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The Duty of Care- Approach to be followed

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TOPIC THREE – Duty of Care for Omissions

Have seen that duty of care is a policy device Developed by judges to control liability for negligence D not liable just because he is careless Must owe duty to be careful in first place Sometimes existence of duty will be clear- it will be recognised duty situation –  eg  driver running over pedestrian But if problematic - Starting point for whether there is a duty is foresight of harm – Donoghue….rules out some cases – but not many…. Rules out some cases – but not many…. Then necessary to look at what case law says, Michael, Robinson Reason logically, incrementally

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Look at facts of case How was the damage done by D to C? What kind of damage did C suffer? Do C or D fall into any special categories where the law has developed special rules restricting a duty of care? Where damage done No Problem			Potential problem D’s physical act		D’s omission D’s own wrong		D blamed for wrong 		 done by third party D’s actions			D’s words

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Potential Problems -Liability for Omissions

C injured by D’s failure to act D = totally passive and inactive C case = D did not make me better Tort concerned usually with positive wrongdoing – misfeasance not nonfeasance Tort reluctant to impose duty in that situation England – general rule no duty of care for omission - although maybe morally culpable not usually legally liable. Stovin v Wise – can watch person walk off edge of cliff with no liability – no legal duty to act as good  samaritan ! In other countries can have civil or criminal liability for omissions

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A general rule – no duty of care for omissions – onerous, open floodgates, not practical remedy in most cases EXCEPTIONS Developed by cases….where judges feel it is fair and just for duty to exist 1. Where there is contractual duty to act 2. Where there is a statutory duty to act 3. Where there is an assumption of responsibility 4. Where D created the danger in the first place

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R v  Pittwood D = employed to man railway crossing failed to act and this caused accident  Held duty to act existed There was a contract… in which he had agreed that he would perform certain tasks to safeguard the public therefore he had duty to do that… Clear what his responsibilities were

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Common one - parent/ child relationship.. Once child taken into care, local authority would have statutory duty to act

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If D has assumed responsibility for C then has duty to act Express or implied assumption of responsibility Hahn v Conley Australian case – child with mother visited grandparents Child runs across road in front of D’s carelessly driven car D tried to blame grandfather for failing to act Could there be a duty for omission? Held – no liability Blood relationship not enough No assumption of responsibility on facts as Child merely visiting Needs something said or done

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In loco parentis  Assume responsibility if agree will care or look out for child Schools assume responsibility for physical welfare of children during usual school time - Barnes v Hampshire  Is non delegable duty – Woodlands v Essex Local Authorities assume responsibility for children in their care – Barrett v Enfield

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R v Stone and Dobinson Criminal case involving intellectually challenged defendants D asked anorexic sister to come and live with them long term D didn’t get medical care and F died.  Ds held liable for death in criminal law as assumed responsibility for her welfare Would be same in tort Kirkham v Anderton D = police who had taken victim into custody and family told police they were concerned he was suicide risk  Police did nothing and victim committed suicide.. Court held that assumed responsibility Deprived victim of chance to help himself, and his chance to be helped by his doctor or his family

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Barrett v Ministry of Defence Victim was very drunk after drinking heavily at military base other airman saw him and helped him back to his room  left him on bed where he choked on vomit and died Held liable for not getting him proper care. By taking back.. assumed responsibility

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R v Miller Criminal case Tramp fell asleep and accidentally dropped cigarette Woke up, saw fire, shuffled away and did nothing Held once he accidentally created the danger, he owed a duty to positively act (  i.e  make call to emergency services) Likely to be same in tort

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Duty of Care = policy device May be difficult or problematic where blaming D for what a third party did -  ie C blames D for not controlling another person ( Third Party) Or for not protecting C from the wrongs of that Third Party Usually in situations where Third Party not worth suing – no money, no insurance, can’t trace Special type of duty – almost a type of omission

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prefer to blame immediate direct wrongdoer Hard for D to predict what Third Party will do Onerous  Policy – should C protect self? Economic considerations – insurance, taxpayer’s money See Lamb v Camden, Perl v Camden

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General Rule – Smith v Littlewoods (1987)

HL Decision D’s derelict property set on fire by vandals – spread and damaged C’s property GENERAL RULE = No duty for wrongs of third party Lord Mackay – difficulties of foresight Lord Goff – policy – C should be protecting self – role of insurance – onerous on D But general rule should be subject to exceptions

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Lord Goff – 4 exceptions 1.	A relationship of control between the defendant and the third party, as in  Home Office v Dorset Yacht . 2. A special relationship between C and D – assumption of responsibility -as in  Stansbie  v  Troman . 3. The defendant creates a danger and it is reasonably foreseeable that a third party will "spark" this off, as in  Haynes v Harwood    4.The defendant occupier knows or ought to know that a third party has created a danger and he fails to take reasonable steps to prevent this. Goldman v Hargrave

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Lord Goff’s First Exception : Relationship of Control between D and Third Party

Home Office v Dorset Yacht ( 1970) Borstal Boys known danger- in control of D Could  forsee  harm to people in immediate area Contrast with Hill v Chief Constable of West Yorkshire (1988) Police sued for wrongs of Yorkshire ripper murderer C argued police should have caught him sooner No duty  Unknown criminal – at large No control  Too onerous to have to protect general public

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2nd Exception - Special Relationship between D and C

Stansbie  v  Troman  (1948) D = decorator working at C’s house – Failed to lock up Thieves committed burglary D = Assumed responsibility to C – therefore liable ? Limits of this?

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School held responsible for wrong of independent swimming instructor There would be a non delegable duty –  ie  an obligation to ensure reasonable care was taken if i ) C = especially vulnerable and dependent on D for care ii) D has assumed responsibility to care for C in existing relationship iii) C has no control over D iv) D delegated integral part of duty to third party v) third party negligent in performing relevant function

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D creates danger and third party triggers it

Compare - Haynes v Harwood (1935) D left unattended horse and cart in street Child startled horse C injured trying to control horse D = liable for child’s wrong D had created danger and should  forsee  it could be triggered by other Topp  v London Bus (1993) D leaves bus with keys in ignition Bus stolen by thief – crashes into C D not liable for wrong of third party No control No assumption of Responsibility Bus not danger

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Third Party Creates Danger on D’s land and D fails to make adequate response

Goldman v Hargrave (1967)  Lightening struck tree  D liable when fire started again and spread to C’s land Drew analogy with if fire started by third party – D liable if knew / ought to know of danger AND failed to take  reas  steps to abate

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Possible extension using Caparo Justification

Everett v  Comojo  (2011) Nightclub could owe duty to guest injured by violence of another patron Duty justified by reference to Caparo Control of club and who enters Guest relies on club for safety Economic relationship Analogy with Occupiers Liability Acts Fair and just for duty to exist BUT NO BREACH

The Duty of Care- Approach to be followed

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