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PERSONAL INJURY & THE DUTY OF CARE IN TORT
Legal duty or social obligation?
The popular notion that there exists some kind of universal “ duty of care ” which is owed by us all to each other may explain the increasing use of the expression in public discussion of the supposed incompetence or misconduct of individuals, companies or public authorities. But lawyers at least must be careful to distinguish between a “ duty ” which is better characterised as a social obligation and true legal duties or responsibilities which are enforceable by claims for damages.
When I drive my car, for example, I am under a legal duty of care to any other motorist or pedestrian. But (here’s a thought) imagine I were the gamine presenter of television weather forecasts, to be delivered in the modern, risk-averse, state-of-the-art-vacuous and inclusive style that is so popular: Whilst I may feel a social or contractual obligation to take some care over what I foresee for that those who are “planning to be out and about” or “on the journey to work in the rush hour” tomorrow, so that I usually urge my devoted viewers not to forget to “take that umbrella”, to “wrap up warm” or just “take extra care” in the face of the weather warning of a “snow event”, no one can sue me if I get it wrong even if they have they relied on my fundamentally inaccurate and incompetent description of what to expect and skid on an icy road or catch a nasty chill.
Similarly, a road accident victim cannot bring an action against me if I stood beside him at the roadside as he prepared to cross and failed to suggest he look to his right before crossing the busy road and was flattened by the approaching lorry. Nor, to use the vivid illustration given by Lord Keith in Yuen Kun Yeu v A.G of Hong Kong^1 , have I any legal liability if I fail
(^1) [1988] A.C 175
to shout a warning to the absent minded wanderer who is striding along with head in air, oblivious to the approaching cliff’s edge.
Why not? After all, the driver might have taken more care had I warned of the icy roads. The coatless walker might have avoided his sniffles had I reminded him to take his coat. The pedestrian would have escaped injury if I had spoken out. My cliff walker would have looked up and saved himself. So why have I no responsibility for them in law? All I had to do was be neighbourly and/or careful: is that too much to ask?
The explanation can only be that in all those cases the law imposes no duty of care. But why should that be? The classical answer is to be found in the three part test identified in Caparo Industries v Dickman 2 (and elsewhere) which is now very well known. The application of that decide means that a duty of care will depend on (i) foreseeability (ii) proximity and (iii) it being fair, just and reasonable that such a duty should be imposed (i.e policy).
In this paper I am concerned here with the practical application of that test and suggest that, in the examples I have given, two key ingredients are missing. First, I have assumed no responsibility to the unfortunate victim. Second, either the victim has not relied on me or, if he did, he had no reasonable basis for so doing as opposed to relying on his own judgment and making his own choice.
My contention is that those two essential ingredients can be found at the heart of all those cases where a duty of care is imposed in situations which exist beyond the existing categories where a duty of care is already recognised by common law or imposed by statute. I have argued the importance of these ingredients this before in an article written following the decision of the Court of Appeal in Poppleton v Trustees of the Portsmouth Youth Activity Centre 3. But, perhaps, of rather more comfort to the reader may be the fact that those elements form the cornerstone of the analysis of duty of care by the House of Lords in the recent decision in Mitchell v Glasgow City Council 4.
(^2) [1990] AC 465
(^3) [2008] EWCA Civ 646: see Issue 3 (page 187) of JPIL 2008 (^4) [2009] UKHL 11: modesty forbids I should point out that the first draft of this article was written before the House provided authoritative re-assurance that – this time anyway – I was not talking nonsense.
In some types of case, the existence of the duty is so well established as to be entirely uncontroversial. In the case of an employer, for example, there can be no doubt that, regardless of any contractual obligation, the employer owes a duty to his employee to take reasonable care for the safety of his employees. Clearly, the important features of assumption of responsibility and reliance are present in all those cases.
A recent example of the importance of those features in identifying the true relationship of employer/employee is Jennings v Forestry Commission^6 in which the Court of Appeal held that, on the facts of that case, the claimant’s status was that of independent contractor rather than employee: in deciding the extent, if any, to which the alleged employer ‘controlled’ the operation, the court paid particular attention to the issues of ‘assumption of responsibility’^7 (by the employer) and ‘reliance’ (by the employee).
This is entirely consistent with the classical exposition of the employer’s duty in Wilsons & Clyde Coal Company Limited v English 8 , where Lord Wright put it this way:
“I think the whole course of authority consistently recognises a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm, or a company and whether or not the employer takes any share in the conduct of the operations.” 9
There have been many other formulations of the employer’s duty but, since the existence of the duty has never been in issue, the cases have concentrated on questions of standard rather
(^6) [2008] EWCA Civ 581. (^7) At paragraph 43 and following
(^8) [1938] A.C. 57.
(^9) The obligation, Lord Wright explained, was threefold (because the doctrine of common employment abolished with effect from 1945 still then existed: the duty, as he explained, was the provision of competent staff, adequate material and a proper system and effective supervision. For a recent discussion of the limits and extent of the duties see, for example, Mason v Satelcom Limited [2008] EWCA Civ 494.
than duty of care – see, for example, Stokes v Guest Keen & Nettlefold Ltd^10 or Barber v Somerset County Council^11.
Similarly, we all can identify any number of categories in which there can be no argument but that a common law duty of care is owed. Such a duty is owed by the professional adviser to his client because, as Dyson LJ said recently in Rowley v Secretary of State 12 ,
“ a solicitor owes a duty of care in tort because, like any professional person. He or she voluntarily assumes responsibility towards an individual client ”.
Other obvious examples are adults looking after children, and schools. An adult supervising a child obviously owes such a duty, just as a school will owe a duty to pupils in its care, whether they are on school premises or subject to their control on outside activities. The activities organised for the children must be run in such a way that the risks of injury are limited as far as this can reasonably be achieved. All of this is uncontroversial^13. Again, the issue here is not ordinarily as to whether any duty of care exists but, rather, whether the adult or school has fallen below the standard of care that might be expected, to which the answer will be infinitely variable depending on the circumstances^14. But it may be recognised that both these examples demonstrate my preconditions of assumption of responsibility and reliance.
Those who are actively engaged in or organise activities which place others at physical risk are similarly under an obligation to conduct themselves carefully. That is the rationale of activities as diverse as driving a car on the one hand, or allowing a dangerous pyrotechnic display to take place upon your land 15. No-one, in such a case, is likely to argue with any
(^10) [1968] 1 WLR 1776 (^11) [2004] 1 WLR 1089. A useful discussion of the nature and extent of the common law duty is to be found in Chapter 10 of the 11th^ edition of Charlesworth & Percy on Negligence. (^12) [2007] EWCA Civ598 at paragraph 57
(^13) See, for example, Lord Esher in Williams v Eady (1893) 10 TLR 41. (^14) A good example being Chittock v Woodbridge School [2002] EWCA Civ 915, where the Court of Appeal held that the teacher had acted reasonably in discharging a general duty of supervision of a 17 year old boy on a skiing holiday.
The preceding discussion of familiar categories in which a duty of care is owed is not intended to be exhaustive. I intend only to explain that there are many cases in which there can be no serious issue about the existence of a duty of care, and the real argument will be about the standard of care. However, a study of the cases also shows that not everyone automatically owes a duty of care to those who might be adversely affected by something that they are doing or by a situation that they have created. Rather, courts will be careful to scrutinise rigorously whether, in the particular circumstances of the case, the Claimant can show that he falls within one of the established and recognised categories and, if he does not, whether the necessary preconditions exist for imposing a duty of care in that particular situation. Hence, my concentration on those necessary preconditions and on how and where they can be identified in our jurisprudence.
Physical harm and economic loss
Historically, a distinction was drawn by the law between the existence of a duty to prevent physical harm and a duty not to expose someone to adverse economic consequences even though, as the leading case. But as the law of negligence developed to allow claims for purely economic loss to be pursued in each case, and it was necessary for the courts to reconsider the limits of and preconditions for such liability, of one of the key factors has been the assumption of responsibility by A towards B and B’s reliance upon A to conduct himself carefully. The history of the duty in relation to purely economic loss can conveniently be traced from cases such as Hedley Byrne v Heller^21 to the very much more recent case (and, to some, the locus classicus for the true test) of Caparo Industries v Dickman.
Although Caparo itself was a case about economic loss, the principles for the existence of a duty of care in all tort actions are clearly expressed within it and are the foundation for any analysis in the case of both economic and physical damage. The validity of this parallel was confirmed in Mitchell v Glasgow , where it was argued unsuccessfully that, as Caparo was concerned only with economic loss, it had no or little application to personal injury claims. In the words of Lord Hope^22 ,
(^21) [1964] AC 465.
(^22) See paragraph 24 of his Opinion
“…the origins of the fair, just and reasonable test show that its utility is not confined to that category”
In Caparo itself Lord Bridge explained 23 the key preconditions thus, having analysed the previous cases:
“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 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.”
Overlap between the Caparo conditions
As expressed, they are three: first, foreseeability; second, proximity; third, policy (though expressed as that which is ‘fair, just and reasonable’).
There is, as the cases demonstrate, obvious overlap between each or all of those concepts: as Lord Hoffmann put it in Sutradhar v NERC^24 , the boundaries between them are “ somewhat porous but they are probably none the worse for that ”. We can see that in the cases themselves, as we look at the applications of the 3 concepts individually and as a whole.
(^23) Pp 617 – 618. (^24) [2006]UKHL 33 at paragraph 32
passage in Lord Atkin’s speech should, I think, be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.”
The distinguished Australian Judge, Brennan J, addressed the shortcomings of foreseeability as a single test in Sutherland Shire Council v Heyman^27 :
“Lord Atkin’s ‘ neighbour ’ test involves us in hopeless circularity if my duty depends on foreseeability of injury being caused to my neighbour by my omission and a person becomes my neighbour only if I am under a duty to act to prevent that injury to him. Foreseeability of an injury that another is likely to suffer is insufficient to place me under a duty to act to prevent that injury. Some broader foundation than mere foreseeability must appear before a common law duty to act arises.”
The cases referred to above 28 are sufficiently clear illustrations of the point that foreseeability alone is not enough to impose liability. One further quotation is useful: in AG of the BVIs v Hartwell Lord Goff said
“I wish to emphasise that I do not think that the problem in these cases can be solved simply through the mechanism of foreseeability. When a duty is cast upon a person to take precautions against the wrongdoing of third parties, the ordinary standard of foreseeability applies…..there is at present no duty at
(^27) (1985) 60 ALR 1.
(^28) Yuen Kun Yeu and Mitchell v Glasgow. Another well-known example is Bolton v Stone [1951] AC 850. As Lord Hoffmann observed at paragraphs 36-37 of his opinion in Tomlinson , it was always foreseeable that a passer-by might be hit by a cricket ball: but it was reasonable,, not least because the cricket club was carrying out a socially useful activity, that they should do nothing about it
common law to prevent persons from harming others by their deliberate wrongdoing, however foreseeable such harm may be if the defender does not take steps to prevent it”.
Proximity and policy
As can be seen in the judgments in Perrett v Collins 29 (where the issue was whether the inspector who had certified the aircraft as airworthy had been under a duty of care when he did so), just as there is an overlap between the first two elements of foreseability and proximity, so also is there a considerable degree of overlap between the proximity test and the question of whether it is fair and reasonable – as a matter of policy – that a duty of care should be imposed on the particular relationship. And as I have already observed, the elements of assumption of responsibility and reliance are both to be found within the second and third parts of the Caparo tests.
Assumption of responsibility through the cases
The language of “ assumption ” and “ responsibility ” can be found in another Judgment in the Sutherland Shire Council case. There, Dean J identified both “ physical ” proximity, and “ circumstantial ” proximity as important. He explained that any or all of those elements:
“...may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury, loss or damage to the person or property of another or reliance by one part upon such care being taken where the other party ought to have known of such reliance.”
Clearly, both these elements were key to the imposition of a duty of care in Perrett and that which may attach to any body or person undertaking something which approximates to a regulatory responsibility.
(^29) [1998] 2 Lloyds Law Rep 255. At p 268 Swinton Thomas LJ said that on the facts of that case these two elements could “ conveniently be considered together ”
responsibility for ensuring respectively a safe wall^30 , a safe aircraft and a safe system for treating injured boxers ”
It follows that there is a simple truism to the effect that whether or not a duty will be imposed by law depends very much on the particular nature of the relationship between the parties and the factual basis upon which the party alleged to be under that duty is required or empowered to exercise it in the particular circumstances.
Public Bodies and the decision in Mitchell v Glasgow
There are, of course, countless authorities in which the duty of care of a public authority has been debated and established or rejected. It is well beyond the scope of this article to discuss all of them here in any detail.
Highways cases are one such category where questions have arisen as to the scope, existence and nature of any statutory or common law duty that may be owed. In Stovin v Wise 31 , a majority of the House of Lords held that the highway authority^32 owed no duty to the member of the public who suffered injury at a cross-roads where visibility was restricted. The failure to exercise its power to require the removal of the obstruction (which was on someone else’s land) was an omission only and that was not actionable. The Highway Authority had done nothing positive: it was a case of “simple omission and therefore excluded as a matter of policy from the arena of tort liability 33 ”.
The situation may be different where a public authority takes an active step such as where it issues a licence without which the activity in question would be impermissible – that is, does
(^30) Clay v AJ Crump [1964] 1 QB 1134
(^31) [1996] AC 923 (^32) See also Clark v Havering LBC [2007] EWHC 3427 (QB) where the Judge rejected the contention that there had been any assumption of responsibility and Gorringe v Calderdale MBC [204] UKHL 15 where the House of Lords rejected the argument that the local authority owed a duty of care to paint markings on the road or put up signs warning motorists to slow down. (^33) Per Sedley LJ in Bishara at paragraph 11
something positive^34. But, again, no single test will apply to very situation. So one can find any number of cases in which the courts have considered the possible duties of care that might be owed by local authorities^35 and their building inspectors^36 , the emergency services 37 , an NHS hospital^38 , the Secretary of State for Work and Pensions 39 , the Police 40 , prosecuting authorities 41 and a body like the National Environment Research Council^42. There are many other examples in an area particularly rich with authority 43. Much of it shows the considerable influence played by considerations of public policy in applying the tests and principles discussed above.
The most recent authoritative analysis in this context – and one to which I have referred already – is the decision in Mitchell. What was in issue was whether a local authority was under a duty to warn one of their tenants that he was at risk of attack by a neighbour. In discussions as to whether, on the facts of this case, such a duty should be imposed, the
(^34) I deal with this more directly in relation to ‘regulators’ – see below
(^35) Consider the discussion of Murphy v Brentwood [1991] 1 AC 398 in Perrett at p 275 and see other well known authorities such as X v Bedfordshire CC [1995] 2 AC 633 and Barrett v Enfield BC [2001] 2 AC 550 (^36) Governors of Peabody DF v Sir Lindsay Parkinson (1985) AC 210 where the House of Lords found it inappropriate to impose a duty on the local authority which approved the plans for the drains in circumstances where the Peabody Trust “ relied on the advice of their architects, engineers and contractors (so that) it would be neither reasonable nor just…to impose upon Lambeth a liability to indemnify Peabody against loss resulting from such disastrous reliance ” (per Lord Keith at p 241). (^37) Kent v Griffiths (2000) 2 WLR 1158, cf Capital and Counties PLC v Hampshire CC (1997) 3 WLR 331
(^38) See Bishara v Sheffield Teaching Hospitals [2007] EWCA Civ 353 (^39) Rowley v S of S [2007[ EWCA Civ 598: in rejecting the argument that the Sof S owed a duty of care, the CA stressed that the question of assumption of responsibility was indeed critical: But the S of S did not in such a case voluntarily assume any such responsibility in making his decision under the scheme. See also Customs and Excise Commissioners v Barclays Bank [2006] UKHL 28 where the bank had not, in any meaningful sense, assumed responsibility towards the commissioners, White v Jones [1995] AC 207 and Sandford v Waltham Forest LBC [2008] EWHC 1106 (QB) where the Judge rejected the proposition that there was free-standing and actionable duty on the local authority in respect of a statutory duty to provide aids and equipment (^40) See Van Colle v Chief Constable [2008] UKHL 50 where the House of Lords restored the principles (founded, essentially, in policy) previously laid down in Hill v Chief Constable (1989) AC 53. But the House of Lords recognised that there were “ undoubtedly cases where things done by the police can give rise to positive or negative duties under Article 2 if life is to be protected” – Lord Bingham at paragraph 71, who dissented in respect of the associated appeal of Smith. (^41) M v MPC [2007] EWCA Civ 1361
(^42) Sutradhar v NERC [2006] UKHL 33 (^43) Such as Hill v Chief Constable [1989] A.C 53, c.f Brooks v MPC [2005] UKHL 24, Z v United Kingdom [2005] 1 WLR 1495 and Van Colle
circumstances are relied on as constituting the requisite additional feature….the question for the court will be whether the circumstances were indeed sufficient for that purpose or whether the case remains one of mere omission ”.
And at paragraph 82, dealing with familiar authorities including Home Office v Dorset Yacht 48 , Lord Rodger put the test in similar terms:
“…Similarly, if A specifically creates a risk of injury…he may be liable for the resulting damage….Similarly, A may be liable if he assumes specific responsibility for B’s safety but carelessly then fails to protect B.. ”
Regulators undertaking responsibility
Those who exercise some form of regulatory control in the context of laying down and enforcing rules or guidelines designed to control the activities of those under their authority can more readily be held to owe a duty of care than those who merely fail to exercise a power. The key reasons for this distinction are those which we have already identified. Considerations of foreseeability and proximity (which may well be demonstrated by the control that the regulator exercises over the matter in question) and reasonableness/policy will again be the key considerations.
As we have seen already, assumption of responsibility will be one important consideration helping to illuminate the particular principle in issue. That process will involve identifying the actual responsibility that has been assumed by the regulator and whether the person affected is likely to have relied on that regulator to apply the regulatory regime carefully. But in all these cases, whether or not a duty of care can be made out will again depend very much on the facts.
In some situations, the answer seems clear – at least with hindsight. For example, Michael Watson succeeded in his action against the British Boxing Board of Control^49 because the BB
(^48) [1970] AC 1004
of C entirely controlled the provision of medical services at the fight and Mr Watson relied on that assumption of responsibility by the Board and expected them to do so to an appropriate standard. It was the same, in effect, in Perrett v Collins^50 so that the Claimant who was injured in an aircraft accident succeeded in an action against one of the inspectors of the Popular Flying Association who had certified that the aircraft was airworthy.
In the Perrett case, the Court of Appeal reviewed many of the cases showing the development of the common law duty of care, some of which have also appeared in this paper. Buxton LJ rejected the argument that the Marc Rich v Bishop Rock Marine Co.^51 was of much help in personal injury cases. Instead, he found that the necessary ingredients for establishing a duty of care all existed which, with hindsight, seems hardly surprising: after all, a claimant might be expected to know that all aircraft require some form of airworthiness certificates and to rely upon the person providing such certification to have done his or her job properly.
Similarly, in Watson , the boxer was entitled to expect that the BB of C, which regulated the contest and provided the medical facilities at ringside, would provide facilities that were of an appropriate standard. After all, the Board required that the bout be conducted according to its rules and, as Lord Phillips MR pointed out 52 , those engaged in the bout relied on the Board to provide appropriate medical supervision. So, at paragraph 43 of his judgment, the Master of the Rolls identified the “special features” of the case in these words
“ The principles alleged to give rise to a duty of care in this case are those of assumption of responsibility and reliance”
He went on 53 to explain why those elements were present and decisive in that particular case.
(^49) [2001] 2 WLR 1256.
(^50) [1998] 2 Lloyds Rep 255.
(^51) [1996] AC 211.
(^52) At paragraph 33 of his judgment
(^53) See particularly paragraph 87
Sporting Activities
In the case of accidents in a sporting context 58 the debate is more often about the standard of care as opposed to whether there was any kind of duty in the first place.
It may seem trite to state that a duty of care will be owed by the organiser both to competitors and spectators and by the competitors to each other. But the issue has not always been that simple.
Two of the rugby cases, Vowles and Smoldon illustrate the issues well. The only real arguments against the imposition of a duty of care on a referee whose job it is to apply rules that exist not just for the proper regulation of the game but also in the interests of players’ safety are arguments of policy of policy. In the Caparo sense, then, the issue is not foreseeability or proximity but of fairness and reasonableness. And it is clear that the assumption of responsibility (by the referee) and reliance (by the player) upon the referee to discharge that duty were key to the Claimants’ success in their appeals.
Perhaps, with hindsight, the duty of care imposed on the referee by the Court of Appeal in Vowles v Evans^59 may seem less controversial now than it may have done to some at the time. In reality – as had been the defendants’ approach in Smolden v Whitworth^60 - it may seem to us now that the defendant’s real argument should always have been about standard as opposed to duty of care. And that standard will not be unduly onerous, as was clear from the Court of Appeal’s decision in that earlier case. But although the defendants in Smoldon had conceded that they owed a (limited) duty of care, any such duty was denied in Vowles , the defendants’ argument being founded largely on policy. The argument was firmly rejected.
Lord Phillips M.R put it this way 61
(^58) On which subject I commend the excellent article by Bruce Gardiner of 2 Temple Gardens in Issue 1 of JPIL 2008.
(^59) [2003] 1 WLR 1607.
(^60) [1997] ELR 249.
(^61) At paragraph 25 of his judgment in Vowles
“ Rugby football is an inherently dangerous sport. Some of the rules are designed to minimise the inherent dangers. Players are dependant for their safety on the due enforcement of the rules. The role of the referee is to enforce the rules. Where a referee undertakes to perform that role, it seems to us manifestly fair, just and reasonable that the players should be entitled to rely on the referee to exercise reasonable care in so doing….”
As I say, that is exactly the language of a duty which depends on assumption of responsibility and reliance.
The duties that attach to participants in sports are usually less controversial. There can be no question but that the person actively participating may well do something that creates an immediate risk of very serious injury. In such cases, the debate is usually not so much about whether the one owes any duty of care to the other but, rather, about what is the appropriate standard of care that is apt in the sport in context.
A good example of the Courts’ approach on the issue of standard in the sporting context is Caldwell v McGuire^62. In that case, it was accepted that each jockey owed a duty of care to the other, but what was in issue was the standard of care in the particular circumstances of a sport in context. The appropriate standard of care was also the real issue in two of the football cases – Condon v Basi^63 and Watson v Gray^64 where the Court of Appeal held that the duty of care between players in competitive sports was always a duty to take reasonable care in the particular circumstances and that the standard of care was an objective one, albeit one varying according to the particular circumstances of the case which would include the degree of skill to be expected by one competitor to be shown by another.
(^62) [2001] EWCA Civ 1054.
(^63) [1985] 1 WLR 866.
(^64) Times 26 th (^) November 1998: see also Charlesworth at 2-
