Duty of Care in Negligence - Assignment Example

?Duty of Care in Negligence Introduction Duty of care constitutes the first of the three chief elements of negligence. This is determined by proximity, foreseeability, and policy. In general, duty of care results from positive acts, which damage property or cause physical injury. There is a difference in finding liability and finding a duty of care. 1 A duty of care can be described as the circumstances and relationships that created a legal obligation to take care. If such care is not taken by a party, then that party could be made liable to pay damages to the injured party. However, a loss should have taken place for the injured party, due to the breach of the duty of care. This makes it necessary for claimants to prove that the defendant had owed them a duty of care.2 Before the year 1932, liability in negligence was restricted to finding a duty of care. This was done on a case by case basis and in situations where there had been a pre – existing relationship between the parties. The decision in Donoghue v Stevenson changed this situation. 3 In this case, the first general rule for establishing a duty of care was established. With this decision the contemporary law of negligence and the neighbour test were formulated. The House of Lords held that Donoghue could claim in tort, even though the contract was between her friend and the seller. With this ruling, manufacturers were placed under a duty of care to consumers.4 The decision in Donoghue v Stevenson, developed the principle of duty of care. The importance of this decision made it a legal principle. It related to the concept of duty of care, and formed the basis for the product liability of manufacturers. In this case, the plaintiff underwent distress on seeing the dead snail in her ginger beer. Afterwards, she fell ill, and the House of Lords ruled that the defendant owed her a duty of care. She was permitted to claim damages for this breach by the defendant.5 In this case, it was opined that duty of care had developed from the concept that people have to take care. Such care is with respect to avoiding acts or with regard to omissions that cause injury to others. Moreover, a person is liable for a negligent act, if he was obligated to take care of the injured claimant. This has to be proved by the claimant, and is based on the neighbour principle. 6 As such, duty of care is an important element of tort cases. In cases of negligence, causation provides connection between breach of duty and the resultant damage. Many tests have been formed, in order to find causation. These tests, were mainly aimed at analysing an event that can be categorised as a breach of duty and that can be claimed as the cause of the loss sustained by the claimant.7 Consequently, a tort of negligence takes place, when there is breach of a duty of care, which causes damage to the claimant. In Caparo Industries plc v Dickman,8 a three stage test was formulated. First there should have been a foreseeable harm to the claimant. Second, the claimant and the defendant should have been sufficiently close. Third, it should be reasonable and just to impose a duty of care. As such, there are two requirements with regard to the neighbour test. The first of these relates to a reasonable anticipation of harm. The second requirement is that of proximity. The rule established in the Caparo case has been popular with the courts. This can be seen in cases where a duty of care is owed to third parties in the tort of negligence. The facts of the Caparo case are detailed below. 9 In Caparo Industries plc v Dickman, the books of a public company had been audited by a firm of accountants. Afterwards, this firm of accountants advised the plaintiff, about the financial status of this public company. The plaintiff relied on this advice and invested in the company. This investment resulted in considerable loss to the plaintiff. As a result, the plaintiff claimed damages from the firm of accountants. The House of Lords, ruled that there was no liability. There was insufficient proximity between these parties. Consequently, the defendant was not under a duty of care towards the plaintiff. The plaintiff made a claim of negligence against the firm of accountants. However, this claim was rejected by the court, on the grounds of duty of care.10 During its decision, the court stated that although foreseeability was a necessary condition, it was not sufficient by itself. Foreseeability had to be viewed in the context of fairness and reasonableness, if a duty of care was to be imposed. However, liability in contracts and torts is restricted to damages that the defendant can reasonably anticipate. In general, the defendant is not liable if he could not have reasonably foreseen that his actions could have harmed someone. The doctrine related to unforeseeable damages was established in Hadley v Baxendale.11 In this case, the plaintiff had entered into a contract with the defendant for transporting his broken mill shaft. As he did not possess a spare shaft, he lost a huge amount of money. This was because, he could not run the mill. However, the plaintiff did not inform the defendant about the importance of the mill shaft for his business. 12 The court held that the defendant could not have foreseen this loss to the plaintiff. With this decision, a rule relating to consequential damage was established. According to this rule a plaintiff cannot be compensated for unanticipated damages. However, compensation will be made if he had previously informed the defendant about the unforeseen contingency. All the same, in tort cases, the plaintiff and defendant are usually total strangers. Therefore, there is very little opportunity to convey information before an accident.13 So, it would be unreasonable to grant compensation for unforeseeable damages in tort cases. This is true, only if care is taken at the same time, by the plaintiff and the defendant. If care is taken successively, the defendant may have the opportunity to realise the reality. Sometimes, there may be no direct communication from the plaintiff. However, it may be possible to indirectly convey information about the unforeseen occurrence of the contingency by his action. Moreover, the defendant may have the opportunity to infer the information. In such cases, the plaintiff’s action of care results in preannouncement or disclosure of information in contracts.14 However, Australian policy considerations have seen to it that duty of care is defined reasonably and suitably. While hearing cases, the Australian courts ensure that such considerations are taken into account. This is during attempts to make out if there is sufficient proximity between the plaintiff and defendant. Furthermore, policy considerations have shaped the principles that apply to the recovery of damages for foreseeable loss. Examples of this are cases, in which physical damage had caused pure economic loss. It had also been observed in recovery of damages for financial loss arising from negligent statements. 15 Moreover, in Anns & Ors v London Borough of Merton, Lord Wilberforce was of the opinion that to determine the presence of a duty of care the following had to be considered. The first of these is to determine if there had been sufficient proximity between the parties. The second is to make out if there had been any consideration that could have reduced the extent of the duty of care. 16 This opinion of Lord Wilberforce, provided courts with considerable freedom. This discretion was with regard to negligence. Moreover, misgivings were also created, because the commentators and courts feared that this development could have an adverse effect on the law of negligence. It was felt that the law of negligence would no longer develop according to case law and the established principles. 17 Moreover, in Council of the Shire of Sutherland v Heyman18 the court held that there was a duty of care. This was with regard to the pure economic losses resulting from negation. A departure from the precedent set in the Anns case was observed in this ruling. In the Anns case, a universal test for establishing a duty of care had been proposed. This test stressed on determining whether the defendant should have reasonably anticipated that others could undergo losses due to his negligence. 19 However, the system of negligence law has been criticised by many people. For example, it has been stated that the appellate courts, have adopted a temporary approach to the determination of duty. This has made the application of the test established in Caparo unsystematic. 20 In fact, this test had been described by Lord Walker as being just a collection of indefinite procedures. Due to this, the duty of care becomes inaccurate and unpredictable. This becomes very clear when we consider the notion of undertaking responsibility. The assumption of responsibility had been an important feature of determining a duty of care with regard to economic loss resulting from negligent misrepresentation. 21 As such, this notion of assumption of responsibility has achieved considerable significance in establishing duty of care. This holds good even though its nature and scope, and the circumstances under with it may be applied are unclear. In addition, the second stage of the Caparo test is that of a requirement of proximity. This has led to considerable argument in judicial and academic circles. The argument is whether the term proximity has some independent and obvious meaning, or whether it simply indicates that the required relationship of neighbourhood exists between the parties. 22 It is the opinion of some of the critics that the term proximity has developed into an ad hoc device that tends to be interpreted by the specific facts of a case and the beliefs of the presiding judges. 23 However, other critics are convinced that it provides a useful tool for structuring legal reasoning. As such, proximity includes a collection of assorted factors. Many critics believe that this inclusiveness has allowed several policy concerns relating to distributive justice. This has been termed as undesirable, because any inquiry should be restricted to the concerned parties, and others should not be allowed. 24 Thus, proximity has invited criticism from many areas. For example, in Hill v Chief Constable of West Yorkshire, the House of Lords set aside a claim that alleged negligence on the part of the Chief Constable and the police personnel working under him. The alleged negligence was with regard to their failure to capture the serial killer. This claim was rejected, because there was no reasonable cause of action on grounds of proximity and public policy. 25 In addition, with regard to the influence of standard of care in the concept of negligence, it has to be understood that there are other contributory factors. One of these is the seriousness of the threatened injury. Another is the conduct of the defendant from the point of view of social usefulness. The last one is the cost of preventing the damage. Sometimes a person’s conduct is such that it could seriously harm others. In such cases, the individual should not be protected from liability on the grounds that third party intervention had not been practically possible.26 However, it is important to determine whether a claimant is within the scope of a duty of care that is owed by the defendant. In the absence of a duty to take care there can be no liability in negligence. An outcome of this situation is that it results in the essential correlation between the defendant and the claimant. 27 These duties are recognised very widely. In case of uncertainty, the following test is applied. This test establishes whether there was proximity and foreseeability. It also determines whether it had been fair, just and reasonable to impose the duty. Essentially, the defendant’s action has to be like that of the standard of care that would be exercised by a reasonable person. 28 All the same, emergency services are under a duty. This requires them to not to take positive measures that cause more damage than the damage that would have happened if they had not interfered. This was seen in Capital & Counties plc v Hampshire County Council. In this case, the fire brigade had closed down a sprinkler system, and the result was increased damage. The court ruled that there was a duty of care with respect to the fire brigade, due to which, it had to avoid creating such risks. As such, the opinions of the courts have changed from case to case, with regard to the duty of care. 29 A deep analysis of this issue took place, and some of the options presented were as follows. The first of these was whether the practitioner was to be considered a reasonable orthodox doctor. Another option was whether he was to be treated as a reasonable traditional doctor practicing in China. The last choice was whether he was to be regarded as a reasonable traditional doctor practicing in England.30 From the decisions of the Australian High Court we can assume that the idea of proximity may be rejected by it. This has been observed with regard to issues relating to new duty. Thus, in Perry v Apand, 31 the court ruled that most of the justices had rejected proximity, the categories approach or a synthesis of these ideas. Clearly, the court has rejected the notion of proximity. However, it has not made any definite statement about the correct approach to be adopted .32 This is with regard to answering the question relating to duty of care. As such, an individual will be made liable for damages occurring during the prevention of personal injury or death, if his negligent conduct has resulted in the harm. However, the harm caused should not be too remote from his negligent conduct.33 In addition, a two stage test was developed by the court in the Anns v London Borough of Merton case. After this, in the Caparo v Dickman case, a three stage test was developed. It was the opinion of the presiding Law Lord that undue importance had been granted to the two stage test of Anns v London Borough of Merton. He also stated that this test was not fit for determining whether there was a duty of care. 34 Sometimes, contracts are formed under special circumstances. If these circumstances had been informed by one of the parties to the other party, then the damages will be according to what could have been reasonably expected by these parties from a breach. In Hadley v Baxendale, the court ruled on the basis of reasonable expectation of losses, resulting from breach of contract. If the losses are unexpected or unnatural, then the courts do not consider them to be due to a breach of contract. 35 As such, ruling in Hadley v Baxendale, clarified the principles relating to the award of damages. This was with regard to breach of contract. The court ruled that the damages claimed for a breach of contract should naturally result from that breach. In addition, damages could be claimed for breaches that the parties could be reasonably be expected to have been considered by these parties. In addition, the standard of reasonable skill and care is not constant. With the development of professions, new techniques are created. These developments result in better ways to avoid the common risks. As is well known, development takes place all the time. This has the effect of making highly effective techniques outdated. 36 Thus, practices that had been very common, even ten years ago, could be considered inefficient and as a result could be rejected. This usually happens, due to the discovery of better procedures. An important example is provided by the standard of reasonable skill and care expected of professional engineers and architects. This standard is determined on the basis of the written guidance that is current at the time of the alleged breach. It has the form of professional standards, and codes of practice. Conclusion The existing law with respect to negligence is uncertain and ambiguous. This is with regard to determining whether the negligent conduct had caused the harm in question. There is a major difficulty with this approach. This is due to the fact that the courts and parties in negligence claims are not provided with sufficient guidance. This relates to situations where negligent conduct will be considered to have caused the harm. In order to establish the existence of a duty of care, the courts examine the relationship between the parties. This scrutiny is made, in order to determine the proximity of the relationship. The duty of care varies from case to case, and the courts examine the facts to establish duty of care of the defendant towards the plaintiff and the scope of such duty. The courts also determine whether the defendant had breached a duty of care, which had caused loss to the plaintiff. As such, the extant law of negligence consists of several indefinite principles that make the position unclear. Thus, it can be concluded that duty of care in negligence as decided by the courts, varies form case to case. In deciding such cases the courts follow the equitable principles of justice and consider all the circumstances of the case. As such, the duty of care principle expressed by the courts is not clear and consistent. As per Brennan J, in the Sutherland case, consistent and clear principles should be followed by the courts while deciding duty of care in negligence cases in torts. Bibliography — — ‘Chapter 3 Negligence: duty of care and breach of duty’ accessed 7 December 2012. Anns& Ors v London Borough of Merton [1977] 2 All ER 583. Binchy W, ‘‘Recent Developments in the Law of Torts' (2004) 4(1) Judicial Studies Institute Journal 8. Caparo v Dickman [1990] 1 All ER 568. Capital & Counties plc v Hampshire County Council [1997] QB 1004. Council of the Shire of Sutherland v Heyman [1985] Aust Torts Reports 80 – 332. Donoghue v Stevenson [1932] UKHL 100. Hadley v Baxendale [1854] EWHC J70. Hemraj MB, ‘Australia and Canada: The role of policy in professional liability’ (2001) 9(2) Journal of Financial Crime 109. Hill v Chief Constable of West Yorkshire [1988] AC 175. Kidner R, Casebook on Torts (12th edn, Oxford University Press 2012). Patten B, Professional Negligence in Construction (Taylor & Francis 2003). Perry v Apand [1999] 164 ALR 606. Read More