claimant must show on the balance of probabilities: defendant owed a duty of care, breached that duty by failing to meet standard of care required & as a result claimant suffered loss or damage which is not too remote
established duty of care owed in many situations, including road users to other road users, employers to employees & doctors to patients
neighbour principle used to determine whether a duty of care is owed in novel situations
plaintiff (P) ill after drinking lemonade manufactured by defendant (D)
P's friend bought her bottle of lemonade in cafe, P drank some before realising there was a snail in the bottle
privity of contract meant P (a third party) could not sue D under contract law, so P pursued claim in Negligence
did D owe P a duty of care?
P could claim against D because manufacturer owes consumer duty of care, reasoning stablishes neighbour principle
Lord Atkin: .. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour... 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...
neighbour principle is test of proximity: whether the particular D ought reasonably to have foreseen the likelihood of injury to C
courts developed neighbour principle by three-part test
company accounts did not show making loss (P bought shares), P claimed D (account auditors) had been negligent
did D owe P a duty of care?
House of Lords found D did not owe duty of care
law should develop incrementally & by analogy with established categories of negligence, existing precedents must be considered & if cannot be adapted three-part test should be applied
three elements: reasonable foresight of harm, sufficient proximity of relationship between P & D & t is fair, just & reasonable to impose duty, if all three parts satisfied a duty of care may be imposed
Sutherland Shire Council v Heyman (1985) 60 ALR 1
Austrialian case approved by Lord Bridge in Caparo
Brennan J: .. he law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed...
first two parts of Caparo test reflect neighbour principle & third introduces consideration of policy
three-part test now used to establish uty of care in novel situations
Part 1: foreseeability
must be reasonable foresight of harm to C, refers to foreseeability of C as a victim not precise nature & extent of harm
objective test: is it reasonably foreseeable that D's actions will affect this particular C?
C lost cargo when a ship sank, Ds (ship classification society) allegedly been negligent in certifying ship sea worthy, C sued for damages
should a duty of care be imposed?
Ds did not owe duty of care, Ds were non-profit making organisation carrying out classification as public good, would not be fair, just & reasonable to impose duty (it may endanger existence of such organisations)
courts cautious about opening the floodgates, for many more similar cases but will consider public benefit
deterring certain types of behaviour can be considered & may lead to ruling in favour of C
resources taken into account: if claim successful D often liable for damages, usually paid by insurers, ultimately leads to society paying increased insurance premiums (especially considered in pure economic loss cases)
individual cases may seem unjust but courts can decide not undermining legal certainty more important
whether alternative, more appropriate legal action should have been brought
general rule in Negligence: no liability for omissions (a failure to act)
C suffered asthma attack & ambulance called on her behalf
ambulance failed to arrive within reasonable time & C had heart attack, C sought damages.
was the ambulance service liable for the omission?
court imposed a duty on the ambulance service
reasonably foreseeable a person in C's position would be further injured if ambulance failed to arrive promptly, once call for help was accepted, ambulance service assumed responsibility for patient's care & reason for delay not clear, so no policy considerations prevented duty being imposed
Claims against the Police
if C suffers injury as direct result of Police action, then Police treated in same way as other citizens
if C injured by third party but due to Police negligence application of Caparo test more complex
D (the Police) interviewed & released Peter Sutcliffe (the Yorkshire Ripper), later he raped & murdered P's daughter
P as representative of her daughter's estate, sought damages in Negligence
did D have a duty of care towards the victim?
House of Lords found claim was unsuccessful
was foreseeable that D's failure to catch Yorkshire Ripper could lead to further crimes, but Police not owe a duty of care to any individual rather to public at large
reasoning focussed largely on public policy: if a duty was imposed it would be too wide & too onerous
Lord Keith: .. general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime.... The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime...
there was a lack of sufficient proximity
Lord Keith: .. [the victim] was one of a vast number of the female general public who might be at risk from his [the Yorkshire Ripper] activities but was at no special distinctive risk in relation to them...
a Police witness was threatened & subsequently murdered, Cs were the victim's family
Cs brought an action under Human Rights Act 1998: arguing the Police (as public body) had breached Article 2 ECHR (the right to life)
can a claim against the Police be made under the HRA 1998 in relation to Article 2 ECHR?
on the facts the claim failed
House of Lords found claim could be made under HRA 1998, in relation to Article 2 ECHR, if the Police knew or ought to have known of the existence of a real & immediate risk to life of an identified individual & failed to take reasonable measures, within scope of their powers to avoid that risk
generally courts recognise public authorities should perform functions without fear of Negligence claims, especially as decisions often affect many people
public authorities may be subject to public law remedies, such as judicial review, if gone beyond their powers
courts balance allowing public authority to carry out duty & providing remedy to individual if public authority negligently performs duty