on 04-Jul-2016 (Mon)

Negligence requires proof of a number of elements before a claim is successful. These are:
1. Loss or damage of a recognised kind sustained by the claimant
2. The existence of a duty of care owed by the defendant to the claimant; and,
3. Breach of that duty by the defendant;
4. Proof that the breach caused the damage;
5. Proof that the damage suffered was reasonably foreseeable. i.e. not too remote
6. Finally, defences: Does the defendant have one or more valid defences to the cliam?

The ‘policy reasons’ referred to means that the court will consider not just any legal concepts, etc, but also whether society benefits as a whole. This led to a period of massive expansion in liability, since the test generally favoured claimants.

Anns concerned a local authority’s liability for the negligent inspection of building works. Lord Wilberforce sitting in the House of Lords stated:

First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage, there is a sufficient relationship of proximity or neighbourhood, such that, in the reasonable contemplation of the former, carelessness on his part might be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or reduce or limit the scope of the duty or class of persons to whom it is owed or the damages to which a breach of it may give rise…

The initial reservation with the Anns approach was voiced by the Australian judge Brennan J in Sutherland Shire Council v Heyman (1985) 60 ALR 1. In Sutherland Brennan J. stated:

It is preferable, in my view, that the 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 reduce or limit the scope of the duty or the class of person to whom it is owed.

In Caparo v Dickman the House of Lords acknowledged that the Anns test was obsolete, and criticised the expansion of liability it had provoked.

It was suggested that it would be unwise to look for a magic formula for a general test for the existence of a duty of care. Instead a cautious, incremental approach based on existing authority was recommended. Lord Bridge stated:

What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it is fair, just, and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other. But it is implicit ... that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as a practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations, which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.

The present situation would appear to be as follows. Firstly, the judge should consider whether there are any existing authorities which have already established a duty of care in the situation being considered. If no such precedent exists, the judge should only impose a duty of care if the following three-stage test is satisfied:
1. Was the damage to the claimant reasonably foreseeable?
2. Was there a relationship of sufficient proximity between the claimant and the defendant?
3. Is it ‘fair, just and reasonable’ for the law to impose a duty of care in the situation?

In Murphy v Brentwood, a seven member House of Lords finally overruled the decision in Anns. During the case, reference was also made to Sutherland. The courts were instructed to impose a duty of care if they could find a suitable factual precedent to base it on. Effectively this means that, even though new duties of care could be recognised, the courts will only do so on a pragmatic and incremental basis. Policy was not to be ignored and would still play a role in consideration of the third question.

Likewise, in Law Society v KPMG Peat Marwick [2000] 4 All ER 541, the Court of Appeal stated that a firm of auditors did owe a duty of care to the Law Society in preparing accurate reports for a solicitors practice as required under the professional code of conduct. Again, the incremental approach was adopted.

in a landmark decision, the House of Lords ended the rule that barristers and solicitors enjoyed such immunity.

In Hall (Arthur J.S.) & Co. v Simons [2000] 3 WLR 543, 3 All ER 673, the House of Lords considered a number of appeals in which it was alleged solicitors had been negligent in reaching settlements subsequently approved by the courts. None of the cases involved solicitors acting in the capacity of advocates. Although it was not strictly necessary for the House of Lords to question advocate immunity they nevertheless ruled unanimously that such immunity could no longer stand in civil cases and (by a majority) in criminal cases.

In criminal cases, the appropriate way for the accused to challenge a conviction will be by an appeal rather than through a negligence action against an advocate. Where the accused still stands convicted of the offence, any attempt to challenge the competence of the advocate will generally fail (see Hunter v Chief Constable of the West Midlands Police [1982] AC 529). However, if the conviction is set aside on appeal there can be no such objection to a negligence claim.

The Supreme Court has also ended the immunity of expert witnesses in court paid for by a client to give evidence on their behalf: Jones v Kaney [2011] UKSC 13.

There are also special provisions in relation to the police. In such cases the courts make a distinction between operational and policy matters. The police can be held liable (with some exceptions) for the former, but not the latter. This distinction is clearly evidenced in Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985. Here the police had negligently fired a canister of CS gas into the plaintiff’s shop, which was under siege, without taking adequate precautions against the high risk of fire. When a fire occurred, the plaintiff was successful in his claim against the police, as this was a negligent operational act.

The position is different, however, where the complaint is that the police have been negligent in their investigations to catch criminals. In Hill v Chief Constable of West Yorkshire [1989] AC 53, the mother of the last victim of Peter Sutcliffe, the ‘Yorkshire Ripper’, sued the police for negligently failing to apprehend Sutcliffe earlier. He had been questioned by police and released and had subsequently murdered again. The House of Lords refused to impose a duty of care as there was insufficient proximity between any woman, as a potential victim of a crime, and the police. Also, on policy grounds, the threat of liability in such cases would lead to the police adopting defensive practices and may result in both a waste of resources and inefficient use of police manpower. The approach taken in Hill was confirmed by the House of Lords in an appeal concerning the friend of the murdered Stephen Lawrence, who was with Lawrence at the time of the attack, and who suffered post-traumatic stress as a result of his treatment by the police (Duwayne Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24 in Horsey and Rackley).

In Alexandrou v Oxford [1993] 4 All ER 328 the plaintiff’s action failed against his local police after they had ignored a message from his burglar alarm. They owed him no duty of care either to check his property or respond to the alarm’s message.

Leach v Chief Constable of Gloucester [1999] 1 All ER 215 also considered policy issues. Here the plaintiff had been a lay witness to a police interview; a requirement under the Police and Criminal Evidence Act 1984. She had sat in on several interviews with Frederick West (a suspect accused of a series of murders). As a result of this she had suffered Post-traumatic Stress Syndrome. In her claim, she stated that the police had owed her a duty of care to inform her of the disturbing nature of the case. The Court of Appeal dismissed her claim. The sort of person who could act as a lay witness was very wide and it would impose too onerous a burden on the police force to psychologically test every person who could potentially hold such a position.

However, in Swinney v Chief Constable of Northumbria (No. 2), The Times, 25 May 1999, the Court of Appeal made it clear that the police did not have ‘blanket immunity’. The claimant was a pub landlady who had provided the police with information concerning a suspect involved in the death of a police officer. She had made it an absolute condition that she remained anonymous. Nevertheless, a police file containing her details was left unattended in a police car and was stolen. On being told this she suffered psychiatric illness and had to give up her job. As in previous cases, the police argued that there was no relationship of proximity between them and the claimant and, even if there were, policy reasons would prevent such a duty existing. The Court of Appeal disagreed. Informers should not be considered like other members of the public; they had a special relationship with the police, which created sufficient proximity. Policy was considered but, in this case, acted in the claimant’s favour, in that to deny that the police owe a duty might be to hinder the disclosure of confidential information. However, judgment was nevertheless granted in favour of the defendant on the basis that there had been no breach of the duty. The police owed a duty but, on the facts of the case, this duty had not actually been breached.

it was held in An Informer v A Chief Constable [2012] EWCA Civ 197 that while the police did not owe a duty of care to an informer in respect of pure economic loss, they would owe him a duty in respect of his physical safety. The Court of Appeal considered that the relationship between the police and the informer was a confidential one, and the police owed an informer a duty of care to protect him from risks to his physical safety and wellbeing to which he was potentially exposed as a result of his activities in providing information about others.

in Reeves v Metropolitan Police Commissioner [2000] 1 AC 360 the police were found to hold a duty of care to a mentally ill prisoner who committed suicide whilst in custody. Here the police had a high degree of control over the victim and it was well documented as to the likelihood of some prisoners committing suicide

in Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3 the police did not owe a duty of care to the claimant when they denied his CRB check thus impeding his employment as a teacher. Such a duty would have conflicted with the statutory purpose of protecting vulnerable young people.

In Waters v Commissioner of Police of the Metropolis, The Times, 1 August 2000, the claimant suffered psychiatric injury having been raped by a fellow police officer and ostracised and bullied by her colleagues. She claimed that the police authorities had failed to deal with her complaint properly and had allowed other officers to victimise her.

The House of Lords held that in deciding if immunity existed, consideration had to be given to the primary role of the police (namely, to deter crime) and to the wider public interest issue of ensuring the police service is run both efficiently and as a responsible employer. In this case, the scales fell in favour of the claimant (note that, technically, this was an employers’ liability claim).

The whole issue of ‘blanket immunity’ was considered in the ECHR case of Osman v UK [1999] 1 FLR 193 and more recently, in Z v UK [2001] 2 FLR 612.

To a certain extent the decision in Osman has been nullified by Z v UK [2001] 2 FLR 612 (a case concerning the liability on a local authority in failing to prevent the neglect of four children by their parents). In Z the ECHR admitted they misunderstood English tort law and, in particular, the difference between a substantive legal right and a procedural legal right. They agreed that there was no procedural bar preventing a litigant having a fair trial. Osman’s case was struck out because the Court of Appeal felt it would not be fair, just and reasonable to impose a duty (a substantive law issue).

In Osman v UK an application was made to the ECHR on the basis that there had been a breach of Article 6 (the right to a fair trial). The ECHR upheld the complaint. They said that the Court of Appeal had failed to consider the case on its own merits, that the litigant had been denied a full hearing and that the immunity given to the police was disproportionate in comparison to the infringement of the claimant’s human rights.

In the recent decision in Smith v Chief Constable of Sussex Police [2008] UKHL 50, the claimant suffered severe injuries during an attack by his former boyfriend. The claimant had informed the police of a series of violent and threatening telephone, internet and text messages, including death threats. The police treated it as a domestic matter and declined to look at the messages or to take any steps to protect the claimant. His case was struck out by the House of Lords, holding that the policy reasoning outlined in Hill applied. Note Lord Bingham’s dissenting opinion and ‘liability principle’.

In Van Colle v Chief Constable of Hertfordshire Constabulary [2008] UKHL 50 the victim was killed days before he was due to give evidence for the prosecution in a criminal trial. Instead of bringing a negligence action his parents sought to base their claim against the police on a breach of Article 2 ECHR (right to life). The claim failed because they were unable to satisfy the test established in Osman v UK that the police ‘knew or ought to have known, with the information available at the time, that there was a real and immediate threat to the life of an identified individual’ (Van Colle v UK (2013) EHRR 23)

By contrast, the Article 2 ECHR claim in Michael v Chief Constable of South Wales [2012] EWCA Civ 981 was not struck out but returned for trial where the victim was stabbed by her former husband having called the police who failed to categorise her call appropriately.

from Capital and Counties, it was held that if the fire brigade did attend and actually aggravated the situation, the claimant’s claim could succeed. Effectively, doing a positive act that makes the situation worse may result in a duty of care being owed. As the court stated:

If he [the defendant] volunteers his assistance, his only duty as a matter of law is not to make the victim’s condition worse.

In Capital and Counties v Hampshire County Council the alleged negligence consisted of a fire-fighter ordering that a sprinkler system, operating at the fire, should be turned off. In John Munroe it was alleged that the fire brigade left the scene before ensuring the fire was properly extinguished and in Church of Jesus Christ, the fire service failed to ensure that an adequate supply of water was available at the scene of the fire. It was held in all of these cases that the fire brigade’s attendance at the scene of a fire did not, in itself, give rise to the requisite degree of proximity and it, therefore, followed that the fire brigade was under no duty to attend to the fires in the first place. Here the court simply followed the reasoning in Alexandrou (see 3.4.2 above) i.e. no duty to respond to an emergency.

The principal authority with regards to the ambulance service is Kent v Griffiths & Others [2000] 2 All ER 474. Here, the ambulance service was regarded as part of the health service and not a rescue service and so the policy arguments applicable to the police and fire brigade had no general application. The judgment of the court in Kent was that the acceptance of a 999 call by the ambulance service established a duty of care. The acceptance of the call established proximity between the parties. There might, however, be situations where a duty of care could be excluded where the service had properly exercised its discretion to deal with a more pressing emergency before attending to the claimant or where it had made a choice about the allocation of resources.

In such cases, the courts should look on the construction of the statute in question, and ascertain from it whether Parliament had granted a power to act, or a (mandatory) duty to do so. Here it appeared that Parliament had created a power to act, not a duty and, therefore, it had not intended a private individual to have a right to compensation. See also: West v Buckinghamshire County Council (1985) 83 LGR 449; Danns v Department of Health (1995) 25 BMLR 121.

In some cases these issues can be clearly determined; whilst in others there is much debate about whether a duty should exist. A clear example can be seen in Carmarthenshire County Council v Lewis [1955] AC 549. Here a local authority was held to owe a duty of care to a motorist who had been injured in a road accident. The driver had to swerve to avoid a young pupil who had been left unsupervised in school and who had decided to go outside exploring. The decision was based on the special relationship between a school authority and the children in its care.

One of the most significant cases in this area, X v Bedfordshire County Council [1995] 3 All ER 353 provides an example of how difficult it can be to determine this issue. The case itself concerned five separate claims against a local authority for negligence; two cases concerned child abuse, the other three concerned educational provisions for special needs pupils. The House of Lords rejected the child abuse claims as it would not be just and reasonable to impose such a duty in an area where a degree of discretion is required and where there are differing opinions on the practice to follow. There were also alternative means by which such persons may bring a claim, eg judicial review actions. In the education cases, the Lords were of the opinion that it was arguable that a duty of care may exist. Here the advice given was made directly to the parents who relied on it.

An interesting decision is Palmer v Tees Health Authority, The Times, 6 June 1999. The case dealt with the alleged negligence of a health authority in failing to properly identify the risks presented by a dangerous outpatient. The Court of Appeal found the local health authority not liable for the murder of Rosie Palmer by a psychiatric patient who was under their care. As in Hill (above), there was insufficient proximity between the parties

This more liberal approach continued in Barrett v Enfield London Borough Council [1999] 3 All ER 193 (a duty was owed to a 17-year-old who had been in local authority care and had been moved between six different homes subsequently developing alcoholism and social problems in adult life)

Phelps v Hillingdon London Borough (2000) 3 WLR 776 (misdiagnosis by local authority psychologist as to the claimant’s dyslexia whilst a child)

S v Gloucestershire County Council, L v Tower Hamlets [2000] All ER 346 in which the Court of Appeal clearly stated there should be no blanket immunity on local authorities with regards to child abuse. The court should look at all the circumstances of the case in deciding if such a duty existed.

Thus, in the important House of Lords decision in JD v East Berkshire Community Health NHS Trust [2005] UKHL 23, the doctors and social workers investigating suspected child abuse owed a duty of care to the child. A duty was not, however, owed to the parents suspected of abuse since it was considered that such a duty would naturally conflict with the duty owed to the child.

The recent case of Merthyr Tydfil CBC v C [2010] EWHC 62 (QB) was distinguished on its facts because it was a third party rather than the parent who was suspected of abuse. Where the parents are not suspected of abuse they may be owed a duty of care since this would not conflict with the duty owed to their child.

In the recent case of Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 362, the House of Lords confirmed that the courts will be reluctant to create new common law duties utilising broad statutory powers

The general approach of the courts appears to be that if an authority has acted within the powers granted to it by statute and on the basis of a discretionary decision properly made, there will be no liability. Whether the authority has exercised its discretion properly can only be answered once the facts of the case have been fully considered in court. For a recent example of where no duty was imposed on a local authority, held to be acting in accordance with its statutory duties, see X v Hounslow LBC [2009] EWCA Civ 286.

With regards to the armed forces see Mulcahy v Ministry of Defence [1996] QB 732 in which the Court of Appeal held that there was no duty of care between fellow soldiers engaged in battle conditions. In applying the Caparo test, the court held there was foreseeability and proximity but that it would not be just and reasonable to impose a duty in the circumstances. To decide otherwise may result in military operations being adversely affected if soldiers in battle felt that could be sued by a comrade for their negligent actions.

This does not mean to say, however, that the armed forces have immunity for negligence outside battle conditions. See Barrett v Ministry of Defence [1995] 1 WLR 79 (Horsey and Rackley, and below) Jebson v Ministry of Defence [2000] 1 WLR 2055 (Horsey and Rackley,) and the decision in Bici v Ministry of Defence [2004] EWHC 786

In Smith v Ministry of Defence [2013] UKSC 41, the Supreme Court held that the doctrine of combat immunity should be narrowly construed. The victims were servicemen killed and injured in friendly fire who contended that the Ministry of Defence had breached a duty of care to provide equipment that would have prevented the incident. Combat immunity has not previously been extended as far as these decisions that were taken long before the incident, so the claim was not struck out.

The law does not oblige a person to affect a rescue (i.e. there is no legal obligation to be a Good Samaritan) but will treat favourably a person who attempts to rescue a person and suffers harm in the process because of someone’s negligence.

In Haynes v Harwood [1935] 1 KB 146 the defendant left a horse unattended and untethered in a busy street. When the horse bolted, a policeman was injured in the act of bringing the horse to a halt, which he did to prevent injury occurring to other users of the street. He was able to recover damages, as the necessity of his act in affecting a ‘rescue’ was a foreseeable result of the defendant’s negligence.

Cutler v United Dairies Ltd [1933] 2 KB 297 where the plaintiff was injured trying to recapture a horse which had bolted and had come to a rest in a field. As there was no risk to either person or property he was not acting in an emergency and, therefore, he could not be regarded as a rescuer. As such, the claim failed.

Baker v T.E. Hopkins & Son Ltd [1959] 3 All ER 225 in which a doctor was held to be a rescuer when trying to save some workman trapped down a mine.

A duty is owed directly to the rescuer and is not owed ‘via’ the victim. See Videan v British Transport Commission [1963] 2 All ER 860.

where the defendant has a high degree of control over the claimant, the law may impose a positive duty on the defendant to act; even to the point of preventing the defendant from physically harming himself or herself. This can be clearly seen in Reeves v Commissioner of Police for the Metropolis [1999] 3 All ER 897, a case we have already considered under Special Duties - The Police . Here, the Court of Appeal held that a duty did exist on the police to protect a prisoner’s health including the possibility that they may attempt suicide.

If a person voluntarily assumes responsibility for another, the courts may impose a special duty of care. This could arise, for example, because of the nature of a person’s employment or because of a previous relationship.

In Costello v Chief Constable of Northumbria Police [1999] 1 All ER 550 the employer police force owed a duty of care to one of their officers, the claimant, who was attacked by a prisoner whilst a fellow officer failed to assist (see under 3.4.2 above).

Likewise, in Barrett v MOD [1995] (mentioned at 3.4.4), though the defendants were not liable for their employee, a naval pilot, getting drunk and choking to death on his own vomit, they did assume responsibility once an officer had taken action to care for him, e.g. to summon appropriate medical assistance.

Note that in all of these cases there was an existing relationship between the defendant and the claimant. The courts have not, so far, found a duty to exist between complete strangers where one fails to act to help the other.

In Mitchell v Glasgow City Council [2009] 1 AC 874, it was held that the local authority were under no duty to warn a tenant that his neighbour might resort to violence after being informed (by the council) that he risked being evicted. A duty to warn someone that they might be at risk of injury/loss as a result of the criminal act of a third party would arise only where the person ostensibly under the duty had assumed responsibility for the victim. In this case, nothing in the words or conduct of the council suggested that they had.

If a defendant actually creates a dangerous situation (even though it was no fault of his own) the law may still impose a positive duty to act in order to mitigate the danger. Again we have seen a clear example of this in Capital and Counties plc v Hampshire County Council [1997] QB 1004 (see above under Emergency Services), in which a fire brigade were held to have no general duty of care to property owners unless they acted in such a manner as to actually aggravate the situation (in this case, by turning off the sprinkler system).

As a general rule the courts are reluctant to impose a duty in situations in which the wrong in question was actually committed by a third party. So, for example, in P. Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342 the Court of Appeal stated that there was insufficient foreseeability for a council to be liable for the acts of a thief who entered one of the defendant’s empty properties.

In Palmer v Tees Health Authority, the claimant argued that a local Mental Health Authority owed her a duty (and had, subsequently, breached this duty) in allowing a psychiatric patient into the community without adequate supervision. The patient had previously threatened to kill a child and subsequently attacked and killed the claimant’s daughter. The Court of Appeal, following Hill, stated that there was not sufficient proximity between the parties for a duty to exist. She was not an identifiable potential victim and there was nothing that the defendants could have reasonably done to prevent the incident occurring.

Here the duty of care is imposed on the basis that the defendant has a right or responsibility to control the third party and, in addition, that the claimant is someone at particular risk of damage over and above the public at large. The clearest illustration of this is Home Office v Dorset Yacht Co [1970] in which the defendants were held liable for the wrongful acts of some borstal boys under their supervision. Carmarthenshire County Council v Lewis (above) provides a further illustration.

If a defendant, by their negligence, creates or allows the creation of a danger and the claimant is injured as a result, they may be liable even though it was a third party’s action that actually caused the damage in question.

in Topp v London Country Bus (South West) [1993] 1 WLR 976 (Horsey and Rackley) a bus company were not liable for ‘joy riders’ who had stolen one of their buses and injured the plaintiff, despite evidence that they had left the keys in the ignition. The Court of Appeal did not believe that leaving the bus unattended at the end of the route in such a state constituted a sufficient enough risk of danger

If a defendant knows, or ought to know, of a danger on their property created by a third party, they may owe a duty to anyone who is subsequently damaged as a result of the said danger. In other words, the defendant has a duty of care to take reasonable steps to eradicate or diminish the danger.

In conclusion, if faced with a problem where the existence of a duty of care is in issue, consideration should be given to the following:
1. Existing authority (the incremental approach); and, if necessary:
2. The steps from Caparo, namely, foreseeability of loss, proximity and what is fair, just and reasonable in all the circumstances, taking into account any policy considerations.

Please note that a claim for nervous shock is not a separate tort! The tort is still negligence; the loss is nervous shock.

The phrase ‘nervous shock’ is a commonly used label to describe cases where the claimant has suffered some form of psychiatric illness or damage as a result of the perception of traumatic events. It is a term that has gained common acceptance even though it is not a particularly accurate description of what it covers. It is more appropriate to refer to this area as dealing with liability for psychiatric injury although the majority of texts and some judges still use the old terminology.

A fundamental development in the law of nervous shock is the distinction between a ‘primary victim’ and a ‘secondary victim’. This terminology was introduced by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police in order to explain previous decisions.

A secondary victim (claimant) suffers nervous shock due to fear for someone else’s safety, normally a close relative. They are not in any fear for their own physical safety. The secondary victim witnesses the traumatic event in question, and suffers nervous shock as a result, but is not involved in the event (unlike a primary victim).

An early example of a primary victim is the claimant in Dulieu v White [1901] 2 KB 669. The claimant was a pregnant barmaid. The defendant negligently crashed his coach and horses through a wall in her pub. She suffered nervous shock (and later a miscarriage) because she reasonably feared that she would be harmed in the collision. She was entitled to recover as a primary victim.

A more recent example of a primary victim is the claimant in Page v Smith [1996] 1 AC 155. The claimant was involved in a car crash caused by the defendant’s negligence. While the claimant suffered no physical injury, the psychological effect of the car crash worsened his ME (Myalgic Encephalopathy) condition so as to render him permanently disabled. He was a primary victim because his condition arose from reasonable fear for his own physical safety.

By contrast, a secondary victim is not in the danger zone and does not fear for their own safety. A clear example of a secondary victim is the claimant in McLoughlin v O’Brian (see above). She was a secondary victim because she suffered psychiatric damage as a result of concern for her family. She did not fear for her own safety at any point.

If a rescuer or a bystander (or anyone else for that matter) suffers nervous shock as a result of fearing for his own safety then he will be a primary victim. In Chadwick the claimant succeeded in his claim for nervous shock as a result of helping to rescue victims from a horrific rail crash. It has been observed that the claimant in this case was actually a primary victim.

in Wigg v British Railways Board (1986) 136 NLJ 446, a train driver who tried to rescue someone trapped under a train recovered compensation. This is because he was himself in danger and suffered the nervous shock as a result of fearing for his own safety.

These cases may be contrasted with the case of White v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1). Here the claimants were police officers on duty during the Hillsborough football stadium disaster. They had assisted in removing the dead bodies and carrying the injured to safety as well as trying to resuscitate spectators. Their action was for post-traumatic stress disorder as a result of these experiences. They claimed both as employees and as professional rescuers. The House of Lords dismissed their appeal. Their status as employees did not automatically convert the claimants from secondary victims to primary victims. The ordinary criteria of nervous shock (as set out in Alcock, discussed below) applied. Their argument as to being professional rescuers also failed in that they had not actually been exposed to danger themselves.

The issue was again considered by the Court of Appeal in Cullin v London Fire & Civil Defence Authority [1999] PIQRP 314. Here the claimant was a fire fighter who suffered psychiatric injury after witnessing two colleagues trapped inside a burning building. His attempt at rescuing them had failed. Despite the defendant’s contention that this case mirrored White, the court disagreed, choosing instead to follow the obiter remarks of Lord Goff in that case. In Cullin it could be argued that the claimant, in his rescue attempt, was either exposed to the danger or reasonably believed he could be subjected to physical injury. As such he was a primary victim.

In Page v Smith it was held that the normal Caparo principles for determining the existence of a duty of care are applied to primary victims claiming for nervous shock

Once foreseeability of physical harm is established to a primary victim the remaining two elements of a duty under Caparo – proximity and fair, just and reasonableness are relatively straightforward. As the primary victim is always present at the traumatic event there is always geographical proximity between the claimant and defendant. Finally, if the defendant negligently, and foreseeably, puts the claimant in fear of their safety it is likely that the courts will find it fair, just and reasonable to impose a duty of care for any psychiatric damage caused as a result.

In Page v Smith, Lord Lloyd addressed the issue of whether it would be too easy to establish liability as a primary victim and whether the courts would be flooded by claims, including fraudulent claims in this area. In his opinion this would not happen as there were sufficient limiting factors operating to prevent this. In addition to having to prove that physical harm was reasonably foreseeable primary victims also had to prove that their particular type of nervous shock was recoverable.

In all claims of nervous shock a key criterion for recovery is that the claimant has suffered a medically recognised form of psychiatric illness. Liability will not arise for fear, distress or mental grief caused by negligence. For example, in Reilly v Merseyside HA [1995] 6 Med LR 246 the court refused to compensate a couple trapped in a lift for over an hour for what the court considered to be only normal human emotion following an unpleasant experience.

A medical definition is used to define psychiatric damage. Reference is made to both the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association and the Glossary of Mental Disorders in the International Classification of Diseases.

Various examples and definitions have been given of nervous shock, including ‘depression’ (Lord Denning in Hinz v Berry [1970] 2 QB 40), and ‘a positive psychiatric illness’ (Lord Bridge in McLoughlin v O’Brian [1983] 1 AC 410 and Lord Oliver in Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907). A physical illness, sustained after the event in question, and resulting from nervous shock may also form the subject of a claim. Examples of this are a miscarriage (see Bourhill v Young [1943] AC 92), or a heart attack.

It must, however, be first established that the psychiatric condition giving rise to the physical symptoms was a recognised psychiatric condition, and that both the psychiatric injury and the physical injury are ‘material’.

a case in which the claimant’s injuries, both psychological and physical, were not considered material, see Mazhar Hussain v Chief Constable of West Mercia [2008] EWCA Civ 1205.

New conditions are constantly being recognised like post-traumatic stress disorder (PTSD) (see Re GB, RB and RP (1997) 97 (1) QR (2) and ME (Myalgic Encephalomyelitis) (see Page v Smith [1996] AC 155). Note also that even grief or bereavement may be classified as a positive psychiatric illness where the pathological grief syndrome goes beyond what is classed as normal human emotion, as in Vernon v Bosley (No 1) [1997] 1 All ER 577.

Recognised psychiatric illness: The criteria used to establish this are the same whether the claimant is a primary or a secondary victim.

primary victims need only establish that physical harm to the claimant was reasonably foreseeable. In contrast, secondary victims must establish that psychiatric harm specifically was reasonably foreseeable.

In Bourhill v Young [1943] AC 92 Lord Macmillan observed that injury by psychiatric damage is more subtle than physical harm. In this case the defendant was a motorcyclist who crashed and killed himself by his own negligence. The claimant, who was pregnant, did not see the crash but heard it and later saw some blood on the road. She suffered nervous shock as a result and subsequently miscarried her child. It was held that no duty of care was owed to the claimant. Whilst it was foreseeable that the defendant might physically harm other road users with his negligent driving, it was not foreseeable that someone in the claimant’s position would suffer nervous shock.

The courts expect people to have ‘customary phlegm’ (Bourhill) or ‘normal fortitude’ (Brice v Brown [1984] 1 All ER 997). Note, however, that the ‘thin skull’ rule is applicable, so that if the kind of injury is foreseeable, its full extent is compensated.

The closer the relationship, the more likely a duty will exist. The more remote the relationship, the less likely there will be a duty. This is not simply a case of looking at ‘blood ties’; evidence as to the closeness of the relationship is needed.

Secondary victims suffer psychiatric damage as a result of fearing for the safety of somebody else. Alcock further limited the number of claimants in this area by considering the relationship between the claimant and the actual victim/s who suffered personal injury or whose safety they feared.

Most successful cases have concerned the parent/child or spouse relationship. (As in McLoughlin, above, and Hambrook v Stokes Bros [1925] 1 KB 141 where a mother suffered nervous shock after witnessing a runaway lorry heading down a hill towards her children).

Alcock concerned the 1989 Hillsborough Stadium Disaster in which, as a result of the admitted negligence of the police, 95 people were crushed to death and over 400 physically injured. Claims were brought by various relatives of victims of the disaster who were either present at the football ground or witnessed events on television. Lord Ackner and Lord Jauncey thought that recovery ought to be limited to those in a parent/child or spouse-like relationship, whereas Lords Keith and Oliver thought that recovery should be based on ‘close ties of love and affection’. Following what was said in the judgments, it would seem that a fiancée will be sufficiently close, as will parents and spouses, but grandparents, uncles and aunts, and siblings will, generally, not. However, every individual case will turn on its own facts.

The courts have generally taken the view that the claimant must possess the ‘customary phlegm’ of the reasonable man and be able to withstand witnessing accidents to strangers.

Finally, as illustrated in Greatorex v Greatorex [2000] 1 WLR 1790, a secondary victim will not be able to claim if the actual victim for whose safety they feared, is actually the defendant in the case. In Greatorex the defendant injured himself in a road accident due to his own negligence. It was held that he did not owe a duty of care to the claimant fire officer (his father) who arrived at the scene and subsequently suffered psychiatric damage on seeing the injuries to his son.

In McLoughlin, Lord Wilberforce spoke of the need for the claimant to be present at the scene, or to come to the immediate aftermath of the accident. As he stated, Mrs McLoughlin was ‘part of the catastrophe itself for none of the victims had been cleaned up or attended to.’

In Taylor v A Novo Ltd [2013] EWCA Civ 194 the claimant’s mother was injured at work due to the negligence of the defendant employer, and was making a good recovery when she unexpectedly collapsed and died at home three weeks after the accident. The claimant witnessed her mother’s death but not the initial accident. This did not satisfy the requirement of witnessing the accident or its immediate aftermath.

One of the grounds upon which the claim in Alcock failed was that one of the claimants did not see their relative until some nine hours later (compared with the two hours in McLoughlin) and then they were identifying bodies in a mortuary.

However, in W v Essex County Council [2000] 2 All ER 237 Lord Slynn, speaking for the House of Lords, emphasised that:

[W]hilst … there has to be some temporal and spatial limitation on the persons who can claim to be secondary victims, … the concept of ‘the immediate aftermath’ of the incident has to be assessed in the particular factual situation.

In this case, the claimants claimed against the defendant council for placing with them for foster care a 15-year old boy who had a history of perpetrating sexual abuse. They (the claimants) alleged that they suffered psychiatric injury when they learned, some four weeks later, that the boy had sexually abused their children. The defendants argued that the parents did not have proximity in time or space to the acts of abuse as they had not witnessed any of the events. In considering the Alcock criteria, Lord Slynn recognised the need for flexibility when dealing with new situations which were not covered by existing precedent. The House of Lords refused to strike out the claim, holding that the claimants had an arguable case.

This criterion also encompasses the idea that the claimant must have perceived the events with their own unaided senses and that their psychiatric condition arose as a direct reaction to this. This extended to witnessing the immediate aftermath in McLoughlin. In Alcock, however, the Lords did not rule out the possibility of perceiving the events through a different medium.

However, the possibility of liability was mentioned in circumstances where the live broadcast is of an incident where it is obvious that the accident is so horrific that there could be no survivors, for example, the exploding of a hot air balloon.

News reports were placed in the category of the relaying of bad news and, therefore, not a sufficient method of communication.

It is not enough that the claimant witnesses the events through their own unaided senses. Their condition must also be proved to be ‘a reaction to the immediate and horrifying impact’ (Alcock), rather than a gradual realisation of what has happened.

In North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 the claimant suffered psychiatric illness after negligent medical treatment led to the death of her 10 month-old baby. The Court of Appeal held that although the events leading to the claimant’s psychiatric condition took place over 36 hours, the series of events leading to the death could together constitute a ‘horrifying event’ , including witnessing the medical negligence. They also confirmed the trial judge’s ruling that the claimant’s appreciation of events was ‘sudden’ because each separate event had an immediate impact.

in Sion v Hampstead HA (1994) 5 Med LR 170 the claimant failed in similar circumstances. In both North Glamorgan and Sion the breach of duty was medical negligence. The distinguishing feature in Sion, however, was that the psychiatric condition developed after the claimant saw the victim in intensive care over a longer period and gradually came to the realisation that medical negligence had caused the injuries. Unlike in North Glamorgan this was not a sudden reaction to a horrifying event. Peter Gibson LF commented in Sion:

A psychiatric illness caused not by a sudden shock but by an accumulation of more gradual assaults on the nervous system over a period of time is not enough.

The claim in Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 was brought by the parents of a girl who committed suicide. She had been admitted to hospital following a suicide attempt and, despite her parents’ concern that her condition was not improving, the hospital allowed her two days’ home leave during which she committed suicide. Her parents brought an action in their own right for breach of Article 2 ECHR (the right to life) which imposes a duty on a public authority towards a person under their control to protect them from a real and immediate risk to life. Although the victim was a voluntary patient she was extremely vulnerable, the hospital had assumed responsibility for her, and could and should have stopped her leaving. The court found that there was a real risk which increased over the two days’ home leave, which was sufficient to make it an immediate risk. The hospital knew/should have known of this risk, and no reasonable psychiatric doctor would have let her go. The parents were therefore successful in their action and were awarded £5000 damages each.

This provides an avenue for recovery for relatives unable to satisfy the Alcock criteria for duty of care in negligence, but it is of limited scope since the action can only be brought against the State, the State must have had sufficient control over the victim, and there must have been a real and immediate risk to life of which the defendant knew/ought to have known.

is that a statutory duty of care would arise when a claimant suffers a reasonably foreseeable psychiatric illness as a result of the death, injury or imperilment of a person with whom the claimant had a close tie of love and affection. There would be no need for the claimant to be close to the accident in time and space.

In tort, all losses can be brought within three categories:

1. physical/property damage;
2. economic loss consequent on physical damage ie consequential economic losses; and,
3. pure economic loss.

As a general rule, if the loss is in the first two categories, it is recoverable, whereas if the loss lies in the third category, it will not be recoverable.

Economic Loss Consequent on Physical Damage: This can be broadly translated as the lost profit on the thing that has been damaged. For example, lost salary because of a broken leg or lost profit on damaged goods or the cost of repairing/replacing the thing that has been damaged.

In Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] 1 QB 27 the defendants negligently cut off power to the plaintiff’s factory ruining some melts that were being processed. The damaged metal was physical damage and, therefore, the loss was recoverable. In addition, the metal would have been sold at a profit and the loss of profit on that particular damaged metal was also recoverable as consequential economic loss.

At the boundary of consequential economic loss, the claimant in Conarken Group Ltd v Network Rail Infrastructure Ltd [2011] EWCA Civ 644 was the owner of a bridge damaged when it was hit by a lorry due to the defendant’s negligent driving. The claimant, Network Rail, was obliged to compensate train operating companies who were unable to operate a service until the bridge was repaired, and sought to recover this cost from the defendant. This was recoverable but lay at the outer fringe of recoverability.

Pure Economic Loss: This term covers loss that arises where there has been no damage to the claimant’s property.

If the claimant has suffered no physical damage to their person or property then their loss will be pure economic loss. This might arise, for example, where the claimant has made a bad investment, missed a contractual opportunity or lost an inheritance.

A good example of pure economic loss of this type arose in Spartan Steel (at 5.3). As a result of the electricity being cut off, the factory was not able to operate for some time. In addition to the loss suffered in respect of the metal damaged at the time, the plaintiffs also tried to claim that during the period of shutdown they could have made further profit from processing four further ‘melts’. This loss was held to be irrecoverable. It was purely financial loss which did not result from any damage to the plaintiff’s property. Lord Denning pointed out that the plaintiff could have worked harder once the power was restored or that they could have had their own generator or insurance to cover such occurrences. Therefore, for policy reasons, the action failed on this head of the claim.

if a claimant suffers losses as a result of damage to property in which they have no proprietary interest, then the loss will again be categorised as pure economic loss.

In Weller & Co v Foot & Mouth Disease Research Institute [1965] 3 All ER 560 the plaintiff was an agricultural auction house that brought a claim for loss of profits against the defendant Institute. The defendants had negligently released the foot and mouth virus and infected local cattle, resulting in a cattle movement ban and the cancellation of local auctions. The claim was unsuccessful as it was for pure economic loss. The plaintiff had suffered no damage to their own property. Their losses flowed from damage to cattle owned by the local farmers. Of course, if one of the farmers had claimed for loss of profits by reason of not being able to sell an infected cow the claim would have succeeded as that would have been economic loss consequent on physical damage to property.

While it is possible to bring a claim where property has been damaged by the negligent act of another, it is not possible to claim for the cost of repairing an inherently defective item. Such loss has been categorised as pure economic loss.

This principle can be illustrated by using the facts of Donoghue v Stevenson. If Mrs Donoghue had discovered the snail before drinking the ginger beer, or had not suffered any ‘injury’ from seeing it, she would not have been able to recover in tort from the manufacturer for the simple defect. Similarly, if the ginger beer had been flat, she could not have recovered in tort from the manufacturer for the defect in quality.

The ‘high water mark’ is generally considered to be the House of Lords decision in Junior Books v Veitchi Co Ltd [1983] AC 520 (Horsey and Rackley). The plaintiffs in this case had had a factory constructed by a building firm. The plaintiffs had made it clear that because of the kind of machinery they were going to be using, they required special flooring and they recommended suitable flooring contractors. The floor was laid by these contractors but was found to be defective. The plaintiffs bought an action against the flooring sub-contractors for the defect in the flooring and subsequent delay in initiating production. This was despite there being no threat to health and safety, nor any risk to the actual fabric of the building. The House of Lords allowed the claim. There was a duty of care because there had been ‘assumed responsibility’ and ‘reasonable reliance’ between the parties. As Lord Roskill stated the relationship between the parties was ‘almost as close a commercial relationship… as it is possible to envisage short of privity of contract’.

Though Junior Books has not been overruled in subsequent cases, it has on numerous occasions been distinguished and is now regarded as a decision unique upon its own facts. A clear illustration of this can be seen in Muirhead v Industrial Tank Specialities Ltd [1986] QB 507 in which a claim for damage to property (i.e. dead lobsters) was allowed but not for a defect in a product (i.e. faulty pumps).

In Simaan General Contracting Co. v Pilkington Glass Ltd (No2) [1988] QB 758, concerning a defect in the supplying of glass by the defendants for a building in Abu Dhabi, the court refused a claim for pure economic loss in the absence of a contractual relationship between the parties.

In Murphy v Brentwood District Council [1990] 2 All ER 908, the House of Lords confirmed that the cost of repairing inherently defective products or property was rightly classified as pure economic loss. Here the claimant bought a house which subsequently developed structural defects because of inadequate foundations. Eventually, the plaintiff was forced to sell it for £35,000 less then it would have fetched without the defect. The Lords were of the opinion that there would be no liability on the part of a defendant where the dangerous defect manifests itself before any actual damage has occurred. For this reason, it was a claim for pure economic loss and was not recoverable. This was not a dangerous defect but simply a defect as to the quality of a product.

In Murphy v Brentwood District Council [1990] 2 All ER 908, the House of Lords confirmed that the cost of repairing inherently defective products or property was rightly classified as pure economic loss.

Recovery for negligent misstatement is only possible if there is found to be a special relationship between the parties and reasonable reliance by the claimant upon the defendant’s words. If these tests are satisfied then all the losses flowing from the misstatement are recoverable, including any pure economic loss that has been incurred. This case is of increasing importance, given the recent tendency of the courts to restrict the ambit of the other exceptions.

Ministry of Housing v Sharp [1970] 2 QB 223 Where a breach of statutory duty gave rise to foreseeable pure economic loss.

Ross v Caunters [1980] Ch 297 Where a breach of fiduciary duty by a solicitor gave rise to foreseeable pure economic loss. Such cases often involve solicitors negligently drafting wills. See also White v Jones [1995] 1 All ER 691.

Murphy v Brentwood raised two other possible situations where pure economic loss might be recovered, though these are obiter comments.

1. Adjoining Occupiers – if the latent defect in the claimant’s property is posing a threat to a neighbour’s land or property, then the costs of repairs may be recoverable. Such actions are usually in nuisance rather then negligence.

2. Complex Structure Theory – where a sub-contractor has installed a defective part of the premises that has caused damage to the rest of the building, Lord Bridge suggested that the other part of the building affected could be regarded as ‘other property’ and, therefore, recovery would be possible on the basis of normal principles of physical damage and economic loss consequent upon physical damage. The theory itself originated in D & F Estates Ltd (see 5.4.3). The possible application of this theory was discussed in Jacobs v Moreton (1996) 72 BLR 92, Current Law, February 1996 180.

It should be noted that in some cases, where there is a ‘special relationship’, the courts may allow a claim by a third party for pure economic loss. Most of the cases in this area involve solicitors incorrectly drafting wills so as to deny potential beneficiaries receiving inheritance. See, for example, Ross v Caunters [1980] Ch 297, White v Jones [1995] 2 AC 207, Carr- Glynn v Frearsons (a firm) [1998] 4 All ER 225 and Walker v Geo H. Medicott & Son [1999] 1 All ER 685.

A person can make a claim if they suffer pure economic loss as a result of a negligently produced reference, e.g. an academic reference. The duty of care and the use of reference has already been considered in Chapter 3. The most significant authority in this area is that of Spring v Guardian Assurance plc [1995] 2 AC 296.

Special Relationship It is not possible to provide an all-encompassing definition of this phrase. Instead, a number of hallmarks of such a relationship can be identified which should be looked for whenever one is trying to determine if the necessary relationship exists. In essence, the court will consider parity. The more parity between the parties, the less likely it is that a duty of care will be imposed. The more disparity, the higher the likelihood of a duty being imposed.

1. Special skill or knowledge
2. The purpose for which the advice is given
3. Assumption of responsibility
4. Reasonable reliance

Lord Morris in Hedley Byrne thought that the defendant needed some special expertise in order for there to be a special relationship – the defendant needing to be in a better position than the claimant to know the facts. (See above as to parity.) There is unlikely to be a special relationship if the parties are on an equal footing. Initially, the Privy Council thought that the claimant needed to show that it was the defendant’s business to give the advice in which they had special expertise However, the Court of Appeal in Esso Petroleum Co Ltd v Mardon [1976] QB 801 stated that there was no need for the defendant to be in the business of giving advice. This approach was affirmed in the case of Chaudhry v Prabhakar [1989] 1 WLR 29 where the defendant, who had claimed to know about cars, gave advice to the plaintiff who was his friend. There was a special relationship even though it was not a professional consultation; merely advice in a social setting.

Formal, considered advice Lord Devlin in Hedley Byrne suggested that the relationship was something like a contractual one, where it might be said that the parties ought to be aware that legal implications could arise from the giving of advice. There is unlikely to be a special relationship in domestic or social contexts, although exceptionally there may be – see Chaudhry v Prabhakar

In the Caparo case Lord Bridge indicated that if specific advice was given for a specific purpose then there might be a special relationship.

In James McNaughton Paper Group Ltd v Hicks Anderson [1991] 1 All ER 134 the Court of Appeal stressed that the specialrelationship depended on the plaintiff relying on a statement that was made for a particular purpose.

If a claimant uses a statement, made for a particular purpose, for a different purpose, then liability will generally not arise. For example, in Al-Saudi Banque v Clarke Pixley [1989] 3 All ER 361, the auditors of a company were held to owe no duty of care in respect of a bank which lent money to that company. Auditors do not generally make their report to creditors, or to any other person with the intention or knowledge that it would be communicated to the creditors.

The defendant may be found liable because they assumed responsibility for the correctness of their statement. In some situations the law will impose liability in these circumstances.

In the case of free or gratuitous advice it might be reasonable for there to be no legal liability on the part of the maker of the statement. This will be harder to justify if the advice has been paid for.

In Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830 the plaintiffs took a franchise from a company set up by the second defendant. The failure of the second defendant to assume responsibility in respect of this franchise, via contact or personal dealings of a direct or indirect nature with the plaintiff, led the House of Lords to conclude that there was no special relationship between the claimant and the second defendant.

In the case of Lennon v Commissioner of Police for the Metropolis [2004] 2 All ER 266 the Court of Appeal said

‘in this case … the duty of care arises from an express assumption of responsibility for a particular matter, on which [the claimant] relied…… There is nothing in this case to prevent the Hedley Byrne …principle from applying to an omission to give advice in such circumstances, even where there is a relationship of employer and employee…’

The claimant must show that he relied on the statement, i.e. that it caused him to act in a way in which he would not have otherwise acted, and that it was reasonable for him to so rely.

Even if a claimant can show that they relied on the advice, it must then be demonstrated that it was reasonable for them to have done so. This is sometimes referred to as reasonable reliance. This will be influenced by the nature of the advice, the potential risk, and the availability and practicality of a second opinion.

in Yianni v Edwin Evans [1982] QB 438 a young first time buyer relied on a building society survey, even though expressly told not to. It was nevertheless held to have been reasonable for the plaintiff to have done so.

James McNaughton Paper Group Ltd v Hicks Anderson [1991] All ER 134 was another case concerning advice given by auditors, this time in respect of a company take-over. The advisees were carrying out the take-over and it was held that, as they were experienced business people, it was not reasonable for them to have relied solely on the draft accounts prepared by the defendants. They should have obtained independent advice.

McNaughton is an interesting decision because in that case Neill LJ set out a list of factors to consider in determining whether a duty of care arises in respect of a negligent misstatement. These are:
1. the purpose for which the statement was made;
2. the purpose for which the statement was communicated;
3. the relationship between the advisor, advisee and any third party;
4. the size of the class to which the recipient of the advice belongs;
5. the knowledge and experience of the advisee; and
6. whether the statement could be reasonably relied upon.

In Hedley Byrne v Heller the words ‘without responsibility’ were used in the statement made. The House of Lords felt that the defendant could hardly be said to be assuming responsibility when at the same time as giving the advice they were making it clear that they did not accept responsibility.

In Ministry of Housing v Sharp CA [1970] 2 QB 223 the defendants negligently omitted to tell X, a purchaser of land, about the plaintiff’s charge on the land. This meant that X was not bound by the charge and so the plaintiffs suffered financial loss. This loss was as a result of the defendant’s careless statement to X, which X relied on, causing the plaintiff to suffer loss. The court awarded compensation as the defendant had breached a statutory duty that was designed to protect the plaintiff.

Again, in Ross v Caunters [1980] Ch 297 liability was imposed for a negligent statement outside the rule in Hedley Byrne. In this case a solicitor had given negligent information about the witnessing of X’s will. X relied on this and as a result the plaintiff beneficiary was unable to inherit under the will. Liability was justified as the solicitor owed a fiduciary duty to X, the testator, that was breached. Furthermore, it was foreseeable that the plaintiff as a beneficiary would be affected.

In Goodwill v British Pregnancy Advisory Services [1996] 2 All ER 161 the defendant advisory service told X that, following a vasectomy operation, he was permanently infertile. X commenced a relationship with Mrs Goodwill and told her he had had a vasectomy. Subsequently Mrs Goodwill became pregnant and gave birth to a daughter. The Court of Appeal held that a duty was not owed to her by the defendant in respect of the advice given as it was not foreseeable that the advice would be passed on to her and relied upon by her without further independent inquiry. It could not be said that the advisory service assumed responsibility to X’s future sexual partners when giving advice.

In Spring v Guardian Assurance plc & Others [1994] 3 All ER 129 the defendants gave a very disparaging job reference about the plaintiff. The plaintiff was unable to gain other employment in the life assurance industry as a result of the reference and, therefore, sued the defendant for negligence. Although there was no doubt that a referee owed a duty of care to the person requesting a reference (Hedley Byrne), it was questionable whether a duty of care was also owed to the subject of the reference. The Court of Appeal held that the plaintiff’s only remedy would be in defamation, not negligence. However, the House of Lords (Lord Keith dissenting) held that there could be a duty of care. Lord Goff based his reasoning on the concept of assumption of responsibility. He felt that by giving a reference, the company assumed a responsibility to the plaintiff to give a careful reference. It is very difficult to get a job without a reference and a defamation action would not always provide a satisfactory remedy.

In White v Jones [1995] 2 AC 207, the House of Lords, following on from the decision in Ross v Caunters, held that solicitors drawing up a will owe a duty of care to the testator’s beneficiaries who should be allowed to sue the solicitor for the loss of an intended legacy. As such, third parties were given a right of action. Lord Goff stated:

In my opinion, therefore, your Lordship’s House should in cases such as these extend to the intended beneficiary a remedy under the Hedley Byrne principle by holding that the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may as a result of the solicitor’s negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor.

There are two stages in determining whether there has been a breach of duty. First, the standard of care to be expected of the defendant must be established. This is a question of law. Once this has been ascertained, all the facts and circumstances must be examined to see if the defendant has fallen below that standard, i.e. breached the duty. This is a question of fact.

In short, the task being performed will determine the standard of care imposed. The usual starting point is that the defendant must behave as a reasonable man would in all the circumstances. The classic description of the standard of care was given by Alderson B in Blyth v Birmingham Waterworks (1856) 11 Exch 781:

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

In Vaughan v Menlove (1837) 3 Bing NC 468, the defendant built a haystack on land adjoining the claimant’s property. As a result of poor ventilation, the haystack caught alight and caused damage to the claimant’s land. The defendant had been warned of the possibility of this happening but had chosen to ignore it (he was, he explained, fully insured). Despite the defendant’s claim that he had honestly misjudged the risk, he was found liable. A reasonable person would not have taken the risk and would have adopted preventative precautions.

A clear illustration of this is Nettleship v Weston [1971] 2 QB 691 in which a learner driver was judged by the standard of the ordinarily competent driver. No allowance was made for her lack of driving experience.

... in considering what a reasonable person would realise or would do in a particular situation we must have regard to human nature as we know it, and, if one thinks that in a particular situation the great majority of people would have behaved in one way, it would not be right to say that a reasonable man would or should have behaved in a different way. A ‘reasonable man’ does not mean a paragon of circumspection. (per Lord Reid in AC Billings & Sons Ltd v Riden [1958] AC 240)

It is important to note that the standard of care is not absolute. A person does not have to do everything possible to prevent harm; rather, they have to reach the standard of what a reasonable person would do.

In Etheridge v East Sussex County Council [1999] Ed CR 550 the claimant, a school teacher, was injured when a basketball, thrown by a pupil, hit her as she was climbing some stairs. Her claim against the school failed as the school had procedures and systems in place to prevent such accidents. The school was not required to give an absolute guarantee for the safety of everyone on the school’s premises.

In Glasgow Corporation v Muir [1943] AC 448, Lord Macmillan stated:

The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Some persons are by nature unduly timorous and imagine every path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from over- apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left to the Judge to decide what in the circumstances of the particular case the reasonable man would have had in contemplation and what, accordingly, the party sought to be made liable ought to have foreseen.

One consequence of the approach in Glasgow Corporation is that it leads to the courts imposing a higher or different standard of care on the defendant where it considers that this is appropriate.

In the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, the liability of a doctor administering electro-convulsive therapy was considered. It was stated that:

A man need not possess the highest expert skill at the risk of being found negligent... it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

In McHale v Watson (1966) 115 CLR 199, the Australian court accepted that a child should be judged according to this test but refused to take into account any of the child’s other characteristics (e.g. that he was abnormally ‘slow-witted, quick-tempered, absent-minded or inexperienced’).

In Mullin v Richards [1998] 1 All ER 920, the defendant and claimant were both 15 year-old school girls. The claimant was injured when a piece of plastic ruler broke off during a ‘play fight’ and hit her in the eye. The Court of Appeal held that the correct test is whether a reasonable and careful 15 year-old would have foreseen the risk of injury. On the facts of the case, the two schoolgirls could not reasonably have foreseen any significant risk of the likelihood of injury.

A lower standard is not applied to adults, regardless of the fact that they may be inexperienced and doing their best in the circumstances. Also, we have already seen that in Nettleship v Weston [1971] 2 QB 691, a learner driver was required to drive to the standard of a reasonably competent driver, notwithstanding her lack of experience. Emphasising the objective test for negligence, Lord Denning said that the required standard of care ‘... eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose act is in question’.

Similarly, in Wilsher v Essex Area Health Authority [1988] 1 All ER 871, a junior doctor was judged by the standard of the reasonable doctor in that field of medicine, regardless of his own inexperience. The standard is tailored to the activity the doctor is undertaking, not to his individual level of experience.

In some situations it may not be clear what standard to apply. The Court of Appeal in Wilsher suggested that the test should be based ‘on the act and not the actor’. This means that the task being performed will determine the standard of care, (as was stated at the beginning of this chapter.) In other words, so-called problem cases are probably not so problematic after all, if one remembers that the court will look at the task being undertaken, and attach the standard to that task. If it is something normally undertaken by the ordinary man, then the test will be that of a reasonable man. If it is a more complex task normally undertaken by a professional, then the Bolam standard will be expected.

In Philips v William Whiteley [1938] 1 All ER 566 a jeweller who undertook ear piercing was required to possess the skill of the reasonable jeweller, not that of a surgeon.

In Wells v Cooper [1958] 2 QB 265 a DIY fanatic was required to reach the standard of the reasonable man not that of the experienced carpenter, since the task he had undertaken was normally performed by ordinary men. A different standard might have been imposed if the defendant had undertaken complicated electrical rewiring or plumbing.

In Gates v McKenna [1998] Lloyd’s Rep Med 405, the defendant, a stage hypnotist, was expected to take the sort of precautions that a ‘reasonably careful exponent of stage hypnotism’ would adopt to prevent any injury to a member of the audience.

In Gates v McKenna [1998] Lloyd’s Rep Med 405, the defendant, a stage hypnotist, was expected to take the sort of precautions that a ‘reasonably careful exponent of stage hypnotism’ would adopt to prevent any injury to a member of the audience. A similar view was taken in Watson v Gray, The Times, 26 November 1998, with regard to professional footballers.

However, professionals who claim to possess greater skill than that normally possessed by a member of their profession are still judged by the standard of the ordinary reasonable member of the profession. They may nevertheless be liable for breach of contract in certain situations if they fail to deliver the higher level of skill promised: see Wimpey Construction UK Ltd v Poole [1984] 2 Lloyds Rep 499.

Note that if the defendant takes on a task that they ought to know is beyond their capabilities, then that may be evidence in itself of negligence. See Greaves & Co v Baynham Meikle & Partners [1975] 3 All ER 99.

In Roberts v Ramsbottom [1980] 1 All ER 7, the defendant, an elderly man, suffered a stroke whilst driving his car. As a result there was an accident and the claimant sustained an injury. The court held that the defendant was negligent; he had to be judged according to the standard of the reasonable competent driver. Emphasis was placed on whether he should have stopped the car as soon as he realised that his driving was being affected. Neill J held that the defendant could only escape liability if the incapacity amounted to automatism (a defence in criminal law that requires a total loss of consciousness or control).

However, in Mansfield v Weetabix Ltd [1998] 1 WLR 1263 the Court of Appeal adopted an alternative view. Here a lorry driver crashed his vehicle into the claimant’s shop after suffering a hypoglycaemic state. There was no evidence that the driver knew that his ability to drive was impaired. The Court of Appeal held that the defendant should be judged in comparison with a reasonably competent driver who is unaware that he is suffering a condition that impairs his ability to drive. The driver was thus found not liable.

When the defendant is participating in sporting events, the demands of the game will be foremost in his mind. Provided he uses reasonable care to play by the rules he will not be liable to other participants or spectators. See Condon v Basi [1985] 2 All ER 453 and Watson v Gray, The Times, 26 November 1998, cases involving footballers (both discussed under General Defences in Chapter 9). For a case involving an amateur rugby referee, see Vowles v Evans, The Times, 13 March 2003 Court of Appeal.

Even where the game being played amounts to horseplay, rather than organised sport, there may well be no breach of duty in respect of any injury caused to the claimant, provided that the defendant’s conduct does not amount to recklessness or a very high degree of carelessness (Blake v Galloway [2004] 3 All ER 315 CA).

If a defendant can show they have acted in accordance with a practice usually followed by others in that field, they may escape liability. In Maynard v West Midlands Regional HA [1984] 1 WLR 634, a doctor who acted in accordance with a common practice adopted by a reasonable body of medical practitioners was held not to have been negligent.