘fair, just and reasonable’ to impose a duty of care in this situation
- Only apply Caparo in novel situations!!! Where duty of care not established
- Incremental development necessary Lord Bridge
Foreseeability: Haley v London Electricity Board (1964, HL)
Facts: D’s worker dug a trench along the pavement, laying a hammer across each end at a slope, to stop
people falling in. C was blind, didn’t realise there was a trench, fell in and was rendered nearly entirely
deaf.
,Held: C was owed a duty of care as it was reasonably foreseeable that a blind person would be walking
along the pavement.
Proximity:
Topp v London Country Bus (CA, 1993)
Facts: D left their minibus unlocked and with the keys in the ignition while he rested. T stole the bus and
nine hours later, struck and killed C’s wife with it.
Held: Even if they were at fault themselves, D was not responsible for T’s actions in harming C. It was
doubtful that there was sufficient proximity between C and D here.
Sutradhar v Natural Environment Research Council (HL, 2006)
Facts: D surveyed the quality of water in some parts of Bangladesh. C, who suffered arsenic poisoning
from drinking the water and claimed D’s report had stopped T from dealing with the danger posed by the
arsenic.
Held: No proximity between the parties.
Fair, Just and Reasonable
Marc Rich v Bishop Rock/ “The Nicholas H” (HL, 1996)
Facts: D was allegedly negligent in signing off the ‘Nicholas H’ as being seaworthy. The ship sank shortly
thereafter and this destroyed C’s cargo. CA dismissed the claim against D, there was no proximity and
neither would it be fair, just and reasonable to impose a duty. C appealed.
Held (Lord Lloyd dissenting): No duty of care was owed. it was not fair, just or reasonable to allow a duty
of care in tort to cut across that framework; in any case, D was a charitable body whose work was
intended to promote collective safety of those at sea, individuals’ goods.
Robinson v Chief Constable of West Yorkshire Police (UKSC, 2018) LEADING CASE ON DUTY OF
CARE
Facts: C, Elizabeth Robinson, 76 y.o., was walking down the street when she was bumped over by
policemen attempting to arrest T. CA held that there was no duty as it would not be fair just and
reasonable to impose one; the needs of the public outweighed the needs of the individual. UKSC Held:
The police were subject to the same rules as private individuals. This case was one of causing
physical injury by positive action, not an omissions case [we consider omissions in a specific tutorial
later in the year-CPM].
- Caparo had been misunderstood since and was only relevant where a case was novel (i.e.
did not fall in an established category).
- “Policy” question was irrelevant here, this was a straightforward application of the
‘core’/Donoghue duty.
Established duties:
Darnley v Croydon Health Services NHS Trust (UKSC, 2018)
, Facts: C went to D with a head injury. The (non-clinical) receptionist at A&E took his details
and gave negligent advice as to waiting times. C waited a bit, then left without telling anyone, suffering
brain damage as a result. Majority of the Court of Appeal (pre-Robinson in the UKSC) rejected a duty of
care on ‘fair, just and reasonable’ grounds. MacCombe LJ dissented: there was a duty not to give
misinformation, which did not depend on which member of staff was giving it.
Held: Court of Appeal were wrong. This fell within an established duty category and, as such, there
was no need to consider ask if imposing a duty was fair, just and reasonable. The duty took effect from
the moment C was ‘booked in’ at reception; there was no distinction between clinical and non-clinical
staff.
Actionable harm:
Dryden v Johnson Matthey plc [2018] UKSC 18 PLATINUM SALTS
C employees were exposed to platinum salts that resulted in them developing a sensitivity to platinum
which had no physical effect, but prevented them from working in chemical plants as doing so would
result in full-blown platinum salt allergy that had physical effect
Cs claimed for loss of earnings and earning capacity as a result against D employers
Held (Supreme Court): Cs’ claim succeeded
The allergy amounted to actionable personal injury as it changed their physical capacity to enjoy
ordinary life.The consequential loss or earnings and earning capacity were recoverable
Rothwell v Chemical and Insulating Co 7-011- Courts have been careful to place limits on the concept of
personal injury.
As a result of having been negligently exposed to asbestos dust by an employer, the claimants in Rothwell
had developed pleural plaques, a thickening of the lung lining indicative of asbestos exposure which may
later manifest. Brought a claim for clinical depression. The House of Lords held that since pleural plaques
were usually symptomless, had no effect on bodily function or appearance, and did not increase the
claimant’s susceptibility to disease or shorten the claimant’s life expectancy, they would not in themselves
generally amount to personal injury. According to Lord Hoffmann, symptomless bodily changes with
no foreseeable consequences could not amount to damage for the purposes of a negligence claim.
Breach
Timing:
Roe v Ministry of Health (CA, 1954)
Facts: Cs underwent an identical medical procedure on the same day. Unbeknownst to the medical staff
treating them, the anaesthetic used had been contaminated by the phenol that surrounded the glass
ampoules storing it.
Held: Using anaesthetic like this was not negligent given that, in 1947 when the injury occurred,
no-one knew of the possibility of miniscule cracks leading to the phenol seeping into the anaesthetic
and, thus, harming the patient.
NOT ACTUALLY NEGLIGENT
, Reasonable man standard: objective
Level of skill/experience:
Nettleship v Weston (CA 1971) - same standard as owed by every driver - harsh
Facts: D engaged C to give her driving lessons. C agreed on the basis that the car was insured against risk
of injury to passengers. During a lesson, D managed to crash into a lamppost breaking C’s kneecap. C lost
at first instance on breach. Held (Salmon LJ dissenting on this point): The standard of care required was
the same objective and impersonal one owed by every driver, regardless of the fact that D was a learner.
Nor was this standard lowered by C’s knowledge of D’s lack of skill. - no lenience towards the fact that
she was a learner
Age
Mullin v Richards (CA, 1998) - age relevant
Facts: C and her friend, D, both 15, were fencing with rulers. One ruler snapped and blinded C. At first
instance, they were found to have been behaving negligently on the basis that an adult would have
foreseen the risk of such an injury occurring and C recovered against D, subject to a 50% reduction for
her own contributory negligence (see Defences in Semester 2). D appealed.
Held: Age was relevant, the proper question was whether a 15-year-old would have foreseen the
risk. (held, no) This was not a subjective test based on this particular 15-year-old, rather, it remained an
objective test of the reasonable 15-year-old.
Illness and Disability
Mansfield v Weetabix Ltd (CA, 1997) - disability - unaware of condition - OK
Facts: D crashed his lorry into C’s shop as a result of a hypoglycemic state caused by a medical condition
of which D was unaware. D appealed on breach.
Held: Allowing the appeal. The standard to be applied was the standard of the reasonably competent
driver, unaware of their condition.
BUT Dunnage v Randall (CA, 2015) - held to objective reasonable man standard despite mental illness
Facts: C was severely burned when D1 fatally set fire to himself with petrol, suffering from delusions
caused by florid paranoid schizophrenia. C sued D1’s estate and D2, an insurer.
Held: Appeal allowed. The standard of care was that of the reasonable person without D’s physical
or mental impairment. Mansfield was distinguished (badly, because in mansfield vince was not in
control of the machine and unaware of condition)
a. Particular set of skills
Philips v Whiteley Ltd (HC, 1938)
Facts: P required surgery to deal with an abscess on her neck, which, she alleged, was caused by D’s
negligent carrying out of an ear-piercing procedure provided by D, a department store, in their jewellery
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