2.1.1 Duty of Care - Specific Principles

Question 1

How do the courts establish that a duty of care is owed by the defendant to the claimant?

Answer 1

D’s relationship with C must be one that the courts recognise as giving rise to potential liability for D if reasonable care is not taken and C suffers damage as a result

Question 2

What is the starting point when considering duty of care?

Answer 2

Is there an established duty situation - a type of relationship between the parties that is already governed by a legal precedent?
1) Road users
2) Employer and employee
3) Manufacturer and consumer
4) Doctor and patient
5) Solicitor and client

Question 3

What if there is no established duty relationship?

Answer 3

The courts will use an incremental approach to see if an analogous duty can cover the relationship between C and D.

If there is no established or sufficiently analogous precedent, the courts will turn to the Caparo criteria (only for novel situations):

1) There was a reasonable foreseeability of harm to the claimant;

2) There was sufficient proximity within the relationship;

3) It is ‘fair, just and reasonable’ to impose a duty

Question 4

What is the rule with duty of care and pure omissions?

Answer 4

There is no duty of care owed to the whole world. A pure omission does not give rise to liability.

However, exceptions apply - a duty to positively act may arise where D has created a risk of danger or where there is a special relationship between the parties:
1) parent and child;
2) employer and employee
3) occupier and visitor
4) prison officers and prisoners

^In the above cases, an omission may constitute an actionable breach of duty.

Question 5

What is the rule behind acts of third parties?

Answer 5

D will not owe a duty of care to prevent harm caused by the acts of a third party, unless:

1) There is a special relationship between D and C

2) There is a special relationship between C and the third party

3) D has created a source of danger

4) D has failed to take steps to abate any known danger created by a third party

Question 6

What is the rule behind ‘voluntary assumption’?

Answer 6

There is no active duty imposed for people to help one another.

However, if an individual positively assumes responsibility for another person (e.g rescuing another from danger), they will owe a duty not to make the claimant’s situation any worse.

N/B: Court must take into account of social action and herosim when considering whether a rescuer has breached their duty of care

Question 7

What are the principles governing duty of care and public bodies?

Answer 7

Due to policy reasons, the courts have typically been more reluctant to recognise that a duty of care exists when the defendant is a public body.

Police - will not generally owe a duty to the public at large to carry out their investigative duties with reasonable care, but may be liable for operational errors or to a 999 caller where there is a real and immediate threat to life.

Ambulance service - owes a duty once a 999 call is accepted

Fire service - owes a duty not to make a situation worse