Duty of care

Duty of care can be described as a control mechanism that is used to establishing if one person can sue another for negligence.

The landmark case in establishing ‘duty of care’ was the well documented case of Donoghue v Stevenson where the claimant; Mrs Donoghue sued a soft drinks manufacturer Mr Stevenson.

Lord Atkin in Donoghue v Stevenson established a broad principle of liability. His analysis of the law formulated the principle for determining the existence of a duty of care (P Giliker & S Beckwith) [1] Lord Atkin’s principle had two elements. Firstly that of “reasonable foreseeability" meaning that if you could foresee that your failure to take reasonable care may cause injury then you would owe a duty of care. Brett M.R had attempted the same in the case of Heaven v Pender [2] although his judgement was not followed in future cases. The second of Lord Atkin’s elements was that there had to be close proximity, not necessarily in the physical sense but that the claimant would have to be closely and directly affected by the actions of the defendant. Lord Atkin’s said that “you must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour" and went on to describe this person as “persons who are so closely and directly affected by my act that I ought reasonable to have them in contemplation when I am directing my mind to the acts or omissions that are called into question [3] " This became known as the ‘neighbour principle’.

Lord Wilberforce in Anns [4] went on to develop the two stage test for establishing the duty of care. Stage one looks at ‘proximity or neighbourhood’; meaning that the defendant would have to reasonably foresee that their actions could cause injury whilst stage two looks more at considering why, even if there was a duty of care owed, was there any reason why that duty of care could be denied in some circumstances.

The two stage test was later developed into the three stage test that meant that for the claimant to prove that a duty of care existed they would have to show that it was reasonably foreseeable that a person would be injured and secondly that there was proximity and also that it would be fair, just and equitable to impose a duty of care. This became known as the Caparo criteria.

On the question of breach of duty of care we will look firstly at Jeremy’s case. We will look in the first instance whether Jeremy is owed a duty of care by Tiffany as the learner driver and secondly whether Jeremy is owed a duty of care by the golf club.

Generally, there is an established duty of care between one road-user and another and also an inference of negligence or res ipsa loquitur. Therefore there may be no need to establish if a duty of care existed and it would only require that a breach of that duty had taken place (Finch & Fafinski) [5] . So, even though Tiffany was a learner driver she would still be judged by the actions of a reasonable person in the same situation. Greer LJ in Hall v Brooklands Auto-Racing Club described this ordinary person as ‘the man in the street’ or ‘the man on the Clapham omnibus’ [6] . It appears that the accident may have been caused by the golf ball impacting and cracking the windscreen and causing Tiffany to lose control and hit the tree. Therefore, if a reasonable driver would have swerved and hit the tree then Tiffany may not have breached the duty of care owed to Jeremy.

In the case of Nettleship v Weston [7] a driving instructor was injured by the negligence of the learner driver but this was due to the driver panicking, not due to outside interference or the actions of a third party. However in this case there was a reason for the accident to happen without it being negligence.

Regarding the position with Jeremy and the golf course; the position is that there may be an established duty of care as in Castle v St Augustines Links [8] where a taxi driver was hit by a golf ball causing him to lose sight in one eye. The golf course was found liable in public nuisance as golf balls going onto the road was a regular occurrence. If this did not create an established duty of care; then it may be possible to establish this using the Caparo test. As golf balls have regularly landed on the road over the previous 20 years and cars use the road then it reasonably foreseeable that such an accident could occur, there was proximity and no reason why it would not be fair, just or equitable to impose a duty. It would, however, be unlikely to open the floodgates of litigation against golf courses. So if we are to assume that a duty of care does exist between Jeremy and the golf course it is only required that we need to show that the golf club failed in that duty by not taking sufficient precautions to prevent golf balls damaging passing cars. As this had happened twenty times over 10 years it cannot really be argued that it is an isolated incident. The fact that they had moved the hole previously showed concern, but as this had failed to alleviate the problem then it seems quite likely that there has been a breach of the duty of care owed to Jeremy by the golf course.

In Miller v Jackson [9] a cricket club was found to have breached their duty of care as balls were regularly hit out of the ground. Had this been an isolated incident the situation would have been similar to the case of Bolton v Stone [10] were a cricket ball had been hit out of the ground only a few times over about 30 years. It is likely that the accident would not have occurred but for the action of the golf course in not preventing balls escaping. It is generally accepted that as the risk of damage increases then a greater standard of care is required to be used by defendants. I would therefore advise Jeremy that the golf club may have breached their duty of care to him.

Moving onto Tiffany’s father George, who was injured by the bale of hay falling from the wagon after the wheel, fell off the wagon.

It is not clear from the facts presented who the wagon belongs to and it is not clear if the wagon is on the public highway or not. We do not know if the wagon is a motor vehicle or if it is a trailer that would be pulled by another vehicle. It does not state whether George was on the public highway or he was on private land.

If we are to assume that the wagon is a motor vehicle then it is possible that there could already be an established duty of care therefore it would be sufficient to prove that the owners of the wagon had breached that duty by the fact that the accident had occurred. The fact that the accident had happened is itself enough to prove a breach of duty of care in some cases. In the case of Scott v London and St Katherine Docks Co, [11] when a sack of sugar fell from a crane, Earl C.J said “the thing speaks for itself". This was later used in the case of Byrne v Boodle [12] where a barrel had fallen from a window and injured a passerby. For this to apply it requires three conditions to be met. Firstly the incident that has happened must be under the management or control of the defendant. Secondly that the incident must have happened as a result of negligence and finally that there is an absence of explanation as to how it has occurred.

If however, the wagon was on the property of the farming centre then it is possible that it could be covered by the Occupiers Liability Act 1957. This would mean that the occupier of the premises owes a duty of care to all visitors unless the occupier has lawfully excluded, restricted or extended this duty. If we assume that the wagon belonged to the farming centre then they would probably owe a duty of care to George as a visitor therefore we would need to establish if that duty had been breached. The fact that the wheel fell off the wagon could indicate that it had been poorly maintained and therefore the accident could be a breach of duty of care.

Moving on to Bethany who as a result of surgery suffered nerve damage and paralysis. In most cases the duty of care owed by professionals such as doctors and surgeons is well established (Finch & Fafinski) [13] . As the operation was carried out without negligence, it would appear that Mr Rylands did not breach his duty of care regarding the actual operation. However, Bethany has stated that she would not have gone along with the operation if she had known about the risk. It is alleged that Mr Rylands failed to fully inform Bethany of the risks that were involved in the operation, although he did say there was a ‘remote’ risk. In deciding if a breach of duty of care has occurred due to Bethany not being informed of the risks it is usually necessary to compare the standard of care given with that of a reasonable person with the same skills. The courts apply the standard of the competent professional: see Bolam v Friern Hospital Management Committee [14] . This established what became known as the ‘Bolam test’ and was later used in cases such as Sidaway v Bethlem Royal Hospital Governors [15] were the court found no breach of duty in not informing the patient, Mrs Sidaway, of the risks as she had not asked and the surgeon had followed a practice that was accepted by a body of medical opinion. However in Chester v Afshar [16] , the patient, Ms Chester suffered nerve damage following surgery and she had specifically asked about the risks but was not informed. The court found that a doctor can be guilty of negligence if he, when questioned about the risks specifically fails to inform the patient fully and truthfully (Giliker & Beckwith) [17] , even if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular field.

As some surgeons agree with Mr Rylands that in operations of this type there is a usual practise of not informing patients of the risk it is possible there has been no breach. The fact that Mr Rylands said there was a ‘remote’ risk might be sufficient to discharge his duty of care. I would advise Bethany that Mr Rylands admission, that the operation carried a remote risk appears to be not fully truthfully and fully answered and this could amount to a breach of duty of care.