Liability In Negligence Problem case. Advise Greenwichshire Police whether they owe a duty of care in negligence to: a) Those injured at the rally b)PC Nick

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Farhana Rahman21st November 2011

Liability In Negligence

Advise Greenwichshire Police whether they owe a duty of care in negligence to:

  1. Those injured at the rally

Winfield defines negligence as “the breach of the legal duty to take care which results in damage, on desired by the defendant to the plaintiff” therefore it is necessary to prove an existing duty of care, breach of that duty and causation of damage in order to find successful action in negligence. Negligence began to develop in the early 19th century when liability of careless acts was founded upon a “duty to take care”. On a case by case basis duty was found to exist owing to the relationship between the parties. Attempts such as that in Haven V Pender [1883] to set out a more general concept of duty had failed until Donoghue V Stevenson [1932]. 

In the case of Donoghue V Stevenson [1932], Lord Atkin developed his famous “Neighbour principle”. He stated “        You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure you neighbour. Who then in law is my neighbour? The answer seems to be – persons closely directly affected by my act”. In determining whether the Greenwichshire Police owe a duty of care to those injured at the rally, we must first find whether there is an existing duty of care. In order to establish an existing duty, the neighbour principle will be applied. Evidently, there is no close personal relationship between the police and those at the rally; however as a public body whose presence is mainly there for the protection of the public, they do owe the duty of care. This was illustrated in Home Office V Dorset Yatch [1970]. This case concerned the question whether a duty of care was owed by the prison authorities in respect of the actions of youth offenders in custody. The boys escaped from a weekend outing and damaged the plaintiff’s yatch. The majority of the House of Lords concluded that a duty of care was owed by the Home Office through its officers. Thus it may be concluded that it is the police’s duty as a public body to ensure the safety of the protesters, including those injured ta the rally.

After establishing whether a duty of care exists, one must ask whether the damage caused was foreseeable. In this scenario, the police patrol did realise that there was a large increase in the number of protesters. In any rally there is often much friction and thus it is reasonable foreseeable for protesters to ‘heckle’ and ‘fight’ thus satisfying the two stage test as illustrated by Lord Wilberforce in Anns V Merton [1978]. However this case was overruled. In Yuen Kun Yeu V Attorney General of Hong Kong [1988] Lord Keith criticized the approach in Anns saying “the two stage test in Anns is not to be regarded as in all circumstances a suitable guide to the existence of a duty of care”. The current test for duty of care in a novel situation was laid down by Lord Bridge in the leading case of Caparo V Dickman [1990]. According to Lord Bridge three criteria must be satisfied before a duty can be found, the first being the damage must be foreseeable. Evidently this part of the criteria has been satisfied as the police did anticipate for an outbreak due to the large increase in the number of protesters. The second part of the criteria is that there must be proximity of relationship between the parties. As stated previously, the police do owe a duty of care to the protestors at the rally considering their primary purpose of being present there was for their safety and security. The third criteria which must be satisfied is that it must be ‘fair, just and reasonable’ for such a duty to exist in the light of policy. Apply this criteria to the scenario, the Greenwichshire police did foresee the danger that would attack the crowd, upon this realisation they too reasonable steps to avid the danger and “radioed to the control tower for emergency diversion”, “but unfortunately the noise of the crowd drowned out this message”. In Bharma V Dubb [2010] the trial judge approached the issue of liability by asking whether the defendant took reasonable steps to try and ensure no harm would be caused. Applying this to the scenario, one may answer yes as the police did try and communicate the inevitable danger. As there in an absence in criteria, it may be concluded that the Greenwichsire police do not owe duty of care to those injured at the rally.

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Furthermore, in determining a duty of care owed by the police, liability in negligence must be divided into two duty categories; first, the ‘operational’ and second, that concerning crime control. Operational liability concerns with the way the police actually perform their job. It is well established that the police will be held to one a duty of care when they directly cause damage as a result of a positive as or (in some cases) omission , as illustrated in in Rigby V Chief Constable of Northamptonshire [1985]. However, the situation changes when the question is one of liability for harm ...

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