Duty of care and third parties.
There is rarely a duty of care imposed upon individuals for loss or injury caused by a third party, except in vicarious liability where employers are liable for employee's actions. This stands even if the loss or injury was foreseeable and preventable. For the individual to hold a duty of care for a third party's act two conditions must be met.
Firstly, there must be a special relationship between the individual and third party, or the individual and the claimant, that demands that the individual must protect the claimant from the third party's wrongful act.
Secondly, the damage caused by the third party must be closely related to a failure of the individual.
An example of individuals being liable for others' damage is Home Office v Dorset Yacht, where the officers' failure to look after the boys resulted in them damaging boats of the claimant. This is in contrast to Hill v Chief Constable of West Yorkshire, in which the police were not responsible for a third party killing the claimant, as they had not had a special relationship or failure themselves.
In the case of Haynes v Harwood the defendant created a special source of danger which was then emphasised by a third party, and resulted in an injury to the claimant.
Haynes v Harwood - A horse drawn van was left unattended by the defendant in a busy street. A boy, who was the third party, threw rocks at the horse causing it to bolt. A policeman tried to calm the horse, to prevent it hurting others, and got injured himself. The defendant was liable for committing the initial negligent act.
Firstly, there must be a special relationship between the individual and third party, or the individual and the claimant, that demands that the individual must protect the claimant from the third party's wrongful act.
Secondly, the damage caused by the third party must be closely related to a failure of the individual.
An example of individuals being liable for others' damage is Home Office v Dorset Yacht, where the officers' failure to look after the boys resulted in them damaging boats of the claimant. This is in contrast to Hill v Chief Constable of West Yorkshire, in which the police were not responsible for a third party killing the claimant, as they had not had a special relationship or failure themselves.
In the case of Haynes v Harwood the defendant created a special source of danger which was then emphasised by a third party, and resulted in an injury to the claimant.
Haynes v Harwood - A horse drawn van was left unattended by the defendant in a busy street. A boy, who was the third party, threw rocks at the horse causing it to bolt. A policeman tried to calm the horse, to prevent it hurting others, and got injured himself. The defendant was liable for committing the initial negligent act.
Omissions.
There are two types of omission: Non-feasance and Misfeasance.
Non-feasance is the failure to act when under obligation to do so; refusal without sufficient excuse to do a legal duty.
Misfeasance is the negligent performance of a lawful act.
Marc Rich v Bishop Rock explained non-feasance causes no liability for the defendant, there is no legal obligation to help others:
Non-feasance is the failure to act when under obligation to do so; refusal without sufficient excuse to do a legal duty.
Misfeasance is the negligent performance of a lawful act.
Marc Rich v Bishop Rock explained non-feasance causes no liability for the defendant, there is no legal obligation to help others:
No liability
Watching a blind man cross the road in front of a car, knowing he will likely be injured, there is no legal duty to help him.
Liability
Being in charge of a child who runs in front of a car, there is a legal duty to save him from danger, and others from danger he may cause.
Harris v Perry - The defendants hired a bouncy castle for a tenth birthday party, upon which the claimant was accidentally injured by an older child somersaulting. The injury affected the brain and was serious. It was held that the defendants were liable for not supervising the young children - an adult was not always present. Also they were negligent in allowing mixed-age groups and somersaulting, which were both advised against by the hire company.
Established duty relationships.
Judges often identify policy reasons to justify not imposing liability, here are a few examples that have been established.
Liability of lawyers:
Rondel v Worsely - The claimant argued that the barristers negligent presentation of his case resulted in him losing. It was held that the barrister owed no duty of care. This was an important decision as fear of a claim could prevent barristers presenting in court, and could lead to every case being re-opened.
Hall v Simons - The defendants in this case were solicitors accused of negligently handling proceedings. None of defences for immunity in respect to advocacy stood, because the House of Lords agreed civil proceedings did not require immunity any more. This was due to them being classed as an abuse of process.
Liability to rescuers:
The defendant will have a lower chance of winning his claim if the claimant is a rescuer, trying to minimise the defendant's negligent act. The courts typically favour the rescuer because they want to set an example that if you act to help you should not be punished. In Haynes v Harwood the claimant won after he was injured trying to calm a bolting horse.
Ogwo v Taylor - The defendant was trying to burn the paint off of his cottage's eaves. This is the supports that jut out below the roof, just under the thatched straw roof. The blowtorch inevitably started a fire and a fire fighter got injured trying to extinguish it. The firefighter could not minimise his risk in any way. The defendant was insured so the fire fighters claim won.
Liability of lawyers:
Rondel v Worsely - The claimant argued that the barristers negligent presentation of his case resulted in him losing. It was held that the barrister owed no duty of care. This was an important decision as fear of a claim could prevent barristers presenting in court, and could lead to every case being re-opened.
Hall v Simons - The defendants in this case were solicitors accused of negligently handling proceedings. None of defences for immunity in respect to advocacy stood, because the House of Lords agreed civil proceedings did not require immunity any more. This was due to them being classed as an abuse of process.
Liability to rescuers:
The defendant will have a lower chance of winning his claim if the claimant is a rescuer, trying to minimise the defendant's negligent act. The courts typically favour the rescuer because they want to set an example that if you act to help you should not be punished. In Haynes v Harwood the claimant won after he was injured trying to calm a bolting horse.
Ogwo v Taylor - The defendant was trying to burn the paint off of his cottage's eaves. This is the supports that jut out below the roof, just under the thatched straw roof. The blowtorch inevitably started a fire and a fire fighter got injured trying to extinguish it. The firefighter could not minimise his risk in any way. The defendant was insured so the fire fighters claim won.
Hey mom, do you need any more paint burning off?
Not all rescuers will win their claims. An example of this is Watt v Hertfordshire County Council, in which an emergency justified the risk. This case is looked at in further detail later on.
Liability of the police to the public:
The case of Hill v Chief Constable of West Yorkshire highlighted that the police could be seen to be under some sort of 'blanket immunity' from claims, with claimants having to claim through the Criminal Injuries Compensation Authority. This is not always true however and there are a couple of cases that show this.
Rigby v Chief Constable of Northamptonshire - In this case a dangerous gunman was hiding from police on the defendants land. The police used CS gas to try to and force him out. CS gas is known to cause fires occasional, and it did so in this case, causing property damage. The court held that using CS gas was not a reason for them to be liable, but they were negligent in not having the fire service with them.
Reeves v Comissioner of the Met - Police were responsible for looking after a prisoner who was on suicide watch. A police officer left a door hatch open which the prisoner hung himself from. The police argued that it was novus actus interveniens (looked at later). The court held that they were liable as it was the very act that they were supposed to be preventing, if not the whole suicide watch scheme would be useless.
The idea that police have a blanket immunity eventually led to a European Court of Human Rights case in the sad story of Osman.
Osman v Ferguson - A teacher was obsessed with a student called Osman, and followed him taking pictures. Osmans parents complained, the police took no action. The car and family home got attacked, as well as Osmans friend. The teacher got interviewed many times, and he admitted to colleagues what he was doing. He also made threats to the Deputy head. Eventually he injured Osman and killed his dad. He was convicted of manslaughter and sent to a secure medical hospital.
The court held in the case that the police knew of the teachers acts and there was proximity. However it was felt that if a duty of care was held, the police would not do their jobs any better and it would lead to a significant diversion of police resources from the investigation and suppression of crime. The case was appealed at the European Court of Human Rights.
Osman v UK - It was found that the idea of blanket immunity, first established in Hill, contravened Article 6. The court felt that whilst the rule was developed to ensure the efficiency and effectiveness of the police, the rights of the public were not in balance.
Van Colle v Chief Constable of Hertfordshire - A witness in a recent case was going to give evidence at a trial for fraud and theft charges. The defendant threatened and murdered the witness. The victim's family claimed against the police for failure to protect him. The court held that the act had contravened Article 2 of the European Court of Human Rights, the right to life, and awarded damages of £50000. The verdict distinguished from Hill and Osman, as a specific person was put at risk as the result of the police asking him to give evidence. Since it was the police that put him at danger, they ought to have protected him.
Liability in sport:
In sport there can be a duty of care required from a referee or ground owner.
Smolden v Whitworth - The claimant was a rugby player in an under-17s match. The referee was aware that collapsed scrums can lead to serious injury in young players. The referee failed to prevent this and a player got paralysed. The player consented to the rules of the game, and the referee owed a duty to make sure they were followed.
Watson v British Board of Boxing - The claimant was a boxer who received injuries within the rules of the game. It is recommended that head injuries be treated as soon as possible and medics are nearby, yet they were not. The injury was foreseeable and it was held that the boxers rely on BBB for health and safety issues.
Liability of pharmacists:
Horton v Evans - The claimant had been taking prescribed medicine for many years. One day her GP gave her a new prescription that was 8 times stronger than usual, which the pharmacist supplied without query. The increased dose gave the claimant significant side-effects. The GP settled out of court, the pharmacist went to court. It was held that a reasonably careful and competent pharmacist would have noticed the increased strength and queried it.
Liability of public authorities exercising statutory functions:
The idea of a blanket immunity, mentioned earlier in regards the police, could have also been seen to apply with local authorities. Similarly to the police immunity this has also been affected greatly by the European Court of Human Rights.
X v Bedfordshire County Council - This case actually relates to 2 children who brought a separate case each (M v Newham BC). The action related to the councils' negligent treatment of child abuse claims: X was left with parents and suffered more harm; M was unecessarily taken away from their parents. It was held that where statutory discretion was conferred on a public authority, nothing the authority could do within the ambit of that discretion was actionable at common law.
Lord Browne-Wilkinson set out 6 reasons as to why it was not 'just, fair and reasonable' to apply a duty of care on social workers in respect to their operational decisions:
Other cases have shown the reluctance to hold public authorities liable.
W v Essex County Council - The council put a foster child, who had a history of abusing other children, into a family with 4 young girls. He abused them and the parents suffered psychiatric illnesses. The House of Lords was prepared to allow a claim, yet the authority chose to settle out of court for £190000, in order to prevent a legal precedent being made.
Clunis v Camden and Islington HA - The claimant was supposed to receive after care and mental health treatment before being discharged from hospital. The claimant murdered a man after being discharged, which he might not have done without negligent treatment. The hospital obviously owe a duty of care, yet this could not be an excuse for murder, nor could the claimant profit from his own illegal act (similar to the verdict in Re: Sigsworth)
Not all cases give a public authority immunity however.
Phelps v Hillingdon London BC - A girl was under-performing at school due to an unknown case of dyslexia. The school arranged for her to be assessed by an educational psychologist, who failed to find the dyslexia, resulting in no treatment for the girl. The girl claimed for negligence in the psychological and emotional harm she suffered. The House of Lords held a duty of care was owed. The fact that a professional person, such as an educational psychologist, has a contract with the local educational authority does not remove the duty of care that may be owed to an individual child, who could foreseeably suffer personal injury or other damage as a result of not getting appropriate treatment.
Z v UK - This case is the later appeal of X v Bedfordshire and M v Newham at the European Court of Human Rights. It was decided that the children had been given degrading treatment, contrary to Article 3, and that the immunity breached Article 13, the right to an effective remedy. The result may affect how courts treat public bodies in future cases.
JD v East Berkshire NHS Trust - In this case the House of Lords said doctors and other healthcare profesionals dealing with cases of suspected child abuse do not owe a duty of care towards the parents or other carers, who may suffer a foreseeable psychiatric injury if wrongly accused. The doctors owe a duty a duty towards the children generally, however the parents views may be different to the childs, and to manage potential conflicts of interests it would not be fair, just and reasonable to impose an additional duty of care towards the parents.
Attempts to reduce the 'compensation culture':
The large number of cases each year disputing what 'reasonable care' means, and how far a duty of care should go in relation, has been addressed recently by the Compensation Act 2006.
S.1 of the Compensation Act 2006 - A court considering claim in negligence ... may, in determining whether the defendant should have taken particular steps to meet a standard of care ... have regard to whether a requirement to those steps might (a) prevent a desirable activity being undertaken at all, to a particular extent or particular way; or (b) discourage people from undertaking functions in connection with a desirable activity.
Cole v Davis-Gilbert - A woman was walking across a village green where a maypole had been removed after a village fete a couple of years before. The council had plugged in the hole that remained with a wooden cork, but it had been stolen by vandals. The woman stepped in the hole and broke her leg. The court held that reasonable care had been taken by the defendant and the standard of care required under the Occupiers Liability Act was no more so than ordinary negligence. The plug could have been removed at any time and the defendant could not check it everyday realistically. Scott Baker LJ added that some incidents are 'just accidents for which no one is to blame'.
Liability of the police to the public:
The case of Hill v Chief Constable of West Yorkshire highlighted that the police could be seen to be under some sort of 'blanket immunity' from claims, with claimants having to claim through the Criminal Injuries Compensation Authority. This is not always true however and there are a couple of cases that show this.
Rigby v Chief Constable of Northamptonshire - In this case a dangerous gunman was hiding from police on the defendants land. The police used CS gas to try to and force him out. CS gas is known to cause fires occasional, and it did so in this case, causing property damage. The court held that using CS gas was not a reason for them to be liable, but they were negligent in not having the fire service with them.
Reeves v Comissioner of the Met - Police were responsible for looking after a prisoner who was on suicide watch. A police officer left a door hatch open which the prisoner hung himself from. The police argued that it was novus actus interveniens (looked at later). The court held that they were liable as it was the very act that they were supposed to be preventing, if not the whole suicide watch scheme would be useless.
The idea that police have a blanket immunity eventually led to a European Court of Human Rights case in the sad story of Osman.
Osman v Ferguson - A teacher was obsessed with a student called Osman, and followed him taking pictures. Osmans parents complained, the police took no action. The car and family home got attacked, as well as Osmans friend. The teacher got interviewed many times, and he admitted to colleagues what he was doing. He also made threats to the Deputy head. Eventually he injured Osman and killed his dad. He was convicted of manslaughter and sent to a secure medical hospital.
The court held in the case that the police knew of the teachers acts and there was proximity. However it was felt that if a duty of care was held, the police would not do their jobs any better and it would lead to a significant diversion of police resources from the investigation and suppression of crime. The case was appealed at the European Court of Human Rights.
Osman v UK - It was found that the idea of blanket immunity, first established in Hill, contravened Article 6. The court felt that whilst the rule was developed to ensure the efficiency and effectiveness of the police, the rights of the public were not in balance.
Van Colle v Chief Constable of Hertfordshire - A witness in a recent case was going to give evidence at a trial for fraud and theft charges. The defendant threatened and murdered the witness. The victim's family claimed against the police for failure to protect him. The court held that the act had contravened Article 2 of the European Court of Human Rights, the right to life, and awarded damages of £50000. The verdict distinguished from Hill and Osman, as a specific person was put at risk as the result of the police asking him to give evidence. Since it was the police that put him at danger, they ought to have protected him.
Liability in sport:
In sport there can be a duty of care required from a referee or ground owner.
Smolden v Whitworth - The claimant was a rugby player in an under-17s match. The referee was aware that collapsed scrums can lead to serious injury in young players. The referee failed to prevent this and a player got paralysed. The player consented to the rules of the game, and the referee owed a duty to make sure they were followed.
Watson v British Board of Boxing - The claimant was a boxer who received injuries within the rules of the game. It is recommended that head injuries be treated as soon as possible and medics are nearby, yet they were not. The injury was foreseeable and it was held that the boxers rely on BBB for health and safety issues.
Liability of pharmacists:
Horton v Evans - The claimant had been taking prescribed medicine for many years. One day her GP gave her a new prescription that was 8 times stronger than usual, which the pharmacist supplied without query. The increased dose gave the claimant significant side-effects. The GP settled out of court, the pharmacist went to court. It was held that a reasonably careful and competent pharmacist would have noticed the increased strength and queried it.
Liability of public authorities exercising statutory functions:
The idea of a blanket immunity, mentioned earlier in regards the police, could have also been seen to apply with local authorities. Similarly to the police immunity this has also been affected greatly by the European Court of Human Rights.
X v Bedfordshire County Council - This case actually relates to 2 children who brought a separate case each (M v Newham BC). The action related to the councils' negligent treatment of child abuse claims: X was left with parents and suffered more harm; M was unecessarily taken away from their parents. It was held that where statutory discretion was conferred on a public authority, nothing the authority could do within the ambit of that discretion was actionable at common law.
Lord Browne-Wilkinson set out 6 reasons as to why it was not 'just, fair and reasonable' to apply a duty of care on social workers in respect to their operational decisions:
- The difficulty of allocating responsibility for interdisciplinary decisions
- The difficulty of setting standards of care for such difficult delicate decisions
- The risk of liability leading to officials approaching their duties in an over-cautious or defensive manner
- The risk of a large number of cases being brought generated by ill-feeling
- The availability of alternative remedies
- The lack of any close precedent for such tort actions.
Other cases have shown the reluctance to hold public authorities liable.
W v Essex County Council - The council put a foster child, who had a history of abusing other children, into a family with 4 young girls. He abused them and the parents suffered psychiatric illnesses. The House of Lords was prepared to allow a claim, yet the authority chose to settle out of court for £190000, in order to prevent a legal precedent being made.
Clunis v Camden and Islington HA - The claimant was supposed to receive after care and mental health treatment before being discharged from hospital. The claimant murdered a man after being discharged, which he might not have done without negligent treatment. The hospital obviously owe a duty of care, yet this could not be an excuse for murder, nor could the claimant profit from his own illegal act (similar to the verdict in Re: Sigsworth)
Not all cases give a public authority immunity however.
Phelps v Hillingdon London BC - A girl was under-performing at school due to an unknown case of dyslexia. The school arranged for her to be assessed by an educational psychologist, who failed to find the dyslexia, resulting in no treatment for the girl. The girl claimed for negligence in the psychological and emotional harm she suffered. The House of Lords held a duty of care was owed. The fact that a professional person, such as an educational psychologist, has a contract with the local educational authority does not remove the duty of care that may be owed to an individual child, who could foreseeably suffer personal injury or other damage as a result of not getting appropriate treatment.
Z v UK - This case is the later appeal of X v Bedfordshire and M v Newham at the European Court of Human Rights. It was decided that the children had been given degrading treatment, contrary to Article 3, and that the immunity breached Article 13, the right to an effective remedy. The result may affect how courts treat public bodies in future cases.
JD v East Berkshire NHS Trust - In this case the House of Lords said doctors and other healthcare profesionals dealing with cases of suspected child abuse do not owe a duty of care towards the parents or other carers, who may suffer a foreseeable psychiatric injury if wrongly accused. The doctors owe a duty a duty towards the children generally, however the parents views may be different to the childs, and to manage potential conflicts of interests it would not be fair, just and reasonable to impose an additional duty of care towards the parents.
Attempts to reduce the 'compensation culture':
The large number of cases each year disputing what 'reasonable care' means, and how far a duty of care should go in relation, has been addressed recently by the Compensation Act 2006.
S.1 of the Compensation Act 2006 - A court considering claim in negligence ... may, in determining whether the defendant should have taken particular steps to meet a standard of care ... have regard to whether a requirement to those steps might (a) prevent a desirable activity being undertaken at all, to a particular extent or particular way; or (b) discourage people from undertaking functions in connection with a desirable activity.
Cole v Davis-Gilbert - A woman was walking across a village green where a maypole had been removed after a village fete a couple of years before. The council had plugged in the hole that remained with a wooden cork, but it had been stolen by vandals. The woman stepped in the hole and broke her leg. The court held that reasonable care had been taken by the defendant and the standard of care required under the Occupiers Liability Act was no more so than ordinary negligence. The plug could have been removed at any time and the defendant could not check it everyday realistically. Scott Baker LJ added that some incidents are 'just accidents for which no one is to blame'.
