1. General Negligence: DUTY OF CARE

Question 1

GENERAL NEGLIGENCE

Answer 1

NEGLIGENCE: the breach of a legal duty of care through the failure to exercise reasonable care and skill which results in unintended damage to the person to whom the duty is owed.

To establish whether a claim in negligence can be made, the following must be considered:

• Duty of Care
• Breach of Duty
• Causation
• Remoteness.

Question 2

DofC: EST. RELATIONSHIPS

Answer 2

A duty of care has been established in the following relationships:

• Contractual Relationships (Stansbie v Troman)
• Parent-Child/Family Relationship (R v Stone and Dobinson)
• Creating/permitting a dangerous situation (Haynes v Harwood)
• Exacerbating an existing situation (Capital & Counties v Hampshire CC)
• Econ. loss caused by Negligent misstatement (Hedley Byrne v Heller).
• Duty to give careful job references (Spring v Guardian Assurance)
• Solicitor to beneficiaries/clients (White v Jones)
  Manufacturer to Consumer (Donoghue v Stevenson)

Question 3

DofC: NO EST. RELATIONSHIPS (Caparo Test)

Answer 3

If not est. relationship, or if unclear.

Apply the 3-stage CAPARO TEST (Caparo v Dickman):

1. The loss must be REASONABLY FORESEEABLE.
2. The relationship must be of SUFFICIENT PROXIMITY between C and D.
3. Must be FAIR, JUST and REASONABLE to impose a duty in the situation.

Is done on a case-by-case basis.

Question 4

DofC: Caparo Test - Reasonably Foreseeable

Answer 4

Ought D have reasonably foreseen the risk of harm or damage to C.

No requirement that D foresaw harm to a particular individual, only that SOMEONE might’ve been harmed (Donoghue v Stevenson).

NB. If D has knowledge of C’s condition, the harm which may be caused is seen to be more foreseeable (Paris v Stepney BC).

Question 5

DofC: Caparo Test - Sufficient Proximity

Answer 5

There must be a relationship of SP (Hill v CC of West Yorkshire).
- The victim must be potentially identifiable ( Palmer v Tees HA).

Courts reluctant to impose DoC on 3rd parties rather than D, unless:

• employee is negligent - vicariously liable
• SP exists between D and 3rd party (Home Office v Dorset Yacht).
• where D created or allowed the danger to arise.
• where danger exists on D’s premises, a person should take reasonable steps to remove dangers caused by a third party (Smith v Littlewoods).

Question 6

DofC: Caparo Test - F, J (and R)

Answer 6

The imposition of a DoC must be FJandR.

FAIR and JUST - a DoC cannot be imposed for omissions to act unless where:

• D has high degree of control over victim (Reeves v MPC). A large degree of control more likely when potential victims are small (Home Office v Dorest Yacht).
• positive DoC imposed by statute.
• a contractual DoC exists.
• D voluntarily assumes responsibility for victim - (Barrett v MoD). Where assumed resp, under duty to inform victim of risk of loss (Mitchell v Glasgow CC).
• D created a dangerous situation (Capital & Counties v Hampshire CC).

Question 7

DofC: Caparo Test - (F, J) and R

Answer 7

Reasonableness usually depends on POLICY CONSIDERATIONS.

• Floodgates
• Insurance
• Defensive Practices
• Crushing Liability

Courts take into account special considerations and restricted duty situations when determining reasonableness. PROBLEM CATEGORIES.

Question 8

Problem Categories: The Police

Answer 8

GR: the police as a public body are unlikely to owe a DoC.

No duty to respond to emergency calls (Alexandrou v Oxford).
No duty to disclose potential psychological risks of acting as a witness (Leach v CC of Gloucester).
Unreasonable to impose a DoC where it would cause Def Practices (Hill v CC West Yorks), or hinder investigations (Osman v UK).

EXCEPTIONS

1. DoC for OPERATIONAL (not policy) matters (Rigby v CC of Northamptonshire).
2. DoC not to disclose confidential info (Swinney v CC of Northumbria).
3. DoC where they exert a high degree of control and are aware of the risk of damage (Reeves v MPC) or the risk, was RForeseeable (Home Office v Dorset Yacht).

Question 9

Problem Categories: Fire and Ambulance Services

Answer 9

AMBULANCE SERVICE: form part of the health service, NOT emergency services.

• Owe a DoC to arrive within a REASONABLE TIME (Kent v Griffiths), unless more pressing emergency arises.
• May be liable for operational but NOT policy matters.

FIRE SERVICE: no duty to attend a fire.

• Only owe a duty if they exacerbate a situation if they do attend (Capital & Counties v Hampshire CC).
• The Coastguard owe similar duties (OLL Ltd v SoS for Transport).

Question 10

Problem Categories: Public Authorities

Answer 10

Courts reluctant to:

• impose DoC on public authorities unless they made assurances and failed to meet them (W v Essex CC).
• create new common law duties through statutory powers.

No DoC where a Public Auth acted within powers and decision to act was properly made.

Imposing a DoC not FJandR when:

• discretion is required
• differing opinions exist on what action to take.

EXAMPLES of DoC owed by Public Authorities:

• Local auth providing education services (Jarvis v Hampshire CC).
• School auth to children (Carmarthenshire CC v Lewis).
• Local Care Auth to patients (Barrett v Enfield LBC).
• Local Auth psychologist to patients (Phelps v Hillingdon London).

Question 11

Problem Categories: Rescuers

Answer 11

No one is obliged to undertake a rescue. When they are undertaken, the law will treat them favourably.

Question 12

Problem Categories: Armed Forces

Answer 12

A soldier owes a DoC to other soldiers OUTSIDE combat situations only (Barret v MOD).

NOT within combat situations (Mulcahy v MOD).