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Reasonable Foresight

The case of Caparo set out three questions for finding whether a duty of care exists. Firstly it must be looked at whether the damage was foreseeable or not. Foreseeability of harm may appear to merge somewhat with the next question of proximity, yet they are both distinct concepts.

Topp v London Country Bus - A cyclist was killed in a hit and run attack. The vehicle used was stolen from the defendant. It had been left in a layby for 9 hours, unlocked and with the ignition key in. The court held that while it was forseeable that the bus would be stolen, it was not forseeable that a cyclist would get hit. The defendant was not liable.

There are also policy factors related to the verdict in this case as lots of vehicles get stolen every year and there may be a floodgate of claims.

Haley v London Electric Board - In this case the defendant had dug a large hole in the pavement in order to repair cables. Whilst waiting for permanent barriers round the hole, workers placed a long hammer across the pavement. The claimant, who was blind, fell down the hole. It was held that due to the high number of blind people in the area, someone falling down the hole was reasonably foreseeable.

Proximity

Proximity is a question that has remained since the formation of the neighbour principle. This alone higlights how important the courts believe it is.

Goodwill v British Pregnancy Advisory Service -A doctor employed by the defendant carried a vasectomy on a man, and told him it was no longer necessary for him to use other forms of contraception as a precautionary measure. The claimant was a lady who had unprotected sex with the man. It was held by the Court of Appeal that the doctor owed a duty of care to the man, and possibly his wife or partner whom may have been involved with discussions about the treatment. The claimant was not held to have sufficient proximity to the defendant.

The policy of the law could not treat such a tenuous relationship as giving rise to a duty of care.

John Munroe v London FACD Authority - Fire fighters were called to the claimants property in order to extinguish several small fires. The fires had been put out by arrival and there seemed to be no more apparent risk of it restarting. One of the fires restarted shortly after the fire fighters left, seriously damaging the claimants property. It was held that the defendants were not in close enough proximity to the claimant.

In this case Judge Rougier felt that if the defendant owed a duty, it would only hinder the service it provides and the welfare of the whole community. There would also be a flood of claims, where the fire service would be responsible for all fires that were caused by someone else or naturally.

Hill v Chief Constable of West Yorkshire - The mother of the 13th victim of the Yorkshire Ripper tried to claim against the police for negligence in trying to catch him, despite a massive police search. Since the victims were randomly chosen the police could not protect everyone. It was held there was insufficient proximity between the two parties.

Hill also established a principle of blanket immunity for the police, which is looked at later on in negligence, in relation to Osman v UK.

Just, Fair and Reasonable

This is a rather subjective question, yet could be disputed as one of the most important questions of the three. This question looks at whether it is fair for the claimant to claim. In some cases if the claimant was to claim it would affect the treatment of others, or be unfair on the defendant who had proposed a solution that had been ignored beforehand, such as in Ephraim v Newham LBC.

McFarlane v Tayside HB - The claimant had a vasectomy and shortly after his wife got pregnant and had a child. It was held that the wife was entitled to claim for the pain suffered through givig birth, but not the subsequent upbringing of the child.

Lord Millett added that bringing up a child has many benefits and burdens on the parents, but society takes the view that the benefit is outweighing of the burden. The parents could not say that it was a blessing they did not want (however true).

Kent v Griffiths - A doctor dialled for van ambulance for a woman suffering severe asthma at home. The ambulance took an exception length of time to arrive, during which the doctor had called twice more being told it would arrive shortly. The claimant suffered with serious mental an physical consequences. The Court of Appeal agreed that damages could be awarded and that acceptance of the call had provided a duty of care. If the claimant and doctor had known it would take so long they could have made other arrangements.

Jebson v MOD - An off-duty soldier fell from the back of a army lorry transporting him to his barracks after a night of drinking. The Court of Appeal reduced his damages by 75% fo contributory negligence and held that the army should have anicipated the event that someone drunk might injure themselves after an organised social night. This case also makes the army responsible for its soldiers.