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Tort VIII - Duty of Care Summary

Updated on August 12, 2017

In order for a plaintiff to be successful in a claim for negligence, the plaintiff was must be able to establish: -

i) that the defendant owed the plaintiff a duty of care

ii) that the defendant had breached that duty of care

iii) that the defendant’s breach has caused the plaintiff some type of damage and has led to one for of the following: -

a) physical injury

b) phycological injury or nervous shock

c) damage to property

and

iv) it is possible to quantify the resultant damage or injury in monetary terms.

Before the courts award damages, they will also look to see if there are any policy considerations that ought to negate the defendants claim for damages and if there are then the courts would not award damages or find in favor of the plaintiff.

A duty of care arises as a result of the defendant’s actions or omissions (a failure to do something especially that which is required by law) see Blyth v Birmingham Waterworks Co. (1856).

The defendant is deemed to owe the plaintiff a duty of care when the defendant ought to have the plaintiff in contemplation while the defendant was doing the act and the question that the defendant has to ask himself or herself is would the plaintiff suffer from some form of physical harm or phycological illness or incur some form of property damage as a result of the defendant acting in the manner that he or she did or would the plaintiff suffer from some form of physical harm or phycological illness or incur some form of property damage as a result of the defendant failing to act (omission).

This principle is known as the neighborhood principle as per Donoghue v Stevenson (1932). If the answer is in the affirmative then the defendant owes the plaintiff a duty of care.

Physical injury is deemed to be any form of injury to the body external or internal (not visible). Gastro-enteritis in the case of Donoghue v Stevenson (1932), for example, is not a visible injury. As for phycological injury or nervous shock, it is any form of injury that causes mental impairment or affects the victim’s ability to think and reason.

When it comes to nervous shock the courts are more inclined to award damages when there is a special relationship between the plaintiff and the victim or the perceived victim. In Dulieu v White (1901) a pregnant woman was awarded damages because the shock that she suffered as a result of being in a public house when the defendant crashed into it with his carriage had caused her to deliver prematurely and as a result her child was born with below average intelligence.

In Hambrook v Stokes Brothers (1925) a mother went into nervous shock and subsequently died as a result of the trauma she suffered when she thought her children who were playing around the curb were hit by a lorry. Her husband was entitled to claim damages for the phycological illness that had been caused to his wife as a result of the defendant’s negligence.

In Bourhill v Young (1943) the plaintiff a pregnant fishwife was entitled to be awarded damages when she went into nervous shock after she’d witnessed the aftermath of a horrific accident and consequently her baby was stillborn.

When it comes to the police, though they are employed to keep the peace, if an officer goes over and above what is required of him and subsequently suffers from some form of injury he is entitled to claim or to be compensated for the injuries that he has suffered.

In Haynes v Harwood (1935) a police officer was awarded damages for the injuries he had incurred when he tried to stop the defendant’s horse drawn carriage from causing injury to the public after the horses that were pulling the carriage had taken off on their own.

As a general rule the police do not owe members of the public a duty of care. In Hill v Chief Constable of Yorkshire (1989) the mother of the Yorkshire ripper’s last victim was refused damages when she brought an action against the police for not arresting the murderer in time despite knowing his identity which could have prevented her daughter’s death.

The decision was upheld in Michael v Chief Constable of South Wales (2015) where the status of a 911 call was downgraded and as a result the police arrived slightly later then they ordinarily would have and failed to prevent the victim from being stabbed to death.

Other employees that come under the Home Office however do owe a duty of care and can be held liable if they fail to carry out their duties in the stipulated manner as per Home Office v Dorset Yacht Co Ltd (1970).

When it comes to duty owed by councils the twofold test in Anns v Merton London Borough Council (1978) has been overruled and damage to property is perceived to be or is interpreted as being pure economic loss as per Sutherland Shire Council v Heyman (1985) and Murphy v Brentwood DC (1991).

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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