1. Duty of care Flashcards
What are the key elements to succeed in a general negligence claim?
Loss/damage
Duty of care
Breach of duty of care
Causation
Remoteness
Any valid defences?
What is the test to determine whether a duty of care is owed?
Caparo v Dickman (1990) test:
-Is there already an established precedent?
-Was the loss reasonably foreseeable?
-Is there a relationship of proximity between the parties?
-Is it fair, just and reasonable to impose a duty of care?
What is the key case that outlined a manufacturer owes a duty of care to the ultimate consumer?
Donoghue v Stevenson (1932)-decomposed snail in ginger beer, House of Lords held that a manufacturer owed a duty of care to the ultimate consumer.
Outline the key policy concerns that are taken into account when determining whether a duty of care is owed.
Floodgates-allowing one claim would open the legal floodgates leading to a deluge of claims ‘flooding’ the courts
Crushing liability-finding a party liable where the result would be that the party would need to pay disproportionate damages to the wrong committed
Insurance-more likely for D to be liable if they are insured because they will have the means to pay damages
Defensive practices-imposition of a duty might lead to public services being restricted in their operation in fear of litigation
Do road users owe a duty of care to other road users?
Yes, as per Nettleship v Weston (1971) – road users owe a duty of care to other road users not to cause them physical injury by careless driving.
Do medical professionals owe a duty of care to patients?
Yes, as per Cassidy v Ministry of Health (1951) - but only once they have accepted them for treatment.
What happened in the case of Watson v British Boxing Board of Control (2001)?
A boxer’s claim that immediate medical attention should have been available ringside was upheld as the injury was foreseeable, the D had assumed responsibility for the medical facilities at the fight and it was fair, just and reasonable due to no policy considerations.
Do the police owe a duty of care to the public when carrying out an arrest?
Yes, as per Robinson v CC of West Yorkshire Police (2018) - police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.
Is there liability for a mere failure to act (omission)?
As a general rule, there is no duty for a failure to act as per Smith v Littlewoods Organization (1987) but there are a number of exceptions.
What are the exceptions to the general rule regarding omissions?
-Where there is a statutory duty eg under OLA 1957
-Where there is a contractual duty as seen in Stansbie v Trotman (1948) where the D failed to secure the premises which led to theft
-Where the D has sufficient control eg parent over children and Reeves v Commissioner of Police for the Metropolis (1999)-police owed a duty to prisoners to ensure they did not take their own life
-Where the D assumes responsibility for C’s welfare as seen in Barrett v MOD (1995) where the officer in question assumed responsibility for the C’s welfare but then left him and he choked on his own vomit
-Where the D creates the risk through an omission as seen in Goldman v Hargrave (1967) where the D failed to clear a fire on his land and mitigate the danger
What is the duty of care owed by the ambulance service?
The ambulance service owe a duty of care to respond to a 999 call within a reasonable time as per Kent v Griffiths (2000), however this duty may not be breached where the service properly exercised its discretion to deal with a more pressing emergency/allocation of resources.
What is the duty of care owed by the fire brigade?
The fire brigade owes no duty of care to attend a fire but if they do attend, they owe a duty not to make the situation worse through a positive act as per Capital and Counties plc v Hampshire CC (1997).
What is the duty of care owed by the police to respond to emergency calls?
The police owe no duty of care to respond to emergency calls (Alexandrou v Oxford (1993).
What is the duty of care owed by the army to soldiers during battle?
The army do not owe a duty to soldiers in battle conditions (during active combat) as per Mulcahy v MOD (1996).
Is there a duty for failing to prevent a third party from causing harm to another?
As a general rule, there is no duty for failing to prevent a third party from causing harm as per Smith v Littlewoods Organization (1987) but there are a number of exceptions.
