Tort 4 - Duty of care 3

In Bourhill v Young (1943) - the case concerns someone who’d witnessed a horrific accident. The plaintiff was a pregnant fishwife, and as she got off the tram, a motorcyclist, the defendant, flashed past her and hit a car and as a result the motorcyclist died. The plaintiff did not witness the accident but heard the sound of the crash and minutes later witnessed the aftermath. The body had been removed from the scene of the accident, by the time the plaintiff got there, but there were pools of blood on the ground. The plaintiff went into shock and her baby was stillborn. The plaintiff brought an action against the defendant’s estate. It was held that the defendant did not owe the plaintiff a duty of care. The defendant could not have foreseen that a pedestrian would be affected in the manner that the plaintiff was and to make the defendant liable would be to stretch the scope of liability too far.

In Home Office v Dorset Yacht Co Ltd (1970) a group of boys from a borstal school, a type of detention center for young delinquents, were doing some supervised work on an island. The boys were subsequently left unsupervised and 7 of them attempted to escape on board a stolen boat that later collided with the plaintiff’s yacht and the plaintiff sued for the damage to his yacht caused by the collision. The plaintiff was successful.

It was held that the home office was liable for the damage that had been caused because it was foreseeable, given their track record, that the boys would try and escape, and in doing so, commandeer a vehicle to help them escape. The officers should have exercised due care and diligence in carrying out their duties and their failure to do so or their omission had resulted in damage being caused to the plaintiff’s yacht.

In Anns v Merton London Borough Council (1978) the plaintiffs were tenants in a block of flats. The council was under an obligation to inspect the foundations of the flats to ensure that they were in accordance with the correct or prescribed depths prior to granting approval and the council failed to do so. As a result, there was structural damage to the flats and the plaintiffs sued. The court held that when considering if that there was a duty of care owed they must take into account 2 criteria: -

i) If there is close enough proximity between the plaintiffs and the defendants i.e. ought the defendants to have the plaintiff in contemplation at the time of carrying out the act or would the defendants at the time they were inspecting the flats know that a failure to carry out their duties in the prescribed manner result in some form of damage to the plaintiff and if the answer is in the affirmative then,

ii) Whether there are any other considerations for example public policy reasons that ought to reduce the scope of the duty that is owed or the extent of the damages which is owed. If the answer is in the negative then there is a duty of care.

The twofold test in Anns v Merton London Borough Council (1978) was overruled in Murphy v Brentwood DC (1991) but by using the test it is possible to arrive at the same conclusion that the court arrived at in Bourhill v Young (1943).

Was there close enough proximity between the defendant and the plaintiff that the defendant ought to reasonably have the plaintiff in contemplation while riding his motorcycle? The answer would be yes in that a road user, especially a driver of a vehicle ought to have other road users in mind when driving his or her vehicle or riding his or her motorcycle.

Applying the second limb of the twofold test, are there any considerations that ought to limit the scope of the defendant’s liability? The answer would also be yes because there is no telling the number of pedestrians or bystanders that may have witnessed the accident or its aftermath and it is impossible to tell how witnessing the accident or its aftermath would affect them.

People don’t always react in the same manner and some may be able to set it aside and others may not and what if there were 100 people who had witnessed the accident or its aftermath and they all suffered from shock? To extend the defendant’s scope of liability would mean that the defendant would be open to 100 law suits. Therefore, in certain instances the only viable option would be to limit the scope of the defendant’s liability.

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