Tort: Duty of Care

Duty of Care

Personal Injury & Property Damage

The test for a duty of care depends on whether the case is a novel situation or not. 

  • Novel cases: the test in Caparo Industries Plc v Dickman [1990] 2 AC 605.
  • Non-Novel cases: the test in Robinson v CC of West Yorkshire Police [2018] UKSC 4.
The Caparo v Dickman Test
  1. Is the damage foreseeable?
  2. Is there a relationship of ‘proximity’ between the claimant and defendant?
  3. Is it fair, just and reasonable to impose a duty?
The Robinson Test

If the facts of the case are not novel, then there will be a duty of care if there is previous authority which applies to that relationship which states that a duty of care was owed.

Some common established duties of care include:

medical, healthcare, doctor, medicine

Medical Professionals to Patients: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

Road users, steering wheel, driver

Road Users to Other Road UsersNettleship v Weston [1971] 2 QB 691.

Teacher, children, learning

Teachers to School ChildrenCarmarthenshire County Council v Lewis [1955] AC 549.

Employee, worker, labour

Employers to EmployeesGeneral Cleaning Contractors v Christmas [1953] AC 180.

Even if the case seems novel, it is not necessary to apply Caparo if it is strongly analogous to another case. For example:

Darnley v Croydon Health Services NHS Trust [2018] UKSC 50: In this case, the Supreme Court held that imposing a duty on A&E receptionists was sufficiently analogous with existing duties placed on paramedics and A&E medical staff. This meant that there was no need to apply the Caparo test.  


Omissions

The general rule is that people are not subject to a duty to act. There is no liability for omissions: Stovin v Wise [1996] 3 WLR 389. The exceptions are:

responsibility, parenting, child, trust

Where the defendant assumed responsibility for the claimant: Barrett v MOD [1995] 1 WLR 1217.

mammal, goat, animal

The defendant had control over a dangerous object or animal: Haynes v Harwood [1935] 1 KB 146.

control, security, safety

The defendant had control over a third-party who caused the harm: Carmarthenshire County Council v Lewis [1955] AC 549.

Risk, warm, fire, danger

The defendant created the risk or made the harm worse: Capital & Counties v Hampshire CC [1997] QB 1004.

Repairing car, risk, danger, mechanic

The defendant adopted the risk by incompletely dealing with the danger: Goldman v Hargrave [1967] 1 AC 645.

Surgeon, doctor, surgery

There are individual categories of special duty, such as doctors to patients: Rabone v Pennine Care NHS Trust [2012] 2 WLR 381.


Public Authorities

In public authority cases, remember to consider whether the matter complained of is an act or an omission. If it is an omission, you must also consider whether there is an exception to the rule against omissions liability.

Local Authorities

Whether a duty of care is owed will depend on the matter complained of: X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

Crack, road, asphalt

If it is a complaint that the local authority made or failed to make a decision involves the exercise of discretion with policy considerations, there can never be a duty of care. 

Traffic lights, discretion, stop

If the complaint concerns the failure to exercise a statutory discretion which does not involve policy considerations, a duty is only owed if the decision was so unreasonable that it cannot be classified as being within the lawful scope of the discretion granted by the power.

Council meeting, room, chairs

If it is a complaint concerning the practical manner in which the local authority implemented a decision, there is no special bar against a duty of care arising.

In addition, local authority bodies do NOT owe duties to:

  • Citizens, to warn them that they are in danger from a third-party: Mitchell v Glasgow City Council [2009] UKHL 11;
  • Parents, when conducting investigations into allegations of child abuse: D v East Berkshire Community NHS Trust [2005] 2 WLR 993.
The Police and CPS

The police and CPS do NOT owe duties to:

Criminal, gun, fugitive, crime

Suspects, to carry out the criminal investigation and charges in a reasonable way: Calveley v Chief Constable of Merseyside Police [1989] AC 1228.

Witness, eyes, sight

Witnesses, to regard, protect and support them as witnesses or potential victims: Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495.

Victim, trauma, defence

Victims, to properly investigate, detect and prevent crime: Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495.

The police DO owe duties to:

  • Informants, to protect their confidentiality: Swinney v Chief Constable of Northumbria Police Force [1997] QB 464;
  • Victims, to properly warn of, detect and prevent crime where the police ought to have known at the time of a real and immediate risk to the life of an identified person from the acts of a specific third-party: Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50.
Fire and Ambulance

Emergency services DO owe a duty of care in the following situations:

Phone call, caller

Ambulance services owe a duty to callers and victims, after the service has accepted a call for assistance: Kent v Griffiths [2000] 2 WLR 1158. 

Victim, under attack

The first service owes a duty of care to victims, but only after the service has begun to help but made the problem worse than it would have been: Capital & Counties Plc v Hampshire County Council [1997] QB 1004.


Psychiatric Harm

The rules for negligently-caused psychiatric harm change depending on what kind of victim the claimant was: consequential, primary or secondary.

physical injury, harm, bones, teeth, xray

If the claimant has suffered physical harm, any consequential psychiatric harm falls within the scope of the duty to avoid physical harm. 


eye, witness, nearby

If the claimant is a primary victim, then the defendant owes a duty not to cause recognised psychiatric illness.

Family, love, spouses, close relationship

If the claimant is a secondary victim, then a duty of care is only owed if the criteria in Alcock v CC of the South Yorkshire Police [1992] 1 AC 310 are met. 

Primary Victims

The following are the established classes of primary victim:

Sky jumping, danger, sports, extreme, sky

Claimants who are in the ‘zone of danger’ for physical injury: Page v Smith [1996] 1 AC 155.

Danger zone, rock climbing

Claimants who reasonably believe they are in the ‘zone of danger’: Dulieu v White [1901] 2 KB 669.

Death, grave, cemetery

Claimant who reasonably believe they have been made an instrumental cause of someone else’s death or serious injury: Dooley v Cammell Laird [1951] 1 Lloyd’s Rep 271.

Pregnancy, girl, boy, twins, pregnant woman

Pregnant claimants whose foetuses or babies are injured in utero: Yah v Medway NHS Foundation Trust [2018] EWHC 2964.

Secondary Victims

If a claimant is not a consequential or primary victim, they are a secondary victim. They must establish the Alcock criteria:

1. The claimant must have a close tie of love and affection with someone who was injured in the event (presumed or proven)

2. The claimant must have been physically and temporally close to the event or its immediate aftermath

3. The claimant must have suffered a sudden shock from witnessing something horrifying with their own unaided senses

4. The claimant must have suffered a recognised psychiatric illness (Tanner v Sarkar [2016] 12 WLUK 259)

The following principles have been established by the case-law:

  • A close tie is presumed for parents, spouses, and fiancées: Alcock v CC of the South Yorkshire Police [1992] 1 AC 310.
  • It is unclear what the ‘event’ is. Some cases suggest it is the moment of the breach: Taylor v Somerset [1993] PIQR P262. Others suggest it is the first time harm manifests: Werb v Solent NHS Trust [2017] WL 02978816.
  • The ‘immediate aftermath is a short window of a few hours: contrast Galli-Atkinson v Seghal [2003] Lloyds Rep Med 285 with Berisha v Stone Superstore [2014] WL 6862531.
  • An event or aftermath is not sudden if a reasonable person would expect to see that sort of thing the relevant context: Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588. 

Economic Loss

Safety, physical injury, nail, risk

Where the claimant suffers economic loss as a result of personal injury or property damage (or psychiatric harm, if there is a duty of care), such as lost earnings from being unable to work, then this automatically falls within the scope of the existing duty. 

Economic loss, building defects, countryside

Non-consequential economic loss is pure economic loss. Economic losses which arise due to latent defects present are also classed as pure economic loss: Murphy v Brentwood District Council [1991] UKHL 2. A special test must be met to establish a duty in pure economic loss cases.  

Establishing a Duty to Avoid Pure Economic Loss

A duty to avoid causing pure economic loss only arises if the defendant has ‘assumed responsibility’ for the claimant’s economic and financial well-being: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. This will only arise if the following facts exist:

  1. A ‘special relationship’ exists between the parties. Examples include a professional, employment or business relationship: Henderson v Merrett Syndicates (No 1) [1994] UKHL 5; Howard Marine v Ogden [1978] QB 574; Spring v Guardian Assurance [1994] 3 WLR 354.
  2. The defendant knew that the claimant would rely on their advice or actions without taking steps to verify the advice or action was proper: Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161.
  3. The claimant did in fact rely on that advice such that they would have done something different if the defendant had not been negligent: White v Taylor [2004] EWCA 1151. 

The existence of a valid notice or term which disclaims liability will mean there is no duty of care. This is because the disclaimer demonstrates that the defendant did not assume responsibility for the claimant’s affairs: Hedley Byrne & Co v Heller & Partners [1964] AC 465.

In very rare cases, a duty to avoid causing economic loss exists even where the above criteria are not met. For example:

White v Jones [1995] 2 WLR 187: The House of Lords held that solicitors owe a duty not to cause economic loss to potential beneficiaries of a testator’s estate or will.


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Duty of Care Quiz

Test yourself on the principles of duty of care in tort.

1 / 22

Do local authorities owe citizens a duty to warn them that they are in danger?

 

2 / 22

Do the police owe victims a duty of care when investigating crime?

3 / 22

What four things must a secondary victim establish to show that the defendant owes them a duty of care to avoid causing psychiatric harm?

4 / 22

Which test applies when determining whether there is a duty of care in non-novel cases?

5 / 22

Do local authorities owe parents a duty of care when conducting investigations into allegations of child abuse?

 

6 / 22

Do police owe a duty to protect the confidentiality of informants?

 

7 / 22

What 4 conditions must be met before the defendant is deemed to have 'assumed responsibility' for the claimant's pure economic loss (and therefore owe the claimant a duty of care)?

8 / 22

If the claimant has been physically injured by the defendant's negligence, does the defendant owe a duty to avoid causing psychiatric harm?

9 / 22

The claimant alleges that a local authority harmed them by making or failing to make a decision involving the exercise of discretion with policy considerations. When will the local authority owe a duty of care in this case?

10 / 22

Which of the following are the four categories of primary victim when determining if there is a duty to prevent psychiatric harm?

11 / 22

Is there general liability for a failure to act in English Law?

 

12 / 22

What is the 'event' that the secondary victim must have been in close proximity to?

13 / 22

What 3 things must the claimant establish to show a duty of care exists in novel cases?

14 / 22

The claimant alleges that a local authority failed to exercise a statutory discretion which does not involve policy considerations, and caused them harm. When does the local authority owe them a duty of care in this scenario?

15 / 22

Which five of these are exceptions to the rule that there is no liability in tort for omissions in English law?

16 / 22

If the claimant is a secondary victim, when will the courts presume that they shared a close tie of love and affection with someone injured in the event? (3 answers)

17 / 22

Which case is authority for the proposition that there is no general liability for omissions in English law?

18 / 22

Is a latent defect in a building or property pure economic loss?

19 / 22

Do the police owe a duty of care to suspects or witnesses when investigating crime?

 

20 / 22

The claimant alleges that the practical manner in which the local authority implemented a decision harmed them. When will a duty of care be owed by the local authority?

21 / 22

What is the test for determining whether there is a duty of care in non-novel cases?

22 / 22

When do fire and ambulance services owe a duty to people who request their aid? (Two answers)

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