House of Lords Tort Judgment - Article Example

Tort work- House of Lords Tort Judgment My Lords, the success of the appellant’s appeal will depend on his establishing that the Court of Appeal’s ruling that the respondent did not owe John a duty of care, under the law of tort, constituted a misapplication of the law, in respect of the stated facts and as such was tantamount to an error of law. Accordingly, the starting point is to determine the requirements for duty of care in tort at law. The principal requirements that the appellant must establish under the tort of negligence is that the respondent owed him a duty of care. The test for whether or not there is a legal duty of care was established in the case of Donoghue v Stevenson1. In this case the appellant had suffered damage as a result of a snail in her ginger beer bottle and she brought a claim against the manufacturer for damages. It was held in this case that even though the appellant had not bought the ginger beer and therefore had no rights under the law of contract, she could successfully pursue a claim against the manufacturer in the law of tort. Lord Atkin asserted that a manufacturer owed a legal duty of care to the ultimate consumer of his product. In discussing duty of care as a legal concept, Lord Atkin established the “neighbour” principle”2. Lord Atkins went on to define the term “neighbour” in the legal sense as being “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.3” All the same, there are limitations to the application of duty of care principle. For instance, in the case of Dorset Yacht Co Limited v Home Office4 Lord Reid opined that “Donoghue v Stevenson may be a milestone…but it is not to be treated as if it were a statutory definition. It will require qualification in certain circumstances”5. The development of a test for establishing a legal duty of care in tort has been gradual. In Caparo v Dickman6, the House of Lords specified a three stage test to determine the absence or existence of a duty of care. The different states in this test are first, whether the consequences of the defendant’s actions were reasonably foreseeable. Second, whether there was sufficient proximity to impose a duty of care; and lastly, whether it is fair, just and reasonable to impose a duty of care. In applying this test to the appellant’s position, it must first and foremost be established, whether the respondent could have been reasonably expected to have foreseen the damage and having anticipated to this end, whether the respondent had taken reasonable precautions. Clearly, the respondent could be expected to know that by failing to protect the appellant, on account of negligence; would harm the appellant and consequently prejudice the criminal trial, in which the appellant was an important witness. Accordingly, the reasonably foreseeable test has been satisfied and the next question is whether or not there was sufficient proximity for the respondent to owe a legal duty of care. In Anns v Merton London Borough7 the court ruled that the proximity test depends on the nature of the relationship between the parties. Accordingly, it is my duty to consider whether the appellant was a member of a group to which a duty of care was owed by the defendant. The decision in Anns is possibly the most comprehensive attempt to establish a general principle, Vis – a – Vis duty of care. Lord Wilberforce opined that “the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First, one has to ask whether, as between the wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity of neighbourhood 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. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative or to reduce or limit the scope of duty or the class of person to whom it is owed”.8 In the present case, we are dealing with the contentious issue of duty of care owed by the police force, which has been treated differently from other classes of defendants in negligence cases. An instance is provided by the case of Hill v Chief Constable of West Yorkshire9 that dealt with the failure of the police to arrest the “Yorkshire Ripper”. Despite strong evidence pointing to his guilt that had fulfilled the test of foreseeability, there was failure regarding the all important issue of proximity. Consequently, the court held that it was not possible to establish proximity10. It had always been difficult to oppose a duty of care on behalf of the police. The general assumption that police decisions had carte blanche was disproved by the 1989 decision in the Yorkshire Ripper or Hill case. Furthermore, in the case of Brooks v Commissioner of Police of the Metropolis11 it was held that the police do not owe a duty of care to victims of crime when taking decisions regarding whether or not to prosecute a suspected offender. It was further asserted that the fundamental principle in police duty of care cases was that the police did not have a common law duty of care to protect individuals against harm caused to them by criminals. This was reinforced in the decision of Smith v Chief Constable of Sussex Police12where the factual position was analogous to the circumstances of the current appeal. In that case, it was held on policy grounds that the imposition of a duty of care on the police was precluded. As in the present circumstances, the police in Smith had been aware of the identity and location of the attacker13. Whilst the overriding arguments for limiting police liability in tort are sound, I am compelled to concur with the dissenting opinion of Lord Bingham in the Smith decision. Therein, Lord Bingham had asserted that if a member of the public had provided the police with credible evidence regarding the identity and location of a third party, known to constitute a specific and imminent threat to his life and safety; then the police owed a duty to take reasonable steps to assess the threat and prevent it. Moreover, I refer to the decision in Capital & Counties plc v Hampshire CC14, by way of analogy, in considering the law’s approach to public service negligence liability. In this case, Stuart-Smith LJ stated that if a passing doctor “volunteers his assistance, his only duty as a matter of law is not to make the victim’s condition worse”, and that there is no positive duty to actually give treatment in the first instance. Furthermore, in the case of Gorringe v Calderdale MBC15 it was asserted by their Lordships that the mere fact that a public body was in a position to save individuals, did not bestow an automatic right upon that entity to save individuals from harm. The Human Rights Act, like the European Convention on Human Rights, does not require individual rights to supersede community interests on each and every occasion. In the Osman case the ECtHR held that there had been a breach of Article 6 of the ECHR. In subsequent similar cases the ECtHR ruled that there had been no such breach. In the light of the above case law, the duty of care owed by a public authority is mainly concerned with public policy; which in turn prioritises benefit to society. Albeit, the police do not owe the citizenry a general duty of care, on account of the requirements of public policy; such immunity cannot be assumed in each and every instance. At times, considerations other than those related to public policy may assume significance, and this would necessitate the assumption of a duty of care towards an individual. In the present case, the respondents were aware of the threat to the appellant and that he had taken out a contract for private protection. The respondents had advised the appellant that they would protect the appellant from harm. Thereupon, the appellant had believed in their promise and cancelled the private contract. Consequently, it is my contention that the facts of the case are clearly distinguishable from policy considerations against imposing a duty of care on the police; and accordingly plead that the appeal should be allowed. Bibliography: Cases: Anns v Merton London Borough [1978] AC 728 Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 Caparo v Dickman [1990] 1ALL ER 568 Capital & Counties plc v Hampshire CC [1997] 3 WLR 331 Donoghue v Stevenson [1932] AC 562 Dorset Yacht Co Limited v Home Office [1970] AC 1004 Gorringe v Calderdale MBC [2004] UKHL 15 Hill v Chief Constable of West Yorkshire [1988] AC 175 Osman v United Kingdom (23452/94) [1998] ECHR 101 Smith v Chief Constable of Sussex Police [2008] UKHL 50 Books: Arthur Brown, Police Governance in England and Wales (Routledge, 1998) 141 Peter Asch, Consumer Safety Regulation (Oxford University Press US, 1988) 26-27 Richard Card, Public Order (Jordans, 2000) 39 Read More