Negligence

In our third legal roundup of recent cases, Abigail Culank brings you the latest developments in the tort of negligence


A claim for negligence can only succeed where a claimant can establish that a breach of a duty of care has caused a reasonably foreseeable loss. And, as more and more negligence cases appear before the courts every year, each of the elements comprising the tort of negligence continues to be refined by an ever-increasing number of judgments.

Duty of care

The duty of care under which the police carry out their duties has recently been considered by the courts. Although the constabulary owes a duty of care to those held in its custody to prevent suicide, it was held in Orange v Chief Constable of West Yorkshire Police (2001) LTL 1/5/2001 that this duty does not extend to all prisoners, but is limited only to those known to be at risk. Furthermore, the police do not owe a duty of care to detainees to prevent them from being injured in a foreseeable attempt to escape from police custody (Vellino v Chief Constable of Greater Manchester (2001) LTL 31/7/2001). However, in L & P v (1) Reading Borough Council (2) Chief Constable of Thames Valley Police (2001) LTL 12/3/2001, it was held that the police arguably owed a duty of care to a child-abuse suspect not to damage him by their subsequent conduct where the evidence was insufficient to support criminal proceedings, but which nevertheless suggested that the child involved might be at risk.

Another high-profile area in which duty of care has been considered recently is that of abuse perpetrated on children in children&#39s homes. The House of Lords held in Lister v Hesley Hall Ltd (2001) LTL 3/5/2001 that an abuser&#39s employer could be vicariously liable for child abuse where there was a sufficiently close connection between the tort and the abuser&#39s employment. The significance of Lister can be seen in Various v (1) Bryn Alyn Community Homes Litigation (2) Royal & Sun Alliance plc (2001) LTL 29/6/2001, where it was applied to find that the children&#39s home had breached its duty of care in not taking all reasonable steps to provide a safe home for the claimants.

The duty of care applicable depends on the knowledge and experience of the person in whom it is vested. For example, a volunteer back-up facility for use in a medical emergency does not owe the same duty of care as a hospital, and a casualty doctor does not owe the same duty of care to a patient as a specialist (Hardaker

v (1) Newcastle Health Authority (2) Chief Constable of Northumbria (2001) LTL 23/7/2001).

Reasonable Foreseeability

It is well established that any loss sustained by a negligence claimant has to be a reasonably foreseeable consequence of the negligent act(s) in question in order for that claimant to be entitled to recover damages.

The Court of Appeal recently set out guidelines in Sutherland v Hatton (2002) LTL 5/2/2002 for negligence claims brought by employees suffering from stress-induced psychiatric illnesses, which is a growing area of litigation. The court held that reasonable foreseeability in this type of case would depend on the employer&#39s knowledge of the circumstances, and that an employer who was unaware of any particular problem or vulnerability was entitled to assume that an employee could withstand the normal stresses and pressures of their job. The court, therefore, seemed to place the onus on employees to inform their employer of any impending harm to their health as a condition precedent to establishing that any harm done was reasonably foreseeable.

Loss

A particularly difficult and complex area for the courts has been in establishing the recoverability of the economic loss incurred by the birth of an “unwanted” child following failed sterilisation operations, in other words, the total cost of bringing up the child during its years of minority. The House of Lords overturned previous decisions in this area in McFarlane v Tayside Health Board (1999) LTL 25/11/99 when it held that it was not enough for the loss in such a case to simply be a foreseeable consequence of negligence. While the House of Lords accepted that parents should be compensated for the physical effects of an unwanted pregnancy and birth, it also held that it was not fair, just or reasonable to impose liability on a doctor for the consequential responsibilities in bringing up a healthy child. The House of Lords reasoned that the compensatory benefits gained from such a child were incalculable.

The Court of Appeal reviewed McFarlane in Parkinson v St James & Seacroft University Hospital NHS Trust (2001) LTL 11/4/2001, a case involving a negligently-performed sterilisation operation following which the mother gave birth to a disabled child. McFarlane was distinguished, and the mother was allowed to recover the additional costs involved in caring for and bringing up a child with disabilities.

This issue was also revisted by the Court of Appeal in Rees v Darlington Memorial Hospital NHS Trust (2002). However, in this instance, the child was healthy and the mother was disabled. The court recognised that there was a crucial difference between able-bodied and disabled parents in that the latter would need help caring for and bringing up a child. The mother was, therefore, allowed to recover the additional costs of childcare occasioned by her disability.

Professional negligence

The landmark judgment of Arthur J S Hall & Co v Simons (2000) LTL 20/7/2000 eradicated the immunity from liability for negligence in court previously enjoyed by barristers.

Now both solicitors and barristers can be held liable for their negligent conduct of a case, so long as the basic requirements of a negligence claim are still met. Advice given by solicitors or barristers will not be considered negligent where a reasonably competent adviser might have given the same advice and where the client was given sufficient warning that that advice could be wrong (Simmons v Overbury Steward & Eaton & Anor (2002) LTL 11/3/2002). The actions of solicitors and barristers are measured against the range of actions that a reasonably careful and skilful legal representative might take (Shirley & Ors v DJ Freeman & Anor (2001) LTL 19/12/2001). Any breach of duty established must be causative of the client&#39s loss (Ramatrielle SA v Kiers (2002) 12/3/2002) and that loss must be a foreseeable consequence of the lawyer&#39s breach (Peterson v Rivlin (2002) 31/1/2002). Once those requirements are met, damages will be assessed as at the date when the loss occurred (Aylwen v Taylor Joynson Garrett (2001) LTL 31/7/2001).