Duty of Care - When Can You Sue?
If you can establish that someone owed you a duty of care, and then breached that duty, you can sue them in tort.
The hard part is understanding when a duty of care arises and knowing the exceptions to the general rule.
The basic steps for suing in negligence are the following:
- Establish that there was a duty of care
- Prove that there was a breach of that duty
- Prove that the breach caused non-remote, legally recognised, damage to C
Duties of care are always geared towards protecting a certain harm:
- Physical harm
- Property damage
- Psychiatric illness
- Pure economic loss
- Pure distress
The requirements for a successful claim in negligence varies according to which harm the duty was geared towards. It is here where the substantial case on negligence chimes in.
By far the easiest to establish, a duty of care not to cause physical harm arises whenever it was reasonably foreseeable that an action would result in the physical injury of someone like the claimant.
This could mean a bridge builder who makes a faulty bridge that collapses under a train and harms passengers,a shampoo manufacturer that uses dangerous chemicals and leads to the harm of one of its consumers,or asking an inexperienced young servant to fetch a gun leading that leads to it being fired at a nearby person.
Visual Reminders of the Cases
- Donoghue v Stevenson 
C drank a can of ginger beer and found that it had a snail in it. C then became ill as a result.
Held: D, the manufacturer of the ginger beer, owed a duty of care to C (end consumer of the product) as it was reasonably foreseeable that not taking reasonable steps to ensure his products were safe would lead to physical injury of people like C.
- Matiland v Raisbeck 
C was travelling on a bus. The bus hit a lorry owned by D and this physically injured C. The collision occurred because the light on D's lorry - through no fault of D's - turned off. This meant the bus driver could not see the lorry and hit it from behind (it was a dark night).
Held: D was not liable to C in negligence. There was no question that it was not reasonably foreseeable that someone like C would be injured because there was no fault at all on the part of D.
- Ogwo v Taylor 
Firefighters came to D's home to put out a fire started by D's negligence using a blowtorch. C, one of the firemen, was badly burned in putting out the fire.
Held: D had owed and breached a duty of care towards C as it was reasonably foreseeable that his action would result in the physical injury of someone like C.
- Dixon v Bell |
D ordered his 13 year old servant to fetch his loaded gun for him. He asked an adult to remove the priming but this did not render it safe. The young girl accidentally fired it at C's son, injuring him.
Held: It was reasonably foreseeable that sending a young, untrained servant to fetch a loaded gun would harm someone like C's son, even with the caution of removing the priming.
Exceptions to the General Rule of Claims in Negligence for Physical Injury
- Barrett v MoD  - Assumption of Responsibility
C's husband was in the Navy and got heavily drunk to the point of being comatose at the Naval bar in his station. A senior officer saw that he was in this state and ordered a Petty Officer to look after him in his bunk. The Petty Officer only put him in the recovery position and then left. He returned twice and saw that he was fine but later he was found dead from choking on his own vomit. C argued that the MoD were liable for the death of her husband because they did not do enough to ensure officers did not drink excessively.
Held: the MoD were liable, but not because it owed its officers a duty of care to prevent them from over-drinking but because inadequate insufficient care was taken to prevent him from being injured after he got so inebriated. This was because the senior officer assumed responsibility for the drunk officer by assigning the Petty Officer.
- Topp v London Country Bus (South West) Ltd 
D left a mini-bus unlocked with the keys in the ignition overnight on the side of a street. This had happened because the bus driver (D's employee) did not pick the bus up for work. Joyriders took the bus and drove it away, knocking over a cyclist in the process.
Held: D did not owe the cyclist a duty of care because it was not foreseeable that a third party would take the bus and run someone over.
- Mulcahy v MoD  - Combat Immunity
D, during a military battle, ordered C to fetch water and then fired artillery which significantly damaged C's hearing.
Held: no duty of care arose because of combat immunity - the success of active military operations would be affected negatively if decision-makers were anxious about being sued. Thus, even if as here a claim in negligence would normally arise, the military should be able to focus solely on doing their best to achieve the operation's goals and so the claim is doomed to fail.
Strange Cases Concerning the definition of 'Physical' Injury
- Rothwell v Chemical Insulating & Co Ltd 
D had exposed C to by exposing him to asbestos. Three relate to physical injury and one to psychiatric illness. C developed pleural plaques (usually not harmful at all) and was put at risk of suffering from long-term asbestos diseases (though importantly this was not connected with the plaques). He also claimed that he was anxious about this risk. [physical injury claims]
Lastly, he developed depression as a result of developing the harmless plaques. [psychiatric illness]
Held: none of these harms could amount to an individual claim under negligence because they were too trivial (per Lord Hoffman) or harmless (per Lord Hope). The House of Lords corrected the Court of Appeal on the question of whether C could 'aggregate' his non-actionable claims into one actionable one: he could not.
'Nought plus nought plus nought equals nought. It is not like an accumulation of scratches' (per Lord Scott)
- Woodward v Leeds Teaching Hospitals NHS Trust 
C negligently failed to diagnose D with a pituitary gland tumour for more than three years with the result that she grew over half a foot taller than would be expected (6'5" instead of 5'10") and weighed 24+ stone (150+kg). This also meant that she would have to deal with other physical effects (e.g. dental disfiguration) for the rest of her life, and some of these physical differences brought a higher risk of various forms of deterioration to her body in the future (e.g. diabetes).
Held: a very wide number of factors were considered in the amount of compensation she would receive for D's negligence and the number of £1.2 million was decided upon.