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Tort Cases

Duty of Care

Donoghue v Stevenson (1932)

In this case Mrs. Donoghue went to a café with a friend. The friend bought her a drink of ginger beer and ice cream. The bottle of ginger beer had dark glass so that the contents could not be seen. After drinking some of it, Mrs. Donoghue poured the rest out and then saw that it contained a dead (and decomposing) snail. Because of impurities in the drink she was taken ill. She wanted to claim for her illness, but as she had not bought the drink she could not use the law of contract. So she sued the manufacturers claiming that they owed her a duty of care.

In the House of Lords the judges set out a test for when a person would be under a duty. They said:

 “…You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Statement Led By Lord Atkins

Donoghue v Stevenson (1932) was the first successful attempt to set out a general principle with respect to the concept of the duty of care. How as lawyers realised this principle could be manipulated to be used with different types of situations, the test was reformed to form the three-part test in the case of Caparo v Dickman (1990).

Caparo Test

The general test set in Caparo requires three elements to be demonstrated:

·         It was reasonably foreseeable that a person in the claimant’s position would be injured,
·         There was sufficient proximity (closeness) between the parties,
·         It is fair, just and reasonable to impose liability on the defendant.

The First Part – Foreseeablility

Forseeable

Kent v Griffiths (2000)

In this case a doctor called for an ambulance to take a patient suffering from a serious asthma attack to hospital immediately. The ambulance control centre replied ‘okay, doctor’. The ambulance, without a satisfactory reason, failed to arrive within a reasonable time. The patient suffered a heart attack which could have been avoided if she had been taken to hospital earlier. It was reasonably foreseeable that the claimant would suffer harm from the failure of the ambulance to arrive.

Jolly v Sutton London Borough Council (2000)

In this case a boy, aged 14, was paralysed when a boat he was attempting to repair slipped on top of him. The boat had been abandoned on land belonging to the council by a block of flats. The council knew that the boat was in dangerous condition and that children were likely to play on it. The House of Lords held that attempting to repair the boat was not so very different from normal play, so the injury to the claimant was reasonably foreseeable.

Not Foreseeable

Bourhill v Young (1943)

In this case a motorcyclist going too fast, crushed into a car and was killed. Mrs Bourhill, who was eight months' pregnant, was about 50 yards away. She did not actually see the events take place but had heard the incident take place. When she saw the blood on the road, she suffered shock and her baby was stillborn. She claimed against the motorcyclist’s estate. The court decided that the motorcyclist did not owe her duty of care as he could not have reasonably foreseen that she would be affected by his negligent driving.

The Second Part – Proximity

 Osman v Ferguson (1993)

In this case the police officers knew that there was a real risk of an attack on victim. The attacker had a fixation about the victim and had been following him and causing concern. There had been complaints to the police about the attacker’s behaviour. The victim was the murdered by the attacker. The court held that there was a sufficiently close relationship between the police and the victim. However, the case did not succeed because it was ruled that it was not fair, just and reasonable to impose a duty of care on the police (which is the third part of the test).

The Third Part – Fair, Just & Reasonable

Hill v Chief Constable of South Yorkshire (1990)

In this case it was pointed out that imposing a duty on police could lead to policing being carried out in a defensive way which would divert attention away from the suppression of crime, leading to lower standards of policing, not higher ones.

Capital & Counties plc v Hampshire County Council (1997) 

In this case the fire brigade had attended at the scene of a fire. A fire officer ordered that the sprinkler system in building be turned off. This caused the fire to spread and led to more serious damage than if the system had been left on. In this situation it was fair, just and reasonable to recognise a duty of care against the fire brigade.

Breach of Duty

The Reasonable Man Test

Blyth v Birmingham Waterworks Co. (1856)

In this case the standard of care was said to be of that of a ‘reasonable man’, which comes from the definition from baron Alderson who stated:

 “…The reasonable man is the ordinary person performing the particular task: he is expected to perform it reasonably competently. Thus, when I am riding my bicycle, I am expected to be a reasonable competent cyclist; when I am building a wall, a reasonably competent wall builder and so on. This is an objective standard: the peculiarities of the person performing the task are irrelevant.”

Statement Led By Baron Alderson  

Degree of Risk

Roe v Minister of Health (1954)

In this case anaesthetic was kept in glass ampoules. At the time it was not known that invisible cracks could occur in the glass and allow the anaesthetic to become contaminated. So, when the claimant was paralysed by some contaminated anaesthetic, there was no breach and he could not claim compensation.

Bolton v Stone (1951)

In this case a cricket ball hit a passer-by in the street. The evidence was that there was a 17-foot high fence around the ground and the wicket was a long way from this fence. Balls had only been hit out of ground six times in 30 years. Because of the low risk involved there was no breach of the duty of care.

Haley v London Electricity Board (1965)

In this case it was not known that a particular road was used by blind people. Yet, when the electricity board dug a hole in the road they only put out warning signs; they did not put any barriers around the hole. It was stated that where it is known there is a risk and no steps are taken to guard against that risk, there is likely to be a breach of the duty of care.

Standard of Care

Paris v Stepney Borough Council (1951)

In this case Mr Stone was known to be blind in one eye. He was given work to do by his employers which involved a small risk of injury to the eyes. He was not given any protective goggles. While doing this work, his good eye was damaged by a small piece of metal and he became totally blind. His employers were held to have broken their duty of care to him. They knew that the consequences of an injury to his good eye would be very serious. They should have taken greater care because of this and provided him with goggles, even though at that time it was not thought necessary to provide goggles for other workers.

Cost of Precautions

Paris v Stepney Borough Council (1951)

In this case the cost and efforts of providing goggles was very small compared with the consequences of the risk.

Latimer v AEC Ltd (1953)

In this case a factory became flooded and the floor was very slippery with a mixture of the water and oil. Sawdust was spread over the floor to minimise any risk of workers slipping. Despite this one workman slipped and was injured. The court held that there was no breach of the duty of care.  The only way to completely prevent injury would have been to close the factory. It was unreasonable to expect the owners to do this. They had taken sufficient steps to prevent injury in the circumstances.

Clearly if the risk had been much more serious, perhaps a risk of an explosion which could have killed and injured many people, then there would have been a higher standard of care on the owners. It would have been reasonable to expect them to close the factory.

Standards of Experts

Bolam v Friern Hospital Management (1957)

In this case the judge said:

  “A man need not possess the highest expert skill; it is…sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular act.”

Proof of Breach

Res Ipsa Loquitur (things speak for themselves)

Scott v London and St Katherine Docks (1865)

In this case the claimant was hit by six bags of sugar which fell from the defendant’s warehouse. The claimant could not say what had happened to make the bags fall, but the court held that the facts spoke for themselves and it was up to the defendant to prove that they had not been negligent.

Damage

Causation - ‘But for Test’

Barnett v Chelsea and Kensington Hospitals (1969)

In this case three night-watchmen went to Accident & Emergency Complaining of sickness after drinking tea made by a fourth man. A nurse telephoned the doctor on duty, who did not come to examine the men but instead sent the men home and told them to go and see their own doctors in the morning. On returning home, one of the men died a few hours later from poisoning.

His widow sued the hospital claiming that the doctor was negligent in not examining her husband. Evidence showed that by the time the husband had called in to the hospital it was already too late to save his life. This meant that his death was not a result of the doctor’s breach of duty and so the claim failed.

Remoteness of Damage - Foreseeablility

The Wagon Mound (1961)

In this case fuel had negligently spilled onto water in a harbour. Two days later the oil caught fire because of wielding work being done on another ship. The fire spread to the claimants wharf and burnt it. The damage suffered was not reasonably foreseeable. It was too remote from the original negligent act of spilling the oil.

Crossley v Rawlinson (1981)

In this case the claimant in running towards a burning vehicle with a fire extinguisher to put the fire out, tripped, fell and was injured. It was held that as the claimant was only on the way to the danger created by the defendant’s negligence, the injury was too remote.

Thin Skull Rule – Take the victim as you find them

Smith v Leech Brain and Co. (1962)

In this case, because of a defendant’s negligence, a man was burnt on the lip by molten metal. The burn caused him to develop cancer and his widow claimed against the defendant and because the burn was a foreseeable injury, he was also liable for the man’s death. 

Hughes v Lord Advocate (1963)

In this case Post Office workmen left a manhole unattended, covered only with a tent and with paraffin lamps by the hole. The claimant, an eight-year-old boy, and a friend climbed into the hole. On their way out the boys knocked one of the paraffin lamps into the hole. This caused an explosion which badly burnt the claimant.

The boy was able to claim for his injuries since it was foreseeable that a child might explore the site, break a lamp and be burnt. The type of injury was foreseeable, so, even though the explosion was not foreseeable, the defendants were liable.


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