Duty of care in English law

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English Tort law
Part of the common law series
Negligence
Duty of care
Standard of care
Bolam Test
Breach of duty
Causation
Breaking the chain
Acts of the claimant
Remoteness
Professional negligence
Loss of chance
Loss of right
Res ipsa loquitur
Eggshell skull
Defences to negligence
Trespass to property
Defamation
Strict liability
Vicarious liability
Rylands v. Fletcher
Nuisance
Other areas of the common law
Contract law · Property law
Wills and trusts
Criminal law · Evidence
In tort, there can be no liability in negligence unless the claimant establishes both that he or she was owed a duty of care by the defendant, and that there has been a breach of that duty.


English Tort law
Part of the common law series
Negligence
Duty of care
Standard of care
Bolam Test
Breach of duty
Causation
Breaking the chain
Acts of the claimant
Remoteness
Professional negligence
Loss of chance
Loss of right
Res ipsa loquitur
Eggshell skull
Defences to negligence
Trespass to property
Defamation
Strict liability
Vicarious liability
Rylands v. Fletcher
Nuisance
*Other areas of the common law*
Contract law · Property law
Wills and trusts
Criminal law · Evidence

Contents

1 Explanation
2 Public policy
3 Public authorities
4 References

Explanation

The perennial problem for the court in each new cause of action has been to decide whether a duty of care was owed and, if so, what its scope was to be. The first judicial approach was to identify specific and distinctive situations in which a duty would exist. The law therefore developed in a piecemeal fashion. In Donoghue v Stevenson (1932) AC 562, Lord Atkin observed at 579-580:

“The result is that the courts have been engaged upon an elaborate classification of duties as they exist in respect of property, whether real or personal, with further divisions as to ownership, occupation or control, and distinctions based on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on. In this way it can be ascertained at any time whether the law recognises a duty, but only where the case can be referred to some particular species which has been examined and classified. And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist."

Lord Atkin considered whether to formulate a single general principle that could be applied in all circumstances to determine the existence of a duty of care at 580:

"To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials."

Nevertheless, Lord Atkin did produce what came to be recognised as a landmark statement of principle:

"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? 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."

In Dorset Yacht Co. Ltd. v Home Office (1970) AC 1004, Lord Reid said at 1026-1027:

"In later years there has been a steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles apply to it. Donoghue v Stevenson may be regarded as a milestone, and the well known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion."

The most comprehensive attempt to formulate a single general principle was made by Lord Wilberforce in Anns v Merton London Borough Council (1978) AC 728, at 751-752:

"Through the trilogy of cases in this House - Donoghue v Stevenson, Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. (1964) AC 465, and Dorset Yacht Co. Ltd. v Home Office, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise."

But following the Anns case, a series of decisions were critical of the notion that a single general principle could be applied to every situation: see Governors of Peabody Donation Fund v Sir Lindsay Parkinson & Co. Ltd. (1985) AC 210; Yuen Kun Yeu v Attorney-General of Hong Kong (1988) AC 175; Rowling v Takaro Properties Ltd. (1988) AC 473; Hill v Chief Constable of West Yorkshire (1989) AC 53. The test that emerged was:

foreseeability of damage, i.e. that in the particular circumstances and not with the benefit of hindsight (per Roe v Minister of Health (1954) 2 AER 131), a hypothetical reasonable person would have foreseen damage (see Moran: 2003);
a relationship of "proximity" or "neighbourhood" between the parties, i.e. the Atkin's "neighbour" test; and
that it should be fair, just, and reasonable to impose a duty of a given scope upon the one party for the benefit of the other.

But it was implicit that the concepts of "proximity" and "fairness" could not be defined with sufficient certainty to underpin a universal test. Thus, the law moved back slightly towards the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope, and the limits of the varied duties of care which the law imposes. This mirrored the trend in Australia. In the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1, Brennan J. said at 43-44:

"It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.'"

In Caparo Industries v Dickman (1990) 1 All ER 568, the Lords accepted that an individual might owe a general duty of care to avoid causing injury to the person or property of others, but the same test could not impose a duty to avoid causing others purely economic loss. The damage resulting from negligent misstatement will normally be confined to economic loss sustained by those who rely on the accuracy of the information or advice they receive as a basis for action. Such statements will usually be made by those in a profession. In advising the client, the professional person owes a duty to exercise that standard of skill and care appropriate to his or her professional status, and will be liable both in contract and in tort for all losses which the client may suffer if there is a breach of that duty. But the possibility of a duty of care being owed to third parties with whom the professional man was in no contractual relationship has been more difficult (Witting: 2004). In Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. the Lords held that, in the appropriate (i.e. special if not fiduciary) circumstances, there could be a duty to take reasonable care when giving information. There appeared to be three requirements:

(a) the claimant relied on the defendant's skill and judgment, or his or her ability to make careful enquiry;

(b) the defendant knew, or ought reasonably to have known, that the claimant was relying on him or her; and

In the Caparo case, audited accounts were relied on by an existing member to launch a take-over bid. There was no dispute that there is a relationship between the auditors and the shareholders of a company who are entitled to rely on the accounts for the protection of their interest. But the crucial question was to identify the extent of the shareholder's interest which the auditor has a duty to protect. The shareholders of a company have a collective interest in the proper management of the company and, if the auditor negligently fails to report accurately, this deprives the shareholders of the opportunity to exercise their powers in general meeting to hold the directors accountable and to correct the systems that permitted the loss. But in practice the interest of the shareholders in the proper management of the company's affairs is indistinguishable from the interest of the company itself, and any loss suffered by the shareholders, e.g. by the negligent failure of the auditor to discover and expose a misappropriation of funds by a director of the company, will be recouped by a claim against the auditors in the name of the company, not by individual shareholders. The Lords found it difficult to visualise a situation in which the individual shareholder could claim to have sustained a loss in respect of his existing shareholding referable to the negligence of the auditor which could not be recouped by the company. The Lords therefore refused to permit the shareholder to sue for losses sustained in the take-over.

Public policy

In this context, the policy issues or "considerations" referred to both in the Wilberforce test in Anns, and in Caparo v Dickman are one step down from ordre public but nevertheless significant. It is highly pertinent to consider how professionals may react if there is an extension of liability, particularly if this liability may be uncertain in its scope. Although insurance may be available to spread the risk, it may not be conducive to the public good if premiums rise rapidly. The consequences may be that activities are limited by professionals only offering services to "trusted" clients or that each profession will adopt defensive practices which may be less effective than those involving some element of risk. No matter what the objective merits of these concerns, the policy question is not limited to the private sector. The public sector also offers professional services and, in principle, it is not immediately obvious why the law should not impose a duty of care on all such professional employees. Indeed, in E (A Minor) v Dorset CC., reported with X v Bedfordshire CC. (1995) 2 AC 633, a duty of care was imposed on an educational psychologist employed by an education authority. As Lord Browne-Wilkinson observed at 763:

"Psychologists hold themselves out as having special skills and they are, in my judgment, like any other professional bound both to possess such skills and to exercise them carefully."

This was discussed in Phelps (A.P.) v Mayor Etc. of The London Borough of Hillingdon Anderton (A.P.) (By Her Mother and Next Friend) v Clwyd County Council; In Re G (A.P.) (A Minor) (By His Next Friend) Jarvis (A.P.) v Hampshire County Council (2001) 2 AC 619.

Whether a duty can and should exist may be resolved by considerations of policy. In particular, whether it is fair, just, and reasonable to admit such a duty.
Whether a duty does exist requires a consideration of the particular facts. In the common kinds of relationship like that of employer and employee acting in the course of an employment, proximity will be identified and a duty will arise with little investigation or analysis required.

Hence, the test for the existence of a duty of care which looks to what the court considers is fair, just and reasonable in policy terms is of a different order from the test of proximity or neighbourhood based on foreseeability. For example, Capital & Counties plc v Hampshire CC (1997) QB 1004, in the context of a public policy immunity, stated that policy has the advantage of flexibility, enabling the court to define the boundaries of claims for negligence in the light of new situations. It also recognises that incremental growth should be controlled, albeit that this does not eliminate the risk of introducing some uncertainty as to the directions in which the law may develop. But a policy test may also relate to the particular facts and circumstances of any given case. Thus, in Osman v UK (1999) 1 FLR 193, (par. 151) the European Court of Human Rights required account to be taken of such matters as the gravity of the negligence in question, the assumption of responsibility by the police for the safety of the eventual victim, and the seriousness of the harm sustained. Even where sound policy reasons can be put forward for excluding a claim it is not thereby necessarily to be excluded. In Phelps, Lord Clyde said:

"I am not persuaded that the recognition of a liability upon employees of the education authority for damages for negligence in education would lead to a flood of claims, or even vexatious claims, which would overwhelm the school authorities, nor that it would add burdens and distractions to the already intensive life of teachers. Nor should it inspire some peculiarly defensive attitude in the performance of their professional responsibilities. On the contrary it may have the healthy effect of securing that high standards are sought and secured. If it is thought that there would only be a few claims and for that reason the duty should not be recognised, the answer must be that if there are only a few claims there is the less reason to refuse to allow them to be entertained. As regards the need for this remedy, even if there are alternative procedures by which some form of redress might be obtained, such as resort to judicial review, or to an ombudsman, or the adoption of such statutory procedures as are open to parents, which might achieve some correction of the situation for the future, it may only be through a claim for damages at common law that compensation for the damage done to the child may be secured for the past as well as the future."

Public authorities

Booth and Squires (2006) explain how the basis for the liability of publicly funded bodies has stemmed from the Wednesbury test of unreasonableness ((1948) 1 KB 223) both through the common law breach of duty to establish negligence, and on the abuse of administrative power. Dorset Yacht and Anns accepted that ultra vires had become the precondition to liability in negligence although, in Anns, Lord Reid dissented, holding that there was no distinction between public and private law. X v Bedfordshire CC. adopted Lord Reid's view and dismissed the idea that an exercise of a statutory power must first be shown to be ultra vires before it could be litigated in tort. But Stovin v Wise (1996) AC 923 which involved a simple omission to exercise powers for the public benefit, the majority reasserted Wednesbury but Lord Nichols argued that there should be a remedy in tort to enforce standards of reasonableness in public bodies. In Gorringe v Calderdale Metropolitan Borough Council (2003) UKHL 15 the court had to consider whether a breach of statutory duty was actionable. Lord Steyn asserted that common rights of action are independent of statute although the fact that the public authority had a discretion would be relevant in deciding whether there had been a breach of duty. Lord Hoffman, however, took the view that whether there is a right of action depends on the construction of the statute, and denied that mere irrationality could be the basis of an action. The explanation given for the decision in Phelps was that the professional came under a separate implied tortious duty to exercise care and skill in performing services. The law is therefore in a state of uncertainty over the provision of services such as adoption, education, healthcare, and social work. In Skipper v Calderdale Metropolitan Borough School (2006) EWCA Civ 238 the court applied Phelps v London Borough of Hillingdon as the landmark case on the failure to diagnose dyslexia, and to hold that the appellant could pursue her claim against her school for humiliation, lost confidence, and lost self-esteem and for loss of earnings following its failing to diagnose and treat her dyslexia despite the fact that, as Latham LJ. says at para 29:

"The extent to which her dyslexia could have been ameliorated or provided for will always remain uncertain, as will the extent to which that would have affected her performance in public examinations; the evidence that we have includes material to suggest that she, not surprisingly, reacted adversely to the break-up of her parents marriage when she was 15, in other words at a critical time in her education. Whether any improvement in her examination results would have led to her life taking a significantly different course will also be a matter for some speculation."

In The Home Office v Robert Butchart (2006) EWCA Civ 239 the nature and extent of the duty owed by a prison to a potentially suicidal inmate was discussed. Knowing that Butchart was at risk of psychiatric injury, the prison placed him in a cell with another suicidal inmate who then committed suicide. The court noted Reeves v Commissioner of Police of the Metropolis (2000) AC 360 and Orange v Chief Constable of West Yorkshire Police (2002) QB 347 which held that the police owed a duty of care to those in its custody, which could in certain circumstances include a duty to take reasonable steps to prevent a prisoner from taking his own life. Similarly, in Hartman v South Essex Mental Health and Community Care NHS Trust (2005) IRLR 293, a health care officer employed by the appellant at HMP Exeter suffered stress-related illness after helping to cut down the body of a prison suicide. This was the eighth occasion on which he had had to attend the aftermath of such a suicide. The Court of Appeal confirmed that it was reasonably foreseeable that the claimant could suffer psychiatric damage. Obviously, the nature and potential scope of the duty of care will depend on the relationship between the claimant and defendant. In Butchart, the Home Office could have owed a duty of care to take reasonable steps to avoid causing the prisoner psychiatric harm because the prison authorities knew or ought to have known that the prisoner was vulnerable to psychiatric harm.

Brown and Franklin (2004) identify four arguments used to justify limiting the right of action in tort:

the cost of defensive measures: but there is no empirical evidence to support the threat of floodgates opening, nor is there any evidence that defensive practices have been adopted by the fire services or other front-line agencies which are exposed to liability. Further it ignores the potentially beneficial deterrent effect of damages to improve standards;
that the court is not equipped to substitute its own discretion for that of a public body. The practical effect of this approach is to preserve the right of political decision making in public bodies (which may or may not be accountable to the electorate). But the court frequently has to decide what a reasonable professional would do in other circumstances, so there is little substance to this objection (particularly because the courts in the European Union routinely supervise public authorities in the exercise of their work);
there is a risk that publicly funded bodies become an insurer of last resort if other parties are not adequately insured. But public bodies already carry insurance and making this provision is less expensive than defending predictable cases in court;
there are alternative mechanisms for resolving the dispute in administrative law and through the ombudsman, but the availability of these remedies is inconsistent and they have no deterrent value.

The Human Rights Act 1998 has been interpreted in Osman as imposing positive duties to act rather than allowing mere powers and discretions to be an excuse for inactivity. But the current state of the law seems to be that there will be no general right to claim damages from a public body unless the body has assumed a separate duty of care, e.g. in the fire brigade, education services, and NHS.

References

Booth, Cherie & Squires, Daniel. (2006). The Negligence Liability of Public Authorities. Oxford: Oxford University Press. ISBN 0199265410
Brown, Simon and Franklin, Kim. (2004) Public Duties and Private Remedies: Floods or Floodgates? [link]
Buckley, R.A. (2005). The Law of Negligence (Butterworths Common Law S.). London: Butterworths Law. ISBN 0406959412
Moran, Mayo. (2003). Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard. Oxford: Oxford University Press. ISBN 019924782X
Witting, Christian. (2004). Liability for Negligent Misstatements. Oxford: Oxford University Press. ISBN 0199250103

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