Derby accident claim solicitors

McIntosh Fleming Lawyers, specialise in no win, no fee accident claims, and we guarantee that you keep all of your compensation without any deduction for our charges. Get in touch with Derby accident claims solicitors by e-mailing gary.dickie@btinternet.com , or ring us on 01332 518135 .

Proximity

As part of the three-stage test, the courts require a relationship of ‘proximity’ between the claimant and the defendant as well as reasonable foreseeability. In practice, though, the two concepts overlap: the more injury to a particular class of person is foreseeable, the more likely a member of that class will be deemed to be sufficiently proximate. The proximity of relationship is not between the defendant and claimant personally, but rather between the operations or property under the control of the defendant and the category of person—visitor, employee, or whatever—into which the claimant falls.

Proximity may generally consist of various forms of closeness: physical, circumstantial, causative or assumed. However, precisely what is meant by ‘proximity’ is hardly obvious; certainly, the matter is not confined to temporal or spatial closeness. Instead, it tends to revolve around vague notions such as how direct is the relationship between the defendant and the type of claimant concerned, and the degree of proximity required varies with the kind of liability. But it is established that some categories of person are sufficiently ‘proximate’, at least for some kinds of harm. It is beyond doubt that an employer owes a duty of care to his employees, at least as regards their physical health and safety, and that a road user owes a duty of care to other road users, depending upon where those others are in the vicinity. Where one person causes physical damage to the person or property of another, proximity will usually be found, especially in the case of an accident at work:  In the context of personal injury, proximity is relatively easily established, although where the claim is based on an omission rather than a positive act this is harder. Thus inStovin v Wise (Norfolk County Council, third party) [1996] AC 923, a Highway Authority was not liable to a cyclist injured by a car driver who had been partially unsighted by an obstruction on the land of a third party near the highway, since the land on which the obstruction was sited was outside the statutory duty to maintain the highway (see especially the speech of Lord Hoffmann at 943–945). Although the Highway Authority had a statutory power to make the third party remove the obstruction, they were under no duty to do so. In those circumstances the Authority were under no duty to intervene and even if they did would only be liable if they made things worse. In Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057 the highway authority’s statutory duty to improve road safety did not give rise to a specific duty of care to an individual to install signs on the road. In Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police [2008] UKHL 50, [2009] PIQR P9 the House of Lords decided that in the absence of special circumstances the police were under no duty of care to a member of the public to protect them against harm caused by a criminal and a duty would only arise where the member of the public had furnished apparently credible evidence to the police that another person represented a specific and imminent threat to their life or physical safety. However, in K v Central and North West London Mental Health NHS Trust [2008] EWHC 1217 (QB), [2008] PIQR P331 a judge decided that there was an arguable duty of care owed by a social worker in respect of omitting to perform statutory duties by failing to provide services under s 117 of the Mental Health Act 1983 since it was arguable there was a relationship and proximity between the claimant and that determination of whether a duty existed would require consideration of all the facts.

Cases involving the emergency services and other public bodies give rise to particular difficulties, especially where what is alleged is a failure to respond to a danger which they have not created. Although generally these services will not owe a duty of care in respect of failure to act, this limitation does not apply where the service has created additional danger or assumed responsibility to the claimant. In such cases it is unlikely that the policy arguments will lead to the denial of a duty on grounds of justice, fairness and reasonableness.However, in Kent v Griffiths [2001] QB 36 Lord Woolf MR stated if the claim attacked the prioritisation of the rescue or the resources allocated to it a court might reject a duty on the ground that the issues were not justiciable.

 

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