Duty Flashcards
two ways to establish duty
- precedent
- Caparo
Caparo test
establishing a duty where there is no precedent. Use this to develop the law incrementally and by analogy to established authorities.
- foreseeability (objective)
- sufficient proximity between C and D
- fair, just and reasonable
Omission
General rule - no duty if you fail to act
Omissions exceptions
- positive duty imposed by statute
- contractual duty
- high degree of control
- assumption of responsiblity
- defendant creates the risk through omission
Precedent for driver to pedestrian duty of care
Fitzgerald v Land and Patel
Precedent for police owing duty of care to public to protect them from reaosnably foreseeable physical injury when carrying out arrest
Robinson v Chief Constable of W Yorkshire Police
Precedent for road user duty of care
Nettleship v Weston
Precedent for firefighters - don’t owe a duty to turn up but can’t make it worse
Capital and Counties v Hampshire City Counci
Omissions - general rule
there is no duty to act - Smith v Littlewoods
Omission exception - high degree of control
Parent over child, Reeves v Comissioner of Police (failed to stop s.o in their custody taking their own life)
Omission exception - assumption of responsibility
teacher pupil, mother child, Barett v MoD (officer started to help drunk soldier then left him - he choked to death)
Omission exception - defendant creates the risk through omission
Goldman v Hargrave - fire, left embers
Ambulance duty
- Owe a duty to respond to a 999 call within a reasonable time.
- BUT duty might not have been breached if they properly used their discretion to deploy elsewhere for a more pressing emergency or had made a choice about the allocation of resources (Kent v Griffiths)
Fire brigade duty
- No duty to answer 999 call
- if they do turn up, can’t make it worse
Capital Counties v Hampshire County Council
Police
- No duty to respond to 999 (Alexandro v Oxford)
Damages caused by 3P - general rule
No duty to prevent a 3P causing damage
Exceptions to damage caused by 3P general rule
- Sufficient proximity between the defendant and the claimant
- Sufficient proximity between defendant and 3P
- Defendant created the dangerous situation
- Danger was on the defendant’s premises
3P exception - sufficient proximity between C and D
- Contractual relationship (Stansbie v Troman - decorator)
- identifiable victim over and above the public (Home Office v Dorset Yachts Co c.f Hill v Chief Constable of W Yorkshire - Yorkshire Ripper)
- assumption of responsbility (Swinney v Chief Constable of Northumbria no. 2 - police informant)
3P exception - Defendant and 3P
3P must be in the care and control of D at the time of harm:
- Home Office and Dorset Yachts - boys under supervision of defendant, therefore sufficient proximity
- Hill v Chief Constable of W Yorkshire- Sutcliffe not under police care at the time of killing therefore no duty
- Palmer v Tees Health Authority - psyciatric patient released from hospital and killed child. NO duty - not under the health authroity’s care at the time, child was not an identifiable victim
3P exception - D creates the danger
Stansbie v Troman (left the door unlocked)
3P exception - D knew or ought to have known of the danger created on their premises
They then have a duty to take reasonable steps to eradicate/diminish the danger
e.g Smith v Littlewoods –> No duty
- vandals broke in, started fire
- no previous history of vandals
- no reason to suspect a break in
therefore D did not know or ought to have known of the danger
Public bodies and duty - general rule
Same approach as for individuals
Jebson v MoD - assumed responsibility for a soldier. This created a duty even though normally the army does not owe a duty to soldiers.
Mitchell v Glasgow City council
LL did not assume a duty of care for a tenant - no automatic duty owed just because they were a council.
CN and GN v Poole Borough Council
council had the power to take children into their care but this was not enough to establish a duty –> no automatic duty owed just because you have a statutory power to act.
an act which is nomrally a breach of a duty will not be a breach if it is specifically authroised by parl
no duty imposed if it would be incompatible with statutory scheme under which the body operates
Policy v Operational
Rugby v Chief Constable of Northamptonshire
- police fired gas without considering the risk
- decision to give gas was a policy decision
- the way it was fired was an operational decision
courts more likely to declare that operational failures are a breach.
