The idea of a duty of care in the tort of negligence has developed through judges making decisions in cases. This started in a negligence case of Donoghue v Stevenson (1932) where the claimant (Mrs. Donoghue) went to a café with a friend. The friend bought her a drink of ginger beer and ice cream. The bottle of ginger beer had dark glass so that the content could not be seen. After drinking some of it, Mrs. Donoghue poured the rest out and then saw that it contained a dead (and decomposing) snail. This appalled Mrs. Donoghue and she became ill as a result of the sight and the ginger beer she had already drunk.
Mrs. Donoghue had no direct claim against the manufacturer or the shopkeeper based on contract because she did not buy the ginger beer. Mrs. Donoghue’s friend could claim against the café in contract, but had not suffered any loss apart from the fact that she had bought defective goods; she could get her money back, but nothing for Mrs. Donoghue’s illness. Therefore, Mrs. Donoghue claimed damages against the manufacturer, Stevenson. Her claim was for the resulting shock and stomach upset, which she claimed was caused through drinking the ginger beer.
The court had to decide whether her claim against the manufacturer of the ginger beer could succeed. This led to Lord Atkin’s famous statement:
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
Donoghue v Stevenson (1932) was the first successful attempt to set out a general principle with respect to the concept of the duty of care. How as lawyers realised this principle could be manipulated to be used with different types of situations, the test was reformed to form the three-part test in the case of Caparo v Dickman (1990).
The general test set in Caparo requires three elements to be demonstrated:
· It was reasonably foreseeable that a person in the claimant’s position would be injured,
· There was sufficient proximity (closeness) between the parties,
· It is fair, just and reasonable to impose liability on the defendant.
All parts of the test must be satisfied if there is to be a duty of care owed by the defendant to the claimant. Each part must be explained and proved separately.
This is an objective test: would a reasonable person in the defendant’s position have foreseen that someone in the claimant’s position might be injured? In Donoghue v Stevenson (1932) it can be seen that failing to stop a snail getting into a bottle will affect the consumer (Mrs. Donoghue) of the contents. This is a consequence of producing food that has foreign bodies in it, and a reasonable person in the defendant’s position (a soft drink manufacturer) would foresee that the claimant (a consumer) might be injured.
In Kent v Griffiths (2000) a doctor called for an ambulance to take a patient suffering from a serious asthma attack to hospital immediately. The ambulance control centre replied ‘okay, doctor’. The ambulance, without a satisfactory reason, failed to arrive within a reasonable time. The patient suffered a heart attack which could have been avoided if she had been taken to hospital earlier. It was reasonably foreseeable that the claimant would suffer harm from the failure of the ambulance to arrive.
In Jolly v Sutton London Borough Council (2000) a boy, aged 14, was paralysed when a boat he was attempting to repair slipped on top of him. The boat had been abandoned on land belonging to the council by a block of flats. The council knew that the boat was in dangerous condition and that children were likely to play on it. The House of Lords held that attempting to repair the boat was not so very different from normal play, so the injury to the claimant was reasonably foreseeable.
In some cases the courts have decided that is not reasonably foreseeable that the claimant would suffer harm. For example, in Bourhill v Young (1943) a motorcyclist going too fast, crushed into a car and was killed. Mrs Bourhill, who was eight months' pregnant, was about 50 yards away. She did not actually see the events take place but had heard the incident take place. When she saw the blood on the road, she suffered shock and her baby was stillborn. She claimed against the motorcyclist’s estate. The court decided that the motorcyclist did not owe her duty of care as he could not have reasonably foreseen that she would be affected by his negligent driving.
Even if the harm is reasonably foreseeable, a duty of care will only exist if the relationship of the claimant and the defendant is sufficiently close. This can be seen in the case of Osman v Ferguson (1993) where the police officers knew that there was a real risk of an attack on victim. The victim was the murdered by the attacker. The court held that there was a sufficiently close relationship between the police and the victim. However, the case did not succeed because it was ruled that it was not fair, just and reasonable to impose a duty of care on the police (which is the third part of the test).
The third part of the test, whether it is fair, just and reasonable to impose a duty of care, is really a matter of public policy. The courts are usually reluctant to impose a duty on public authorities, as seen in the case of Hill v Chief Constable of South Yorkshire (1990) where it was pointed out that imposing a duty on police could lead to policing being carried out in a defensive way which would divert attention away from the suppression of crime, leading to lower standards of policing, not higher ones.
However, in some circumstances the police do owe a duty of care. In the case of MPC v Reeves (2001) the police took a man into custody who was a prisoner known to be at risk of committing suicide. Whilst in custody he hanged himself in his cell. The court found that the police owed him a duty of care.
Once a claimant has proved the duty of care is owed he must then show that the defendant breached that duty. This is merely when the defendant falls below the standard of care appropriate to the duty. Breach of duty is measured objectively by the ‘reasonable man test’. The reasonable man is the ordinary person performing the particular task: he is expected to perform it reasonably competently. Thus, when I am riding my bicycle, I am expected to be a reasonably competent cyclist who can ride a bicycle. Therefore, a number of factors that can be considered to raise or lower the standard. This is logical because a reasonable person will rightly take greater risks in an emergency, and take more care when the risk of harm is greater. For a breach of duty to occur, the court will take four factors into account:
- The degree of risk involved: the greater the risk, the more the defendant has to take care. (Bolton v Stone 1951).
- The cost of precautions: the courts will see how high the risk is involved, and then take into account the expense of taking precautions to prevent that risk (Bolton v Stone and Latimer v AEC).
- Potential seriousness of injures: so if there is a very high risk of serious injury, the more the defendant needs to be very careful (Paris v Stepney B.C. 1951).
- The importance of the activity: in an emergency, sometimes it is not possible to reflect, think of a possible risk (Marshall v Osmand 1982).
Standard for experts – where the defendant has some expertise, for example, he is a doctor carrying out medical treatment, then the standard of care is that which would normally be expected from a doctor. In Bolam v Friern Hospital Management (1957) the judge said:
"A man need not possess the highest expert skill; it is … sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
In some situations, it is difficult to know exactly what happened, although it is found obvious that the defendant was negligent. In these situations a rule called res ipsa loquitur, which means (things speak for themselves) was developed by judges. It has to be shown that:
· The defendant was in control of the situation (causing injury).
· The injury was more likely than not to be caused by negligence.
If the claimant proves these two things then the defendant has to prove that he was not negligent. This rule was shown in the case of Scott v London and St. Katherine Docks (1865) where the claimant was hit by six bags of sugar which fell from the defendant’s warehouse. The claimant could not say why the bags had fallen but the court ruled that the facts spoke for themselves and it was up to the defendant to prove that he was not negligent.
Having established a duty of care, and a breach of that duty, the claimant will then need to show that damage has been caused o them, and that loss is not too remote. A person will only be liable for damage, which they have actually caused the victim. The same rules apply to damage to property.
Would the damage have happened had it not been for the breach of duty? This can be seen Barnett v Chelsea and Kensington Hospitals (1969) where three night-watchmen went to Accident & Emergency complaining of sickness after drinking tea made by a fourth man. A nurse telephoned the doctor on duty, who did not come to examine the men but instead sent the men home and told them to go and see their own doctors in the morning. On returning home, one of the men died a few hours later from poisoning. His widow sued the hospital claiming that the doctor was negligent in not examining her husband. Evidence showed that by the time the husband had called in to the hospital it was already too late to save his life. This meant that his death was not a result of the doctor’s breach of duty and so the claim failed.
The claimant has to show that the type of damage was reasonably foreseeable. This is seen in the case of The Wagon Mound (1961) where fuel had negligently spilled onto water in a harbour. Two days later the oil caught fire because of wielding work being done on another ship. The fire spread to the claimants wharf and burnt it. The damage suffered was not reasonably foreseeable.
This rule means that the defendant must take his victim as he finds him. So, if the type damage is reasonably foreseeable, but it is much more serious because of something unusual about the claimant, such as a thin skull, then the defendant is liable. In this situation the damage is not too remote. This is shown in the case of Smith v Leech Brain and Co. (1962) where because of a defendants negligence, a man was burnt on the lip by molten metal. The burn caused him to develop cancer and his widow claimed against the defendant and because the burn was a foreseeable injury, he was also liable for the man’s death.