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Published: Fri, 02 Feb 2018

Are the claimants owed duty of care

As the three potential cases refer to the breach of duty of care it would appear important to firstly decide if the claimants were in fact owed a duty of care and if so was that duty breached. The landmark case in establishing ‘duty of care’ was the well documented case of Donoghue v Stevenson where the claimant a Mrs Donoghue sued soft drinks manufacturer Mr Stevenson.

Lord Atkin in Donoghue v Stevenson [1] enunciated a broad principle of liability. His analysis of the law and formulation of the principle for determining the existence of a duty of care (P Giliker & S Beckwith) [2] Lord Atkins principle had two elements that firstly looked at “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 said the same in the case of (Heaven v Pender). The second of Lord Atkins elements were that there had to be close proximity, not in the physical sense but that the claimant would have to be closely and directly affected by the actions of the defendant. This became known as the ‘neighbour principle’.

Lord Wilberforce in Anns [3] went on to develop the two stage test for establishing the duty of care. Stage one looked at the ‘proximity or neighbourhood’ meaning that the defendant would have to reasonable foresee that their actions could cause injury whilst stage two looked 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 have to show that It was reasonable foreseeable that a person would be injured secondly that there was proximity and thirdly 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 firstly at 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.

Firstly as to whether Jeremy was in fact owed a duty of care it is not very clear from the facts, as the statement says that he (Jeremy) was able to control the car. If this were to imply that Jeremy was in control of the car then Tiffany would technically be the passenger.

Generally there is an established duty of care between one road-user and another therefore there is no need to establish if a duty of care existed it would only require that a breach of that duty had taken place.

In Nettleship v Weston [4] a driving instructor was injured by the negligence of the learner driver but in this case they were both found to be as negligent as each other.

It is not clear if there has been a breach of duty of care owed by Tiffany to Jeremy.

Regarding the position with Jeremy and the golf course the position is slightly different as there is no established duty of care and we would therefore have to establish this using the Caparo test. So if we are to assume that a duty of care does exist 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.

In the case of Castle v St Augustines Links [5] where a taxi driver was hit by a golf ball causing him to loss sight in one eye the golf course were found liable in public nuisance as golf balls going onto the road was a regular occurrence. Had this been an isolated incident the situation would have been similar to the case of Bolton v Stone [6] were a cricket ball had been hit out of the ground only a few times over about 30 years. However this was more like the case of Miller v Jackson [7] were the cricket ball was hit out of the ground some eight or nine times per season.

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

It is not clear from the question who the wagon belongs to and it does not make it clean if the wagon is on the public highway or not. It does not state if the wagon is a motor vehicle. 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.

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.

The fact that the accident had happened is itself enough to prove a breach of duty of care. In the case of Scott v London and St Katherine Docks Co, [8] where Earl C.J said “the thing speaks for itself”. This was later used in the case of Byrne v Boodle [9] where a barrel had fallen from a window and injured a passerby. Three conditions are necessary for the maxim to apply:

1. Control – the thing which has caused the incident must be under the management or control of the defendant or his or her employees. If it can be shown that there was or a likelihood of some intervening event the maxim will not apply.

2. The accident would not have happened without negligence – It must be considered in the light of experience and knowledge. If a barrel falls from an upstairs window onto a passer by (Byrne v Boadle (1863)) or a vehicle strikes a person on the pavement (Ellar v Selfridge (1930)) then experience tells us that the occupier of the premises or the driver of the vehicle lacks proper care.

3. Absence of explanation – if an explanation of the conduce can be made then either it will show the defendant is not liable or if it shows he or she is potentially negligent the plaintiff will have to go on to prove that negligence as the maxim will not apply. Barkway v South Wales Transport (1950) B was killed when a bus veered across the road and fell over an embankment. B tried to raise the inference of res ipsa loquitur however the reason for the accident was a punctured tyre and therefore the maxim did not apply.

Moving on to the case of Bethany

In establishing if there had been a breach of duty of care we first need to establish if a duty of care was owed to Bethany by Mr. Rylands. In most cases the duty of care owed by professionals such as doctors and surgeons is well established (P Giliker & S Beckwith) [10] . Mr Rylands failed to fully inform Bethany of the risks that were involved in the operation. As the operation was carried out without negligence it would appear that he (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 and she had asked specifically about the risk and been told that there was a remote risk but nothing to worry about. In order for Bethany to succeed she would also have to prove causation, this would mean that the cause of her injury was not being fully informed of the risk of the surgery and had she been informed she would not have had the surgery therefore she would not have been injured.

In operations of this type there is a usual practise of not informing patients of the risk although some doctors consider the risks. 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 competent professional opinion: see Bolam v Friern Hospital Management Committee [11] this established what became known as the ‘Bolam test’ and was later used in various House of Lords cases. As there appears to be a body of agreement in not informing patients then it would be unlikely that Bethany has suffered a breach of duty of care. This was similar to the case in Chester v Afshar [12] when Ms Chester suffered

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