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The final stage of the three-stage test for duty of care in the tort of negligence as set out in Caparo Industries plc v Dickman  UKHL 2 is whether the imposition of a duty of care is fair, just and reasonable. This allows the court to consider matters of policy that might weigh for or against there being a duty of care.
Critically analyse this statement. Students should consider at least two relevant pro-claimant policy issues and at least two relevant pro-defendant policy issues.
There seems to be an uncertain scope and content of policy to be achieved and relied on while determining the question of duty to care. Lord Pearce, in Hedley Byrne, pointed out that it is up to the court to assess the social demands for protection against carelessness of defendants while determining the scope of the duty of care in negligence. Lord Denning supported this view in the case of Dorset yacht Co Ltd, by stating that the determining duty of care lies at the core of public policy and the judge must resolve it. This very much leaves the discretion to the court to determine the sphere of duty of case while considering a policy in question. This consequently leaves policy consideration wide open and generally policy oriented arguments rely more on the consequences of the duty on the community at large by determining whether it would be fair, just and reasonable. This brings a moral dilemma to it, as for instance if would not be fair to impose a duty on a police officer towards those under his investigation. This may create a detrimentally defensive policing. In such case, the question to be considered is how the court will weigh the relationship of parties, nature of risk, and public interest. In the sphere of negligence, it may be an act or omission that would not have been otherwise committed had a defendant conducted like a reasonable man in ordinary conduct of human affairs. The test is thus objective. The standard of duty to care is not subjected to the characteristics or capabilities of the defendant. However, firstly, Weintraub C.J. in Goldberg v Housing Authority of the City of Newark (1962) noted that it is a question of fairness to determine whether a duty exists or not. Such determination will need to weigh relationship of parties, nature of risk, and public interest. So, Ultramares Corporation v Touche, Cardozo C.J. noted that if imposing the duty on a defendant is oppressive or exposes him, to indeterminate amount of liability for an indeterminate period to indeterminate class, such imposition will heavily weigh against the imposition of the duty. Stovin v Wise (1996), the courts are reluctant in imposing liability on local authorities if it impacts their decision making. However, there is some level of standard care a reasonable person should be expected to follow.
Arguably, the standard of care does not vary. Lord Macmillan in Glasgow Corporation (1943) states that such standard does not consider characteristics or capacities of the defendant as a reasonable person is free from over-apprehension. Reasonableness standard must be determined by factoring in the circumstances of the case, act of a person of what is expected from a reasonable person and what he would have had foreseen. However, the reasonable standard may not carry much weight if assessed with other factors, such as the risk of damage while assessing the act of a defendant against the reasonable standard of care. In Capital & Counties Plc (1997), a duty of care was imposed where the emergency service attended and their actions increased the damage.
The view that the standard of care does not depend on the defendant’s characteristics or capacities may not be reasonable at all. What if the defendant is incapable to carry out the duty of care. This factor cannot be held irrelevant stating that a standard care is applicable notwithstanding the characteristic of the defendant. Understandably, if standards are varied, it may cause complication beyond expected. However, not all citizens are average citizens. In such case, a reasonable person has arguably high standard of care, especially in case where defendants are mentally ill or are incapable of understanding their act or omission.
The test whether a duty of care is fair, just and reasonable prevents a defendant of pleading personal failings of knowledge or skill or that they did their best to escape liability. This test is too high to consider cases where the defendant might have been incapable of reaching the standard. This may cause a conflict between the prescribed reasonable standard of care and that of a reasonable person. The standard must consider the potential or possibility of the defendant’s ability to affect the levels of his concrete duty against such prescribed standard of care of a reasonable person. This could be seen in the case of Lagunas Nitrate Co. (1899). This case is that of equitable wrongs. The courts of equity expected a company director to exercise due standard of care of a reasonable person with his level of skill and experience, whereas, the trustees were expected to live up to the standard of an ordinary person in making an investment. In the light of these considerations, the duty of care must be imposed by weighing the circumstance of the case and the characteristics of the defendants involved. Thu, the standard of care expected from a skill person cannot be the same as that from an ordinary person. The test of whether imposing the duty of care is fair, just and reasonable is a viable test, but should be subject to the circumstance of the case focused on characteristics of the defendants as well as those aimed to be protected.
How does Private Nuisance differ from Public Nuisance? Are there any similarities between the two torts? Discuss, using authorities to inform your answer.
A private nuisance refers to unlawful interference with a one’s use or enjoyment of land. As it indicates, it concerns only with rights in land. It involves interests of the owners and the neighbours that compete with each other. Law has the function of finding a balance between such competing interests. The court has to find a balance between on one hand, allowing one to use her land the way she wants and on the other hand, the rights of the neighbours or persons who are not to be affected by her actions. While doing so, the court must determine the point at which any interference can become actionable. The aim of finding this balance is highlighted in the statement of Lord Wright in Sedleigh-Denfield v. O'Callaghan (1940) where he states that such balance must be maintained between the competing rights, that of the occupier and that of the neighbour.
A public nuisance, as the term suggests, affects a substantial number of people. The focus of this nuisance is more than interference with a one’s use or enjoyment of land. It may not interfere with the use of land, but crates interference with aspects of public’s rights. It may give rise to criminal offence and also an action in tort in case of special damage. Public nuisance offers a wide scope of applicability and so, it can take many forms. For instance, obstructing a highway as in the case of Chaplin v Westminster Corporation (1901); or obscene telephone calls (R v Norbury (1978) can be held to be public nuisance. Also, the wide ambit allows courts to apply wider discretion, such as what had happened in Thomas v National Union of Mineworkers (1985) that held picketing to be a public nuisance. In both the case of private nuisance and public nuisance, the courts have the duty to find a balance and determine a point where interference becomes a nuisance. However, the discretion of the court is limited to the competing rights of the parties involved in case of private nuisance. In public nuisance, courts have a wide discretion as the balance they aim to achieve is subject to public interest, which itself is a wide scope. For a private nuisance, there must be an indirect interference and such interference is unreasonableness. As long as the use of one’s land is reasonable, it cannot lead to any interference. For example, in case a land owner has not maintained his own wall, which fell on the land of the neighbour, this use of the land is not reasonable and constitutes a private nuisance. This is a continuous or recurrent and unduly interference with the owner’s use and enjoyment of land (Brew Bros Ltd v Snax Ltd (1970)). For a nuisance to be public, it must be unreasonable, unwarranted, or unlawful interference that affects a right common to the general public. It may interfere with health and safety, or comfort or convenience of the public at large.
Law of private nuisance protects the occupier’s use and enjoyment of a property. The occupier must an interest in the land affected in order for him to sue. For example, if a defendant blocks his access to a highway, he can clam interference with his private rights of way, and he can sue in private nuisance. However, in case he contemplates public nuisance action, he must show some loss due to the nuisance, which is beyond the loss suffered by the public. So, if the defendant blocks the highway outside his land, this is a public nuisance. He must show particular damage for an action in nuisance. Thus, in private nuisance, the injured person may bring an action. In public nuisance, a person may bring an action only if there is a special injury.
There is a strict liability imposed on the defendant in case of private nuisance. The claimant does not need to prove fault of the defendant. Any interference is an actionable tort. The test of liability is to determine whether he had control over the nuisance. So, the question of liability whether it is strict or not is applicable to both private and public nuisance. In both the case, the defendant cannot claim the defence of ignorance of the law. The question is whether or not he could reasonably have foreseen the nuisance, and if so, whether he could have reasonably prevented it. In the case of Leakey v National Trust (1980), the court held the defendant liable for his defendant failed to take measures to prevent foreseeable harm caused by a collapse of mound of earth onto the claimant’s land due to a natural disaster. Thus, in case of private nuisance, the claimant must prove interference with his enjoyment of his land. In public nuisance, it is actionable per se.
Question 6 Critically analyse the way in which the courts deal with children under the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984. Use specific examples from statute and case authorities.
If an occupier has a visitor to her premises, she owes a certain standard of duty of care towards the visitors. Such duty arises from the provision under the Occupiers Liability Act 1957, s2(2), which defines the duty of care as such reasonable duty to care to ensure the visitor is reasonably safe in using her premises for the purpose that the visitor was invited to the premises or as permitted by her to be in the premises. When such visitor is a child, the occupier has a higher standard of care. Section 2(3)(a) obligates the occupier to be prepared for the child visitor, who is expected to be less careful than an adult. In this light, it must be noted that in case of children visitors, the duty of care must be seen from the point of view of children. This indicates the occupier’s duty is subjective and not objective. The duty to care must therefore be seen from the perspective of the visitors. The case of Glasgow Corporation (1922) supports this principle. In this case, the city authority was made liable for its breach of duty to care for its failure to fence off bushes that had poisonous berries in a public park. In a public park, children are expected to visit the park and they might be tempted to eat those berries. The authority failed to consider this factor and did not think from the perspective of the children. Such consideration highlights the qualified duty of care. This is reflected in the Occupiers Liability Act 1984, s1(4)) in its definition of duty to care. An occupier must take care as is reasonable in all the circumstances of the case to protect any trespasser from injury on the premises by reason of any danger concerned. In case involving children as in the case of Glascow, the principle of allurement applies. Children may become attracted to something on the premises of the occupier and it may cause them injury. This is what had happened in that case. Even in the case of Jolley v Sutton (2000), this principle was applied where an abandoned boat kept in a dangerous condition was held to be an allurement to the young boys involved in the incident in the case. The duty of care must be considered keeping in mind what the children would think or do in such circumstances.
The Occupiers Liability Act 1984, s 1(4)) when it defined duty of care also covered trespasser to whom the occupier owes the qualified duty of care in cases involving children as the trespasser. Subject to the circumstance of the case, the application on subjective perspective to duty to care towards children is done in a balanced manner by the court. This finds support in the case of Mann v Northern Electric Distribution Ltd (2010). The court did not find any liability on the part of the occupier because where there is a duty to fence substations under the Electricity Supply Regulations 1988, it was also not reasonable to foresee that the fences would keep off the claimant child who could overcome the defences. This also highlight the duty of the parents or the guardian in ensuring that the child is safe from any injury where the occupier has taken all necessary measures to ensure care and safety towards the children visitors. If the risk is obvious or the premises is considered by the parents or guardian safe for the children, the occupiers cannot be held liable. This is what happened in the case of Bourne Leisure Ltd and Simkissv (1983) respectively. Where the child gets drowned in an on-site lake and the hazard and risk was obvious, the authority of the part cannot be held liable. Similarly, as what happened in the second case, where the parents found the picnic spot on a slope safe, the local authority cannot be liable if the child slips and fell.
Thus, the duty cannot entirely be passed on to the occupier. Definitely, the occupier has to ensure proper measures are being put in place and she owes a qualified and heightened duty to care towards visitors who are children. Such duty to care is measured the perspective of the visitors. Equally important is the fact that the parents or the guardian of the children must also see to it that they also owe a duty to care towards the children and they have to see it from the perspective of the children. There is always a reasonable expectation that the occupier as well as the parents or guardian would take adequate care of child visitors.
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