Duty of Care

Question 1

List the established duty situations.

Answer 1

• Doctor to patient;
• Teacher to pupil/ tutor to tutee;
• Employer to employee;
• Manufacturer to consumer;
• Drivers to other road users and pedestrian’s, passengers, cyclists etc.

Question 1

under what circumstances can a claimant rely on an established duty situation?

Answer 1

Claimant’s can rely on established duty situations ONLY when they have suffered physical damage (ie personal injury or damage to property). They cannot rely on established duty situations in for damage classed as pure economic loss or pure psychiatric harm (although there are exceptions).

Question 2

Give the requirements of the Camaro test which if satisfied will determine that a dirty of care is owed in a novel duty situation.

Answer 2

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

Question 3

Explain the forgeability requirement of the Caparo Test.

Answer 3

Effectively asks whether it is reasonably foreseeable that D’s actions would affect this particular claimant. (eg Bourhill v young where the woman who heard the crash had a miscarriage as a result. this was not reasonably foreseeable as the perpetrator of the crash could never have foreseen the damage to the claimant).

Question 4

Explain the proximity requirement of the Caparo test.

Answer 4

Relates to the relationship between the claimant and the defendant. eg in Caparo, claim for damages failed as the relationship was not sufficiently close.

Question 5

A lack of proximity can be a limitation upon the duty of care owed in certain cases. List the typical situations where a lack of proximity may limit the duty of care owed.

Answer 5

• omissions, eg failure of local council to improve a road junction;
• pure economic loss, eg loss of investments caused by publicity from journalists;
• psychiatric harm - eg harm suffered by victims of a train crash.

Question 5

Explain the fair just and reasonable requirement of the caparo test.

Answer 5

In certain situations, it may not be fair or reasonable to impose a drug (eg Hill v CCWY it was held the police do not owe a duty to every individual but the public at large - ie it would be unreasonable for the police to owe a duty of care to each and every individual member of the public).

Question 6

What is the general rule in relation to omissions?

Answer 6

The general rule is that there is no duty of care owed for omissions.

Note there are exceptions to this general rule.

Question 7

Explain the rule from Page v Smith.

Answer 7

Where psychiatric harm has been suffered, and there was. foreseeable risk of physical injury due to D’s actions, it may be found there was a duty of care (eg if one car driver sees a crash of two others, narrowly avoids being hit but suffers psychiatric harm as a result).

Question 8

List the examples established exceptions to the general rule about omissions, which may make a defendant liable for an omission.

Answer 8

• instructor pupil relationships;
• schools/ teachers and children relationships;
• parent and child relationships;
• employer employee relationships.

Question 9

True or False: there is a duty to act positively in tort (ie you can be liable for an omission) where a person has some sort of power or control over the other person/ object.

Answer 9

True. This is known as a special relationship of control (eg parent child relationship).