1
Lord Atkin in Donoghue V Stevenson 1932 asserts: reasonable care should be taken to avoid acts or omissions which one may reasonably foresee could injure your neighbour; this relates to those around you or with special relationship to you as seen in Hedley Byrne & Co Ltd V Heller & Partners Ltd 1964 . Caparo V Dickman 1990 establishes a test to determine duty of care. Courts have to be satisfied that it was reasonably foreseeable for the damage to occur, there was sufficient proximity of relationship between the claimant and defendant. It must be fair, just and reasonable to impose a duty. There were multiple incidents Jane reported; harm may be implied as foreseeable. The Human Rights Act 1998 s6(3) provides that the police force is a public authority and courts are sometimes reluctant to hold in the favour of claimants to avoid an influx of litigation that would strain the legal system. Between the police and Jane courts should establish proximity existed. The police did not pursue Jane’s report so there proximity of relationship is questionable. Special relationships may arise between the acts of third-party and defendant. If it were the case, that someone who had escaped police custody had been the alleged burglar/thief. The court may apply the principles of Home Office V Dorset Yatch Company and there may be duty owed to Jane where the third-party is under the control of the defendant; however the facts do not suggest this.
Alexandrou V Oxford 1993 the court of appeal held that “[…] by virtue of police reports from ordinary members of the public, no duty was owed and if they were it would then apply to all members of the public at large…”. Resulting in a significant diversion of resource allocation. Michael V Chief Constable of South Wales Police 2015 established that police have a general duty to enforce criminal law. It does not extend to a private law duty towards members of the public and there is no liability imposed on police for their omissions or preventing harm caused by third-parties. It is to be considered that where the defendant has a high level of control over claimant they may be liable for omissions but the police in this case did not act on Jane’s reports and did not begin to act to protect her. Hill v Chief Constable of West Yorkshire Police 1989 held that unless there are special circumstances, the police do not owe a duty of care to protect members of the public from harm through their functions they may however owe a duty if they themselves have positively created the danger. It was held in Hill that police have a broad immunity from duty of care. Mersey Docks and Harbour Board Trustees V Gibbs 1866 provided there is no blanket immunity for public authorities in negligence, this is to create fairness for the vulnerable.
Robinson V Chief Constable of West Yorkshire Police 2018 courts had to consider whether it was fair just and reasonable to impose a duty. Lord Reed asserts: “ The police generally owe a duty of care when such duty arises under ordinary principles of negligence unless a provision says otherwise.” Demonstrating that there are situations where applying Hill would be unjust and unfair; conflicting with the aims of Torts. Lord Hughes defends the principle of police immunity, believing it to potentially lead to significant division of police manpower. Michael held it to be unfair for taxpayers to compensate victims for the acts of third parties as well as pay for the police to prevent crime. He states that “[…] policing often involves delicate balancing of choices and resource allocation is scarce, where there are large numbers of potential offenders some at terrorist level, decisions are often made under extreme pressure[…].” Imposing a duty is inconsistent with public policy. Jane is not owed a duty of care in this case it would not be practical and would influence a compensation trend; that being said, it would be useful to find out if there was a reason as to why the police did not act upon the reports made by Jane.
2
Vaughan V Menlove supports that defendants owe a duty of care to a claimant if they act below the standard which are reasonable person would. A reasonable standard is not best judgement of a person but an objective test, as set out in Hall V Brooklands Auto Racing club the standard of an everyday person who’d perform functions like riding public transport. Blyth V Birmingham Waterworks Company 1856 principle is that the reasonable standard to be considered is that which would be done/not done by a person in the same situation. Surgeons are skilled medical professionals, the judiciary judge their standard higher. The test has to prove they acted in such a way as other professionals would in the same situation and can be demonstrated by a recognised medical body invited by the defendant to give evidence. Established in Bolam v Frien Hospital Management Committee 1957 the House of Lords later felt that a doctor could be liable of breach despite the presence of a medical body’s opinion in favour of him. A medical body is not reliable or responsible if it can be demonstrated that professional opinion is not capable of responding logical analysis. Bolam is controversial as that it takes away the ability of the court to judge reasonableness. When applying Bolam, if there were per se, 100 surgeons in that jurisdiction and 4 surgeons gave evidence and would have acted in the same way then according to Bolam a breach may not arise. This does not seem to be logical in the legal arena. Bolitho V City and Hackney Health Authority 1998 allows the court to decide having heard from medical opinion is logical and has breached their duty.
If the defendant is unaware that a procedure is dangerous duty will not be breached. A reasonable person would not make precautions for risks by which they are not made aware of; as per Roe V Minister of Health 1954 , which concerned a contaminated anaesthetic, the test of that time did not go as far as to check the glass container and it would have been unreasonable to do so. The defendant may be liable if he is aware of possible dangerous. The foreseeability factor comes into play again. The surgeon withholding the information from Sarah in such a paternalistic manner, may suggest he breached his duty and it is for Sarah to decide whether she accepts the risks or not. Some legal academics argue that if a doctor need not disclose information if it will have a detrimental effect on a patient. Today’s society are more aware of ‘self’ and willing to question doctors’ advice; many do seek the opinions of other professionals. Lord Scarman asserts that prudent patients should be the focus and not and not the competent doctor as per Lord Scarman in Sideway that being said, patients have a prima facie right to be informed of well established risks associated with a procedure. Montgomery V Lancashire Health Board 2015 held that doctors are not to decide what to tell people but the courts. Patient have rights and are not recipients of care; informing them of the material risks allows them to choose whether or not they wish to undergo a procedure. “The decision redefined the standard for informed consent and disclosure.”
As Sarah was reluctant to undergo surgery, the principle in Paris V Stepney Borough Council should apply. A reasonable person would take care when the situation demands it. A higher standard of care should have been adopted as the defendant is aware of the magnitude of harm likely, eventhough the possibility is small, more care is to be taken. Speech is a core human function knowledge of that harm should be communicated to nervous Sarah. The likelihood of harm should be considered by looking at what would statistically occur as held in Bolton V Stone 1951 , if it is too low there would be no breach. A higher risk would be a breach of duty as in Miller V Jackson 1977 . A judge could ask, with the knowledge of the small yet permanent risk if precautions were taken to prevent harm. There are no facts to support that precautional measures were taken. The reasonable person is to do all within his will to prevent injury to others. Lord Denning asserts in Watt V Hertfordshire County Council 1954 that one is to balance the risk against the end to be achieve. The doctor in Sarah’s case has breached their duty having acted unreasonably and withheld information.
3
To establish causation, the judiciary must be satisfied that the negligence of the defendant is the cause of the claimant’s loss. Barnett V Chelsea and Kensington Hospital Management Committee 1969 . The claimant is to prove on the balance of probabilities that the employer’s breach caused Mike’s death, it would mean the breach materially contributed to it as in Bonnington Castings Ltd v Wardlaw 1956 . If Mike did not become permanently disabled all the other factors such as an affected physical appearance, depression and suicide.
Baker v Willoughby is influential in supporting the employer’s causative liability for Mike’s death because, like Baker, Mike’s later injuries did too become the concurrent cause of the disablement caused by the employer. Lord Pearson refers to it as a devaluation of a claimant. The negligence “[…]produced a general reduction of his capacity to do thing […]” His clinical depression is a result of the initial negligence incident, which reduced and impaired his ability to reason logically. The facts do not suggest that Mike had any historical mental illness and suicide is not an involuntary act but it is an irrational one. Mike’s actions have not broken the chain of causation. Lord Bingham in Corr V IBC Vehicles Ltd 2007 asserts that suicide is there’s circumstances is not a novus actus but actually a direct result of the breach. It goes back to foreseeability r injury as per the reason in Wagon Mound. Employers cannot accept liability for physical injury and be dismissive of the psychological injury; they are one in the same (Page v Smith).
4
Possible defences the driver may use in the case against Jennifer are twofold: Volenti non fit injuria and Contributory Negligence. The defences of illegality and exclusion cannot be used. Volenti is the voluntary assumption of risks, Lord Herschell asserts that a person cannot complain of a wrong when they brought it upon themselves. The driver must demonstrate that Jennifer “[…] with full knowledge of the risks, while freely and voluntarily agreed to incur it through their actions…”. Jennifer acted voluntarily in stepping into the road as the facts do not suggest that she was told to. Jennifer would have had knowledge of the risks, because she travels to school alone. The driver could put forward impliedly agreed to the risks associated with her crossing the road hastily without taking reasonable care. On the agreement factor, we should consider her age. Jennifer is a child it would not be logical to say she agreed to the risk of injury . It is not an action of someone under pressure , had she not been in a rush she would have made logical travel decisions. The intention of the claimant should be considered as well as her actions, her intention was to get to the bus stop and not to injure herself. Kirkham v Chief Constable of Greater Manchester Police in dicta supports the complete defence of volenti in situations where persons of sound mind attempts to harm themselves.
The Law Reform (Contributory negligence) Act 1945 is a partial defence that may be used where the claimant is partly at fault ; the court may reduce the damages if it’s just and reasonable to do so. Jackson V Murray and another 2015 has similar circumstances where the element of whom’s to blame played a major role in the Supreme Court. In Jackson their Lordships believed a car was a “potentially dangerous weapon…”. When addressing responsibility of the injury, it was considered the claimant should have the most responsibility as she stepped out. The judiciary asses how blameworthy the claimant is, then damages are reduced by the court to a just and equitable amount. It is unlikely for serious injuries to come about at the recommended speeds in residential areas . If the driver was within the speed limit the damages to Jennifer may be a reduction. The driver may assert that Jennifer was not acting carefully . Being a child her danger-reasoning may not exist equal to an adult’s, as per Justice Salmon “I think it would be quite wrong to hold that a child of 13½ is negligent because she fails to go through those mental processes and relies unquestioningly on the lorry driver's signal.” {Gough v Thorns } The driver may prove failure to be careful contributed to the damage. Davies v Swan Motor the claimant exposed himself to danger, it saw 1/5 reduction in damages under the Act.