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2.1.3 Duty of Care Lecture - Hands on Example

Scenario

Jack is the owner and sole employee of a small private nursery called Little Wonders. Following an economic downturn, Jack decides that the best way to promote his business would be through establishing a stellar safety record. Although Jack had a mandatory state safety inspection last year, Jack decides to have a private safety audit carried out, in order to emphasise just how safe his nursery is. He decides to employ Marla, who has set up her own nursery safety regulatory body – Sure Safe. Marla, inspects the nursery, and gives it the highest safety rating possible. During the inspection, she checks a child-proof gate used to prevent children from leaving the building and wandering out into the streets. She declares it to be safe.

The next day, Jack is temporarily distracted by an urgent phone call, and Tyler (a 3-year-old boy) decides to mount an escape attempt. It emerges that the catch holding the child-proof gate closed has become worn out through lack of maintenance, and with the lightest of pulls, the gate opens. Tyler leaves the nursery and walks around the corner. He finds a lighter which has fallen out of someone’s pocket, and in playing with it, accidentally starts a fire which spreads to a nearby warehouse.

A passer-by, Robert, notices the fire and calls the emergency services. The dispatcher tells the passer-by that a fire engine is on its way. Unfortunately, the dispatcher fails to send the call through to the local fire service, and the fire engine is not dispatched until 30 minutes later, when the dispatcher notices the mistake. It is a particularly quiet day, and so all fire engines in the area are ready to go, and waiting at the local station.

Shortly after making the call, Robert notices that on the outside of the building there is a large red button, marked ‘Oil Fire Sprinkler Activation’. He thinks this would help, and the button is far away from the fire, but he refuses to press it – he decides the warehouse is ugly, and so thinks that it would be nice if it was no longer there.

In the meantime, the warehouse suffers significant fire damage. When the fire brigade does arrive, they fail to notice the bright warning stickers on the warehouse’s exterior warning that it is used to house cooking oil. They spray the warehouse with water, which reacts violently with the burning cooking oil, causing the warehouse to burn to the ground within a matter of minutes.

You are interning at a solicitors and your supervisor brings the above set of facts to you. They want you to discuss the duties of care which might arise between those parties. You are told to not discuss matters of causation, breach or remoteness – your supervisor will address these herself, but does not have time to examine the arising duties. She tells you that there are five relationships she wants you to deal with.

1.Does a duty of care exist between Jack and the Warehouse Owner?

2.Does a duty of care exist between the Fire Service Dispatcher and the Warehouse Owner?

3.Does a duty of care exist between the Fire Service and the Warehouse Owner?

4.Does a duty of care exist between Marla and the Warehouse Owner?

5.Does a duty of care exist between Robert and the Warehouse Owner?

1)Jack does not cause the fire himself, instead it is a third party (Tyler) who causes the fire. This is, therefore, a matter of third-party action. Jack clearly has control over the third party – Tyler – and it is his job to ensure that Tyler is both safe and acting safely. This brings it under Home Office v Dorset Yacht Club, meaning that a duty of care exists between Jack and those harmed by Tyler’s actions should Jack fail to supervise him properly. It can be argued that under the Caparo test, it is not foreseeable that Tyler might start a fire. This can, therefore, be argued either way (although a child starting a fire by accident, when unsupervised, is not a great stretch.)

2)The emergency services line is a public service, and thus a number of specific rules apply. It should be noted that a general immunity applies, and so the presumption is that no duty applies. However, this presumption is rebuttable, and the fire dispatcher’s actions mirror those Kent v Griffiths. They promise the response of the fire services, but then fail to follow through with that promise. There is no question of the outcome of the failure to dispatch – all of the fire engines are available, so the only thing stopping them from attending is the mistake of the dispatcher. Because this is an overwhelming failure of the dispatcher, a duty of care can be said to exist.

3)The fire service itself can also avail itself of public service immunity – it has no general duty to

those it serves. However, the fact that it attends and makes matters worse though obvious incompetence will serve to rebut this presumption as per Capital & Counties plc v Hampshire County Council.

4)Marla is acting as regulatory body. However, there is no indication that she is acting as a public regulatory body, and indeed, it is indicated in the question that she is acting in a purely private capacity – there is already a safety inspectorate in operation, and she is merely supplementing it. This means that Marla will be unlikely to avail herself of public service immunity, distinguishing her situation from Marc Rich & Co AG v Bishop’s Rock Marine Co Ltd, The Nicholas H. Caparo can be argued either way – that it is foreseeable that mischief might occur should Marla negligently evaluated the safety gate, or otherwise that it is not

5)Although it is easy and safe for Robert to act, he refuses to. This makes the duty a matter of omission. Under Stovin v Wiseno duty will arise from an omission, and so Robert is not required to act to avoid liability.


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