Tort 8 - Duty of Care Summary
In order for a plaintiff to be successful in a claim for
negligence, the plaintiff must be able to establish: -
i) That the defendant owed the plaintiff a duty of care
ii) That the defendant had breached that duty of care
iii) That the defendant’s breach has caused the plaintiff
some type of damage and has led to one of the following: -
a) Physical injury
b) Psychological injury or nervous shock
c) Damage to property
and
d) If it is possible to quantify the resultant damage or
injury in monetary terms.
Before the courts award damages, they will also look to see
if there are any policy considerations that ought to negate the defendants
claim for damages and if there are then the courts would not award damages or
find in favor of the plaintiff.
A duty of care arises as a result of the defendant’s actions
or omissions (a failure to do something especially that which is required by
law) see Blyth v Birmingham Waterworks Co. (1856).
The defendant is deemed to owe the plaintiff a duty of care
when the defendant ought to have the plaintiff in contemplation while the
defendant was doing the act and the question that the defendant has to ask
himself or herself is would the plaintiff suffer from some form of physical
harm or psychological illness or incur some form of property damage as a result
of the defendant acting in the manner that he or she did or would the plaintiff
suffer from some form of physical harm or psychological illness or incur some
form of property damage as a result of the defendant failing to act (omission).
This principle is known as the neighborhood principle as per
Donoghue v Stevenson (1932). If the answer is in the affirmative then the
defendant owes the plaintiff a duty of care.
Physical
injury is deemed to be any form of injury to the body external or internal (not
visible). Gastro-enteritis in the case of Donoghue v Stevenson (1932), for
example, is not a visible injury. As for psychological injury or nervous shock,
it is any form of injury that causes mental impairment or affects the victim’s
ability to think and reason.
When
it comes to nervous shock the courts are more inclined to award damages when
there is a special relationship between the plaintiff and the victim. In Dulieu
v White (1901) a pregnant woman was awarded damages because the shock that she
suffered as a result of being in a public house when the defendant crashed into
it with his carriage had caused her to deliver prematurely and as a result her
child was born with below average intelligence.
In Hambrook v Stokes Brothers (1925) a mother went into
nervous shock and subsequently died as a result of the trauma she suffered when
she thought her children who were playing around the curb were hit by a lorry.
Her husband was entitled to claim damages for the psychological illness that
had been caused to his wife as a result of the defendant’s negligence.
In Bourhill v Young (1943) the plaintiff a pregnant fishwife
was entitled to be awarded damages when she went into nervous shock after she’d
witnessed the aftermath of a horrific accident and consequently her baby was
stillborn.
When it comes to the police, though they are employed to
keep the peace, if an officer goes over and above what is required of him and
subsequently suffers from some form of injury he is entitled to claim or to be
compensated for the injuries that he has suffered.
In Haynes v Harwood (1935) a police officer was awarded
damages for the injuries he had incurred when he tried to stop the defendant’s
horse drawn carriage from causing injury to the public after the horses that
were pulling the carriage had taken off on their own.
As a general rule the police do not owe members of the
public a duty of care. In Hill v Chief Constable of Yorkshire (1989) the mother
of the Yorkshire ripper’s last victim was refused damages when she brought an
action against the police for not arresting the murderer in time despite
knowing his identity which could have prevented her daughter’s death.
The decision was upheld in Michael v Chief Constable of
South Wales (2015) where the status of a 911 call was downgraded and as a
result the police arrived slightly later then they ordinarily would have and
failed to prevent the victim from being stabbed to death.
Other employees that come under the Home Office however do
owe a duty of care and can be held liable if they fail to carry out their
duties in the stipulated manner as per Home Office v Dorset Yacht Co Ltd
(1970).
When it comes to duty owed by councils the twofold test in
Anns v Merton London Borough Council (1978) has been overruled and damage to
property is perceived to be or is interpreted as being pure economic loss as
per Sutherland Shire Council v Heyman (1985) and Murphy v Brentwood DC (1991).
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