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Published: Fri, 02 Feb 2018
Development of a duty of care
Efi With Reference To Decided Cases Discuss The Development Of A Duty Of Care Owed By The Police To Individuals.
By the English law, the duty of caring about the public by the police is under tort law more specific abandon.
Scope of duty
Carelessness as a tort is the violation of a duty of care, yet to be paid by the defendant to the applicant which results in a big damage.
Big damage might be cased by misfeasance or nonfeasance. Furthermore, damage might be personal injury, damage to property, pure economic loss, and psychiatric damage “nervous shock”.
Establishment of duty
The main case that strongly established carelessness as an independent tort is Donoghue v Stevenson – HofL – 1932.
In this case, Lord Atkin tries to trace a familiar thread through earlier known case-law to set out a opinion for shaping whether a duty of care exists or not.
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called into question.”
Three official requirements for establishing if a duty of care exists or not, were mentioned.
Predicted ability of damage, propinquity in relationship between Claimant and Defendant and just and sensibleness to impose duty.
Based on Donoghue v Stevenson, plaintiffs had to bring case into existing categories of association and find similar case. If a duty is able of existing doesn’t repeatedly because problems since the issue will be govern by example. The relation of importance to be emotionally involved to each obligation will depend upon a range of factors including, inter alia:
The position of the parties and their relationship with one another, the nature of the damage suffered and the particular way in which the harm arises.
Where positive behaviour by Defendant causes direct physical injury to Claimant or Claimant’s property, sensible forethought of such harm will usually be enough to convince the other criteria for the survival of a duty.
These were further developed in the case of Dorset Yacht Co. Ltd. v Home Office (1970) AC 1004, Lord Reid said at 1026-1027: but entrenched by “Lord Wilberforce” in Anns v Merton London Borough Council (1978) AC 728, at 751-752: ”where a two pronged test was established. there is a sufficient relationship of proximity , reasonable to cause damage, in which case a “prima facie” duty of care arises. And Secondly, if it is necessity to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.”
Nevertheless, in PURE ECONOMIC LOSS, OMISSIONS, PSYCHIATRIC INJURY, foresee ability of harm is never alone satisfactory to begin duty.
Public Authorities And The Police
Responsibility of visibly funded bodies seems to originate from the Wednesbury test of unfairness ((1948) 1 KB 223) through the common law commit a breach of duty to establish carelessness, and the abuse of administrative power.
Dorset Yacht and Anns indicated that ultra vires had become the precondition to liability in carelessness although, in Anns, it was confirmed that there was no difference between public and private law.
X v Bedfordshire CC. Adopted a similar view. However, in Stovin v Wise (1996) AC 923 which is involving a straightforward exclusion to exercise powers for the public benefit, the widely held reasserted Wednesbury but Lord Nichols argued that there should be a solution in tort to implement principles of fairness in public bodies.
However in a previous case of Alcock v Chief Constable of South Yorkshire – HofL – 1991.
It was believed that if the Defendant’s negligent conduct foresee ably puts the Claimant in to that position, it follows that there will be a satisfactorily immediate relationship among them to create a duty of care.
In Gorringe v Calderdale Metropolitan Borough Council (2003) UKHL 15 the court believed that
Common Rights Of Act Are Independent Of Law.
In The Home Office v Robert Butchart (2006) EWCA Civ 239 the nature and scope of the duty yet to be paid by a prison to a potentially in the depths of despair inmate was discussed. Knowing that Butchart was at risk of psychiatric injury, the prison placed him in a cell with another suicidal inmate who then committed suicide.
The court pointed to Reeves v Commissioner of Police of the Metropolis (2000) AC 360 and Orange v Chief Constable of West Yorkshire Police (2002) QB 347 which believed that the police remaining a duty of care to those in its custody, which could in certain situation contain a duty to take logical steps to avoid a prisoner from taking his own life by his own hands.
It was confirmed In Butchart, that the Home Office could have owed a duty of worry to take logical steps to avoid causing the prisoner psychiatric harm since the prison establishment knew or must to have known that the prisoner was helpless to psychiatric harm.
As far the police are specifically concerned, there seems to be blanket protection for the police in performing their function of investigating and fighting against crime. The police owe no duty of care to an individual member of the public.
This blanket protection was reviewed in Osman v Ferguson – 1993. The Claimant and his father were shot by a teacher who was a known threat to his victims. The ECHR stated that the “blanket immunity” breached Art 6 of the ECHR
Also, the “Human Rights Act 1988” has been interpreted in Osman as magnificent helpful duties to act rather than allowing simple powers and discretions to be an excuse for apathy.
An English court seems to just apply blanket immunity as opposite to balancing whether the public attention in giving way such immunity is fair to the interference with the Claimant’s human rights.
To conclude with, it appears that the language that the judges use in dealing with the duty issue tends to cover the fact that the decision whether or not a duty exist as a matter of law is in the end based on public policy.
As Lord Pearce observed in Hedley Byrne v Heller & Partners:
“How wide the sphere of the duty of care in negligence is to be laid depends ultimately on the courts’ assessment of the demands of society for the protection from the carelessness of others.”
The police’s duty of care, just like some public institutions seems to be based on a public policy deliberation as depicted in the case of the law above.
Booth, Cherie & Squires, Daniel. (2006). The Negligence Liability of Public Authorities. Oxford: Oxford University Press. ISBN 0-19-926541-0
Brown, Simon and Franklin, Kim. (2004) Public Duties and Private Remedies: Floods or Floodgates?
Buckley, R.A. (2005). The Law of Negligence (Butterworths Common Law S.). London: Butterworths Law. ISBN 0-406-95941-2
Moran, Mayo. (2003). Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard. Oxford: Oxford University Press. ISBN 0-19-924782-X
Witting, Christian. (2004). Liability for Negligent Misstateme
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