An Introduction to Negligence and the Duty of Care

Question 1

Provide background and historical information on the tort of negligence.

Answer 1

• Originates from ‘trespass on the case’
• Based on idea that some people have a duty of care towards others
• If they break duty, they are held legally responsible
• Eventually, courts wanted more certainty + stricter on idea of duty of care

Question 2

What does the term “Negligence” actually mean?

Answer 2

Failure to take care of something as it is part of your duty.

Question 3

How did the case of Donoghue v Stevenson [1932] introduce the modern development of negligence?

Answer 3

Introduced the idea that people have a duty of care to avoid harming others if harm is reasonably foreseeable.

Question 4

What are the elements of a claim in negligence?

Answer 4

• Duty of care
• Breach of duty
• Damage
• Causation
• Remoteness of damage

Question 5

What is Lord Atkin’s formulation of the duty of care? (Donoghue v Stevenson)

Answer 5

• To take ‘reasonable care’ to avoid
• Acts or Omissions
• Which I can reasonably foresee
• Are likely to injure my neighbour

Question 6

What does Lord Atkin mean on the term ‘neighbour’ in his ‘neighbourhood test’?

Answer 6

• Persons so closely and directly affected by my act
• That i ought to have them in contemplation
• Liability distils down to ‘tests’ of foeseeability and proximity (more secular view)

Question 7

How does Lord Atkin’s approach differ from that of Lord Macmillan’s?

Answer 7

The search for principle vs the incremental approach

Question 8

What is the broad approach adopted in the case of Dorset Yacht [1970]?

Answer 8

• Proximity and foreseeability should be regarded as the starting point
• Unless there are good reasons for department from this approach
• Criticism: what would constitute good reasons?

Question 9

What is the broad approach adopted in the case of Anns [1978]?

Answer 9

• ‘2 stage test’
• To admit policy considerations
• Criticism what do we mean by ‘policy considerations’?

Question 10

What is the current approach to the duty of care in negligence? (regarding causation and incrementalism)

Answer 10

• Is it ‘just and reasonable’ to impose a duty? {Peabody Donation case}
• Adoption of additional criterion on whether it is ‘fair, just and reasonable’ to impose a duty of care {Caparo Industries case}
• Dangers of approach relying on vague policy considerations? -> uncertainty in law + balancing {Marc Rich case}

Question 11

What can we learn from the case of Smith v MoD?

Answer 11

• Combat immunity - not good idea to inherit idea of negligence and duty of care as it is dangerous (should be narrowly construed)
• “These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it is not to be unreasonable to expect a duty of care to be exercised”

Question 12

What current issues and ongoing debates are raised regarding the duty of care?

Answer 12

• Robinson [2018] case shows that liability cannot be conjured out of thin air + incremental approach is still relevant
• Scope of duty of care: how wide was the duty assumed by the advise giver/information provider? (Manchester Building Society)

Question 13

What can we learn from the case of Stovin v Wise [1996]?

Answer 13

There is generally no duty to intervene in English law to save
[‘Good Samaritan’ principle from Lord Atkins might not always apply in negligence]

Question 14

Are public authorities obliged to act?

Answer 14

• Pure omissions: generally authority under no duty to exercise a statutory discretionary power {Stovin v Wise case}
• Where positive acts are involved: even where the case is not one of pure omission, the courts are still reluctant to interfere with how decisions are made {X & ors minors case}
• A new approach - no duty to ‘confer a benefit’: adopted by Supreme Court {Poole case}