Wednesday, 4 September 2013

Who Is My Neighbour?

When a catastrophic injury occurs in a social setting, friends, even family members, can find themselves on opposing sides in hard-fought litigation where the courts have to consider from first principles whether a duty of care arose and whether it was breached. In Donoghue-v-Stevenson Lord Atkin famously posed the question, "Who then, in law, is my neighbour?" 

Outside the well-established relationships of employer/employee, doctor/patient, driver/pedestrian or occupier/visitor, the answer is not always clear. Occasionally cases throw up challenging questions as to the ambit of the duty of care. I was recently involved in one such case.

In Poole-v-Wright and others [2013] EWHC 2375 (QB) one of the issues before Mrs Justice Swift was whether one friend owed a duty of care to another in respect of a social or leisure activity.

The claimant was one of a group of friends who, one Bank Holiday weekend, took out two motorised go-karts owned by my client, the defendant Mr Abbott, to drive around an unused car park. When driving one of the karts the claimant's neck scarf became caught in moving machinery behind her, causing her catastrophic injuries. She sued, amongst others, the kart's owner, alleging that he breached his duty of care to her by failing to advise her to remove the scarf. She alleged that the defendant ought to have been aware of the particular danger of a scarf becoming entangled in the unguarded moving parts of his kart.

The defendant contended that he owed no duty of care to the claimant and that in any event the scarf was not such an obvious hazard that he was negligent in failing to alert the claimant to the dangers of wearing it whilst driving the kart.

The parties were involved in a purely social activity. No money had exchanged hands. The kart was not being hired by the claimant. She simply made use of it, as did other present at the outing.

On behalf of the defendant I conceded that even in a social situation an owner of equipment which has a potentially dangerous defect which would not be readily apparent to another to whom he lent the equipment, may owe a duty of care to the other to warn him of the defect - see Coughlin-v-Gillison and another [1899] 1QB 145. That was not however the situation in the case before Swift J. There were no hidden defects - the fact that there were unguarded moving parts in close proximity to the driver was, she found, "plain for all, including the claimant, to see."

The Judge considered the principles set out in Caparo-v-Dickman  [1990] 2AC 605 and in particular the question of whether it would be 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. She also considered authorities such as Tomlinson-v-Congleton BC [2004] 1 AC 46 in relation to the duty to protect against obvious risks. She held at [170] that:

"In circumstances other than the "hidden defect" case, 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. I consider that it would impose an undue burden of legal responsibility on those who wish to share such equipment with others who might wish to use it. The imposition of such a burden would have potentially far-reaching consequences for those engaging in recreational activities with friends and acquaintances."

The fact that providing the go-kart for the claimant to use gave rise to a foreseeable risk of injury was not sufficient to give rise to a duty of care on its owner. This decision fits with cases such as Poppleton [2008] EWCA (Civ) 646 in which the Court of Appeal emphasised the importance of there having been an assumption of responsibility by the defendant to the claimant in order for a duty of care to arise.

The decision may have been different if the claimant had been a child, or a vulnerable adult. 

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