TRT Negl

NEGLIGENCE 1NEGLIGENCE 1

Duty of careDuty of care

What is negligence?What is negligence?

• More than just careless conductMore than just careless conduct

• The negligence claim properly The negligence claim properly connotes the complex concepts of connotes the complex concepts of duty, breach and damage.duty, breach and damage.

THE LEGAL FRAMEWORKTHE LEGAL FRAMEWORK

CLAIMANT MUST PROVE:CLAIMANT MUST PROVE:

• Duty of care owed to him or her by the Duty of care owed to him or her by the defendantdefendant

• Breach of that duty by the defendantBreach of that duty by the defendant

• Damage caused by that breach of dutyDamage caused by that breach of duty

- causation (cause in fact)- causation (cause in fact)

- remoteness of damage- remoteness of damage

First established as a separate First established as a separate torttort

Donoghue v Stevenson 1932.Donoghue v Stevenson 1932.

Facts of the caseFacts of the case

Ratio decidendiRatio decidendi

Obiter DictaObiter Dicta

PolicyPolicy

Importance of doctrine of judicial Importance of doctrine of judicial precedentprecedent

Ratio of Donoghue v Ratio of Donoghue v StevensonStevensonAt least 4 possible interpretationsAt least 4 possible interpretations• Manufacturer owed a duty of care to Manufacturer owed a duty of care to

claimantclaimant• Manufacturers generally owe a duty of Manufacturers generally owe a duty of

care to consumers of their productscare to consumers of their products• A negligence claim can be brought A negligence claim can be brought

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

determine the existence of a duty of caredetermine the existence of a duty of care

DUTY OF CAREDUTY OF CARE

““Who then in law is my neighbour? Who then in law is my neighbour? Persons so closely and directly Persons so closely and directly affected by my acts or omissions that affected by my acts or omissions that I ought reasonably to have them in I ought reasonably to have them in contemplation as being so affected contemplation as being so affected when directing my mind to the acts or when directing my mind to the acts or omissions that are called in question”.omissions that are called in question”.

Lord AtkinLord Atkin

Later extensions include:Later extensions include:

• Other products beside foodOther products beside food

• Teachers and pupilsTeachers and pupils

• Motorists and other road usersMotorists and other road users

• Doctors and patientsDoctors and patients

• Employers and employeesEmployers and employees

• Occupiers and people entering landOccupiers and people entering land

Grey areasGrey areas

• Psychiatric injuryPsychiatric injury

• RescuersRescuers

• Economic lossEconomic loss

JUDICIAL POLICYJUDICIAL POLICY““The use of the word “policy” indicates The use of the word “policy” indicates that the court must decide not simply that the court must decide not simply whether there is or is not a duty, but whether there is or is not a duty, but whether there should or should not be whether there should or should not be one, taking into account both the one, taking into account both the established framework of the law and established framework of the law and also the implications that a decision also the implications that a decision one way or the other may have for the one way or the other may have for the operation of the law in our society”. operation of the law in our society”. WinfieldWinfield

Is there a duty of care?Is there a duty of care?

• It has been established by precedent It has been established by precedent that a duty of care exists in many that a duty of care exists in many situations.situations.

• If there is no precedent to that effect If there is no precedent to that effect the court must decidethe court must decide

Novel situationsNovel situations

Court must consider:Court must consider:

• ForesightForesight

• ProximityProximity

• Whether it would be “fair, just and Whether it would be “fair, just and reasonable” to impose a duty – the reasonable” to impose a duty – the test in Caparo v Dickman 1980test in Caparo v Dickman 1980

Is there a duty of care?Is there a duty of care?

• Note the use of the duty concept as a Note the use of the duty concept as a policy vehicle to extend or restrict policy vehicle to extend or restrict the development of the law by the development of the law by increasing or decreasing the number increasing or decreasing the number of situations in which a duty of care of situations in which a duty of care is owed. is owed.

POLICY CONSIDERATIONSPOLICY CONSIDERATIONS

• Economic considerationsEconomic considerations

• Justice – moral and ethical issuesJustice – moral and ethical issues

• Practical implicationsPractical implications

• InsuranceInsurance

• Loss allocationLoss allocation

• ““Floodgates” fear of too rapid an Floodgates” fear of too rapid an expansionexpansion

• Protection of classes of individualsProtection of classes of individuals

THE HUMAN RIGHTS ACT THE HUMAN RIGHTS ACT 19981998

• It is unlawful for public bodies It is unlawful for public bodies (including Courts, NHS Trusts, Health (including Courts, NHS Trusts, Health Authorities, Local Authorities etc) to Authorities, Local Authorities etc) to act in a way which is incompatible act in a way which is incompatible with a Convention right.with a Convention right.

THE HUMAN RIGHTS ACTTHE HUMAN RIGHTS ACT

““Public Authorities” must act in Public Authorities” must act in accordance with Convention rights – accordance with Convention rights – e.g.e.g.

• CourtsCourts

• The GovernmentThe Government

• The GMCThe GMC

• NHS TrustsNHS Trusts

• Local authoritiesLocal authorities

CONVENTION RIGHTS AND CONVENTION RIGHTS AND MEDICAL LAWMEDICAL LAW

• The right to life (Article 2)The right to life (Article 2)

• The prohibition of inhuman and The prohibition of inhuman and degrading treatment and torture degrading treatment and torture (Article 3)(Article 3)

• The right to liberty and security The right to liberty and security (Article 5)(Article 5)

• The right to a fair trial (Article 6)The right to a fair trial (Article 6)

CONVENTION RIGHTS CONVENTION RIGHTS (continued)(continued)• The right to respect for privacy and The right to respect for privacy and

family life (Article 8)family life (Article 8)• The right to receive and impart The right to receive and impart

information (Article 10)information (Article 10)• The right to marry and found a family The right to marry and found a family

(Article 12)(Article 12)• The right not to be discriminated The right not to be discriminated

against (Article 14)against (Article 14)

DUTY OF CARE AND HUMAN RIGHTSDUTY OF CARE AND HUMAN RIGHTS

An end to blanket immunities for public bodies?An end to blanket immunities for public bodies?Compare Compare

Palmer v Tees HA and Hartlepool and East Palmer v Tees HA and Hartlepool and East Durham NHS Trust Durham NHS Trust

withwithVan Colle v Chief Constable of Hertfordshire Van Colle v Chief Constable of Hertfordshire [2006] EWHC 360 [2006] EWHC 360

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

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

Lord Justice Sedley examined the Lord Justice Sedley examined the common law cases in detail in and common law cases in detail in and concluded:concluded:

“ “There is nevertheless an unanswered There is nevertheless an unanswered question as to how, if at all, the question as to how, if at all, the common law of negligence is to develop common law of negligence is to develop in response to the Human Rights Act in response to the Human Rights Act and the Convention values it imports”.and the Convention values it imports”.

PROBLEM AREAS FOR FURTHER STUDYPROBLEM AREAS FOR FURTHER STUDY

• Good Samaritan actsGood Samaritan acts

• Members of an indeterminate classMembers of an indeterminate class

• Wrongful lifeWrongful life

• Police, ambulance and other emergency Police, ambulance and other emergency servicesservices

• Local authoritiesLocal authorities

• Psychiatric injury – secondary victimsPsychiatric injury – secondary victims

• Economic lossEconomic loss

GOOD SAMARITAN ACTSGOOD SAMARITAN ACTS

Doctors are increasingly reluctant to give Doctors are increasingly reluctant to give medical assistance on aircraft for fear of medical assistance on aircraft for fear of being sued if things go wrong.being sued if things go wrong.1000 incidents a week.1000 incidents a week.There is a steady fall in the percentage of There is a steady fall in the percentage of occasions when a doctor or healthcare occasions when a doctor or healthcare professional responds to a crew professional responds to a crew announcement seeking a volunteer". announcement seeking a volunteer".

((BMJ Report 2004)BMJ Report 2004)

Indeterminate liabilityIndeterminate liability

• Insufficient proximity between the Insufficient proximity between the parties should not lead to a parties should not lead to a multiplicity of future claims that are multiplicity of future claims that are unforeseeableunforeseeable

• Wrongful life - McKay v Essex Area Wrongful life - McKay v Essex Area Health Authority [1982] QB 1116Health Authority [1982] QB 1116

Public emergency servicesPublic emergency services

• Police - Osman v UK (1999) 29 EHRR Police - Osman v UK (1999) 29 EHRR 245245

• Z v UK (2001) 34 EHRR 97 Z v UK (2001) 34 EHRR 97

• Ambulance service – now settled in Ambulance service – now settled in Kent v Griffiths [2000] 2 WLR 1158Kent v Griffiths [2000] 2 WLR 1158

• Other emergency services? Other emergency services?

Public authoritiesPublic authorities

Note difficult areas of law include: Note difficult areas of law include:

• Child abuse and adoption cases – Child abuse and adoption cases – duties owed by social workersduties owed by social workers

• Policy arguments around the cost of Policy arguments around the cost of bringing up unwanted childrenbringing up unwanted children

• Education authoritiesEducation authorities

• Highway authoritiesHighway authorities

PSYCHIATRIC INJURYPSYCHIATRIC INJURY

• Liability is limited if the claimant is a Liability is limited if the claimant is a “secondary” victim“secondary” victim

• Observe the early expansion of the lawObserve the early expansion of the law

• Then the House of Lords imposed the Then the House of Lords imposed the Alcock restrictions Alcock restrictions

• Note later developments and Note later developments and modificationsmodifications

• RescuersRescuers

Economic lossEconomic loss

Note:Note:

• Liability for careless statementsLiability for careless statements

• Liability for careless actsLiability for careless acts

• The relationship between tort and The relationship between tort and contractcontract

• The significance of judicial policyThe significance of judicial policy

• Expansion and restriction of the scope Expansion and restriction of the scope of the dutyof the duty

CONCLUDING COMMENTS ON DUTY OF CARECONCLUDING COMMENTS ON DUTY OF CARE

• Often argued as a preliminary point of lawOften argued as a preliminary point of law• Subject to policy fluctuationsSubject to policy fluctuations• Note latent and explicit policy decisionsNote latent and explicit policy decisions• The Caparo test provides scope for The Caparo test provides scope for

development of the law without the restrictions development of the law without the restrictions imposed by foresight and proximityimposed by foresight and proximity

• Trends can be observed but definite rules of Trends can be observed but definite rules of law may be difficult to ascertain in “grey areas”law may be difficult to ascertain in “grey areas”

• Useful illustration of judicial reasoningUseful illustration of judicial reasoning• Human rights considerationsHuman rights considerations