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Tort, negligence, duty of care - proximity

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Proximity

Proximity is directed to the relationship between the parties

 

Following Sutherland Shire Council v Heyman (1985) High Court of Australia it can now be said of proximity that:

  • It involves the notion of nearness or closeness, a nexus or relationship.

  • It embraces physical proximity (in the sense of space and time) between the two parties or their property.

  • It also concerns proximity in relationships such as employer and employee or of a professional man and his client.

  • It also includes "causal proximity" in the sense of the closeness or directness between the particular act or course of conduct and the loss and injury sustained.

  • It may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury, loss or damage to another, or where a party relies on such care.

Each case will be different.

 

Proximity serves as a touchstone and control of the categories of case in which the common law will adjudge that a duty of care is owed.

 

No proximity without foreseeability?

It appears there can be no proximity without foreseeability, but foreseeability alone will not create a duty of care.

 

(Hay) or Bourhill v Young
[1943] HL

(Sometimes referred to as "The Case of the Pregnant Fishwife")

Mrs Euphemia Bourhill (Ms Hay before she married) was not in the proximity of the bad driving of Mr John Young a motorcyclist who crashed before Mrs Bourhill came on the scene.

 

Young owed a duty of care to the car driver he collided with, as he could reasonably foresee that if he rode his motor cycle too fast he is likely to crash into a vehicle on the road.

 

Mrs Bourhill getting out of a tram she heard the noise of the collision but was in no danger. She went to the accident spot and saw the blood on the road and suffered nervous shock (she was pregnant at the time).

 

She was not in proximity to Mr Young, so he could not reasonably foresee that his action of riding the motor cycle negligently would affect her.

 

Rondel v. Worsley [1969] HL

A client who lost his case sued his barrister for negligently conducting the case in court.

 

Applying the neighbour test, the client is the barrister's neighbour whose actions or omissions in court would affect his client's case.

 

The client lost because for reasons of public policy, the House of Lords held that barristers should have immunity from action for negligence in court.

 

This decision was overruled in Hall v Simons [2000]

 

Proximity as envisaged by Lord Atkin did for a time seem to be of lesser importance.

The approach of the Australian court was endorsed by Lord Bridge in Caparo Industries PLC v Dickman [1990] and by Lord Keith in Murphy v Brentwood DC [1991].

 

In Caparo Lord Bridge said:

"What emerges is that, in addition to the foreseeability of damage, the necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other..."

Caparo v Dickman [1990] HL

Lord Oliver:

"...for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced..."

X v Bedfordshire County Council [1995] HL

The liability of local authorities to children when carrying out statutory functions was considered to be sufficiently proximate.

D v East Berkshire NHS Trust [2003]

Parents sued for compensation for psychiatric harm resulting from unfounded accusations of child abuse.

 

Human Rights Act 1988 has a significant effect on duty situations

 

Dorset Yacht Company Limited v Home Office [1970] HL

Owing to the negligence of Borstal officers (they went to bed and left the boys to their own devices), seven boys escaped from their work detail on Brownsea Island in Poole Harbour they set a boat adrift causing it to sustain damage.

 

The claimant sued the Home Office, which argued that there was no authority for making the Home Office liable in these circumstances.

 

Lord Reid said that the general principle of Lord Atkin in Donoghue v Stevenson was applicable, there was proximity to the yacht owner, but probably not to persons further a field.

 

The relationship (proximity) between the owner of the yacht and the borstal officers was based upon the fact that the yacht was moored close to the place where the borstal party was encamped. In other words, the group of persons to whom the duty was owed was limited to the owners of boats moored in the vicinity.

 

Alexandrou v Oxford [1993] CA

"The police were alerted by a 999 telephone call, followed by a recorded message. If as a result of that communication the police came under a duty of care..., it must follow that they would be under a similar duty to any person who informs them...of ...any crime."

Watson v BBBC [2000] CA

Michael Watson a boxer suffered severe brain damage during a fight with Chris Eubank had there been better medical care ringside his injuries would not have been so severe had there been additional medical care available

the system of licensing boxers with the British Board of Boxing Control (BBBC) created a proximity of relationship.

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