Question 1

Ben met his friend Olu, and they agreed they both needed a drink. They went to the pub, where Olu bought the drinks and Ben, after several pints, offered Olu a lift home. On the journey home, Ben collided with Kimberley, a 6-year-old who was trying to cross the street. The collision caused Olu to fly through the windscreen, and pushed Kimberley into the path of an oncoming car being driven by Ernie, aged 82. Kimberley sustained serious internal injuries. An ambulance was summoned to take Olu, Kimberley, and Ernie to hospital. Greta, the ambulance dispatcher, having taken the call, did not dispatch an ambulance for 15 vital minutes, while she finished the magazine she had been reading when the call came. By the time the ambulance arrived, Olu had died. At the hospital, Kimberley’s injuries were misdiagnosed by Mary, a junior doctor who was attending in Accident & Emergency for the first time. Had the nature of her injuries been correctly assessed in A&E, Kimberley would have had a 40 per cent chance of full recovery. Kimberley is now paraplegic.

Analyse the ‘duty of care’ aspects of this scenario.

The above scenario develops cumulatively over Chapters 3, 4 and 5.

Outline

• This scenario is intended to give you the opportunity to explore the three key elements of the tort of negligence in succession: duty of care, breach of duty and causation of damage. All three elements are required for a successful action.  Here, refer to ‘duty of care’ in Chapter 3.
• You must identify each possible cause of action in negligence and in each case, whether the defendant owed a duty of care to the injured party, or claimant.
• Be sure to consider defences

Answers to problem questions do not normally require an introductory paragraph, however here we have an exception. You should begin by setting out briefly the meaning of duty of care in negligence and its basic function – to limit the range of liability. It is exemplified by the general principle of the wide ratio of Donoghue v Stevenson; and later interpreted in Lord Bridge’s 3-fold test in Caparo v Dickman.

Below are the possible negligence actions emerging out of the scenario.  All but one of these is a fairly standard negligence situation in which physical injury is directly caused and for which application of Donoghue’s ‘neighbour principle’ will find a duty of care.

• Olu’s estate v Ben  D v S duty of care
• Olu’s estate v Greta  ‘novel situation: apply Caparo
• Kimberley v Ben D v S duty of care
• Kimberley v Ernie D v S duty of care
• Kimberley v Mary D v S duty of care
• Ernie v Ben D v S duty of care

The exception is the action of Olu’s estate against Greta, the dispatcher. This is a ‘novel’ duty of care situation in which Olu’s death was arguably caused by Greta’s omission (her delay in sending the ambulance). The fundamental reasoning against imposing duties for omissions was set out by Lord Hoffman in Stovin v Wise. The analogous case to ours is Kent v Griffiths which would indicate that having taken the call and thus assumed responsibility, Greta then had a duty of care to the injured parties to execute her job with reasonable care.

The existence of a duty of care is not sufficient to found liability and you will now proceed to the next chapter to consider breach of duty.

Question 2

According to the House of Lords in Customs and Excise v Barclays Bank, ‘the three-fold test [in Caparo] … does not provide an easy answer to all our problems, but only a set of fairly blunt tools’.

Outline

• Function of duty care in negligence
• Tests for duty of care over time
• Problems with applying the tests for duty of care
• What point is being made by the quotation and do you agree or disagree with it?

The function of the concept of duty of care in negligence is to address what John Fleming described as ‘that of limitation of liability.’ Prior to 1932 this was accomplished on a case-by-case basis according to pre-existing relationships. In 1932 Lord Atkin’s wide ratio in Donoghue v Stevenson laid down the ‘neighbour principle’ featuring proximity and foreseeability. The intention was that this would bring consistency and some predictability to the law.

Good answers will highlight cases in which the neighbour principle was successfully applied and will then go on to explain the expansion of the principle in Anns v Merton and the subsequent restriction in Yuen Kun Yeu v A-G of Hong Kong.  In Caparo v Dickman  the damage was pure economic loss, thus raising particularly difficult issues for duty of care. Here, the specific influence of policy was articulated in Lord Bridge’s 3-fold test – the ‘wide ratio’ in Caparo.  Marc Rich v Bishop Rock Marine provides a helpful example of the 3-fold test in operation.The quote above is concerned with the limitations of the test.

You may discuss the subjectivity of foreseeability – illustrated in a cases such as Jolly v  Sutton LBC or Smith v Littlewoods; subjectivity of proximity illustrated in the Barclays Bank case itself.

The policy element is not applied consistently and is often not articulated or unsubstantiated.

The objective of having one meaningful test for duty of care may be unrealisable in practice.