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Tort V - Duty of care IV

Updated on August 7, 2017

In Sutherland Shire Council v Heyman (1985) the council approved the plans to construct a house on a slope, subject to the conditions that the council be given notice at proper intervals and that no tenants should be allowed to occupy the house until the council had inspected the house.

A few years after the construction of the house, the plaintiffs purchased the house and once they’d moved in they realized that there was structural damage to the house caused by the inadequate depths of the foundations and the plaintiffs incurred expenses in remedying the damage to the house. The plaintiffs sued the council for failing to carry out their duties diligently. The facts in the case were similar to the facts in Anns v Merton London Borough Council (1978).

It was held that the council did not owe the plaintiffs a duty of care and therefore the plaintiffs were unsuccessful. The council’s powers of inspection were discretionary because there was no statutory duty imposed on the council to inspect the house. Despite the fact that it was foreseeable that there would be damage to the property if the council was negligent in its duty it was decided that foreseeability alone did not imply duty. Duty was dependent on the facts of the case and because it was determined that there was no duty owed by the council in this instance the question of breach did not arise.

It would be fair to say that in order for the courts to construe that there was a duty of care owed there must be foreseeability i.e. the defendant ought to have the plaintiff in his or her contemplation while he or she was carrying out the act or failed to carry out the act but once the element of foreseeability is satisfied or established, a duty of care doesn’t automatically arise. Whether a duty of care arises or otherwise is dependent on the facts of the case.

The case of Hill v Chief Constable of Yorkshire (1989) - the case concerns the arrest and conviction of Peter Sutcliffe, the Yorkshire Ripper, sheds some light on the extent of the duty, if any, that is owed by the police.

Between 1975 to 1980 there were a series of brutal attacks on female sex workers in Leeds and Bradford. While the initial attacks centered around those in the sex trade, the later attacks involved the brutal killings of women from other walks of life. Eventually the murderer was convicted for 13 murders and 7 attempted murders but has been since reportedly been questioned on other murders.

The mother of the last victim, Jacqueline Hill brought an action against the Chief Constable claiming that her daughter might have been spared had the police acted in time and it was the negligence of the police that had led to the death of her daughter. Prior to arresting the murderer, the police interviewed him up to 9 times and it was these delays that had resulted in the death of her daughter.

It was held that the police owed no duty to the public though they may be liable in negligence on certain occasions for failing to act on time. To impose liability on the police would lead to ineffective policing because police officers might be reluctant to act fearing that they might be made accountable in court for situations that in most instances are beyond their control.

The decision was reaffirmed in Michael v Chief Constable of South Wales (2015). The parents and the children (plaintiffs) of the victim, brought an action against the Chief Constable for failing to act in time. The victim dialed 911 requesting for help because her ex-boyfriend was on his way to kill her. The person at the other end did not hear the threat and downgraded the call which meant that the response time would be slightly slower. The victim called again minutes later requesting for assistance and when the police finally arrived at the scene they discovered that the victim had been stabbed to death. It was held that the police did not owe the victim a duty of care to protect him or her from harm caused by a third party.

The case was distinguished from Home Office v Dorset Yacht Co Ltd (1970). In the latter, the officers had control of the boys and it was their lack of diligence while exerting their authority that led to the defendant’s yacht being damaged. In the former, the police had no control over the defendant’s boyfriend. With regards to proximity the courts proposed a four-pronged approach.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward


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