Chapter 38- Duty of care

Question 1

Define duty of care

Answer 1

• Duty of care refers to a legal obligation imposed on individuals and organizations to adhere to a standard of reasonable care.
• It establishes whether a legal obligation exists and defines the parameters of liability

Question 2

to be successful in negligence, 3 elements need to be present

Answer 2

1- A duty of care must be owed by the defendant
2- there must be a breach of that duty
3- The damages must have been caused by the breach of duty

Question 3

what is the neighbor principle and in which case is it

Answer 3

• The defendant must consider the safety and well-being of others closely and directly affected by what you do or fail to do.
• Donoghue v Stevenson 1932. In this case, the HOL established the “neighbor principle” whereby individuals must take reasonable care to avoid acts or omissions that could foreseeably injure their neighbors

Question 4

What are the 2 elements of the neighbor test

Answer 4

1- reasonable foreseeability
2- Neighborhood: relationship between claimant and defendant

Question 5

what happened in Ann v Merton London Borough Council 1977

Answer 5

The tenants claimed the council owed a duty of care to ensure the building was safe, even though they were not in a direct contractual relationship with the council.
The House of Lords found that the council did have a duty to take reasonable care in inspecting building works to prevent foreseeable harm to occupants. This case is significant for establishing the “two-stage test” for duty of care in negligence cases, though it was later refined in subsequent cases.

Question 6

What is the “two-stage test”

Answer 6

• Sufficient proximity between claimant and defendant to impose a duty of care
• available policy grounds that prevent the duty from being imposed.

Question 7

What was a weakness of the “two-test stage”

Answer 7

The judges did not like applying policy considerations but instead wanted to primarily focus on how to apply the law

Question 8

which case established the Caparo Test

Answer 8

Caparo Industries plc v Dickman (1990)
- Caparo sued Dickman for negligence, arguing that the auditors owed a duty of care to shareholders and potential investors like themselves who relied on the financial reports when making investment decisions.
- The House of Lords ruled that Dickman did not owe a duty of care to Caparo as a third-party investor, establishing the “Caparo test” for duty of care. This test requires:
- Foreseeability of harm,
- Proximity between the parties,
- That imposing a duty of care is fair, just, and reasonable.
This case limited liability in negligence for professionals, especially in cases involving third parties.

Question 9

PROXIMITY

Answer 9

• There must be a close relationship between the claimant and defendant which could be done through physical closeness or a legal relationship

Question 10

FORESEEABILITY:

Answer 10

• The harm caused must be a foreseeable result of the defendant’s actions. This is based on what a reasonable person foresaw, not what the defendant foresaw.

Question 11

FAIR, JUST AND REASONABLE:

Answer 11

• The court has discretion in determining whether a duty should be imposed and whether that duty is fair, just and reasonable.
• Even if the first 2 criteria are met, if the duty is not fair, just and reasonable, there is no duty of care.
• The court will take into account policy considerations

Question 12

Describe the 2 defenses of duty of care

Answer 12

“Contributory Negligence”: When the claimant is found to have contributed to their harm through their negligence.
“Volenti Non Fit Injuria”: A legal doctrine that means “to a willing person, injury is not done” This defense applies when a claimant willingly assumes the risk of harm e.g. taking part in a dangerous sport.

Question 13

What is the importance of policy reasons

Answer 13

They are used to protect certain groups when they are being sued in negligence, thereby having immunity

Question 14

Give examples of groups that have immunity from being sued

Answer 14

• Advocates
• Local authorities
• The police
• The fire brigade
• Ambulances

Question 15

Give the 4 policy reasons that the court relies on

Answer 15

• 1.the defendant might assume that a defensive approach to their work or provision at the publics expense
• 2.These groups will have to divert their financial resources away from the public only to successful claimants
• 3.There may be a floodgates of cases opening
• 4.Defendants can loose the case and be made liable for a large compensation

Question 16

What are the reasons for removing immunity for advocates

Answer 16

• Ensures that advocates are accountable and exercise due diligence
• promotes higher professional standards
• eliminates unfairness
• enhances public trust in the legal system

Question 17

How does the police handle duty of care in Law of Tort

Answer 17

• It has been established that the police have the same duty of care as other members of the public in limited situations
• Police cannot be sued for omissions which is a limitation
• If the police assume responsibility to take a duty of care, they may be liable.