Tort Negligence

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THE TORT OF NEGLIGENCE - DUTY OF CARE

EXISTENCE OF A DUTY

Donoghue v Stevenson [1932] AC 562,
Lord Atkin attempted to lay down a general principle which would cover all the circumstances where the courts had already held that there could be liability for negligence. He said: "The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? … 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."

Foreseeability and proximity
'Foreseeability' means whether a hypothetical 'reasonable person' would have foreseen damage in the circumstances.

'Proximity' is shorthand for Lord Atkin's neighbour principle. It means that there must be legal proximity, i.e. a legal relationship between the parties from which the law will attribute a duty of care.

Note that a duty of care may not be owed to a particular claimant, if the claimant was unforeseeable. See: Bourhill v Young [1942] 2 All ER 396.

The role of policy
Policy is shorthand for 'public policy considerations'. Policy considerations were recognised in the Wilberforce test and the test in Caparo v Dickman.

In recent years the courts have identified a wide range of factors that may be relevant to the denial of a duty of care. For example, a duty of care may not exist where:

(a) The claimant is the author of his own misfortune (Philcox v Civil Aviation Authority, The Times, 8 June 1995).

(b) A duty of care would lead to unduly defensive practices and a waste of resources (Hill v CC of West Yorkshire [1988] 2 All ER 238, and X (minors) v Bedfordshire CC [1995] 3 All ER 353).

(c) There is an alternative remedy available to an aggrieved claimant, such as a statutory right of appeal from the decision of a government officer or department, or judicial review, or another source of compensation, such as the criminal Injuries Compensation Scheme, or another cause of action, such as a claim for breach of contract, even where the action would be against a different defendant.

DUTY OF CARE

3 CATEGORIES:

1.Professional Negligence [Assumption of Responsibility]
2.Economic Loss
3.Nervous Shock

PROFESSIONAL NEGLIGENCE/ NEGLIGENT MISTATEMENT/ECONOMIC LOSS

Derry v Peek (1889) – recovery for fraud only

Candler v Crane, Christmas & Co (1951)
No relationship – figures relied on by 3rd party

Hedley Byrne v Heller (1964)

Special Relationship
Reliance
Loss

Esso Petroleum v Mardon (1976)
Advice given – undertaking of responsibility in business transaction

JEB Fasteners v Marks Bloom & Co (1981)
Duty of care by accountants if duty is to the plaintiff

Caparo Industries v Dickman (1990)
Duty of care if:
Proximity
Reliance
Just, fair and reasonable

Yianni v Edwin Evans & Sons (1982)
Duty of care by surveyor to buyer

Smith v Eric Bush (1989) + Harris v Wyre Forest DC (1989)
Followed Yianni+ buyers can rely if proximity and j.f.r.

South Australia Asset Management Corporation v York Montague (1996) But – only for losses that are foreseeable

Henderson v Merrett Syndicates (1994)
Can sue in contract and/or tort

Spring v Guardian Assurance plc (1994)
Duty of care by referee to prospective employer and employee

Chaudhry v Prabhaker (1989)
Duty of care even in ‘social or informal’ situation – specialist knowledge?

Misrepresentation Act 1967 s2(1)
Now statutory duty of care not to make misleading/false statements

NEGLIGENCE: PSYCHIATRIC HARM
“Nervous Shock”

Witnesses: “Secondary...
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