BPP SG Ch 3: Negligence and Duty of Care

Question 1

Define negligence

Answer 1

• breach of legal duty to take care
• which results in damage
• undesired by the defendant
• to the claimant

Question 2

What elements need to be satisfied before a tort claim for negligence can be successful?

Answer 2

1) existence of a duty of care owed by D to claimant
2) breach of that duty by D
3) claimant suffered some damage

Question 3

What elements need to be considered when examing the conditions for a claim of negligence?

Answer 3

1) did the breach of duty cause the harm?

2) was the damage suffered reasonably foreseeable?

Question 4

What is the rationale behind the ‘duty of care’

Answer 4

D cannot be liable for carelessness unless the law requires him to be careful

Question 5

What is the ‘neighbour’ principle and where does it come from?

Answer 5

• Donoghue v Stevenson
• must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to harm your neighbour

Question 6

In the ‘neighbour’ principle, who counts as a neighbour? Is this an objective or subjective test?

Answer 6

• people who are so closely and directly affected by D’s actions that he should REASONABLY have known they would be affected when he carried out his actions.
• objective; test of reasonable man

Question 7

How was the principle in Donoghue v Stevenson widened in the yacht case? What is the case called?

Answer 7

• widened to include a duty of care for the D over the actions of third parties
• Home Office v Dorset Yacht Co

Question 8

What tests developed from Anns v London Borough of Merton? How is this case now viewed?

Answer 8

1) do the parties satisfy the requirements of the neighbour test?
2) if so, are there any policy considerations which dictate that no duty should exist?
- effectively, duty will arise unless there is a policy consideration which prevents it.
- Anns has now been overruled.

Question 9

What case first effectively modified Anns v London Borough of Merton? How did it change the test?

Answer 9

• Caparo v Dickman
• first, are there any preexisting authorities?
• second, establish a duty of care if not and if this test is passed:
  1) was the damage to C reasonably foreseeable?
  2) was there a relationship of sufficient proximity between D and C?
  3) is it fair, just and reasonable for the law to impose a duty of care in the situation?

Question 10

What case overruled Anns? How did it modify the instructions for finding a duty of care?

Answer 10

• Murphy v Brentwood
• courts can only impose a duty of care if they can find a suitable factual precedent to base it on
• Murphy v Brentwood tests still used.

Question 11

What case ruled on duty of care in regards to the legal profession? What did it say?

Answer 11

• Hall (Arthur J.S.) & Co v Simons

- ended immunity from negligence claims for barristers and solicitors

Question 12

How do negligence claims work in relation to barristers?

Answer 12

• claim can only be made after an appeal and
• claim can only be made if the appeal overturns the original decision and
• claim will only be successful if claimant can prove that a better standard of work would have resulted in a different outcome

Question 13

How do negligence claims work in relation to solicitors?

Answer 13

• can be brought whenever a claimant wants
• claim will only be successful if claimant can prove that a better standard of work would have resulted in a different outcome

Question 14

What special provisions relate to the duty of care by the police?

Answer 14

• can only be held liable for operational breaches of the duty of care, not policy breaches.

Question 15

Give a case where the police were found to be operationally negligent.

Answer 15

• Rigby v Chief Constable of Northamptonshire

- negligent firing of a tear gas canister caused a fire

Question 16

Give a case which failed because the police cannot be held liable for policy negligence.

Answer 16

• Hill v Chief Constable of West Yorkshire

- force could not be held as negligent for failures during Yorkshire Ripper years

Question 17

What is the position of emergency services in relation to duty of care?

Answer 17

• they have no duty to respond to an emergency. so if their response is ineffective or they make mistakes they cannot be liable. Alexandrou v Oxford
• only if they do a positive act that makes the situation worse may a duty of care be owed
• Capital and Counties v Hampshire County Council

Question 18

How do ambulances relate to the duty of care owed by emergency services? Under what case?

Answer 18

• they are part of the health service, not a rescue service, so policy arguments for police and fire are not applied
  Kent v Griffiths & Others

Question 19

What are the problems with establishing a duty of care on local authorities?

Answer 19

• justiciability; whether a political activity should be open to examination by the courts
• issues of foreseeability
• issues of proximity

Question 20

Give a case which demonstrates courts unwillingness to impose duties on public bodies. What happened?

Answer 20

• Stovin v Wise
• issue was whether the council had a duty to clear the highway of an obstruction which then caused an accident
• court found that the statute in question created a power, not a mandatory duty

Question 21

Give an example of a private claim against a public body succeeding. What happened?

Answer 21

• Carmarthenshire County Council v Lewis: driver crashed because a schoolchild had been left unsupervised and wandered into the road. Special relationship between school authority and school pupils.

Question 22

How can a private claim against a public body succeed?

Answer 22

1) non-exercise of the statutory power must be irrational

2) there must be exceptional grounds for allowing claims of compensations

Question 23

What does Osman v UK demonstrate?

Answer 23

The ECourtHR believes the universal immunity enjoyed by some bodies in the UK is contrary to the ECHR

Question 24

How does the law view rescue situations?

Answer 24

• no legal obligation to attempt a rescue
• law will treat favourably those who attempt a rescue and suffer harm in the process due to someone’s negligence
• not necessary for the victim to be in actual danger

Question 25

Explain the contrasting cases on resuce involving horses.

Answer 25

• Haynes v Harwood: horse bolted and policeman injured stopping it, which he did to prevent injury to others
• Cutler v United Dairies - man injured trying to recapture a horse but no risk to person or property so no emergency situation therefore he could not be a rescuer. Claim failed.

Question 26

What case demonstrates that D needs to foresee the risk of harm to the actual claimant in question?

Answer 26

• Bourhill v Young.
• D not liable for C’s miscarriage because he could not have foreseen she would be harmed as she was nowhere near him when he crashed
• C miscarried when she saw D’s blood on the pavement after the crash. D died anyway…

Question 27

Does D need to foresee the individual claimant who might be affected?

Answer 27

No, D just has to foresee that a class of people might be affected.
Donoghue v Stevenson

Question 28

What is the general rule in relation to omissions in tort?

Answer 28

that tort does not impose a duty which can be breached by failing to act.

Question 29

What are the exceptions to the general rule on omissions?

Answer 29

• positive duty to act imposed by statute
• contractual duty to act
• if D has a strong degree of control over C (eg prison suicides)
• if D has assumed responsibility
• if D created the risk

Question 30

Are courts willing to impose liability for wrongs committed by a third party? Give a case as an example.

Answer 30

Not usually

P. Perl v Camden London Borough Council

Question 31

How can the D be liable for harm caused by a third party?

Answer 31

• if there is a close proximity between D and Claimant eg a decorator who allowed the home to be robbed Stansbie v Troman
• if there is a close proximity between D and 3rd party eg Home Office v Dorset Yacht Co
• if D created a danger or risk of danger by their negligence which a 3rd party caused harm by
• if their is a danger on D’s premises which D knows or should know about

Question 32

If faced with a problem where the existence of a duty of care is in issue, what should be considered?

Answer 32

1) foresight of harm (Donoghue v Stevenson)
2) existing authorities (ie the incremental approach)
3) proximity, and what is fair, just and reasonable in all circumstances (Caparo v Dickman)
4) relevant policy considerations (Hill v Chief Constable of West Yorkshire)