The Test for Whether or Not There Is a Legal Duty of Care - Essay Example

?Part Is it true to say that since Anns v Merton London Borough Council, the courts have consistently tried to restrict the duty of care and the persons to whom it is owed? If so, has this been a desirable development? The test for whether or not there is a legal duty of care was established in the case of Donoghue v Stevenson ([1932] AC 562). In discussing duty of care as a legal concept, Lord Atkin established the “neighbour” principle, which were defined as “persons who are so closely and directly affected by my act that I ought to reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.” The Atkin “neighbour principle” paradigm was criticised for being too wide and risking floodgate claims through making it easy for legal practitioners to successfully argue negligence (Horsey & Rackley, 2009). Nevertheless, in Home Office v Dorset Yacht Co ([1970] AC 1004 (HL) it was suggested that Lord Atkin’s rationale remained applicable unless the specific circumstances merited exclusion of the dictum. As a result, commentators argued that the pendulum had swung too far in favour of claimants, which was reinforced by the decision pertaining to proximity in terms of who the duty of care was owed to in Anns v Merton LBC ([1972 2 All ER 492). The decision in of Anns v Merton London Borough ([1978] A.C. 728) asserted that the proximity test relies on a consideration of the nature of the relationship between the parties and Lord Wilberforce asserted that: “in order to establish that a duty of care arises in a particular situation... 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 ... 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”. However, subsequent decisions have struggled with this and in practice the courts have sought to water down the ramifications of Lord Wilberforce’s dictum in Anns v Merton as highlighted by the decisions in Peabody Donation Fund v Sir Lindsay Parkinson ([1984] 3 All ER 529) and Yuen Kun-yeu v AG of Hong Kong ([1987] 2 All ER 705). Moreover, in Rowling v Takaro Properties ([1988] 1 All ER 163) Lord Keith highlighted the point that a literal application of the judicial rationale in Anns v Merton could risk courts not taking into account all relevant factual considerations when evaluating whether or not to impose a duty of care. This line of thinking was reinforced by Lord Templeman’s dictum in CBS Sons v Amstrad ([1988] 2 All ER 484) which suggested that the decision in Anns undermined the purpose of negligence liability and risked opening the floodgates of claims. In highlighting the implications of Lord Wilberforce’s test in Anns, Lord Templeman commented that Anns: “put the floodgates on the jar, a fashionable plaintiff alleges negligence.” Whilst the post Anns decisions clearly tried to avoid the literal implications of the Wilberforce test, the duty of care test was clarified by the decision in the case of Caparo Industries v Dickman ([1990] 1 All ER 568). In Caparo v Dickman ([1990]1 ALL ER 568), the House of Lords confirmed the following three stage test to determine whether a duty of care exists: 1) Whether the consequence of the defendant’s actions were reasonably foreseeable; 2) Whether there was sufficient proximity to impose a duty of care; and 3) Whether it is fair, just and reasonable to impose a duty of care. Moreover, Lord Bridge focused on the interrelationship between foreseeability and proximity elements for the existence of duty of care. To this end, Lord Bridge commented that “necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” (Caparo v Dickman (1990). Accordingly, the judicial determinations post Anns clearly indicate a judicial propensity towards limiting duty of care and the scope of persons the duty is owed to. It is submitted that overall a compromise needs to be struck to ensure a sufficient compromise between the need to ensure adequate protection within the tort of negligence on the one hand and legal certainty in order to prevent floodgate claims without merit on the other. To this end, the decision in Caparo was a welcome move in clarifying the parameters of the duty of care test as originally introduced by the Donoghue v Stevenson decision. PART 2 With regard to George’s legal position, it is evident that negligence has been established, however George did not suffer physical personal injury, but rather shock. Since the landmark decision in the case of Dulieu v White ([1901] 2 KB 669), it has been well established under UK law that claimants can recover damages in negligence actions for psychiatric injury. Whilst it is an established principle of law that damages are not recoverable for grief or sorrow caused by another person’s death per se, damages are recoverable for nervous shock, or for any recognisable psychiatric illness caused by negligence (Hinz v Berry [1970] 1 All ER 1074). Conversely, in the leading case of McLoughlin v O’Brian (1983] AC 410) Lord Wilberforce asserted that “while damages cannot be awarded for grief and sorrow, a claim for damages for “nervous shock”… can be made without the necessity of showing direct impact or fear of immediate personal injury for one’s self…” (at p.418). However, whilst legally recognising the right to recover damages for psychiatric injury in negligence claims, there is a distinction between primary and secondary victims as established in the case of Page v Smith ([1996] 2 All ER 736). With regard to liability for psychiatric injury, where the claimant falls within the category of being a primary victim, the decision in Page affirmed that the relevant test for liability was foreseeability of personal injury. Moreover, Lord Lloyd commented that: “liability for physical injury depends on what was reasonable foreseeable by the defendants before the event. It could not be right that a negligent defendant should escape liability for psychiatric injury just because, though serious physical injury was foreseeable, it did not in fact transpire” (at p.759). Accordingly, if we apply this to the current scenario, as the driver was negligent and personal injury was foreseeable; if George can establish a recognisable psychiatric illness, he will be able to claim damages for psychiatric injury as a primary victim. With regard to Violet’s legal position, the situation is more complex as she may have a claim against Brown or the driver of the other car. The legal position is that a claimant cannot be compensated for the same loss twice, and therefore it is important to determine who the appropriate defendant is (Steele, 2007). With regard to the driver’s liability and breach of duty of care towards Violet, the test in Donoghue v Stevenson (1932) would require a consideration of the degree of the likelihood of harm occurring, the cost and practicability of measures needed to avoid it and the seriousness of the consequences. Furthermore, this was confirmed in Nettleship v Weston ( [1971] 2 QB 691 (CA0) where it was held that objective standard of care could not be lowered according to experience. When considering the “reasonable person”, the decision in Hall v Brooklands Auto Racing Club (1933) 1 KB 205 ) defined this as the “man on the Clapham Omnibus” and more recently in MacFarlane v Tayside Health Board ((1999) 3 WLR (HL), Lord Steyn referred to the reasonable person as being akin got the average commuter on the London Underground. Additionally, the general standard of care accounts for the fact that not every risk can be foreseen, however the reasonable person is still required to be prudent and careful (Horsey v Rackley, 2009). With regard to the current scenario, it is evident that the driver has been negligent however it is questionable whether he will have breached this duty of care to Violet due to the reasonably foreseeable test (Lunney & Oliphant, 2008). In addition to establishing that a defendant’s conduct has fallen short of the expected standard of care in accordance with the objective test, the decision in Bolton v Stone ([1951] AC 850 (HL) determined that a defendant does not breach the duty of care if the damage suffered by the claimant is not reasonably foreseeable as a natural or probable consequence of the defendant’s conduct. In the Bolton case, The House of Lords held that whilst there was a duty of care, there could be no negligence as on the objective test, it was not likely that the reasonable person would foresee the damage to the plaintiff as a natural consequence of their conduct. The House of Lords was also motivated by policy considerations in the case to avoid floodgate claims, but nevertheless reinforced the point that the risk itself had to be reasonably foreseeable. If we apply this to the current scenario, Violet was a pedestrian and volunteer and in her rushing over to help after witnessing the accident it is unlikely that she will be able to recover from the driver Brown for personal injury on the basis that there was insufficient proximity for Brown to owe her a duty of care. Alternatively, if Violet has suffered a psychiatric injury from witnessing the accident, she may have a claim against Brown for psychiatric injury. However, it is evident that Violet is prima facie a secondary victim and the leading authority in relation to secondary victims is the case of McLoughlin v O’Brian (1983) where the plaintiff was able to recover for nervous shock as a result of witnessing the aftermath of an accident her family were involved with two hours after the event. In considering the plaintiff’s claim for psychiatric injury, the “aftermath” test was established. Lord Wilberforce further clarified this test by stating that the aftermath test required evidence of a close relationship with the victim in terms of proximity, time and space. The law relating to recovery for psychiatric injury in secondary victim cases was again reviewed in the Hillsborough disaster cases ([1998] 3 WLR 1509). The White decision involved a test case by police officers on duty at the grounds and the Alcock decision ([1992] 1 AC 310) pertained to the claims of victim’s relatives. Both decisions lent towards limitation of damages claims for psychiatric injury in order to protect against floodgate claims on policy grounds. Moreover, the Hillsborough decisions created a blueprint point of reference when determining psychiatric injury claims in secondary victim situations: 1) The plaintiff must have sustained a recognisable psychiatric illness; 2) The illness must be reasonably foreseeable; 3) There must be proximity of relationship between the plaintiff and the primary victim, which was further defined as a relationship of closeness based on ties of love and affection; 4) The event must be shocking or traumatic; 5) There must be proximity in space and time of the secondary victim to the event (the immediate aftermath test); and 6) The psychiatric illness must have been directly caused by the traumatic events. As such, there are no hard and fast rules and if we apply the guidelines to the current scenario, it would appear that there isn’t sufficient proximity for Violet to establish a psychiatric injury case as a secondary victim. Alternatively, as Violet was a volunteer she may come within the rationale in Chadwick v British Railways Board ([1967] 2 All ER 945); where as a volunteer who put herself in danger and suffered shock she constituted a primary victim. In this case, Violet would have a claim against Brown for psychiatric injury as a primary victim provided she could establish a recognisable psychiatric illness (Hepple & Matthews, 2009). Alternatively, with regard to Violet’s physical injuries for being hit by another car, she will have a claim against that driver for negligence in respect of the physical injury suffered breach of the duty of care can be established. However, as Violet was rushing to the scene of the accident, it is possible that any compensation for negligence could be reduced on grounds of contributory negligence under the Law Reform (Contributory Negligence) Act 1945. The 1945 Act provides that where it can be established that a claimant’s injuries were caused partly by the claimant’s contribution; the award of compensation will be reduced in proportion to the level of the claimant’s contribution. However, whether or not she has been contributory negligent ultimately depends on how she acted in the circumstances and whether Violet was able to appreciate the danger (Lunney & Oliphant, 2008). Accordingly, whilst Violet has a prima facie case against the other driver for negligence, any damages awarded may be reduced on grounds of contributory negligence. In terms of presentation of the evidence, the driver as defendant would have the onus of proving Violet’s contributory negligence and that it was her conduct that caused her injuries (Steele, 2007). With regard to Violet’s knowledge of the existing danger, it would have to be established that on the facts a reasonable person in Violet’s position would have known the danger (Steele, 2007). Therefore the determination of the objective test will determine whether or not Violet has been contributory negligent. In conclusion, if George can establish a recognisable psychiatric illness he will be able to claim against Brown for psychiatric injury. With regard to Violet’s personal injury from being hit by the other car, she will only be able to claim against one defendant and it is unlikely that there is sufficient proximity between Brown and Violet to establish a duty of care. Alternatively, if the other driver was negligent, Violet will have a claim against the other driver for negligence in respect of her personal injuries however as she rushed over the damages may be reduced on grounds of contributory negligence. Finally, if Violet can establish a recognisable psychiatric illness as a result of the accident, she may have a claim against Brown as a primary victim on the basis of being a volunteer in line with the rationale in Chadwick. Bibliography Cooke, J (2007). Law of Tort. Pearson Hepple, B & Matthews, N (2009) Casebook on Tort. 6th edition, Butterworths. Hodgson, J. & Lewthwaite, J. (2007) Tort Law. 2nd Edition, Oxford University Press Horsey & Rackley (2009) Tort Law. Oxford University Press Lunney, M & K. Oliphant, K. (2008) Tort Law, Text and Materials. 3rd Edition, Oxford University Press Steele, J. (2007) Tort Law: Text, Cases and Materials. Oxford University Press Wild, C. & Weinstein, S. (2010) Smith and Keenan’s English Law. 6th Edition, Pearson Education. Legislation Law Reform (Contributory Negligence) Act 1945 Read More