Ch 2: Negligence - Duty Of Care

Question 1

What is Negligence?

Answer 1

A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant

Question 2

What are the 4 stages to assess a claim of Negligence?

Answer 2

• Did the defendant owe a duty of care?
• Was the defendant in breach of that duty of care?
• Did the breach cause damage to the claimant?
• Are any defenses available?

Question 3

What is an Established Duty case?

Answer 3

A scenario where it has been determined by Case Law already that a Duty of Care is owed

Question 4

When a defendant causes a dangerous situation does his Dutybof Care extend to potential rescuers?

Answer 4

Yes - Baker TE Hopkins & Son (1959)

Question 5

What is Lord Atkins’ “Neighbour Principle”?

Answer 5

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 “persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”

Question 6

What is the refined 3 part test which replaced the Neighbour principle in Caparo (1990)

Answer 6

Three factors to determine if a duty is owed:

• reasonable foresight of harm to the claimant
• sufficient proximity of relationship between claimant and defendant
• that it is fair just and reasonable to impose a duty

Question 7

What is the requirement for foresight of harm?

Answer 7

Is it reasonably foreseeable that the defendants actions would affect this particular claimant?

Question 8

What is the requirement for Proximity in the Caparo Test?

Answer 8

Proximity relates to the relationship (not physical proximity) between claimant and defendant?

Question 9

Do the Police owe a Duty of Care to a victim?

Answer 9

No - but they owe a duty of care to the public as a whole (and to prisoners in their custody)

Question 10

What distinction was made in Robinson vs Chief Constable of W Yorkshire (2018)?

Answer 10

Duty of care for positive acts vs omissions.

Police are not liable for omissions - but arrest is a positive action and can be done negligently

Question 11

What is the general rule of Omissions?

Answer 11

General rule is you do not owe a duty to the world for your omissions (I.e for not acting to prevent harm)

Question 12

What is the main exception to the rule of Omissions liability?

Answer 12

Occasions where there is a duty to act positively - e.g a Lifeguard has a duty to act to save a drowning person

You have a duty to act positively WHERE a person has some sort of control over the other person or object.

Question 13

What is the two stage test for Breach of Duty?

Answer 13

• How the defendant ought to have behaved (Q of Law)
• Wether conduct fell below this (Q of Fact)

Question 14

What is the judgement of standard of care?

Answer 14

Doing what a prudent or reasonable person would do

Question 15

Is the reasonable person test specific or general? Objective or subjective?

Answer 15

Objective and impersonal

Question 16

In what situation would you apply a special standard beyond the reasonable person test?

Answer 16

A skilled defendant (e.g Doctor)

Note no special allowance is given to an unskilled defendant

Question 17

What standard of care is expected from a skilled person (e.g Doctor)?

Answer 17

A doctor must show the same care and degree of skills as a reasonable doctor.

You must meet the standard of your profession as a whole.

Question 18

Can a child owe a duty of care?

Answer 18

Yes - but it is the care reasonably expected of a child of that age, not an adult duty of care

Question 19

What are the two main criteria in assessing a reasonable duty of care?

Answer 19

• the risk created by the defendants actions
• the precautions the defendant ought reasonably to have taken in response to that risk

Question 20

What are the two criteria in assessing magnitude of risk?

Answer 20

• How likely was it for the defendants actions to cause an injury?
• If an injury was caused how serious was it likely to be?

Question 21

What was the judgement in Bolton v Stone regarding likelihood of risk?

Answer 21

Although an action may be foreseeable, if the likelihood of it happening is extremely low, then it is not reasonably foreseeable

Question 22

Is the cost of mitigation a relevant factor in assessing breach of duty of care?

Answer 22

Yes. So long as it is in line with risk. A low risk scenario with a high cost of mitigation may be reasonable. A higher risk scenario however requires more expensive/extensive mitigation.

Question 23

To what extent will the court take account of a defendants lack of resources when deciding a fault?

Answer 23

Not much. General rule is that it is not a valid defense to argue that a failure to exercise reasonable care was attributable to a lack of resources.

Question 24

Does the defendants purpose affect a courts assessment of the reasonableness of their actions?

Answer 24

Yes - the value to society of a defendants actions is a factor. E.g if a human life is at stake, abnormal risks may be justified and reasonable.

Note this is not carte Blanche - even in such situations some actions still may be judged as excessive risk

Question 25

What is the argument from “common practice” when assessing reasonableness?

Answer 25

Defendants may be able to escape liability if they can show that they complied with the accepted practice in their trade or profession.

Note it is strong evidence, but not conclusive in itself. A common practice may still be judged to be negligent.

Question 26

Is it a defence to argue that you were not aware of the latest developments in an area (e.g medical malpractice)?

Answer 26

No - the standards of reasonableness are set against the current state of knowledge of an average practitioner. A failure to keep up with that standard is itself a failure.

Question 27

What distinction was drawn by Fardon v Harcourt (1932) on the extent of foreseeability?

Answer 27

A defendants duty is to guard against reasonable probabilities, not fantastical probabilities.

I.e an extremely rare set of circumstances may not be judged as foreseeable. This is not the same as a unique set of circumstances however.

Question 28

What are the most common methods for a claimant to prove breach of duty of care “on a balance of probability”?

Answer 28

• Witness evidence
• Expert witness testimony

Question 29

What is Res Ipsa Loquitur?

Answer 29

A method of providing negligence without witness evidence.

“The thing speaks for itself”

Question 30

What are the 3 conditions of Res Ipsa Loquitur?

Answer 30

• The thing causing the damage must be under the control of the defendant or someone whom the defendant is responsible
• The accident must be such as would not normally happen without negligence
• The cause of the accident is unknown to the claimant - so the claimant has no direct evidence of failure by the defendant

Question 31

How would a defendant defend a charge under Res Ipsa Loquitur?

Answer 31

The defendant must produce evidence to show:

• how the accident actually happened and that this was not due to negligence
• if they cannot show how the accident happened, that they at all times used reasonable care

Question 32

What is the effect of s11 of the Civil Evidence Act 1968 on proving a standard of care?

Answer 32

A defendant who has been convicted of a criminal offense is presumed, in any subsequent civil proceedings, to have committed that same offense.

I.e you do not need to prove again in civil court that a defendant acted in a. Certain way if that has already been proven in criminal court

Question 33

What is the General Exclusionary Rule?

Answer 33

Public Bodies are generally excluded from a duty of care arising - limiting any claims of negligence

Question 34

What are the exceptions to the General Exclusionary Rule?

Answer 34

Public Bodies will be liable where the negligent exercise of their powers makes a situation worse than it already was.

Public Bodies will be liable where the negligent exercise of their powers causes direct physical harm to a person or property.

Question 35

Does the Fire Service owe a Duty of Care to the individuals to whom it responds?

Answer 35

No. Case Law prove. The duty is to the public as a whole and making the duty specific to the individual would have apparently absurd results.

The fire service has no duty to respond, and no duty to take care having done so.

Question 36

Does the Ambulance owe a duty of care to those whom it responds to?

Answer 36

Yes! Viewed as an extension of the NHS who does owe a duty of care to its patients.

The ambulance owes a duty of care to respond and to respond without carelessness.

Question 37

Do the Police owe a duty of care?

Answer 37

Distinction between Operational Negligence (Regarding the manner of doing a job), and Policy Negligence (decisions about allocation of resources, proration of cases etc).

Police may have a duty of care to avoid operational negligence, but have no duty under policy decisions.