Special duty problems: omissions and acts of third parties – answer
You are asked to advise the parties but in order to do so properly, they must first be identified. Each of their claims can then be
dealt with separately. This is the easiest and clearest route through a problem question and you should not be afraid to use
subheadings to help you identify each claimant, what they are claiming for and against whom. To decide who your claimants are
going to be, you need to identify the parties in the problem who have suffered harm (and say at the outset what harm this is).
These are:
Margaret (or, as she is dead, her estate) – for her death
Jill & Heather (Jill and Heather can be treated together here as they were together at the time of the incident and
harmed in the same way. The fact that Heather may be more seriously injured than Jill goes to quantum of damages,
not initial liability) – for personal injury
Luke (the youth) – for personal injury
You will also need to decide who the defendants to each claim are going to be. At the outset of your answer (and certainly at the
planning stage) it is generally best to identify everyone who might possibly be a defendant, even if you think the likelihood of a
claim succeeding against them is very small, or totally improbable. These are two different things. To identify defendants,
consider who is in any way to blame for the harms that befell the claimants (or, put another way, who would the claimants say
caused or help to cause their situation – who was at fault, and why?) So:
Margaret (her estate) will sue those who may be at fault in handling her situation, which resulted in her death: Brian (the store
manager) for failing to do enough to help her, and Karen (the nurse), for failing to put her in the recovery position. Note that a
claim against Brian would also involve the supermarket, vicariously (see chapter 20), so there would be a couple of sentences to
add into a full answer to this question in respect of this.
Jill and Heather will sue for their respective injuries: Margaret (her estate) for leaving the keys in the ignition (there is no point
suing either 'the youths' for stealing and driving the car or the driver in particular, as they are unlikely to have any money to be
able to pay damages and insurance won't cover them).
Luke will sue for his head injury: Margaret (her estate) as above (the same issue as above would be relevant regarding the driver
of the car he was in).
So, we have:
1. M v B (and supermarket vicariously) & K
2. J&HvM
3. LvM
Margaret, who is 75 years old, is doing her weekly shopping at the supermarket on a busy Saturday afternoon when she feels
pains in her chest. It transpires she is having a heart attack and she collapses to the floor. Although the supermarket is crowded,
no one comes to help her.
Brian, the store manager, puts a call out over the PA system asking if there is a doctor present, but otherwise offers no assistance.
Hearing the announcement, Karen, a nurse, comes forward and tries to help Margaret, but fails to put her in the recovery
position. Margaret later dies.
1) M v B (and supermarket vicariously) & K
The starting point for analysis, as always in a negligence claim, is to ask whether either of the defendants owed M a duty of care.
There is no action against the shoppers in the supermarket who failed (omitted) to help her, as we know that there is, in English
law, no duty to come to another's aid. More is needed than simply being nearby.
Duty
Brian – establishing a duty here is problematic because he omitted to do anything other than issue a call over the tannoy. He has
no prior relationship with Margaret, so a duty cannot rest on that – as far as the law is concerned, they are strangers. However,
although there is no general duty to assist Margaret, the fact that Brian is in a position of responsibility and has taken the steps
he did may mean that he has in some way 'assumed responsibility' for the situation and might therefore owe a duty of care to
Margaret (Barrett v MOD [1995]). A good answer would, however, not simply state this dogmatically. Is this the same
as Barrett or could it be distinguished in some way? Are the arguments as strong here for an assumption of responsibility?
,Karen – as above although there is more to hang the assumption of responsibility on. [Note: it did not matter that she was a
nurse – she could still have walked by and assumed no responsibility, thus not incurring the possibility of liability attaching to her
(see section 4.2). The position might be different in Australia – see Lowns v Woods (1996).]
Breach
The question, if either defendant is found to owe a duty of care, is now whether they have breached it. S/he will be held to the
standard of a reasonable person in the situation (i.e. they would not have breached merely because Margaret died, but only if
they failed to do what a reasonable person would have done in the circumstances). It is possible that in not calling 999, Brian is in
breach. See chapter 8 for the factors that would need to be taken into consideration to establish this.
Karen may (also) be in breach – but note she will not necessarily be held to the standard of a reasonable nurse and judged in that
way, as she acted from her own good-will in the circumstances. Tort law has a long tradition of not wanting to discourage
rescuers. Instead it is more likely that she will be held to the (lower) standard of someone acting in an emergency – which may
mean she is not in breach at all, and the claim against her would go no further (see also now the Social Action, Responsibility and
Heroism Act 2015, discussed in section 8.5.1).
Causation
Cause in fact – If Brian was in breach, ‘but for’ his failure to do anything else, would Margaret have died? Or, put another way, is
it more likely than not (above 50% likely) that Margaret died because he did no more (Barnett v Chelsea and Kensington Hospital
Management Committee [1969])? In real life the answer to a question like this is likely to be supported by medical evidence (as
to e.g. the strength of her heart attack, likelihood of survival etc.) and some problem questions may build this kind of thing in.
Here, there is nothing really that indicates to us that Margaret would have been any better off if Brian had done more, therefore
it is unlikely that cause in fact would be satisfied and the claim would go no further.
If Karen was not in breach (see above), this would mean that Margaret is not entitled to compensation from anybody. Even if
Karen was in breach, the same points may be made about causation – though the medical evidence would in this case have to
show that putting her in the recovery position would have made it more likely than not that Margaret would have lived.
Meanwhile, some youths see Margaret’s car, which was left unlocked and with the key still in the ignition, in the supermarket car
park as she did not want to spend time looking for a parking space. The youths drive off in the car, failing to stop at a pedestrian
crossing, hitting Jill and her daughter Heather who were crossing the road. Both are injured, Heather seriously.
2) J & H v M
The trouble with J & H suing Margaret (her estate) here is not only that they gained access to the car because
Margaret omitted to lock it, but also that it was not Margaret who was driving the car, but the youths, who become third
parties in this scenario. When someone is injured by the actions of a third party, it is often difficult to establish a duty of care
owed by the defendant.
Duty
The question is: did Margaret owe a duty of care to Jill and Heather, even though the harm that was caused to them (physical
injuries) was actually the result of third parties' actions. To answer this question, one needs to look at when and in what
circumstances such duties are owed. Once again, there is no general duty, so the answer must arise from a specific situation,
which this case will need to fall into in order for a duty to be established. The current law can be found in Smith v
Littlewoods [1987], where Lord Goff outlined four such specific situations (see section 4.5).
Here, there is no special (pre-tort) relationship between either the claimant and the defendant or the defendant and the third
party – they were all strangers. This is also not a situation where there was a failure to abate a known danger, which leaves us
with 'creating a source of danger' (section 4.5.3). A duty of care can be established if it can be shown that the 'third party's
actions exacerbate a dangerous situation originally created by the defendant'. The comparator cases here include Haynes v
Harwood [1936] and, in particular, Topp v London Country Bus [1993], a case in which a bus with keys left in its ignition was left
outside a pub at closing time and subsequently negligently driven by a third party, killing a pedestrian. In that case, no duty was
found as the CA held that the bus was 'no more a source of danger than any other vehicle parked on the road at that time'. Given
that decision, one would have to be able to distinguish the facts of this case from Topp in order to find a duty of care. If no duty
of care can be established, both Jill and Heather’s claims finish at this point.
Breach
, Assuming such a distinction could be made, and a duty established here, Margaret will obviously be in breach of it, as she would
have fallen below the standard of care expected of someone parking properly at a supermarket.
Causation
Cause in fact – 'but for' Margaret leaving the keys in the ignition of the unlocked care, Jill and Heather would not be harmed? Put
another way, on the balance of probabilities, is it more likely than not (more than 50% likely) that Jill and Heather would be OK if
Margaret had not done this (Barnett)? As the answer to this is likely to be 'yes', cause in fact will be established.
Cause in law – is it reasonably foreseeable that if you leave your keys in the ignition of your unlocked car, that someone might get
physically injured? This is unlikely to be disputed here (consider the difference if this was e.g. left in a countryside car park, or on
Margaret's own driveway), so cause in law will be established.
Are there any intervening acts? The only thing that could have been here is the actions of the youths – but as these were dealt
with as part of the duty question it will not arise again here.
Defences
Assuming the claim gets this far it would have to be asked whether Margaret (her estate) has any defences to the claim against
her. Neither of the technical defences of contributory negligence or volent can apply here – neither Jill nor Heather are
implicated in any way in their own harms (see chapter 10). [Note: contributory negligence has to apply to actions of the
claimant(s) themselves – it is not about any other factor or person ‘contributing’ to the harm that occurred in some way – that is
about the number of potential defendants you end up with.]
Liability
Liability in these claims, therefore, depends entirely on whether it can be said that a duty was owed by Margaret in the first
place. If so, it seems the rest of the claim will be successful, in which case Margaret's estate will pay damages to Jill and Heather
in accordance with the harm suffered by each of them (see chapter 21, especially figure 21.1). If no duty can be established,
there can be no liability, and no damages will be paid.
One of the youths, Luke, who was not wearing a seatbelt, suffers a serious head injury.
3) L v M
The question here again is whether M should owe L a duty of care, even though he, as the third party (or one of them), was (at
least in part) responsible in some way for his own injuries? If he was not the driver of the car then the driver could be treated as
the third party here. OR, the issue arises that it was Margaret's failure to lock the car (an omission) that ended up with L being
injured. Either way it will be difficult here to establish a duty.
Duty
Regarding the omission point – it might be that it could be argued that a duty should be owed as Margaret 'created the risk' (see
section 4.2.3). The argument on the third party point would be the same as in J & H v M, above, and would rely again on a
distinction being able to be drawn between this case and Topp. One distinction, obviously, is that he was actually in the vehicle in
question when he was harmed. Does/should this make a difference?
Breach
Will be evident here, as above.
Causation
Cause in fact - There is a trickier question here in terms of 'but for' causation as it is hard to say that but for Margaret's omission
then Luke wouldn't be injured. But if we focus just on his injury from being in that car at that time, then we can get past this (as
he couldn't and wouldn't have got into the car had she not left it unlocked).
Cause in law – issues as above. No intervening acts, unless it is possible to say that (if he was the driver) his own actions of
driving without a seatbelt constitute an intervening act that should absolve liability from the original defendant (Margaret) (see
section 9.3.2.2). It is more likely that Luke’s actions amount to contributory negligence than break the chain entirely.
