Derogación de la Ley de Ilícitos Cambiarios

of a measure of control over and responsibility for the potentially dangerous situation’. An example of this kind of proximity can be seen in Watson v British Boxing Board of

Negligence Duties of care: the Caparo test

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who suffered severe brain damage after being injured during a match. He sued the Board, on the basis that they were in charge of safety arrangements at professional box- ing matches, and evidence showed that if they had made immediate medical attention available at the ringside, his injuries would have been less severe. The Court of Appeal held that there was sufficient proximity between Mr Watson and the Board to give rise to a duty of care, because they were the only body in the UK which could license profes- sional boxing matches, and therefore had complete control of and responsibility for a situation which could clearly result in harm to Mr Watson if the Board did not exercise reasonable care.

In Sutradhar, the claimant was a resident of Bangladesh, who had been made ill by drinking water contaminated with arsenic. The water came from wells near his home, and his reason for suing the defendants was that, some years earlier, they had carried out a survey of the local water system, and had neither tested for, nor revealed the presence of arsenic. The claimant argued that the defendants should have tested for arsenic, or made public the fact that they had not done so, so as not to lull local people into a false sense of security. The House of Lords, however, held that the defendants had no duty of care to users of the water system, because there was insufficient proximity. Mr Sutradhar himself had never seen the defendants’ report, and so his claim had to be based on the idea that they owed a duty to the whole population of Bangladesh. The House of Lords said this could not be the case: the defendants had no connection with the project that had provided the wells, and no one had asked them to test whether the water was safe to drink. They had no duty to the people or the government of Bangladesh to test the water for anything, and were simply doing general research into the performance of the type of wells that happened to be used in that area. The fact that someone had expert knowledge of a subject did not impose on them a duty to use that knowledge to help anyone in the world who might require such help. Proximity required a degree of control of the source of Mr Sutradhar’s injury, namely the drinking water supply of Bangladesh, and the defendants had no such control.

●Justice and reasonableness

In practice, the requirement that it must be just and reasonable to impose a duty often overlaps with the previous two – in Watson and Sutradhar, for example, the arguments made under the heading of proximity could equally well be seen as arguments relating to justice and reasonableness. It was obviously more just and reasonable to expect the Boxing Board to supervise a match properly, since that was their job, than it was to expect the researchers in Sutradhar to take responsibility for a task that was not their job, and which they had never claimed to have done.

Where justice and reasonableness are specifically referred to, it is usually because a case meets the requirements of foreseeability and proximity, but the courts believe there is a sound public policy reason for denying the claim. An example is McFarlane v Tayside

Health Board (1999). The claimant had become pregnant after her partner’s vasectomy

failed, and claimed for the costs of bringing up the child. The courts denied her claim, on the basis that it was not just and reasonable to award compensation for the birth of a healthy child – something most people, they said, would consider a blessing.

Duties of care: the Caparo test

In Commissioners of Customs and Excise v Barclays Bank plc (2006), the govern- ment’s Customs and Excise department was owed large sums in unpaid VAT by two com- panies, who had accounts with the defendant bank. Customs and Excise had gone to court and obtained what are called ‘freezing’ injunctions, which restricted the two com- panies’ access to the money they had in the bank. The bank was notified of the orders, and should have prevented the companies from withdrawing money, but, apparently because of negligence, they failed to do so, which meant that the two companies were able to take out over £2 million, and Customs and Excise were unable to recover all the money owed. They sued the bank, claiming that it owed them a duty of care. The House of Lords held that it was foreseeable that Customs and Excise could lose money if the bank was negligent in handling the freezing injunction, and that this suggested there was also a degree of proximity. However, the decisive issue was whether it was just and reasonable to impose a duty. The House stated that where a court order was breached, the court had power to deal with that breach; this would usually be enough to ensure that banks complied with such orders, and there was nothing to suggest that the order created any extra cause of action. In addition, it was unjust and unreasonable that the bank should become exposed to a liability which could amount to very much more than the £2 million that was at stake in this case, when it had no way of resisting the court order, and got no reward for complying with it.

In Rice and Thompson v Secretary of State for Trade & Industry and Stuntbrand

Line (2007), the claimants were a former dock worker, and the widow of another dock

worker. Both the dockers had contracted the fatal illness asbestosis through unloading asbestos from ships. At the time, they were employed under a system which meant that they were taken on by the National Dock Labour Board, and would then be employed by various companies, via the Board, when they needed ships to be unloaded. The issue in the case was whether the Board had a duty to protect the workers from the asbestos risk, given that they were not actually the employer during unloading. The court held that it was just and reasonable to impose such a duty. The employment system via the Board had been set up by Parliament to keep the docks working efficiently, and part of the statute setting it up was clearly aimed at protecting the health of dock workers. The Board’s relationship with the workers was comparable to that of an employer, and they knew, or should have known, of the risks in unloading asbestos without protection.

In West Bromwich Albion Football Club v Medhat El-Safty (2006), the case con- cerned a knee injury to a West Brom player, Michael Appleton. The club arranged for him to see the defendant, an orthopaedic consultant, who advised surgery. The operation was unsuccessful, and Mr Appleton could no longer play; it was established that the advice was negligent, as other treatment should have been tried first. As well as being a personal disaster, losing a player meant that the club lost money, and they sought to sue the defendant for their losses. The defendant clearly had a duty towards the player to take reasonable care to give competent medical advice, but the club could only claim if he also had a duty to take reasonable care not to damage their financial interest in the player. The Court of Appeal said that it was not just and reasonable to impose such a duty because there was nothing to suggest that the defendant should have realised he would be taking on that responsibility, and to take on this additional duty could have conflicted with his duty towards the player who was his patient, if, for example, aggressive treatment

Negligence