Liability for personal injury usually arises from a claim in negligence. For example, a person may bring a claim against their employer for injuries suffered at work (“employers’ liability”), against another business for injuries caused by one of their employees (“vicarious liability”), or against a public authority for injuries sustained in a public place (“public liability”).
Duty of care
The first step in a negligence claim is to show that the other party owed you a duty of care. The second part is then to prove that they breached that duty. Therefore, decisions about whether or not to impose a duty of care are crucial in determining whether or not you can succeed in your claim.
Although statute sometimes imposes a duty of care, such as the duty to ensure visitors are “reasonably safe” on your premises under the Occupiers’ Liability Act 1957, most duties are imposed by the common law (i.e. case law).
Common law test
In Caparo Industries Plc. v Dickman,Lord Bridge set out clear guidelines for when the courts can impose a duty on the Defendant (D) to take care of the Victim (V). Three elements must be satisfied: (i) some damage to V must be reasonably foreseeable, (ii) D and V must be “sufficiently proximate”, and (iii) it must be just and reasonable to impose such a duty.
In practice, this means that you do not generally owe a duty of care for injuries due to acts of nature, since they are not reasonable foreseeable. In addition, the police do not generally owe a duty of care to random members of the public, since they are not sufficiently proximate, and voluntary organisations do not generally owe a duty of care to their clients, as it would not be just and reasonable.
Poole v Wright and others
In a recent personal injury case, the High Court ruled that neither of the defendants, Chequered Flag Karting Ltd. and Mr Abbott, owed a duty of care to the claimant, Ms Poole. In making the decision, the judge considered all three elements of the Caparo test set out by Lord Bridge.
The facts of the case were that Ms Poole had been injured using a go-kart belonging to Mr Abbott, and which Ms Poole claimed he had bought from Chequered Flag Karting Ltd. Along with several other friends, they had taken the kart to drive around in a car park. However, when it came to Ms Poole’s turn, her scarf became wound around the rear axle of the kart, tightening around her neck and causing her severe spinal injuries.
Reasons for decision
Mrs Justice Swift decided that the karting company did not owe a duty of care to Ms Poole. This was, firstly, because the kart was not owned by Chequered Flag Karting, but was sold privately by the company’s directors. In addition, the judge ruled that the directors did not owe a duty of care, failing all three elements of the test. In particular, the directors did not owe a duty to Ms Poole as a future user of the kart, as she was not sufficiently proximate. Moreover, the judge also decided that the company would not have been responsible for the directors’ actions in any event.
The judge also ruled that Mr Abbott did not owe a duty of care to Ms Poole. Although he may have owed a duty to point out any “hidden defect” in the kart, Mrs Justice Swift concluded that the moving parts at the rear of the kart were obvious to everyone, including Ms Poole. Nevertheless, the risk of injury was not reasonably foreseeable at the time Ms Poole began driving the kart, since her scarf was not trailing or loose. Moreover, in her own words:
“the imposition of a duty of care in circumstances such as these, where leisure equipment is provided by an individual in a social setting for the enjoyment of other adults without any form of reward, would not in my view be fair or reasonable.”