1. Duty of Care
General
Donoghue v Stevenson: Lord Atkin: "The rule that you are to love your neighbour becomes m law you must not injure your
neighbour; and the lawyer's question " Who is my ' neighbour ?" receives a restricted reply. 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 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 in question."
Caparo [1990]: Lord Bridge: “What emerges is that, in addition to the foreseeability of damage, necessary ingredients in
any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to
whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation
should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope
upon the one party for the benefit of the other.”- (1) Foreseeability; (2) Proximity; (3) Fair, just and reasonable to impose.
Robinson [2018 SC]: C old woman knocked over on street by police in pursuit of drug dealer suspect- held DoC generally
owed in accordance with ordinary principles of the law of negligence unless statute or CL said otherwise.
- Reed: ‘the proposition that there is a Caparo test which applies to all claims in modern negligence and that court
will only impose a duty of care where it is fair just and reasonable is mistaken. The point was that there is no
single test which can be applied in all cases to determine whether a duty of care exists. Instead, you must
proceed incrementally and by analogy’. ‘Normally only in novel cases, where established principles do not
provide an answer, the courts can exercise judgment that involves considerations of ‘fair just and reasonable’
outcomes. This case is an application of established principles that do not depend on Caparo.’
- Mance: found it unrealistic that when recognising and developing established category of liability, the courts are
not influenced by policy considerations. Policy considerations may shape police liability where the conduct was
positive rather than omission.
- Hughes: referred to vital policy considerations which impose limits on the duty of care which the police owe to
individuals.
Tofaris Comment: Reed retreated from the idea of a single universally applicable test. Correct approach is (1) where
existing line of authority, follow it without resorting to considerations of whether a DoC is fair, just and reasonable
(authority already based on this); (2) where SC invited to depart from authority, it can examine fair, just and reasonable; (3)
in a novel case, must develop law incrementally and by analogy. Unclear what type of case is novel.
Weinrib: defends concept of duty from the standpoint of ‘corrective justice’ and ‘correlativity’- negligence structure is a
coherent set that ‘traces the sequence from D’s negligent act to C’s injury’. DoC is a member of an interconnected
ensemble of concepts through which the parties to finding of negligence can be understood as doer and sufferer of the
same injustice. Policy goals are flawed as it does not address the imbalance in the relationship between the parties and
ignores the point of the tort. Must understand parties as the ‘doer and sufferer’ of the single wrong and therefore avoid
one-sided justifications for imposing liability.
NB Nolan + Robertson views
Negligently inflicted psychiatric injury
Primary Victims: primary victims need only establish that physical harm was foreseeable (not psychiatric harm was foreseeable, merely personal injury
(Page)). Primary victims are those within the ‘zone of physical danger’ (White).
Secondary Victims (criteria from Alcock and distinction between primary and secondary victims):
- (1) Close tie of love and affection: presumed for parent and child and between spouses but must be proved for other relationships; siblings not
usually considered to have this.
- (2) Proximity in time and space to the event or its immediate Aftermath: McLoughlin extended this to immediate aftermath although
Wilberforce emphasised that ‘a strict test of proximity by sight or hearing should be applied’; in Alcock, relatives visiting the mortuary to identify
loved ones were held not to come within the immediate aftermath. What constitutes immediate aftermath is decided on the facts of the case (W
v Essex CC- stated in the HL that the law on psychiatric injury was still developing and categories of primary victims not closed- arguably C foster
parents were primary victims; the concept of immediate aftermath has to be assessed on the particular factual situation).
- (3) The event must be witnessed by C’s own unaided senses: in Alcock, seeing over TV was not sufficient.
- (4) C must be of reasonable fortitude: no thin skull rule at liability stage (no hypersensitivity)
- (5) Recognised Medical Condition: shock must be sudden and not ‘gradual’ assault on C’s nervous system (Alcock). In Rothwell, fear and anxiety
caused by awareness of the pleural plaques (which were not themselves actionable damage) could not be actionable as there was no initial
damage from which to compute this loss.
, Pure Economic Loss
Negligent Statements and Provision of Services (Pure Economic Loss)
Hedley: Morris- ‘If someone possessing special skill undertakes, quite irrespective of contract, to apply that skill for the
assistance of another person who relies on such skill, a duty of care will arise’. Devlin- 'the categories of special
relationships which may give rise to a duty to take care in word as well as in deed are not limited to contractual
relationships or to relationships of fiduciary duty, but include also relationships which . . . are 'equivalent to contract,' that
is, where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there
would be a contract.' Requirements- (1) special relationship; (2) statement untrue, inaccurate or misleading; (3) adviser
negligent in making statements; (4) reliance; (5) reliance must be reasonable; (6) reliance must be reasonably
foreseeable by advisor (NRAM); (7) reliance must be detrimental.
- Smith v Bush: DD surveyed a house for a mortgage, declaring it needed no significant repair; in reliance on this,
purchaser bought it; chimney later fell through. Held the liability waiver could not stand up to the UCTA 1977
test of reasonableness and the Hedley principle was extended to highly proximate third party consumers-
difference in bargaining power and impractical to obtain advice from alternative sources; relationship ‘akin to
contract’.
- Caparo: CCs purchased shares in a company in reliance on accounts which stated the company had made a 1.3
million pre-tax profit but actually it was a loss of over 400 000; CC sued auditors claiming they were negligent in
certifying accounts. Held no DoC as insufficient proximity between Caparo and auditors since auditors were not
aware of the existence of Caparo and the purpose for which the accounts were being used. Bridge on why
economic loss is treated restrictively in tort: … ‘To hold the maker of the statement to be under a duty of care in respect
of the accuracy of the statement to all and sundry for any purpose for which they may choose to rely on it is not only to subject
him, in the classic words of Cardozo C.J. to "liability in an indeterminate amount for an indeterminate time to an indeterminate
class"’.
- Spring v Guardian Assurance: held, an employer who provides a reference in respect of an employee to a
prospective new employer owes a DoC to the employee in respect of preparation of the reference under Hedley
and if he breaches it, he is liable for economic loss- Woolf noted it was necessary to extend the law of
negligence because in defamation there was the qualified privilege defence and no malice under Horrocks
could be proven. ‘Special skill’ requirement in Hedley understood in a broad sense, certainly broad enough to
embrace ‘special knowledge’.
- White v Jones: testator wrote to solicitors to give daughter’s his legacy and they negligently did not do so; held D
liable as it assumed responsibility to the clients (deceased testator) which extended to an intended beneficiary
under the proposed will where it was reasonably foreseeable by the solicitor that a consequence of his
negligence might be the loss of the intended legacy without either the testator of his estate having a remedy
(so Hedley applied). Also benefit of not circumventing privity in contract and assumption of responsibility already
developed.
- Commissioner for Customs & Excise v BB: C obtained freezing injunctions against 2 companies held in D bank;
notice given to bank but bank failed to stop the transactions negligently. Held no liability as no DoC under
Hedley since they had no choice but to comply and not Caparo as not fair just and reasonable.
- Banca Nazionale del Lavoro [2018 SC]: C asked to provide credit reference for Barakat to gamble at London
Playboy Club and BNL stated he was trustworthy but there was no reasonable basis for this and club suffered
loss. Lord Sumption- principal issue under Hedley is whether voluntary assumption of resp exists; D’s knowledge
of the transaction is important as it shows to whom D can be said to assume responsibility- the representor must
not only know the statement is likely to be communicated to and relied upon by someone, it must also be part of
the statement’s known purpose that it should be communicated and relied upon by that person if the
representor sit o be taken to assume resp to them. On the facts, BNL did not know of Playboy because they
were providing reference to Burlington (to whom Playboy was principal)- BNL had no reason to suppose
Burlington was acting for someone else, and they knew nothing about Playboy so no AoR.
Negligent Damage to Property (consequential economic loss)
- Spartan Steel (CA): D responsible for digging up road outside C’s smelting factory and negligently cut power to it; C suffered
loss of (1) profits for factory not being operational; (2) physical damage to metal; (3) physical damage to furnaces. Held only 2
and 3 recoverable in negligence as pure economic loss is either too remote or outside the scope of duty. Consequential
economic loss on non-economic damage can be recovered.
- Murphy v Brentwood: D local authority negligently approved plans for the footings of a house; C bought prop but some time
afterwards it began to subside as a result of defects in footings. Defects were discovered before physical injury occurred. C
sued on the basis there was an imminent risk to health and safety from the defect due to D’s negligence. Held the damage
was neither material nor purely economic so D was not liable; to allow C to recover money it lost on sale of property at a loss
or repairing it would result in an unacceptable wide liability and judicial legislation introducing product liability and
transmissible warranties for defective buildings. All defects thus constitute PEL; even if defect caused consequential economic
damage, cannot recover cost of rectifying defect itself instead must look at Defective Premises Act 1972.
Essay + PQ
General
Donoghue v Stevenson: Lord Atkin: "The rule that you are to love your neighbour becomes m law you must not injure your
neighbour; and the lawyer's question " Who is my ' neighbour ?" receives a restricted reply. 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 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 in question."
Caparo [1990]: Lord Bridge: “What emerges is that, in addition to the foreseeability of damage, necessary ingredients in
any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to
whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation
should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope
upon the one party for the benefit of the other.”- (1) Foreseeability; (2) Proximity; (3) Fair, just and reasonable to impose.
Robinson [2018 SC]: C old woman knocked over on street by police in pursuit of drug dealer suspect- held DoC generally
owed in accordance with ordinary principles of the law of negligence unless statute or CL said otherwise.
- Reed: ‘the proposition that there is a Caparo test which applies to all claims in modern negligence and that court
will only impose a duty of care where it is fair just and reasonable is mistaken. The point was that there is no
single test which can be applied in all cases to determine whether a duty of care exists. Instead, you must
proceed incrementally and by analogy’. ‘Normally only in novel cases, where established principles do not
provide an answer, the courts can exercise judgment that involves considerations of ‘fair just and reasonable’
outcomes. This case is an application of established principles that do not depend on Caparo.’
- Mance: found it unrealistic that when recognising and developing established category of liability, the courts are
not influenced by policy considerations. Policy considerations may shape police liability where the conduct was
positive rather than omission.
- Hughes: referred to vital policy considerations which impose limits on the duty of care which the police owe to
individuals.
Tofaris Comment: Reed retreated from the idea of a single universally applicable test. Correct approach is (1) where
existing line of authority, follow it without resorting to considerations of whether a DoC is fair, just and reasonable
(authority already based on this); (2) where SC invited to depart from authority, it can examine fair, just and reasonable; (3)
in a novel case, must develop law incrementally and by analogy. Unclear what type of case is novel.
Weinrib: defends concept of duty from the standpoint of ‘corrective justice’ and ‘correlativity’- negligence structure is a
coherent set that ‘traces the sequence from D’s negligent act to C’s injury’. DoC is a member of an interconnected
ensemble of concepts through which the parties to finding of negligence can be understood as doer and sufferer of the
same injustice. Policy goals are flawed as it does not address the imbalance in the relationship between the parties and
ignores the point of the tort. Must understand parties as the ‘doer and sufferer’ of the single wrong and therefore avoid
one-sided justifications for imposing liability.
NB Nolan + Robertson views
Negligently inflicted psychiatric injury
Primary Victims: primary victims need only establish that physical harm was foreseeable (not psychiatric harm was foreseeable, merely personal injury
(Page)). Primary victims are those within the ‘zone of physical danger’ (White).
Secondary Victims (criteria from Alcock and distinction between primary and secondary victims):
- (1) Close tie of love and affection: presumed for parent and child and between spouses but must be proved for other relationships; siblings not
usually considered to have this.
- (2) Proximity in time and space to the event or its immediate Aftermath: McLoughlin extended this to immediate aftermath although
Wilberforce emphasised that ‘a strict test of proximity by sight or hearing should be applied’; in Alcock, relatives visiting the mortuary to identify
loved ones were held not to come within the immediate aftermath. What constitutes immediate aftermath is decided on the facts of the case (W
v Essex CC- stated in the HL that the law on psychiatric injury was still developing and categories of primary victims not closed- arguably C foster
parents were primary victims; the concept of immediate aftermath has to be assessed on the particular factual situation).
- (3) The event must be witnessed by C’s own unaided senses: in Alcock, seeing over TV was not sufficient.
- (4) C must be of reasonable fortitude: no thin skull rule at liability stage (no hypersensitivity)
- (5) Recognised Medical Condition: shock must be sudden and not ‘gradual’ assault on C’s nervous system (Alcock). In Rothwell, fear and anxiety
caused by awareness of the pleural plaques (which were not themselves actionable damage) could not be actionable as there was no initial
damage from which to compute this loss.
, Pure Economic Loss
Negligent Statements and Provision of Services (Pure Economic Loss)
Hedley: Morris- ‘If someone possessing special skill undertakes, quite irrespective of contract, to apply that skill for the
assistance of another person who relies on such skill, a duty of care will arise’. Devlin- 'the categories of special
relationships which may give rise to a duty to take care in word as well as in deed are not limited to contractual
relationships or to relationships of fiduciary duty, but include also relationships which . . . are 'equivalent to contract,' that
is, where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there
would be a contract.' Requirements- (1) special relationship; (2) statement untrue, inaccurate or misleading; (3) adviser
negligent in making statements; (4) reliance; (5) reliance must be reasonable; (6) reliance must be reasonably
foreseeable by advisor (NRAM); (7) reliance must be detrimental.
- Smith v Bush: DD surveyed a house for a mortgage, declaring it needed no significant repair; in reliance on this,
purchaser bought it; chimney later fell through. Held the liability waiver could not stand up to the UCTA 1977
test of reasonableness and the Hedley principle was extended to highly proximate third party consumers-
difference in bargaining power and impractical to obtain advice from alternative sources; relationship ‘akin to
contract’.
- Caparo: CCs purchased shares in a company in reliance on accounts which stated the company had made a 1.3
million pre-tax profit but actually it was a loss of over 400 000; CC sued auditors claiming they were negligent in
certifying accounts. Held no DoC as insufficient proximity between Caparo and auditors since auditors were not
aware of the existence of Caparo and the purpose for which the accounts were being used. Bridge on why
economic loss is treated restrictively in tort: … ‘To hold the maker of the statement to be under a duty of care in respect
of the accuracy of the statement to all and sundry for any purpose for which they may choose to rely on it is not only to subject
him, in the classic words of Cardozo C.J. to "liability in an indeterminate amount for an indeterminate time to an indeterminate
class"’.
- Spring v Guardian Assurance: held, an employer who provides a reference in respect of an employee to a
prospective new employer owes a DoC to the employee in respect of preparation of the reference under Hedley
and if he breaches it, he is liable for economic loss- Woolf noted it was necessary to extend the law of
negligence because in defamation there was the qualified privilege defence and no malice under Horrocks
could be proven. ‘Special skill’ requirement in Hedley understood in a broad sense, certainly broad enough to
embrace ‘special knowledge’.
- White v Jones: testator wrote to solicitors to give daughter’s his legacy and they negligently did not do so; held D
liable as it assumed responsibility to the clients (deceased testator) which extended to an intended beneficiary
under the proposed will where it was reasonably foreseeable by the solicitor that a consequence of his
negligence might be the loss of the intended legacy without either the testator of his estate having a remedy
(so Hedley applied). Also benefit of not circumventing privity in contract and assumption of responsibility already
developed.
- Commissioner for Customs & Excise v BB: C obtained freezing injunctions against 2 companies held in D bank;
notice given to bank but bank failed to stop the transactions negligently. Held no liability as no DoC under
Hedley since they had no choice but to comply and not Caparo as not fair just and reasonable.
- Banca Nazionale del Lavoro [2018 SC]: C asked to provide credit reference for Barakat to gamble at London
Playboy Club and BNL stated he was trustworthy but there was no reasonable basis for this and club suffered
loss. Lord Sumption- principal issue under Hedley is whether voluntary assumption of resp exists; D’s knowledge
of the transaction is important as it shows to whom D can be said to assume responsibility- the representor must
not only know the statement is likely to be communicated to and relied upon by someone, it must also be part of
the statement’s known purpose that it should be communicated and relied upon by that person if the
representor sit o be taken to assume resp to them. On the facts, BNL did not know of Playboy because they
were providing reference to Burlington (to whom Playboy was principal)- BNL had no reason to suppose
Burlington was acting for someone else, and they knew nothing about Playboy so no AoR.
Negligent Damage to Property (consequential economic loss)
- Spartan Steel (CA): D responsible for digging up road outside C’s smelting factory and negligently cut power to it; C suffered
loss of (1) profits for factory not being operational; (2) physical damage to metal; (3) physical damage to furnaces. Held only 2
and 3 recoverable in negligence as pure economic loss is either too remote or outside the scope of duty. Consequential
economic loss on non-economic damage can be recovered.
- Murphy v Brentwood: D local authority negligently approved plans for the footings of a house; C bought prop but some time
afterwards it began to subside as a result of defects in footings. Defects were discovered before physical injury occurred. C
sued on the basis there was an imminent risk to health and safety from the defect due to D’s negligence. Held the damage
was neither material nor purely economic so D was not liable; to allow C to recover money it lost on sale of property at a loss
or repairing it would result in an unacceptable wide liability and judicial legislation introducing product liability and
transmissible warranties for defective buildings. All defects thus constitute PEL; even if defect caused consequential economic
damage, cannot recover cost of rectifying defect itself instead must look at Defective Premises Act 1972.
Essay + PQ
