1. Negligence (Duty of Care)

Question 1

DEF: Negligence

Answer 1

A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant

Question 2

DEF: Established Duty Situations

Answer 2

Situations wherein case law has made it clear that a duty of care is owed

Question 3

What kinds of negligence do established duty situations cover? and novel duty situations?

Answer 3

• Claimant has suffered physical damage (injury or to property
• Cannot be relied on wrt pure economic loss or pure psychiatric harm

Question 4

Common established duty situations:

Answer 4

1. One road user to another (driver to driver, driver to passenger, driver to pedestrian, cyclist to driver, cyclist to pedestrian)
2. Doctor to patient
3. Employer to employee
4. Manufacturer to consumer
5. Tutor to tutee / teacher to pupil

Question 5

DEF: Novel duty situations

Answer 5

No precedent in case law, up to the courts to decide

Question 6

DEF: The ORIGINAL neighbour principle (and authority)

Answer 6

Donoghue v Stevenson: Ginger Beer and Snail
- Used to determine whether or not D owes a duty of care to C in any novel situation
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”
- Test is one of close relationship or proximity

Question 7

Who are ‘neighbours’ for the purpose of the neighbour principle?

Answer 7

… persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being affected when I am directing my mind to the acts of omissions which are called into question”

Question 8

DEF: The New Neighbour Principle

Answer 8

Also known as the Caparo Test, 3 parts
Must consider:
1. reasonable foresight of harm to the claimant
2. sufficient proximity of relationship between the claimant and defendant and
3. that it is fair, just and reasonable to impose a duty
(Third pillar was novel introduction in caparo)

Question 9

1st Limb of Caparo Test: Foreseeability

Answer 9

Is it reasonably foreseeable that the defendant’s actions will affect THIS PARTICULAR claimant?

Question 10

2nd Limb of Caparo Test: Proximity

Answer 10

• relates to relationship between claimant and defendant must be sufficiently close

Question 11

What do the courts consider in the third limb of the caparo test?

Answer 11

Policy Arguments:
1. Floodgates argument
2. Deterrence of a certain type of behaviour
3. Resources (needing insurance, increase in premiums etc. societal cost)
4. Public Benefit
5. Upholding the law

Question 12

Which situations are less likely to give rise to a duty of care?

Answer 12

1. harm caused by a public body
2. harm caused by an omission to act
3. harm caused by PEL
4. Harm caused by PPI

Question 13

General Rule wrt Omissions in Tort

Answer 13

A duty of care is not owed for omissions (ie. failing to act to prevent harm)

Question 14

Exceptions to the general rule about omissions:

Answer 14

1. Duty not to make the situation worse
2. Occasions where there is a duty to act positively

Question 15

When would the defendant have a duty to act positively in tort?

Answer 15

(1) If they have some sort of power or control over the other person or object (‘Special Relationship of Control’):
- employer and employee
- schools and children
- parents and children
- instructors and pupils
- and may also have a duty to prevent harm to third parties here