Duty of care and Duty situations in Tort and Negligence
The tests for determining the existence of a duty of care have changed.
Prior to 1932, there were several incidents of liability for negligence but there was no relating principle formulated which could be look upon as the basis of all of them. These were referred to as ‘duty situations’.
The ‘neighbor’ principle
The first attempt to create a rationale for all the discrete duty situations was made by Brett MR in Heaven v Pender (1883), but the most significant formulation of a general principle is that of, Lord Atkin in Donoghue v Stevenson (1932). This is notorious as the ‘neighbor principle’: You must take reasonable care to avoid acts or omissions which you can reasonably foresee are likely to injure your neighbor. Who, then, in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act, that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.
The ‘two stage’ test
The ‘neighbour principle’ is a test based on reasonable foresight and is indisputably too wide that It needed extra defining.
In the 1970s, there were efforts to extend it by defining it as a general principle. In Home Office v Dorset Yacht Co Ltd (1970), Lord Reid said ‘[the neighbor principle] ought to apply unless there is some justification or a valid explanation for its exclusion’. This led to Lord Wilberforce’s ‘two stage’ test in the case of Anns v Merton LBC (1977):
First, one has to ask whether ..... there is a satisfactory relationship of proximity …. in which case a prima facie duty arises.
Secondly, if the first question is answered positively, it is essential to consider whether there are any policy considerations which should to negative, or to lessen or limit the scope of the duty.
Lord Wilberforce’s importance on prima facie duties led to a large probable increase in the areas where a duty will be owed, particularly in the area of economic loss. See Junior Books Ltd v Veitchi Co Ltd (1983). Note how Lord Wilberforce uses this countenance ‘proximity’, he associates it to foreseeability, this approach has not been tailed in more recent cases and ‘proximity’ currently takes into account the type of situation and policy.
Criticism of the ‘two stage’ test
Criticisms of the test were as follows:
• Policy and proximity are customarily considered together;
• The test concealed the difference between misfeasance and non-feasance;
• The test tangled too rapid an extension to the tort of negligence;
• Judges detested the express consideration of policy.
The ‘three stage’ test
Lord Wilberforce’s general principle soon came in for heavy criticism.
This began with Lord Keith in Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd (1985), when he said that, in addition to proximity, the court must decide whether it is ‘fair, just and reasonable’ to impose a duty of care.
The case of Murphy v Brentwood DC (1990), marked the death toll for the ‘two stage’ test by superseding Anns. Murphy talked of adopting an ‘incremental’ approach to determining the existence of a duty of care.
Following the case of Caparo Industries plc v Dickman (1990), there is now a ‘three stage’ test, with the following criteria being taken into account:
• Reasonable foreseeability;
• Proximity; and,
• Is it ‘fair, just and reasonable’ to impose a duty?
The response against the ‘two stage’ test was mainly focused on the fact that it created an enormous extension to the tort of negligence. The ‘incremental’ approach evades such an increase, instead, the tort of negligence is advanced by analogy with existing cases. Any novel type of situation would have to demonstrate that it is equivalent to an existing situation where a duty is owed.
Policy considerations.
Policy plays a vital role in defining the existence of a duty of care. It can be defined as the departure from well-known legal principle for pragmatic purposes. Cases such as Donoghue v Stevenson and Anns cogitate policy expressly, whereas the approach trailed in Caparo and Murphy is to impliedly consider policy and merge it into other considerations such as ‘proximity’ and whether it is ‘fair, just and reasonable’ to impose a duty.
What issues of policy are commonly raised?
• To allow an action would open the floodgates and expose the defendant to an unstipulated liability. The courts are always acute to limit liability to a determinate amount to a determinate class of people. For example, in Weller & Co v Foot and Mouth Disease Research Institute (1986), the plaintiffs were auctioneers who lost money on account of being unable to hold their auctions as a result of the defendant’s negligence in allowing the foot and mouth virus to escape, which lead to restrictions on the movement of cattle.
It was said by the court that their damage was ‘foreseeable’, but so was the damage to ‘countless other enterprises’. It would have been similarly foreseeable that cafés, newsagents, etc, in the market town would also lose money. The burden on one pair of defendant’s shoulders would be unbearable and policy had to act to limit liability.
• The imposition of a duty would prevent the defendant from performing his job appropriately
This leads to a class of what have been labeled ‘protected parties’ – persons who enjoy immunity from suit:
(a) Judges and witnesses in judicial proceedings enjoy immunity on grounds of ‘public policy’;
(b) Barristers – it was held in Rondel v Worsley (1969) that barristers were immune from civil action. It was further held in Saif Ali v Sydney Mitchell and Co (1980) that the immunity extended to pretrial work. In Kelley v Corston (1997), the defendant, who was a barrister advised the plaintiff to compromise a claim for ancillary relief in divorce proceedings. The court later confirmed the settlement as a consent order. The plaintiff subsequently sued the defendant on the basis of negligent advice. The court held that the plaintiff’s claim fell within the immunity extended to advocates;
(c) Solicitors enjoy immunity when acting as advocates;
(d) There is a public policy immunity for the carrying out of public duties by public bodies, unless that public body has assumed accountability to the individual. It is thought that, to impose a duty, in this situation, would inhibit with the way in which public bodies carry out their tasks.
The immunity originates with the case of Hill v Chief Constable of West Yorkshire (1989). The mother of the last victim of the Yorkshire Ripper sought to sue the police for negligence in failing to apprehend him earlier. There was found to be no special relationship between the police and the victim and consequently no duty could arise. It was felt that to impose a duty would be damaging to police operations. They would deploy their resources defensively on the basis of how they could best avoid civil liability, rather than on the basis of their professional judgment.
This immunity was held to apply in the case of, Osman v Ferguson (1992), even where it was well-known to the police that the plaintiff was being harassed by an identified individual. A school teacher had become obsessed with one of his pupils. He had threatened to do a ‘thing like the Hungerford massacre’ because of the obsession. Complaints had been made by the plaintiff’s family to the police. The same individual eventually shot and injured the plaintiff and also killed his father but there was no duty on grounds of public policy immunity.
Nonetheless, the police may be liable where there is a special relationship between the police and an informant (Swinney v Chief Constable of Northumbria Police (1996)). The police do not have a blanket immunity, there are other considerations of public policy which also carry weight. Hirst LJ gave examples such as the need to guard springs of information, to protect informers, and to inspire them to come forward without an undue fear of the risk that their identity will become identified to the suspect or to his associates. The facts of the case were that the plaintiff passed on to the police certain information concerning the unlawful killing of a police officer.
The suspect was known to be violent. The informant requested that contact with her be made in confidence. The document containing the material supplied together with the informant’s name was left in an unattended police car. The vehicle was broken into and the suspect obtained the document. It was arguable that a special relationship existed.
The House of Lords held that, a policewoman who alleged that the defendant commissioner had been negligent in failing to prevent her victimization by fellow officers had an arguable case in Waters v Commissioner of Police of the Metropolis (2000). The claimant had complained to her superior of a sexual assault by a fellow officer.
Subsequently, her fellow officers reviled her for having made the complaint. The public policy immunity did not apply. The claimant was not suing as a member of the public. Lord Halton said it was in the public interest to allow the claim; otherwise, citizens would be discouraged from joining the police.
The immunity also did not arise in Welton v North Cornwall DC (1996).
An environmental health officer, acting on behalf of a local authority, negligently required the owner of food premises to undertake extensive works to conform with the Food Act 1990. It was argued that the officer exercised a police or quasi-police function and there ought to be an immunity. This was rejected as the officer had assumed responsibility and hence a duty of care was owed.
The same public policy immunity for the discharge of public duties, unless responsibility had exceptionally been assumed to a particular defendant, also applies to the Crown Prosecution Service (Elguzouli- Daf v Commissioner of Police of the Metropolis (1994)) and the fire brigade (Church of Jesus Christ of Latter Day Saints (Great Britain) v Yorkshire Fire and Civil Defence Authority (1996); John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority (1996); Nelson Holdings Ltd v British Gas plc (1996)). However, a distinction was made between a positive act of negligence for which there would be liability on the part of the fire brigade and a negligent omission for which there would be no liability in Capital Counties plc v Hampshire CC (1997). Latter Days Saints and Munroe were preferred in Nelson.
The public policy immunities have recently been scrutinized by the European Court of Human-Rights in Osman v UK (1998). A challenge was made under Arts 2, 6 and 8 of the “European-Convention-on-Human-Rights”. The case arose out of the facts of Osman v Ferguson (see above). Article 2 protects right to life; Art 6 protects the right to justice and Art 8 provides for respect for private and family life. There was held to be no breach of Art 2 as the State was not in breach of its positive responsibility to take precautionary actions to guard an individual whose life was at risk from another. The police did not discern or should have known that there was a threat to life. For parallel reasons, there was no breach of Art 8.
There was a breach of Art 6(1). The exclusionary rule which prohibited a full hearing of the applicant’s case laid down in Hill constituted a lopsided interference with a person’s right to have a determination on the merits of an action and prevented the court from considering competing interests.
• It is against public policy to claim that you should not have been born (McKay v Essex AHA(1982))
• The courts will not impose a duty where there is an alternate system of compensation See, Hill v Chief Constable of West Yorkshire, where compensation was payable under the Criminal Injuries Compensation Scheme. However, the existence of an alternative remedy will not exclude liability, if the elements of foreseeability and proximity are present (Langley v Dray (1998)).
• Constitutional relationship flanked by Parliament and the courts. The courts are reluctant to impose a duty where none existed before, as they see this as the constitutional role of Parliament.
Duty in fact
The issue of the existence of a duty will only arise in novel cases or where it is required to overrule an existing precedent against liability. This is referred to as a ‘notional duty’ and looks at the question from an abstracted level.
In most cases, it will be a question of fact, whether the defendant owes the plaintiff a duty of care on the specific facts of the case. This is referred to as a ‘duty in fact’. The existence of that particular duty is not in issue, what is in issue is whether a duty is owed in that particular case. For example, Bourhill v Young (1942), where court held that the plaintiff was not foreseeable.
Prior to 1932, there were several incidents of liability for negligence but there was no relating principle formulated which could be look upon as the basis of all of them. These were referred to as ‘duty situations’.
The ‘neighbor’ principle
The first attempt to create a rationale for all the discrete duty situations was made by Brett MR in Heaven v Pender (1883), but the most significant formulation of a general principle is that of, Lord Atkin in Donoghue v Stevenson (1932). This is notorious as the ‘neighbor principle’: You must take reasonable care to avoid acts or omissions which you can reasonably foresee are likely to injure your neighbor. Who, then, in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act, that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.
The ‘two stage’ test
The ‘neighbour principle’ is a test based on reasonable foresight and is indisputably too wide that It needed extra defining.
In the 1970s, there were efforts to extend it by defining it as a general principle. In Home Office v Dorset Yacht Co Ltd (1970), Lord Reid said ‘[the neighbor principle] ought to apply unless there is some justification or a valid explanation for its exclusion’. This led to Lord Wilberforce’s ‘two stage’ test in the case of Anns v Merton LBC (1977):
First, one has to ask whether ..... there is a satisfactory relationship of proximity …. in which case a prima facie duty arises.
Secondly, if the first question is answered positively, it is essential to consider whether there are any policy considerations which should to negative, or to lessen or limit the scope of the duty.
Lord Wilberforce’s importance on prima facie duties led to a large probable increase in the areas where a duty will be owed, particularly in the area of economic loss. See Junior Books Ltd v Veitchi Co Ltd (1983). Note how Lord Wilberforce uses this countenance ‘proximity’, he associates it to foreseeability, this approach has not been tailed in more recent cases and ‘proximity’ currently takes into account the type of situation and policy.
Criticism of the ‘two stage’ test
Criticisms of the test were as follows:
• Policy and proximity are customarily considered together;
• The test concealed the difference between misfeasance and non-feasance;
• The test tangled too rapid an extension to the tort of negligence;
• Judges detested the express consideration of policy.
The ‘three stage’ test
Lord Wilberforce’s general principle soon came in for heavy criticism.
This began with Lord Keith in Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd (1985), when he said that, in addition to proximity, the court must decide whether it is ‘fair, just and reasonable’ to impose a duty of care.
The case of Murphy v Brentwood DC (1990), marked the death toll for the ‘two stage’ test by superseding Anns. Murphy talked of adopting an ‘incremental’ approach to determining the existence of a duty of care.
Following the case of Caparo Industries plc v Dickman (1990), there is now a ‘three stage’ test, with the following criteria being taken into account:
• Reasonable foreseeability;
• Proximity; and,
• Is it ‘fair, just and reasonable’ to impose a duty?
The response against the ‘two stage’ test was mainly focused on the fact that it created an enormous extension to the tort of negligence. The ‘incremental’ approach evades such an increase, instead, the tort of negligence is advanced by analogy with existing cases. Any novel type of situation would have to demonstrate that it is equivalent to an existing situation where a duty is owed.
Policy considerations.
Policy plays a vital role in defining the existence of a duty of care. It can be defined as the departure from well-known legal principle for pragmatic purposes. Cases such as Donoghue v Stevenson and Anns cogitate policy expressly, whereas the approach trailed in Caparo and Murphy is to impliedly consider policy and merge it into other considerations such as ‘proximity’ and whether it is ‘fair, just and reasonable’ to impose a duty.
What issues of policy are commonly raised?
• To allow an action would open the floodgates and expose the defendant to an unstipulated liability. The courts are always acute to limit liability to a determinate amount to a determinate class of people. For example, in Weller & Co v Foot and Mouth Disease Research Institute (1986), the plaintiffs were auctioneers who lost money on account of being unable to hold their auctions as a result of the defendant’s negligence in allowing the foot and mouth virus to escape, which lead to restrictions on the movement of cattle.
It was said by the court that their damage was ‘foreseeable’, but so was the damage to ‘countless other enterprises’. It would have been similarly foreseeable that cafés, newsagents, etc, in the market town would also lose money. The burden on one pair of defendant’s shoulders would be unbearable and policy had to act to limit liability.
• The imposition of a duty would prevent the defendant from performing his job appropriately
This leads to a class of what have been labeled ‘protected parties’ – persons who enjoy immunity from suit:
(a) Judges and witnesses in judicial proceedings enjoy immunity on grounds of ‘public policy’;
(b) Barristers – it was held in Rondel v Worsley (1969) that barristers were immune from civil action. It was further held in Saif Ali v Sydney Mitchell and Co (1980) that the immunity extended to pretrial work. In Kelley v Corston (1997), the defendant, who was a barrister advised the plaintiff to compromise a claim for ancillary relief in divorce proceedings. The court later confirmed the settlement as a consent order. The plaintiff subsequently sued the defendant on the basis of negligent advice. The court held that the plaintiff’s claim fell within the immunity extended to advocates;
(c) Solicitors enjoy immunity when acting as advocates;
(d) There is a public policy immunity for the carrying out of public duties by public bodies, unless that public body has assumed accountability to the individual. It is thought that, to impose a duty, in this situation, would inhibit with the way in which public bodies carry out their tasks.
The immunity originates with the case of Hill v Chief Constable of West Yorkshire (1989). The mother of the last victim of the Yorkshire Ripper sought to sue the police for negligence in failing to apprehend him earlier. There was found to be no special relationship between the police and the victim and consequently no duty could arise. It was felt that to impose a duty would be damaging to police operations. They would deploy their resources defensively on the basis of how they could best avoid civil liability, rather than on the basis of their professional judgment.
This immunity was held to apply in the case of, Osman v Ferguson (1992), even where it was well-known to the police that the plaintiff was being harassed by an identified individual. A school teacher had become obsessed with one of his pupils. He had threatened to do a ‘thing like the Hungerford massacre’ because of the obsession. Complaints had been made by the plaintiff’s family to the police. The same individual eventually shot and injured the plaintiff and also killed his father but there was no duty on grounds of public policy immunity.
Nonetheless, the police may be liable where there is a special relationship between the police and an informant (Swinney v Chief Constable of Northumbria Police (1996)). The police do not have a blanket immunity, there are other considerations of public policy which also carry weight. Hirst LJ gave examples such as the need to guard springs of information, to protect informers, and to inspire them to come forward without an undue fear of the risk that their identity will become identified to the suspect or to his associates. The facts of the case were that the plaintiff passed on to the police certain information concerning the unlawful killing of a police officer.
The suspect was known to be violent. The informant requested that contact with her be made in confidence. The document containing the material supplied together with the informant’s name was left in an unattended police car. The vehicle was broken into and the suspect obtained the document. It was arguable that a special relationship existed.
The House of Lords held that, a policewoman who alleged that the defendant commissioner had been negligent in failing to prevent her victimization by fellow officers had an arguable case in Waters v Commissioner of Police of the Metropolis (2000). The claimant had complained to her superior of a sexual assault by a fellow officer.
Subsequently, her fellow officers reviled her for having made the complaint. The public policy immunity did not apply. The claimant was not suing as a member of the public. Lord Halton said it was in the public interest to allow the claim; otherwise, citizens would be discouraged from joining the police.
The immunity also did not arise in Welton v North Cornwall DC (1996).
An environmental health officer, acting on behalf of a local authority, negligently required the owner of food premises to undertake extensive works to conform with the Food Act 1990. It was argued that the officer exercised a police or quasi-police function and there ought to be an immunity. This was rejected as the officer had assumed responsibility and hence a duty of care was owed.
The same public policy immunity for the discharge of public duties, unless responsibility had exceptionally been assumed to a particular defendant, also applies to the Crown Prosecution Service (Elguzouli- Daf v Commissioner of Police of the Metropolis (1994)) and the fire brigade (Church of Jesus Christ of Latter Day Saints (Great Britain) v Yorkshire Fire and Civil Defence Authority (1996); John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority (1996); Nelson Holdings Ltd v British Gas plc (1996)). However, a distinction was made between a positive act of negligence for which there would be liability on the part of the fire brigade and a negligent omission for which there would be no liability in Capital Counties plc v Hampshire CC (1997). Latter Days Saints and Munroe were preferred in Nelson.
The public policy immunities have recently been scrutinized by the European Court of Human-Rights in Osman v UK (1998). A challenge was made under Arts 2, 6 and 8 of the “European-Convention-on-Human-Rights”. The case arose out of the facts of Osman v Ferguson (see above). Article 2 protects right to life; Art 6 protects the right to justice and Art 8 provides for respect for private and family life. There was held to be no breach of Art 2 as the State was not in breach of its positive responsibility to take precautionary actions to guard an individual whose life was at risk from another. The police did not discern or should have known that there was a threat to life. For parallel reasons, there was no breach of Art 8.
There was a breach of Art 6(1). The exclusionary rule which prohibited a full hearing of the applicant’s case laid down in Hill constituted a lopsided interference with a person’s right to have a determination on the merits of an action and prevented the court from considering competing interests.
• It is against public policy to claim that you should not have been born (McKay v Essex AHA(1982))
• The courts will not impose a duty where there is an alternate system of compensation See, Hill v Chief Constable of West Yorkshire, where compensation was payable under the Criminal Injuries Compensation Scheme. However, the existence of an alternative remedy will not exclude liability, if the elements of foreseeability and proximity are present (Langley v Dray (1998)).
• Constitutional relationship flanked by Parliament and the courts. The courts are reluctant to impose a duty where none existed before, as they see this as the constitutional role of Parliament.
Duty in fact
The issue of the existence of a duty will only arise in novel cases or where it is required to overrule an existing precedent against liability. This is referred to as a ‘notional duty’ and looks at the question from an abstracted level.
In most cases, it will be a question of fact, whether the defendant owes the plaintiff a duty of care on the specific facts of the case. This is referred to as a ‘duty in fact’. The existence of that particular duty is not in issue, what is in issue is whether a duty is owed in that particular case. For example, Bourhill v Young (1942), where court held that the plaintiff was not foreseeable.
Tags : Torts and Negligence Law