Essay: Duty of care overview, case studies/analysis & evolution

Introduction
Duty of care is a legal oblige requirement a person should adhere to, in respect of avoiding foreseeable harm to others. A person who fails to take due duty of care may bring about a claim against them from a defendant who may suffer injuries or losses (Randio , 2016). Under the law of tort, one of the most important cases is negligence which is drawn from breaching of legal duty to take care for an action, which consequently damages or causes loses to a potential claimant. Negligence caused by not paying great duty of care can cause a potential claimant three types of damage; personal injury, damage to property or economic loss. In legal practice, tort rules may vary according to the harm caused by a defendant, however the negligence of tort has three main rules to decide a case. The three rules are, defendant must owe the claimant a duty of care, the defendant must breach duty of care and the duty of care the defendant breaches must cause damage to the claimant (Case Navigator, n.d.).
Duty of care was formally evolved in the year of 1932, in the case of Donoghue v Stevenson, where Lord Atkins applied “the neighbour test” which is a matrix of reasonable foresight of harm and a relationship of proximity (e-lawresources.co.uk, n.d.). The case was based on a visit by Mrs Donoghue and friends to a café on August 26th, 1928 (BAILII, n.d.). A friend of hers got her some ice cream and a ginger beer in a tinted bottle. After she had drunk some of the ginger beer then attempted to pour out the rest, a decomposed snail fell from the inside of the bottle, which makes her sick later on. She claimed against the manufacturer as she had no contract with the café because her friend had bought the drink. Her case was successful and the modern law forming negligence under tort was established by the neighbouring test brought forward by Lord Atkins and the House of Lords. Stated by Lord Atkins “You must take reasonable care to avoid acts or omission 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 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 of omissions which are called in question” (NWTF, 2012). This law was reform further in 1945, where the House of Parliament passes the legislation called “Law Reform (Contributory Negligence) Act, 1945 (Legislation.gov.uk, 2016).
The duty of care under tort negligence is set out to differentiate the penalties a person should get for not taking the necessary precautions in an action that may affect other people. It is also a statutory and guide line to others that may wish to take actions but may want to avoid harming their neighbour. This essay will demonstrate how duty of care can be breached, how to access if a claimant is owed a duty of care. It will elaborate on the tests the court will bring forth to assess the reasonableness of a person’s act. The essay will also briefly focus on causations and cases where a duty of care can be neglected e.g. the ‘Novus actus interveniens’.
Case studies/analysis & Evolution
Negligence to others under tort’s duty of care can normally be identified by the compensation of a person who had suffered damage as a result of others carelessness. The laws of duty of care solely rely on cases previously decided, reason being, every time a new duty of care is accepted or ruled out, it plays a role in decision making for future tort cases brought before judges. Hence, making decisions from previous cases, based under tort negligence causes courts significant difficulties as it is always found that the court has problems between giving justice in an individual case, and avoiding a massive increase in the amount of future cases (Case Navigator, n.d.). The breaching of duty of care can be analysed from the assessment of a reasonable person, analysed by the following case studies.
As aforementioned, previously the branch of law known as negligence under tort was formulated from the case of Donoghue v Stevenson (1932). The case facts were Mrs Donoghue was at a café where she drank a drink bought from the café by her friend and after drinking most of the drink and pouring out the last of it, she came to understand that there was a decomposed snail inside the drink which caused her harm of being sick later on. She then sues the manufacturer of personal injuries (Case Navigator, n.d.). In usual cases remedy instigated by damage caused by defective product is governed under contract laws, however the contract was not made by Mrs Donoghue herself, because her friend had bought the drink and therefore the remedies under contract laws wasn’t available to her. She then sues the manufacturer which was agreed by the House of Lords that the manufacturers owed her a duty of care. Lord Atkins then affirmed the law of tort by uttering that “You must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbours”, what Lord Atkin meant by the word “neighbouring” is the person who may be in your surroundings directly or indirectly at the time of the action (Case Navigator, n.d.). The statement by Lord Atkin developed a test call foreseeability, as courts will access a defendant on what a reasonable person would and should foresee beforehand rather than asking the defendant. A claimant should not have to inform a defendant before there action that they may be affected because the defendant should be able to foresee the risk of harming the claimant and should take due care beforehand. This was in fact the vital part of Donoghue v Stevenson where the Lords saw that Stevenson, the manufacturer of the ginger beer, should have taken due duty of care when manufacturing his ginger beers so that it is not contaminated before the end user receives the product. The end product could have been sold to anyone which has no defence of knowing what is inside the product except the ingredients.
As time, has gone on, reasonable foresight on its own could not decide all the cases that come under tort negligence based upon there complexity. The variety of factual duty of care cases that may arise would have been trivial, in which the court starts to seek precedence to not only take into account the legal frame work, but also, if society would benefit from the presence of the duty. This was addressed in the case of Anna v Merton London Borough 1978, where Lord Wilberforce anticipated a substantial extension, on where a duty of care would exist in that era, in which he argued that it was not a necessity to find preceding examples based on similar facts. Instead he proposed that whether a duty of care arose in a factual situation was a matter of general principle (Case Navigator, n.d.). This was called the two stage test in which Lord Wilberforce stated that in order for the court to decide that the general principle is satisfied in a given case, the court should apply a two stage test. The first stage of the test is to antedate if the defendant’s action that affected the claimant was foreseeable and if ‘yes’, the second stage is to find out if there is any policy to consider that it would not be desirable to allow a duty of care in the situation (Case Navigator, n.d.). If there was no policy, then there will be a duty of care owed base on the first stage of the test. This has then modified the way the neighbouring test would have been applied and would reduce the amount of trivial cases that may have come forth to the courts. It may also appeal to a claimant that they should not overlook the policies of the defendant as a defendant’s action may affect a person at times.
In the process of making judgements and developing on tort law the courts decided to assess in cases, not only if the harm was foreseeable but if there were relationship of proximity amongst the claimant and defendant in a certain circumstance, is it just, reasonable and fair to imposed a judgement of duty of care (Christou, 2016). This was called the present test which was established in the case of Caparo Industries Plc v Dickman 1990. The case facts where that Caparo Industries had bought shares in Fidelity Plc in dependence of the statement of the company that it had a pre-tax profit of 1.3M. However, the company was actually losing money and they had lost of over £400,000. This is when Caparo brought a case upon the auditors claiming that the accounts were dispensed and certified in pure negligence (e-lawresources.co.uk, n.d.). Lord Bridge stated in the case, “what emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there 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” and that the situation should be one in which the court consider it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other” (e-lawresources.co.uk, n.d.). Hence, no duty of care was owed to Caparo as there was not enough proximity between both Caparo and the auditors. The reason behind this is that the Lord may have anticipated that there was not sufficient relationship between Caparo and the auditors because the auditors did not know that Caparo actually existed until the case had been brought forward to them. They did not know that someone would have placed such a big investment or any investment in that time based on their statement hence, Caparo had to bare all loses. Maybe if Caparo had stated to them before the investment that he was going to place an investment into the company based on the statement, there and then, if they had continued to mislead him, maybe the Lords would have come up with a more suited judgment for Caparo. But the judgment was purely based on animosity of what other people may use the audits information for in that era. The court then had to make sure that based off the circumstances in the case judgments are just, reasonable and fair. Maybe if a case like that was put forward in this era, the judgement would have been more in favour of Caparo because this would mean that a company is putting forward false information to obtain investment.
The breaching of duty of care is one amongst the most important aspects in tort law. If a claimant does not have adequate evidence to prove that someone breaches their duty of care, then there is not much point bringing forward a case to a defendant. Breaching of duty of care can be described as – where negligence and liability may appear wherever a defendant fails to meet the ordinary care necessity by law. A claimant must not only establish that a defendant owes them a duty of care but also prove that the defendant breaches their duty of care (e-lawresources.co.uk, n.d.).
Breaching of another person’s duty of care can be established from assessing the reasonable man test brought forward in 1856 in the case of Blyth v Birmingham waterworks. Blyth the claimant, tried to sue Birmingham council for not taking adequate action to equip the pipes in winter conditions against leakage. A devastating winter storm that year froze and burst the pipe lines, which flooded his home. The judge handed over the case for a jury to decide if the right care was taken to prevent damage to Blyth’s house. The jury stated that in the case, a reasonable man would act with reference to average conditions of the temperature of the winters previously past. Whereas the Birmingham water works did peruse their duty to take necessary precaution for the average winter they do not owe Blyth for a duty of care, as a devastating winter storm could have not been foreseen (CASEBRIEFS, 2016). The breaching of duty of care is rather complex and difficult to tell at times. Modern law uses the three main elements aforementioned above to decide if a claimant’s duty of care is breached, which is reasonable foresight, relationship of proximity and is it fair, just and reasonable to impose a duty in a given situation.
The cause of breaching duty of care can be split into two groups, factual causation and legal causation. In the factual causation, the ‘but for’ test can be applied, but for the defendant’s actions, the damage would not have occurred (Christou, 2016). The following can be explained in the case of Barnett v Chelsea and Kensington HMC (1969). Mr Barnett went to the hospital, complaining of unbearable stomach pains and vomiting. The nurse who he saw, phoned the doctor on duty. The doctor asked the nurse to tell the patient, Mr Barnett, to go home and referred him to his GP. Mr Barnet died from arsenic poisoning approximately five hours after leaving the hospital (e-lawresources.co.uk, n.d.). The doctor had breached the standard duty of care by not seeing and examining Mr Barnett. However, ‘but for’ the doctor’s action he would have died anyway because there wasn’t a cure for the poisoning at that time. Therefore, the court did not hold the hospital or the doctor liable for the cause of Mr Barnett’s death, even though the doctor failed to see him. This introduced the ‘but for’ test officially, ‘but for’ an omission of a defendant, would the case get worse and if yes, the defendant would be held responsible for the action (casebriafe.me , 2012). This can be explained simply by an example of a man who is hit by a car, then a good Samaritan decides to remove him from the road to prevent further harm, but ends up breaking his neck in the process. The court will have to apply ‘but for’ test to the good Samaritan and if his action causes more harm to the person who got hit by a car then the Samaritan would have to bare some of the liability partially.
The legal causation of breaching duty of care can be elucidated in the following case; Jolley v Sutton council (2000), where two 14 year old young men find a boat abandoned on land owned by the council and decide to fix it up. The boat was devastated and consisted of a lot of decomposed wooden structures which characterises danger. The council had encountered the boat prior to the 14 year old boys and put up a warning sign on the boat that if the owner for the boat doesn’t claim it within a seven days period, it would have been taken away. The two boys were working on the boat for a seven to eight week period when one of the boys decided to jack up the boat to work on the underside and the jack went right through rotten wood which tilted the boat over on himself. This caused him severe spinal injuries, and a claim was brought against the council. The House of Lord stated that “the risk was that children would meddle with the boat at the risk of some physical injury”. The court then ruled out the case that the council owed the claimant a duty of care from the anticipation of the ‘but for’ test (e-lawresources.co.uk, n.d.). This was a complex case as the kids went out of their way to meddle with the boat, however the council could have reasonably foreseen that other people would have meddled with boat, which could cause injury if it wasn’t secure or being towed away to a secure facility. Also, the ‘but for’ test plays a vital role is the case as the kids wouldn’t have had any injury if the boat wasn’t left carelessly by the council. From this case, it has proven that duty of care can be ruled out in self harming cases if a reasonable person doesn’t make sure their neighbour is environment safe, regardless if the claimant causes harm to themselves. In tort law, the claimant must establish reasonable causation for any loses by defendant, in most cases this is resolved by the ‘but for’ test. For example, ‘but for’ the defendant act, would the claimant have suffered loses? And if yes, the defendant is liable (e-lawresources.co.uk, n.d.).
Another way of establishing if a defendant owes a claimant a duty of care is for the judge to assess the ‘Novus actus interveniens’ (new intervening act). This springs from a chain of causation which is referred to when the defendant triggers a series of events involving others who may also contribute to the harm or injury of the plaintiff. It is questioned at times whether the original offender should be responsible for the eventual outcome (Christou, 2016). Another way of the ‘Novus actus interveniens’ can be elucidated is from the case of R v Jordan (1956), where the defendant stabbed the victim who died eight days later after being admitted to the hospital. The hospital had given the victim antibiotics in which he was allergic to and a large amount of intravenous liquid. At the time of his death he was recovering from his stab wounds which were healing. It was stated at the court that his death was caused directly by pneumonia and two other doctors expressed that the death wasn’t caused by stab wounds, which were healing at the time. The court held that the defendant was not liable for the dead of the victim (Lawmentor , 2016). In this case the ‘but for’ test was not taken into consideration, because the main and direct cause of the death was not the stab wounds but the antibiotics. Unlike the case of the arsenic poisoning where the doctors in that case could have not stopped the death of that patient, in this case, the doctors contributed to the death of the patient. This is called breaking the chain between the action of the defendant and the damage caused. In the case of a natural event, such as if the patient had died from walking around unattended or died from any other natural cause, maybe the judgment would have been different and the ‘but for’ test would have been used. However, the main cause of the death was the treatment the patient received which breaks the chain of causation of the death of the patient.
Conclusion
The process of deciding each case under the law of tort varies and is based upon the situation, and complexity of each case. In order to make a successful claim under tort law, a claimant should anticipate if the defendant owes him/her a duty of care, claimants should assess beforehand if the defendant breaches duty of care and if any damage has been done to him/her.
It is more likely for judges to use the reasonable man foresight requirements to assess a case at first, however the case can be looked at from other angles such as the policies set out by the defendant etc.. The courts sometimes judge not only if the harm was foreseeable, but if there were relationship of proximity between the claimant and defendant in a certain situation. The courts always assess in each case if it is just, reasonable and fair to impose a judgement of duty of care.
The cause of breaching duty of care is divided into two groups, factual causation and legal causation. In the factual causation, the ‘but for’ test can be applied, however in legal causes it is solely based upon the legal cause and facts of the damage.
In some instances, where the cases are very complicated and remedy are hard to uncover, the ‘Novus actus interveniens’ can be used where damage is caused from multiple persons.