Negligence Three elements: duty of care, breach and damage. Frequently overlap (Lamb v Camden (1981)).

). Ratio DoC owed to ultimate consumer of product, thereby providing remedy for Cs not in contractual relationship with D. Negligence established as an independent tort for which DoC = prerequisite. Important dicta: Lord Atkins neighbour principle DoC owed to anyone reasonably foreseeable as likely to be affected by Ds act or (in more ltd circumstances) omission. Criticised combined test of proximity with that of foresight, making it too inclusive and too easily applicable to cases contrary to public policy. Overruled Anns, HL favoured use of an incremental, analogical approach to determine DoC, with public policy considered to limit breadth of potential claims. Established tripartite test: 1. Reasonable foreseeability 2. Proximity 3. Fair, just and reasonable? Proximity used as a control device, usually signifying the existence of a pre-tort relationship prior to infliction of damage. In novel cases, there should be no assumption of a prima facie duty courts should develop the law incrementally and by analogy with established categories. Recently, importance of this approach recently doubted in Customs & Excise Commissioners v Barclays Bank Plc (2007) Neighbour principle extends to cover cases of pure economic loss where a special relationship exists

Donoghue v Stevenson (1932)

Anns v London Borough of Merton (1978)

Murphy v Brentwood DC (1990)

Yuen Kun Yeu v A.G. of Hong Kong (1988) and Caparo Plc v Dickman (1990)

Sutherlandshire Council v Heyman (1985); and Customs & Excise Commissioners v Barclays Bank Plc (2007)

Hedley Byrne v Heller (1964)

The Foreseeable Claimant Home Office v Dorset Yacht Co (1970)

The Unforeseeable Claimant Maguire v Harland and Wolff (2005)

Proximity Perrett v Collins (1998) and Sutradhar v NERC (2006)

Fair, Just and Reasonable? Marc Rich & Co v Bishop Rock Marine Co ltd (1995)

between parties. Borstal trainees in custody of police officers escaped, causing damage to Cs yacht moored nearby. Held: D, Home Office, liable to C for damage caused at time of escape and in vicinity RF boys would seek to escape and cause damage suffered by C. C, wife of man employed by D. Developed mesothelioma washing husbands asbestos contaminated work clothes. Held: DoC owed to husband but not wife not a RF C. Former case: aircraft negligently certified as fit to fly, D owed passengers DoC. Latter case: D allegedly caused Cs ill health through failure to report presence of arsenic in local water. No DoC owed, no proximity of relationship between D and population of Bangladesh or over source of danger D had not been required to, nor did it consider to, test for arsenic in the water. Principle: personal injury claims existence of duty/proximity dependent upon degree of control and responsibility D had over situation involving potential injury to C. Classification society negligently certified a ship as seaworthy vessel sank causing property damage. Held: HL refused to acknowledge a DoC as the balance of rights and duties between the cargo owner and shipowners had been settled on an internationally acceptable basis (Hague Convention) no good reason for adding to or altering that by imposing on the society a like duty.

POLICY AS A CRITERION OF DUTY: NO DUTY SITUATIONS Hill v CC of West Yorkshire Police (1988) Principle: policy is capable of constituting a separate and independent ground for holding that liability in negligence should not be imposed. C = mother of last victim of Yorkshire ripper, claimed police failed to use reasonable care apprehending the murderer. HL refused to impose DoC would result in defensive police work, to allow the police to be open to liability in respect of decisions made at their discretion would be unfair and would divert resources from fighting crime. Also, nothing to set Mrs Hill apart as more at risk than rest of female populace therefore insufficient proximity between police and victim. Principle: a public interest in protecting police from civil claims can be asserted, but must be balanced with other competing public interests i.e. Cs human rights. ECHR ruled against Hills blanket immunity for police breach of Art.6 of the EcHR (right to a fair trial). H/e, this does not mean that the courts cannot take policy issues into account.

Osman v UK (1998)

POLICY AS A CRITERION OF DUTY: LIABILITY OF PUBLIC BODIES X (Minors) v Bedfordshire CC (1995) Bedfordshire and Newham abuse cases. Dorset, Bromley and Hampshire failure to provide for special educational needs of Cs. Principle: No DoC on local authorities in carrying out their discretionary statutory functions H/e, an improper exercise of that discretion may result in liability: question then = whether fair, just

Stovin v Wise (1996)

Capital and Counties Plc v Hampshire County Council (1997)

Kent v Griffiths (2000)

Watson v British Boxing Board of Control (2001)

Vowles v Evans (2003)

and reasonable to impose a duty. In these cases, held no duty not fair, just or reasonable could lead to function being performed in a detrimentally defensive manner, contrary to public interest. Principle: distinction between statutory duty on an LA (places it under a du ty to provide a service), and a statutory power (LA power, but not duty) to act. D negligently drove out from side rode claimed dangerous junction contributed to accident. HL held no DoC - LA merely had statutory power to improve the dangerous road junction. Fire brigades are not under a common law DoC to answer emergency calls or to take reasonable care to do so, due to lack of proximity between the fire brigade and the building owner. Liability will only arise if the fire service negligently increased the damage or caused additional damage. Policy considerations defensive fire-fighting. Once an ambulance service accepts a call it assumes a responsibility for the particular patient and a DoC arises to those to whom it is summoned to assist. Where a body makes provision in its rules for medical precautions to be employed and makes compliance with the rules mandatory, there is a sufficient relationship of proximity between the body and its members to give rise to a DoC. Policy motivations for holding that an amateur referee of a rugby match, owes DoC to players F, J & R that players should be entitled to rely on the referee for their safety and possible for Rugby union, on

behalf of referee, to take out insurance to cover against third party liability. LIABILITY FOR THE UNBORN Congenital Disabilities (Civil Liability) Act 1976 and Human Fertilisation and Embryology Act (1990), s.44 introduces a new s. 1A to the 1976 Act. Children born alive but disabled as result of an occurrence before its birth, may bring an action in negligence. Statutory right of action derived from right of the parents, i.e., if the parent could have sued, had they suffered injury, the child can sue. HF & E Act (1990) provides remedy where D damaged gametes or eggs held in a laboratory, and which were subsequently implanted and grew to form the child. If the parent concerned was partly responsible for damage, amount of claim is reduced by courts view of what is just and equitable (s.1(7)). No action if Ds misconduct occurred before conception and at least one person knew of the risk (s.1(4)). A mother owes a DoC to a foetus and is liable where she knew or ought to have known she was pregnant, and drives negligently, actionable in the event of live birth - she will likely have insurance to cover the damages. DoC owed to an unborn person becomes actionable on the live birth of the child. C pregnant, wrongly assured had not contracted rubella by HA, child born with deformities claimed not for disabilities but for deprivation of chance to abort. Principle: CL recognizes no claim for wrongful life whereby a child claims s/he would not have been born at all but for Ds negligence. Basis for judgment - policy grounds neither mother nor child could

Burton v Islington HA (1993) McKay v Essex Area HA (1982)

sue. Thake v Maurice (1986) Principle: Claims by parents for wrongful birth after failure of negligently conducted sterilisations or abortions are recognised by the courts. D negligently failed to warn C of small risk of natural reversal of vasectomy. Had C been aware, wife would have recognised her pregnancy earlier and would be able to abort D liable. THOUGH SEE Gold v Haringey HA (1988). Similar claim as above however, woman whose sterilisation reversed itself failed due to lack of unanimity amongst doctors that a warning was necessary in her case hence impossible to prove breach of duty. Principle of Thake v Maurice is, however, still good. Negligent failure to sterilise mother resulted in unplanned daughter C entitled to damages for (i) pain, suffering and general wear and tear involved in birth and parenthood and (ii) financial cost of bringing up the unplanned child. Principle: In claims for economic loss of earnings for the costs of bringing up a child, Ds must have known their advice to the patient would be acted upon without further inquiry. No DoC owed to C due to lack of proximity - D had not voluntarily assumed responsibility C was not an existing partner but a potential future sexual partner, member of a class of persons of an indeterminate size. D could not have known that advice to the patient would be communicated to his future sexual partners and that such a partner would rely on the advice as a warranty of permanent infertility

Gold v Haringey HA (1988)

Emeh v Kensington and Chelsea and Westminister Area HA (1985)

Goodwill v British Pregnancy Advisory Service (1996)

 McFarlane v Tayside Health Board (1999)

Parkinson v St James and Seacroft University NHS Trust (2001)

Rees v Darlington Memorial Hospital NHS Trust (2004)

without independent enquiry. Possibly different outcome if C was current sexual partner and advice was given directly to both of them. Principle: Claims in respect of the financial costs of bringing up a healthy child following advice about, or performance of, negligent sterilisation are not recoverable. Claimed for financial costs of upbringing until the age of 18, for healthy, but unplanned child born due to negligent failure of vasectomy. Lords held claim falls into category of economic loss. HL reconsidered decision in Emeh more restrictive approach in McFarlane: action for mothers pain and suffering during pregnancy, childbirth and the immediate aftermath, and any expenses incurred during pregnancy permitted. However, no action for the economic costs of bringing up a child. CA - Parents of a disabled child born as a result of negligent sterilisation could claim the extra costs of bringing up the child. Conventional award of 15,000 in addition to damages for pregnancy and birth for injury and loss resulting from birth. Upheld main point in McFarlane no award for damages for the birth of a healthy child. McFarlane principle cannot be departed from, even where the parent of the child is seriously disabled. Added that C in such cases be awarded a conventional award of 15,000 on top of damages for pregnancy and birth to recognise that a legal wrong had been done and to mark loss of right to limit

ones family. LIABILITY FOR ACTS OF THIRD PARTIES Smith v Littlewoods Organisation Ltd (1987) Principle: no general DoC to prevent others from suffering loss or damage caused by the deliberate wrongdoing of third parties. Dealt with in terms of omission, HL held D not liable. Ds had no knowledge of vandals. Liability must be determined on basis of real risk of injury or damage as a highly likely consequence of act or omission, rather than foreseeable as a mere possibility. Nothing inherently dangerous about the cinema, i.e. not a source of risk. Liability in negligence for such harm caused by third parties could only be made out where a source of danger was negligently created by D and it was RF that third parties might interfere with it and cause damage by sparking off the danger; and where D had knowledge or means of knowledge that a third party had created or was creating a risk of danger on his property and he failed to take reasonable steps to abate it. Principle: where there is an existing relationship with wrongdoer involving control, DoC for omissions may arise. HL confirmed responsibility of parents and teachers for behavior of children. D, County Council and teachers at school held to be jointly in control of the child therefore under duty to take reasonable steps to prevent him becoming a danger to others. Principle: possible liability in respect of wrongdoing of others where D is held to have undertaken a DoC specifically to C. Decorator failed to heed warnings

Carmarthenshire CC v Lewis (1955)

Stansbie v Troman (1948)

Barrett v Ministry of Defence (1995)

by householder to shut front door if he left the premises burglary occurred whilst absent from premises. D liable for loss of jewellery stolen by third party. Principle: where there is a sufficiently close proximity between D and Cs harm, D may be held to assume a DoC. Ministry of Defence liable for death of heavily intoxicated soldier who chocked on his own vomit when left unchecked after being taken to his room. Ds assumed responsibility for him when he collapsed and measures taken fell short of standard reasonably to be expected D did not summon assistance and supervision of deceased was inadequate. Fact that he had willingly consumed the alcohol was no defence, though damages were reduced by a quarter for contributory negligence.