1 - Negligence: Duty of Care Flashcards
What is the tort of negligence defined as?
‘A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant.’
Negligence is a common law tort, meaning the law governing it is made by the courts and case law forms the basis of the tort of negligence. It is not contained within an Act of Parliament.
What are the three elements which the courts consider when determining whether a defendant has commited the tort of negligence?
- Did the defendant owe the claimant a duty of care?
Yes: Consider breach of duty.
No: There is no liability in negligence. - Was the defendant in breach of that duty?
Yes: Consider causation.
No: There is no liability in negligence. - Did the defendant’s breach of duty cause damage to the claimant?
Yes: Consider defences.
No: There is no liability in negligence.
What is the duty of care in negligence law?
- Not all careless acts give rise to liability in negligence, even if the defendant is at fault and this causes damage to the claimant.
- A defendant will be liable in negligence only if they are under a legal duty to take care for the person who is injured.
- The essential first element a claimant must prove is that the defendant owed them a legal duty of care.
What are established duty situations in negligence?
The relationship between the claimant and defendant must give rise to a duty of care, established by case law.
Once a court determines that a duty of care exists in a situation, it establishes a precedent.
Courts can also determine that a duty of care is not owed, e.g., there is no general duty owed by police to a suspect regarding their investigation (Hill v Chief Constable of West Yorkshire [1989] AC 53).
Established duty situations include:
- One road user to another (e.g., driver to other drivers, pedestrians, cyclists)
- Doctor to patient
- Employer to employee
- Manufacturer to consumer
- Tutor to tutee, teacher to pupil
Claimants can only rely on these duties if they have suffered physical damage, not pure economic loss or pure psychiatric harm.
What are novel duty situations in negligence law?
Novel duty situations arise when the courts decide for the first time whether a relationship or set of facts gives rise to a duty of care.
Claimants can only rely on these duties when they have suffered physical damage, not pure economic loss or pure psychiatric harm.
The modern test for determining whether a duty of care should be imposed in a novel situation is derived from Caparo, building upon the ‘neighbour principle’ from Donoghue v Stevenson [1932] AC 562.
What is the ‘neighbour principle’ established in Donoghue v Stevenson for establishing duty of care?
Lord Macmillan stated, “The categories of negligence are never closed.”
This landmark case established that a manufacturer owes a duty of care to a consumer.
Lord Atkin’s neighbour principle: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
A ‘neighbour’ is defined as those closely and directly affected by one’s actions, warranting consideration when directing one’s mind to acts or omissions.
The criterion for establishing duty is the reasonable foreseeability of injury to the claimant.
What is the Caparo test for determining duty of care in novel situations?
The Caparo test, established in Caparo Industries plc v Dickman [1990], comprises three parts:
- Reasonable foresight of harm to the claimant.
- Sufficient proximity of relationship between the claimant and defendant.
- It must be fair, just, and reasonable to impose a duty.
The first two parts are aligned with the neighbour principle, while the third allows the court to consider policy matters to limit the scope of duty.
How does the requirement of foreseeability apply in negligence cases?
Reasonable foreseeability assesses whether the defendant’s actions could foreseeably affect the particular claimant.
Example: In Bourhill v Young [1943] AC 92, the court ruled that the motorcyclist did not owe a duty of care to the claimant because her harm was not reasonably foreseeable.
What is the significance of proximity in the Caparo test?
Proximity refers to the closeness of the relationship between the claimant and defendant.
Lack of proximity may limit the duty of care owed in cases such as omissions by local authorities, pure economic loss, or pure psychiatric harm.
The Caparo case illustrated that the relationship was not sufficiently close to establish a duty of care.
What does the requirement of ‘fair, just, and reasonable’ imply in imposing a duty of care?
The requirement assesses whether it is fair, just, and reasonable to impose a duty based on policy considerations.
In Hill v Chief Constable of West Yorkshire [1989], the police were found not to owe a duty of care to individuals, as their duty is to the public at large, illustrating concerns about the scope of duty being too wide and onerous.
What factors might the court consider when determining if it is ‘fair, just, and reasonable’ to impose a duty of care in novel duty situations?
Floodgates Argument: If one case succeeds, many similar cases may follow. This may cause the body to be financially or practically overwhelmed.
Deterrence of Behaviour: Courts may rule in favour of the claimant to deter wrongful or anti-social behaviour.
Resources: Courts recognise that compensation typically comes from the defendant’s insurers, affecting overall societal costs; careful consideration is given if the defendant lacks insurance.
Public Benefit: Courts may consider any public benefits arising from their decisions, such as increased public safety.
Upholding the Law: Adhering strictly to legal rules may result in seemingly unjust outcomes, but courts must uphold the law to maintain its authority.
In which situations may there not be a duty of care owed to the claimant?
There may not be a duty of care where:
- Harm is caused by a public body, such as a local authority or the police (as opposed to an individual); or
- Harm is caused by an omission to act (as opposed to a positive act of wrongdoing); or
- The harm caused is pure psychiatric injury (as opposed to physical injury); or
- The harm caused is pure economic loss (as opposed to physical damage to property).
What is the general rule regarding liability for omissions in negligence law?
The general rule is that a duty of care is not owed for omissions, meaning failing to act to prevent harm to the claimant.
This principle is supported by Stovin v Wise [1996] AC 923, where the highway authority, despite knowing of a dangerous road junction, failed to take action to mitigate the danger. The court held that the authority owed no duty of care to road users to alleviate the danger.
What are the exceptions to the general rule of no liability for omissions?
Duty Not to Make the Situation Worse: While there is no general duty to act positively for others, if someone chooses to intervene, they have a duty not to worsen the situation.
In East Suffolk Rivers Catchment Board v Kent and another [1940] 4 All ER 527, the Board had a statutory power to repair a breached sea wall but failed to do so promptly, leading to flooding. The House of Lords ruled there was no liability for the Board’s omission, as intervening carelessly does not incur liability unless it worsens the situation.
When does a duty to act positively arise in negligence law?
A duty to act positively exists if there is a relationship of power or control over another person or object, creating a special relationship.
Examples include:
- Employer and employee
- Schools and children
- Parents and children
- Instructors and pupils
For instance, Martina, a passenger in Nisha’s car, has no liability if she fails to prevent an accident due to lack of control. However, if she were a driving instructor, she would have a positive duty to ensure safety and prevent accidents.
