About Me

My photo
Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.

Thursday, February 12, 2009

Duty of Care

How do the tests of a duty of care in Donoghue v Stevenson, Anns v Merton London Borough Council, Murphy v Brentwood and Caparo Industries v Dickman differ? – Justin Santiago

The question raises the issue of the development of the duty of care over the years and how it has come to mean different things according to different situations. These cases represent landmark decisions in which the relationship between the parties in determining whether there was a duty of care have become increasingly restricted. The reason for these restrictions is in support of the floodgates argument – indeterminate liability in an indeterminate amount for an indeterminate time to an indeterminate class of people. However these restrictions must be balanced against the overkill argument which points to those threatened with liability to respond by taking unnecessary safety precautions or be giving up a socially beneficial activity altogether.

The duty of care establishes the necessary link between the defendant and the claimant under the tort of negligence. In the ordinary law of negligence, it is essential if a claim is to succeed that the defendant be in breach of a duty of care, that is, he has done something that a reasonable person would not have done, or neglected to do something that a reasonable person would not have neglected. The law of tort is not concerned with punishing people for their wrongdoings, it is concerned with making people liable for the consequences of their own actions.

Donoghue v Stevenson set out the neighbourhood principle in which a duty was owed to persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected. This definition was seen as too broad and could encompass relationships as indirect as that between manufacturers and ultimate consumers of the manufactured product as in this case.

In Anns v Merton London Borough Council the test of a duty of care was a two stage test – the first stage was a duty of care would arise if there was a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the defendant carelessness on his part may be likely to cause damage to the claimant. The second stage was that the scope of the duty of care or the class of persons to whom it was owed would be reduced or limited if there were any considerations which ought to negative or reduce or limit the scope of the duty of care.

Murphy v Brentwood argued that the two stage test was seen as too liberal and generally favoured the claimant, because it suggests that once neighbourhood is established, there is a prima facie duty of care, which can only be rebutted on policy grounds as well as opening up the local authorities to liability.

The expositions of the current test of foresight, proximity and fairness is found in Caparo Industries v Dickman. This test is seen as encompassing both factual duty and legal duty.

Factual duty

- it was reasonably foreeseeeable that a person in the claimant’s position would beinjured, foresight of a reasonable man – Bourhill v Young – Young couldnot have expected to foresee that anyone in the position of Mrs Bourhill would be affected.Also it was not enough that the negligence caused exposed others to risk, the victim must have been a foreseeable victim : Palsgraf v Long Island Rail Road – nothing to do with the probability of loss

Legal Duty – two components – proximity and fairness, proximity is policy crystallized into legal principle, fairness is raw policy.

- sufficient proximity between the parties, foreseeability not equated with proximity – Hill v Chief Constable of West Yorkshire – proximity is dependent on the specific situation i.e. for witnesses to an accident – close ties of love and affection with the primary victim, she must have been close in time and space, for claimants of pure economic loss – voluntary assumption of responsibilty, reliance on skill of defendants, very close relationship scenario of the Junior Books v Veitchitype

- it is fair, just and reasonable to impose liability, policy considerations, also based on reference to what people generally would regards as fair – MacFarlane v Tayside Health Board, Parkinson St James & Seacroft University Hosptial NHS Trust, Rees v Darlington Memorial Hospital NHS Trust.

No comments:

Post a Comment

Ways to Market Your Invention

GRANTING of a patent does not guarantee commercial success no matter how ingenious your invention is. There are many factors other than pat...