Law and Rights
In the 13th edition of Salmond on Torts (1961) - (at page 428) - it was said:
" When ... a court holds that the defendant was under a duty of care, the court is stating as a conclusion of law what is really a conclusion of policy as to responsibility for conduct involving unreasonable risk ..."
and later
" ... there is always a large element of judicial policy and social expediency involved in the determination of the duty problem ..."
See also, Caparo Industries plc v Dickman [1990] 2 AC 605 where Lord Bridge stated:
"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 upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes."
In an article "Viewpoint: Supreme Court preserves police immunity from negligence liability", the author, by Dr John Fanning - Law Lecturer University of Liverpool - comments:
"Court-watchers may feel that Michael?s case bucks a recent trend. During the last decade, the Court has restricted the scope of the armed forces? ?combat immunity? (Smith v MOD) and abolished the immunity of expert witnesses (Jones v Kaney) and barristers (Hall v Simons) from negligence claims. The Court?s reasoning in those cases may have raised doubts about the future of similar immunities enjoyed by the likes of the police and fire brigade. Michael?s case dispels any hopes of new trend in the Court?s decision-making."
See also the useful overview at Bits of Law
- Corners Of The Law: Liability For Omissions
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- Challenger Tanks; Snatch Land Rovers; Human Rights And Good Old Common Law
The judgment of the Supreme Court of the UK in Smith and others v Ministry of Defence has upset the Secretary of State for Defence who is now talking about entering into a derogation from the European Convention on Human Rights or even a complete withdrawal...
- Article 2 Duty On Nhs Trust: .... Supreme Court Decision
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- The Police: The Professional Standards Required
In the light of the Ian Tomlinson case, here is a look at the standards of professional conduct expected of the Police. They are set out in a Schedule to the Police (Conduct) Regulations 2008:- Honesty and Integrity - Police Officers are honest,...
- Expert Witnesses: May We Sue Them?
Expert witnesses appear in many cases. Their evidence may be decisive and, occasionally, it may devastate someone's life. The evidence may turn out to be mistaken. An "expert" witness has to be accepted as such by the court and,...
Law and Rights
The tort of negligence ~ a few thoughts on the elusive duty of care
" When ... a court holds that the defendant was under a duty of care, the court is stating as a conclusion of law what is really a conclusion of policy as to responsibility for conduct involving unreasonable risk ..."
and later
" ... there is always a large element of judicial policy and social expediency involved in the determination of the duty problem ..."
Although this statement is some 54 years old,
it would be worth students considering it in the light of the Supreme Court's decision in Michael v Chief Constable of South Wales [2015] UKSC 2 in which the court maintained the position established in Hill v Chief Constable of West Yorkshire [1989] AC 53 and did not impose a duty of care on the Police for their handling of a 999 call from Joanna Michael.
it would be worth students considering it in the light of the Supreme Court's decision in Michael v Chief Constable of South Wales [2015] UKSC 2 in which the court maintained the position established in Hill v Chief Constable of West Yorkshire [1989] AC 53 and did not impose a duty of care on the Police for their handling of a 999 call from Joanna Michael.
Whilst two of the Supreme Court Justices would have imposed a duty of care, the five in the majority did not.
In the Hill case, Lord Keith said:
"The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police. That is sufficient for the disposal of the appeal. But in my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy."
See also, Caparo Industries plc v Dickman [1990] 2 AC 605 where Lord Bridge stated:
"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 upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes."
In an article "Viewpoint: Supreme Court preserves police immunity from negligence liability", the author, by Dr John Fanning - Law Lecturer University of Liverpool - comments:
"Court-watchers may feel that Michael?s case bucks a recent trend. During the last decade, the Court has restricted the scope of the armed forces? ?combat immunity? (Smith v MOD) and abolished the immunity of expert witnesses (Jones v Kaney) and barristers (Hall v Simons) from negligence claims. The Court?s reasoning in those cases may have raised doubts about the future of similar immunities enjoyed by the likes of the police and fire brigade. Michael?s case dispels any hopes of new trend in the Court?s decision-making."
See also the useful overview at Bits of Law
- Corners Of The Law: Liability For Omissions
Smile for the Camera: The Double Life of Cyril Smith is a new book looking at the alleged sexual activities of the late Cyril Smith MP. It is written by Simon Danczuk MP and Matthew Baker and published by Biteback Publishing. The Daily Mail...
- Challenger Tanks; Snatch Land Rovers; Human Rights And Good Old Common Law
The judgment of the Supreme Court of the UK in Smith and others v Ministry of Defence has upset the Secretary of State for Defence who is now talking about entering into a derogation from the European Convention on Human Rights or even a complete withdrawal...
- Article 2 Duty On Nhs Trust: .... Supreme Court Decision
Roses at Lyme ParkUpdates 14th and 15th February On 20th April 2005, Melanie Rabone (aged 24) committed suicide by hanging herself from a tree at Lyme Park, Disley, Stockport. At the time, Melanie was on "home leave" from hospital where she was...
- The Police: The Professional Standards Required
In the light of the Ian Tomlinson case, here is a look at the standards of professional conduct expected of the Police. They are set out in a Schedule to the Police (Conduct) Regulations 2008:- Honesty and Integrity - Police Officers are honest,...
- Expert Witnesses: May We Sue Them?
Expert witnesses appear in many cases. Their evidence may be decisive and, occasionally, it may devastate someone's life. The evidence may turn out to be mistaken. An "expert" witness has to be accepted as such by the court and,...