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 take 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.