Tort Law Notes
Negligence: The Duty of Care
Harm inflicted accidentally
To establish the tort of negligence, claimant must prove 3 things:
1. D owes claimant a duty of care
2. D acted in breach of that duty
3. Claimant has suffered damages
Duty of Care:
Lord Atkin’s ‘Neighbour Principle’: set out in Donoghue v Stevenson [1932]: “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 ...”
The Caparo Approach:
Caparo v Dickman: concerned a claim for financial loss which resulted when an investor relied on published
annual accounts and a company report that had been prepared carelessly by the company’s auditor.
Established the Caparo criteria: in novel factual situations all of the following three criteria must be
satisfied before a court should be willing to impose a duty of care:
1. damage must be foreseeable;
2. must be a sufficiently proximate relationship between the parties; and
3. must be “fair, just and reasonable” for court to impose a duty of care
Public Authorities:
A common objection is that the threat of liability may lead to local authority adopting overly cautious
practices at the public expense
‘Child abuse’: Where CLs have sought damages for psychiatric harm, alleging that this has been
caused by the negligence of local authorities in the exercise of their statutory functions in protecting
child welfare
- X v Bedfordshire CC [1995]: HOL considered 5 appeals. In the first group of cases, it was alleged
that LA had negligently failed to take children into care which resulted in them suffering from neglect and
abuse at home and that LA had wrongly decided to take a child into care, causing psychiatric harm to child
and mother. Second group concerned allegations that the local authority had negligently failed to provide
adequate education for children with special needs.
> Lord Browne-Wilkinson thought that it wouldn’t be fair, just and reasonable to impose a
duty of care - a duty of care would have been inconsistent with the operation of the
statutory system set up for the protection of children at risk
- Inconsistent with upholding claimant’s human rights – some claimants in X v Bedfordshire had
been subjected to inhumane or degrading treatment contrary to art3 ECHR
- Barrett v London Borough of Enfield [1999]: taken in to care at 10 months. Remained until 18. Had
number of placements/ social workers and sometimes he had no social worker. He claimed that as a result
of this, he had severe psychiatric difficulties and that was caused by the local authority’s negligence in
caring for him.
o not unreasonable to impose a duty of care on a local authority for a child in its care. The
responsibility of the child is up to the local authority.
- Z v UK (2001): 4 siblings who had suffered abuse from mother. LA had repeatedly decided not to
appoint a social worker and had declined to place them on the Child Protection Register. ECtHR was
prepared to award claimants compensation, to be paid by UK GOV, on the basis that the UK had breached
2 of its obligations under the Convention—it had allowed the claimants to be subjected to “inhuman and
degrading treatment” (art.3) when it failed to act to ensure their welfare, and it had denied them a right to
an effective remedy in respect of that treatment (art.13)
- JD v East Berkshire [2005]: parents are incorrectly, negligently accused of having abused and/or
harmed their child. Parents brought a claim for psychiatric injury that they have suffered against the local
authority, who had wrongly accused them of having harmed their children. LA suspected abuse and decided
to separate them from their children (taken into care). To whom should the LA owe the duty? Parents or
children?
o They DO NOT owe a duty of care to those suspected of committing abuse. Investigation is
carried out is good faith but is careless and therefore doesn’t attracted liability.
Education cases: Phelps v Hillingdon LBC [2001]: Cl had suffered from dyslexia, causing her severe
learning difficulties at school. She had been referred to an educational psychologist at 11 but failed to notice
, dyslexia. Left school with no qualifications, and sued LA for negligence in having failed to provide her with an
appropriate education. The appeal in Phelps was consolidated with 3 other cases in which it was alleged that LA
had been negligent in their provision of education for children with special needs. HOL found in favour of
claimants, emphasising that X v Bedfordshire did not lay down any principle that there should be a blanket
immunity in respect of local authority liability for the provision of educational services.
- HOL was prepared to hold that, in certain circumstances, a local authority could owe a duty of
care in respect of the provision of educational services.
The Police:
- Hill v Chief Constable of West Yorkshire [1989]: Mother of the last V killed by Yorkshire Ripper
sued police for negligence, alleging that it had failed to use reasonable care in apprehending him. HOL
refused to impose a duty of care - insufficient proximity between her, as the potential victim of a crime,
and the police – had blanket immunity
- Swinney v Chief Constable of Northumbria [1997] – decision based on Caparo – police
approached informant. But he was reluctant and said that she would only give them info if they kept it in
the strictest confidence. (had to identify suspects). Info is leaked and she is then threatened by suspect.
- Robinson v Chief Constable for West Yorkshire Police [2018] – During arrest of suspected drug
dealer an old lady was trampled by the scuffle – they are subject to the same duties and obligations as any
other ordinary citizen. They have no special status which places them above or outside the law. They have
to justify their actions and pay compensation to those they have wrongly injured no generally no special
position for public authorities.
- Where police assume a very specific responsibility to safeguard specific individuals against
harm – Reeves v Metropolitan Police Commissioner [2000]: police were liable for failing to
safeguard the welfare of a suspect, a known suicide risk, who hanged himself in his cell.
The Fire Brigade: Capital & Counties Plc v Hampshire CC [1997]: Held: fire brigade’s attendance at
the scene of a fire did not give rise to the requisite degree of proximity - if you call the fire services and they
say they are on their way but don’t arrive – they owe a duty of care. What if they make the fire
worse? Yes, they have assume responsibility and now owe a duty of care.
Ambulance: Kent v Griffiths [2001]: Lord Woolf stated that acceptance of 999 call established duty
- illustrates the idea that the courts are unwilling to deny a duty of care where this would create a
divide between the standards to be expected from public and private sector service providers.
NHS/DRs: (the “unintended children” cases).
- Reward claims for the cost of bringing up children born as a result of negligent advice or
treatment having been given to the parents
- McFarlane v Tayside Health Board [2000]: concerned healthy baby, who was conceived as a result
of wrong advice that vasectomy had been successful, Declined to compensate CL for cost of bringing up
child—damages only to compensating the pain and suffering endured as a result of the pregnancy.
> HOL decided that, in cases of healthy, able-bodied children, the law would not entertain
these claims.
- Parkinson v St James NHS Trust [2002]: CL had sterilisation operation. It didn’t work and she
became pregnant. Gave birth to child with significant disabilities - awarded damages for additional
costs with raising a disabled child even though negligence of doctors in performing the
sterilisation operation had not been the cause of the child’s disabilities
Establishing a Duty of Care – Post-CAPARO:
Robinson v Chief Constable of West Yorkshire [2018]: police against ordinary citizen. During the
arrest of a suspected drug dealer, there was a scuffle, the fell on a passing pedestrian who was 76 years old. –
need to establish relationship between old lady and police: applied Caparo – police should have foreseen that
the drug dealer would try and resist arrest and there could have been an injury to people passing by.
Where there is precedent to establish duty of care, use such cases but if not, do not use Caparo but
develop the law incrementally.
The Incremental Approach:
1. Is there any precedent dealing directly with the issue at hand?
- YES: court will apply precedent to analyse the issue at hand, unless it is invited to, and can, depart from it
- NO:
2. Is there an established principle that applies to the situation at hand? [para 27]
- YES: court will apply established principle to the situation at hand, unless it is invited to, depart from it.
- NO: the court will consider the closet analogies in the existing law, with a view to maintaining the
coherence of the law and he avoidance of inappropriate distinctions. The courts will also weigh up the
reasons for and against imposing liability, in order to decide whether the existence of a duty of care would
be just and reasonable.
