3 key elements

Question 1

the 3 key elements

Answer 1

1. he or she is owed a duty of care by the defendant (duty),
2. the defendant breached that duty (breach),
3. the breach caused foreseeable loss (damage),

Question 2

establishing duty of care

Answer 2

• there is no definitive test (stated in Robinson v CC of West Yorkshire Police Commission) instead we apply the following:
  1. if there is an established duty, the courts ill use the previous precedents to assume a duty exists,
  2. if there is not an established relationship but the courts can draw a duty through similarities then they can use that case,
  3. if there is no established analogous duty the situation is novel and the principles of foreseeability and fairness can be applied,

Question 3

example of doctor and patient

Answer 3

• montgomery v lanarkshire,

Question 4

example of lawyer and client

Answer 4

• Arthur JS Hall v Simons,

Question 5

example of drive and passenger

Answer 5

• nettleship v weston,

Question 6

example of manufacturer and consumer

Answer 6

• donoghue v stevenson,

Question 7

established duty

Answer 7

• an established duty can also exist where an act of parliament is involved,
• road traffic act 1957 states : ‘every road user has a duty of care to take reasonable steps to avoid accidents and reduce injuries’,
• occupiers liability act 1957 establishes a duty of care between the occupier and a visitor,

Question 8

incremental approach

Answer 8

• if there is no existing precedent the law can be developed incrementally and by analogy with existing precedent,
• are the principles the same? can you interpret your case in a similar way due to similarities.

Question 9

novel situations

Answer 9

• situations where you can not find a similar case (very rare) you would need to ask two questions:
  1. was the harm foreseeable?
  2. would it be fair to develop the law to include situations like this?

Question 10

foreseeability

Answer 10

• was it reasonably foreseeable that someone in the claimants position would be injured?
  –> Kent v Griffiths - an ambulance failed to arrive in reasonable time,

Question 11

fair, just and reasonable

Answer 11

• would it be fair, just and reasonable to impose a duty,
• this will set a precedent for future cases,
• Hills v CCWV - wasn’t reasonable to impose a duty on the police where they had failed to stop the Yorkshire Ripper,