Chapter 2 - Negligence: Duty of Care & Breach of Duty

Question 1

What are the elements a claimant needs to prove to establish a claim in negligence?

Answer 1

1. The defendant owed the claimant a duty of care.
2. The defendant was in breach of that duty.
3. The defendant’s breach of duty caused damage to the claimant.
4. Are any defenses available to the defendant?

Question 2

Define negligence.

Answer 2

Negligence may be defined as a breach of a legal duty of care owed to a claimant that results in harm to the claimant undesired by the defendant.

Question 3

What is the first issue to consider in a negligence claim?

Answer 3

The first issue to consider is when a duty of care is owed in negligence. For example, a driver, doctor, or teacher would owe an injured person a duty of care.

Question 4

What are established duty situations?

Answer 4

Situations in which it is already clear from case law that a duty of care is owed. Examples of established duty situations are one road user to another; doctor to patient; employer to employee; manufacturer to consumer; tutor to tutee, or teacher to pupil.

Question 5

What principle did Donoghue v Stevenson establish?

Answer 5

Donoghue v Stevenson established the ‘neighbor principle,’ which was used to determine whether or not the defendant owed a duty of care in any new or novel situation which came before a court. The neighbor principle states that one must take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure one’s neighbor.

Question 6

Define your neighbor under the ‘neighbor principle.’

Answer 6

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 into question.

Question 7

Does a defendant owe a duty of care to a rescuer?

Answer 7

Yes. Where a defendant’s actions have created a dangerous situation so that it is reasonably foreseeable that someone may attempt a rescue, the defendant owes a duty of care to the rescuer.

Question 8

What is the test used to determine a duty of care in novel situations?

Answer 8

The test is one of close relationship or proximity, not in the physical sense, but in the sense of having the other person in mind when you do a certain act. The criterion for establishing the duty is whether this particular defendant ought reasonably to have foreseen the likelihood of injury to this claimant.

Question 9

What is the three-part test set out by the House of Lords in Caparo Industries plc v Dickman?

Answer 9

1. reasonable foresight of harm to the claimant;
2. sufficient proximity of relationship between the claimant and defendant;
3. that it is fair, just and reasonable to impose a duty.

Question 10

How does the Caparo three-part test compare to the neighbor principle?

Answer 10

The first two parts of the Caparo test are simply a different way of expressing the neighbor principle. There is no direct equivalent to the third part of the Caparo test in the neighbor principle, but “fair, just and reasonable” is simply another way of providing the courts with the ability to reach a conclusion based on policy matters.

Question 11

When should courts consider what is “fair, just and reasonable” in a duty of care case?

Answer 11

• The Supreme Court clarified the applicability of the Caparo test in Robinson v Chief Constable of West Yorkshire Police.
• The Court determined that it was appropriate to consider fairness, justice, and reasonableness in cases where the Supreme Court is invited to depart from an established line of authority, and in novel cases where existing authority doesn’t provide an answer on whether a duty of care exists.

Question 12

Explain the ‘foreseeability’ requirement of the Caparo test.

Answer 12

• The first requirement is reasonable foresight of harm to the claimant. It must be reasonably foreseeable that the defendant’s actions will affect this particular claimant.
• For instance, in Bourhill v Young, a motorcyclist would owe a duty to the driver involved in the accident because damage to another driver was foreseeable, but did not owe a duty to a bystander who came to the scene of the accident after the fact.

Question 13

Explain the ‘proximity’ requirement of the Caparo test.

Answer 13

Proximity relates to the relationship between the claimant and the defendant. In Caparo Industries plc v Dickman, the claim for damages failed because the relationship between the claimant and the defendant was not sufficiently close.

Question 14

In what types of cases might the duty of care be limited due to a lack of proximity between the parties?

Answer 14

The duty of care may be limited in the case of omissions, such as the failure to act by a local authority; pure economic loss, such as the loss of investments; and pure psychiatric harm, such as that suffered by bystanders.

Question 15

Explain the ‘fair, just, and reasonable’ requirement of the Caparo test.

Answer 15

• This requirement is demonstrated by Marc Rich v Bishop Rock Marine Co Ltd, in which it was determined that a ship classification society did not owe a duty of care to cargo owners despite accepting that the loss of the cargo was a result of their carelessness.
• The court held that it would not be fair, just and reasonable to impose a duty because the society was non-profit-making and operated only for the collective welfare in promoting safety at sea.

Question 16

How do the three limbs of the Caparo test work together?

Answer 16

Marc Rich v Bishop Rock Marine illustrates how the three limbs of the Caparo test work together. The court accepted that the first two limbs were satisfied (foreseeability and proximity) but denied a duty of care on the grounds that the third limb was not satisfied (fair, just, and reasonable).

Question 17

What was the outcome of Hill v Chief Constable of West Yorkshire?

Answer 17

The police were exonerated from liability on the basis that they did not owe a duty of care to any individual, as their duty is to the public at large. Imposing a duty on the police in this instance would create too wide of a duty.

Question 18

How was Kirkham v Chief Constable of Greater Manchester Police different from Hill v Chief Constable of West Yorkshire?

Answer 18

In Kirkham, the police had assumed responsibility for the prisoner by taking him into custody, creating greater proximity than in Hill. This assumption of responsibility created a duty for the police to pass along information that could affect his wellbeing to prison authorities, which they failed to do, leading to the prisoner’s suicide.

Question 19

What was the impact of Osman v UK?

Answer 19

In Osman v UK, the European Court of Human Rights found that the policy of blanket immunity for police investigating a crime violated Article 6 of the European Convention on Human Rights (right to a fair trial), because it was a disproportionate restriction on the rights of access to a court.
* This was reviewed in Z v UK, where the court concluded that using “fair, just, and reasonable” as a test, including policy reasons within that decision, does not infringe upon human rights.

Question 20

What was the significant finding of the Supreme Court in Robinson v Chief Constable of West Yorkshire Police?

Answer 20

The Supreme Court determined that there was a difference between positive acts and omissions, and that the police are liable in negligence for positive acts, such as arrests. If an arrest is negligently performed, the police are liable not only for any injury caused to the person being arrested, but also for any injury caused to another person by the arrestee, as long as the injury is foreseeable.

Question 21

What are some policy factors that courts might consider when determining whether a duty should exist?

Answer 21

• Floodgates argument: concern that allowing one case to succeed would lead to countless similar lawsuits.
• Deterrence: a desire to deter certain types of behavior deemed wrong or anti-social.
• Resources: understanding that compensation will likely be paid by the defendant’s insurers or employer’s insurers, leading to increased premiums for society; also considering whether the defendant can personally afford to pay compensation.
• Public benefit: taking into account any benefit to the public from the decision, such as increased safety.
• Upholding the law: recognizing the need to uphold legal rules even when public opinion might disagree.

Question 22

When should the Caparo test be used to establish a duty of care?

Answer 22

The Caparo test should be applied in novel situations, where it is not clear if an existing established duty applies to the facts of the case. It is not necessary to apply the Caparo test in established duty situations, such as in the case of road users.

Question 23

In what situations will a duty of care usually be owed?

Answer 23

A duty of care will usually be owed when harm is caused by one individual to another by a positive act of wrongdoing and that harm is foreseeable physical injury to the person or physical damage to property. In these situations, the Caparo criteria (foreseeability, proximity, and fair, just and reasonable) are likely to be satisfied.

Question 24

In what situations might a duty of care not be owed?

Answer 24

A duty of care may not exist where:
* harm is caused by a public body (as opposed to an individual);
* harm is caused by an omission to act (as opposed to a positive act of wrongdoing);
* harm caused is pure psychiatric injury (as opposed to physical injury); or
* harm caused is pure economic loss (as opposed to physical damage to property).

Question 25

What is the general rule for omissions to act?

Answer 25

The general rule is that you do not owe a duty to the world for your omissions. In other words, a person is not required to act to prevent harm. For instance, if you see a stranger drowning, you are not required to save them.

Question 26

Is there a duty to act if you choose to intervene in a situation, even though you’re not obligated to?

Answer 26

Generally, there is no duty to act if you choose to intervene. If you do choose to act, you will not be liable in negligence even if you act carelessly, unless you make matters worse.
* East Suffolk Rivers Catchment Board v Kent and another is a good example of this. In this case, the defendant had no duty to repair a wall but chose to, but was not found liable when it took a long time to complete the repair and the claimant’s land remained flooded.

Question 27

Are there exceptions to the general rule that there is no liability for omissions?

Answer 27

Yes, there are exceptions where a person has a special relationship with the person in danger, such as a parent/child relationship, or where a person has control over another person or object.

Question 28

What was the outcome of Smith v Littlewoods Organisation Ltd?

Answer 28

The House of Lords found that the defendant did not owe a duty of care to the claimant for damage caused to their property by third parties because the defendant did not have control over those third parties. The case involved vandals breaking into an empty cinema owned by the defendant and starting a fire which spread to the claimant’s property.

Question 29

Give an example of a duty to take positive action to safeguard another person or prevent harm to third parties.

Answer 29

An example would be a lifeguard saving a drowning swimmer, or a teacher preventing a student from running into the road and causing danger to drivers.

Question 30

What was the outcome of Home Office v Dorset Yacht Co Ltd?

Answer 30

The Home Office was found liable for the damage caused by young offenders who escaped from their supervision because the officers had control over the boys and should have foreseen the harm to the claimant’s yacht. This case demonstrates that a duty can be imposed for an omission to act if the defendant has control over the person who caused the harm.

Question 31

What two-stage test is applied to determine if a defendant has breached a duty of care?

Answer 31

• First, the court assesses how the defendant ought, in the circumstances, to have behaved (a question of law).
• Second, the court decides whether the defendant’s conduct fell below the required standard (a question of fact).

Question 32

What is the standard of care?

Answer 32

The standard of care is based on what a reasonable person would have done in the defendant’s circumstances. The reasonable person is the average person, and the test is an objective one.

Question 33

Are there situations where the court might apply special standards of care?

Answer 33

Yes, special standards might be required in the following cases:
* Where the defendant holds themselves out as possessing a particular skill (such as a doctor).
* Where the defendant is a child.
* Where the defendant suffers from a disability.

Question 34

What standard of care is required of a skilled defendant?

Answer 34

A skilled defendant must act with the same degree of skill and care to be expected from a reasonable person with that particular special skill or profession. This is known as the Bolam test, which was established in Bolam v Friern Hospital Management Committee.

Question 35

What happens when professional opinion differs on the best practice for a skilled defendant?

Answer 35

The court held in Bolam v Friern Hospital Management Committee that the defendant would not be in breach of their duty provided they had acted in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular area.
* However, the court retains the ability to find a defendant in breach of duty even when some professional support for their actions exists, if it is determined that the body of opinion relied on is not reasonable or responsible. This was established in Bolitho v City and Hackney Health Authority.

Question 36

Is allowance made for an under-skilled defendant’s inexperience?

Answer 36

No, no allowance is made for inexperience. This is demonstrated by Nettleship v Weston, in which it was determined that a learner driver is expected to meet the standard of a reasonably competent driver.

Question 37

What standard of care is applied to junior doctors?

Answer 37

As determined by Wilsher v Essex Area Health Authority, a junior doctor is expected to show the level of competence befitting a doctor holding the same post. While experience is not a factor, junior doctors are expected to call on more expert assistance when needed.

Question 38

What standard of care is applied to a defendant doing work around their house?

Answer 38

Even when doing ‘odd jobs’ around the house, the court expects a defendant to meet the standard of a reasonably competent amateur in that area. As determined by Wells v Cooper, an amateur who tackles a job that exceeds their capabilities and would normally be done by a professional may be judged negligent for attempting the job in the first place.

Question 39

What is the standard of care applied to children?

Answer 39

A child defendant will be expected to show such care as can reasonably be expected of an ordinary child of the same age. This was demonstrated in Mullin v Richards, where two 15-year-old girls were engaging in a mock sword fight using rulers when one of the rulers snapped and injured one of the girls. The court determined that the defendant did not breach her duty of care as she had behaved in a way that would be expected of a reasonable 15-year-old schoolgirl.

Question 40

What are some factors that the court will consider in deciding if the standard of care has been achieved?

Answer 40

Some of the factors that courts will consider include:
* The magnitude of the risk - how likely was it that the defendant’s action would cause harm, and how serious was that harm likely to be?
* Cost and practicability of precautions.
* Defendant’s purpose.
* Common practice.
* Current state of knowledge.

Question 41

When is it justifiable to not take steps to eliminate a risk?

Answer 41

As demonstrated by Bolton v Stone, it is acceptable to not take steps to eliminate a risk when the risk of injury is small and a reasonable person would think it right to neglect it. In Bolton v Stone, the court determined that a cricket club was not liable for a claimant’s injury from being hit by a cricket ball because the risk of the injury was very small, as a ball had only been hit out of the grounds six times in the previous 30 years.

Question 42

How does knowledge of a claimant’s particular vulnerability factor into the standard of care?

Answer 42

• If the defendant knows that the claimant is particularly vulnerable to a certain type of harm, that may increase the defendant’s obligations.
• This is demonstrated by Paris v Stepney Borough Council, where a defendant was found to have breached their duty of care to a one-eyed employee by not providing him with safety goggles, as an injury to his good eye would have much more serious consequences for him than for other employees.

Question 43

What is the relationship between the risk of injury and the precautions a defendant is expected to take?

Answer 43

• The greater the risk of injury, the greater the steps the court will expect the defendant to take to reduce or eliminate the risk.
• For example, in Latimer v AEC Ltd, the court held that the defendant did not breach their duty of care to an employee who slipped and injured himself on a wet floor in the defendant’s factory because the risk of injury was slight compared to the high cost and inconvenience of having to close the factory until the entire floor could be covered with sawdust.

Question 44

Does the defendant’s purpose impact their standard of care?

Answer 44

Yes. If the defendant’s activity is in the public interest, they are less likely to be found liable. For instance, in Watt v Hertfordshire County Council, the court held that an employer was not liable for injuries to a fireman caused by a piece of equipment slipping while being transported on an ordinary lorry instead of the designated vehicle because the equipment was needed to help a woman trapped under a lorry, and saving her life outweighed the risk of the fireman’s injuries.

Question 46

Is compliance with an accepted practice conclusive evidence that a defendant has not been negligent?

Answer 46

No. While compliance with a common practice is strong evidence that the defendant has not been negligent, it is not conclusive. The court can condemn a commonly accepted practice as negligent, as they did in Re The Herald of Free Enterprise, where they found that the practice of setting sail without checking that a ferry’s bow doors were closed was a negligent practice.

Question 47

What is the standard for judging the foreseeability of risk?

Answer 47

• The foreseeability of risk is judged based on the knowledge available to the defendant at the time of the event. This means that the defendant’s activities are judged based on the current state of knowledge.
• For instance, in Roe v Ministry of Health, the court held that defendants were not liable for a patient’s paralysis caused by contaminated anaesthetic because the risk of seepage, which caused the contamination, was not known at the time.

Question 48

What is the defendant’s duty regarding rare events?

Answer 48

A defendant’s duty is to guard against reasonable probabilities, not fantastic possibilities. This was demonstrated by Fardon v Harcourt-Rivington, in which the court determined that the defendant was not liable when his dog broke a car window and a passerby was blinded by a splinter of glass, as this was considered a fantastic possibility.
* However, a rare event isn’t necessarily a fantastic possibility. For instance, the court determined in Carmarthenshire CC v Lewis that it was reasonably possible for a 4-year-old child to stray from a school playground, causing a lorry driver’s death.

Question 49

What is the standard of care applied when a defendant suffers an unexpected disability?

Answer 49

• If a defendant experiences a sudden, unexpected disability (like loss of consciousness or a heart attack) and they were unaware of their condition, they will not be held liable.
• If the defendant knows about the disability, they could be held liable if they acted unreasonably by undertaking an activity that caused harm due to their impairment.

Question 50

What are the three conditions for applying the maxim res ipsa loquitur?

Answer 50

The three conditions for res ipsa loquitur (‘the thing speaks for itself’) are:
* The thing causing the damage must be under the control of the defendant or someone for 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.

Question 51

How does the maxim res ipsa loquitur impact the burden of proof?

Answer 51

When res ipsa loquitur applies, it raises a presumption of negligence against the defendant, meaning the defendant must prove they were not negligent.
* This can be done in one of two ways: by producing evidence showing how the accident occurred without negligence, or by showing they had at all times used reasonable care.
* This was applied in Scott v London and St Katherine Docks Co, where a claimant was injured by a bag of sugar falling from a hoist. The court found for the claimant under res ipsa loquitur, as the three conditions for the maxim applied to the facts of the case.

Question 52

How does Section 11 of the Civil Evidence Act 1968 impact proving breach of duty?

Answer 52

Section 11 states that a defendant convicted of a criminal offense is presumed to have committed that offense in any subsequent civil proceedings. This means that a claimant can rely on a defendant’s criminal conviction as evidence of careless conduct that led to the harm they suffered. This would apply in a case where a defendant was convicted of driving without due care and attention.