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Obligations Law - Lecture 3 - Standard of Care, Causation and Res Ipsa Loquitur
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Lecture notes for the Obligations 2 (Delict) module. Author achieved a first-class grade for the module.
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Lecture 3 – Standard of Care, Causation and Res Ipsa LoquiturDUTY OF CARE AND OMISSIONS
We all accept that we have a duty to refrain from actions that would cause harm to others, but in what
circumstances will liability arise from failure to act – from failing to take action that would have
prevented harm?
(i) Duty to prevent harm by third parties
• Carmarthenshire CC v Lewis [1955] AC 549; [1955] 2 WLR 517; [1955] 1 All ER 565
A child who escaped from a primary school and ran into the road where a big truck was coming
down the road. The lorry driver swerved to avoid the child crashing into a poll and was killed.
The driver’s wife, Mrs Lewis, sued the Council saying that the child was at school under the
care of the teacher and the teacher had a duty of care to keep the child from running into the
road and endangering road users.
The House of Lords, after much deliberation, said that when you have children in your care
and there was a potential for them to cause harm to others, then the Council has duty to
protect both the child and anyone who might be harmed by the child’s actions.
If the child had been killed by the lorry, there would also have been a duty of care. The council,
the school and the teachers have a duty to prevent this third party (child) who is in their care
form harming other people.
• Dorset Yacht v Home Office [1970] AC 1004; [1970] 2 WLR 1140; [1970] 2 All ER 294
Young men stole a yacht, crashed into another yacht and caused a huge cost in damage. The
court said that it was foreseeable that the young men would try to escape from custody,
foreseeable to steal the yacht and foreseeable that they may cause damage to other yacht
owners by crashing into them. In this case, there was also a duty to prevent harm by stopping
the boys from harming other parties.
• Maloco v Littlewoods, Smith v Littlewoods 1987 SC (HL) 37; [1987] AC 241
Littlewoods had bought a derelict cinema somewhere in Fife and they were planning on
turning it into a supermarket. Some local delinquents broke into the derelict cinema and they
started a fire. It consumed the cinema and spread to two neighbouring businesses: a café on
one side and snooker hall on the other and destroyed them completely. The owners of the
other two businesses sued Littlewoods saying that Littlewoods had a duty of care to prevent
third parties from entering the abandoned property and causing damage.
The House of Lords said that it was foreseeable that a fire would spread if started but
Littlewoods had no duty of care to prevent third parties from doing this. No duty of care arose
partly because the court reasoned that in order to stop the delinquents breaking in and
causing fires was for Littlewoods to pay for security more or less permanently around the
clock.
The reasoning by the courts in all of these cases is not explicit but it might be that they are
holding government and local government to a certain higher standard over private business.
, • Topp v London Country Bus [1993] 3 All ER 448
One of the drivers of the Bus company decided to park his bus in a layby overnight and he
decided that the right thing to do was to leave the doors unlocked and left the keys in the
ignition. Some local youths showed up and saw the bus was open so decided to go for a drive.
They were not good at driving a bus so ran over a woman, Mrs Topp, and she died. She
happened to be cycling past when they were veering across the street. Her husband sued and
said that it was obviously foreseeable that the bus would be stolen.
The court agreed with that to a point. They said it was certainly foreseeable that the bus would
be stolen, and the bus company had failed to take proper precautions, however, there was no
liability. The reason was that the court said that although it was foreseeable that the bus
would be stolen, it was not foreseeable that the thieves would be totally incapable of driving
the bus and run over someone passing by. Ultimately, there was no duty of care to prevent
thieves from entering the bus and steeling it.
• Mitchell v Glasgow City Council 2009 SC (HL) 21
He went home and murdered the guy who had complained about him. In this case there was
no duty of care to prevent the murderer from going home and murdering Mr Mitchell. In the
absence of foreseeability, there was no duty to prevent harm.
These cases deal with private citizens and private companies or local government.
(ii) The Police
What duty of care does the police owe the public in terms of preventing harm being caused by third
parties?
• Hill v Chief Constable of W Yorks [1989] AC 53; [1988] 2 All ER 238
Arose out of the Yorkshire ripper case. The Yorkshire ripper was a serial killer and a voice in
his head told him to murder prostitutes in Leeds. The problem arose when Mrs Hill, who raised
the action, was the mother of the very last victim. She said that by failing to catch the ripper
earlier, the police had failed in their duty of care to her and all women in Leeds. However,
there are a large number of women in the Leeds area.
The court said that if you apply a duty of care to every woman in west Yorkshire, every possible
victim of the serial killer, it is simply too fast a number to function. It was not a viable option.
They also pointed out that if any victim of crime could sue the police for failing to prevent
harm to them, then the police in court would be extensive. This was not a practical option; it
was not realistic. No duty of care arose.
• Swinney v Chief Constable of Northumbria [1997] QB 464 [1996] 3 All ER 449
Mr and Mrs Swinney ran a pub, and during the course of running the pub, they came across
information about the identity of a man who had murdered a policeman. They reported this
to the police that they had this information to be processed but the understanding was that
their identity would be protected to prevent retaliation. The police recorded the interview
and then put the recording in an unlocked police car and parked the car on a street corner
and parked it there overnight. Someone opened the door and took the recording and the
recording found its way into the hands of the person who they had implicated. A couple of
, days later, the pub was burnt down, and death threats were made to them. The police had
breached their duty of care, they did owe a duty of care and had breached that duty.
The reason was that the Swinney’s had a special relationship with the police because they
were witnesses and had given information to the police, they were vulnerable to retaliation
by the person who they implicated, and it is very different from the Hill case. The witnesses
had done their civic duty and so the police were obligated to protect the informers and they
assume the responsibility to protect them.
• Gibson v Strathclyde Police 1999 SC 420; 1999 SCLR 661
A stone bridge collapsed by strong winds and gales. The police showed up on one side of the
bridge and they put up a sign to say the bridge was out of action. However, they did not put
anything on the other side of bridge which can be argued to be a fairly large omission. Mr
Gibson was driving his car and approaching the bridge and drives over it and crashes. He sued
and said that the police had a duty of care to erect warning signs on both sides of the bridge.
Strathclyde police, relying heavily on Hill, said they had no duty of care.
A duty of care did arise, and the reason was the same that appeared in Sweeney. The police
assumed the responsibility for the scene and when you take control of a hazard as a
policeman, you are taking on the responsibility for anything that happens as a result from that.
The police did not have an automatic duty of care, they committed a duty of care when they
showed up to the scene and put up signs saying that it is under their control. They had
breached their duty of care.
• Osman v UK (2000) 29 EHRR 245; [1998] BHRC 661
Osman was a 16-year-old schoolboy and one day in March 1998 one of his teachers had
showed up to his house. This teacher had developed an unhealthy obsession with Osman. The
teacher shot Osman and his father, the father died, and Osman was severely wounded. The
family sued the police saying that they had been aware about the teacher, they had been
warned, they knew he was becoming increasingly bizarre showing up at his house, it was
known that he had a firearm, however, the police did not take any action.
The English courts threw this out at first on the basis of Hill saying that no duty of care arises
because nothing is owed to the general public. In response, the Osman family appealed to the
European court of human rights and they decided that blanket immunity is a breach of Article
6 of the ECHR. The immunity means that the police are not liable for every action of the public,
they still have a duty of care in respect to the general public.
• Van Colle v Chief Constable Hertfordshire Police [2008] UKHL 50; [2009] 1 AC 225
Van Colle was a prosecution witness in a trial and the accused murdered him subsequently.
So the family sued on the grounds that the police had failed to provide protection. They said
that they knew he was in danger and did nothing to protect him. They also said that there is
proximity as Van Colle was a witness to the accused crimes. However, Van Colle lost because
although a duty of care arose, there must still be foreseeability. They said that it was not
foreseeable that the accused would murder the witness because the accused was not actually
accused of a violent crime. It was not reasonably foreseeable that an accused who would go
to jail for a couple of years would murder the witness. Thus, no duty of care arose.
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