Duty of care Flashcards
What is negligence?
The breach of a legal duty to take care by the D resulting in loss or damage to C
The most significant tort in practice
What must be proved for a negligence claim?
D owed C a duty of care, D breached duty, breach caused C’s loss, loss not too remote
Burden shifts to D for defences
What types of losses might be considered for a claim?
- Physical/bodily harm
- Psychiatric harm (beyond emotional distress)
- Property damage
- Consequential economic loss
- Pure economic loss
What is the neighbour principle?
Old law and now replaced by Caparo
Must take reasonable care to avoid acts/omissions which you can reasonably see would be likely to injure your neighbour (foreseeability) - neighbour is someone who are so closely and directly affected (proximity) by act
What is the 3 stage approach in Caparo?
- Foreseeability of harm; objective, what reasonable person expected to see
- Relationship of sufficient proximity between C and D
- Must be fair, just and reasonable to impose duty
Used where there is no precedent
What are there already precedents for?
Meaning Caparo test not needed
- Driver owes DOC to other road users not to cause them physical injury
- Medical professionals owe DOC to patients once accepted for treatment
- Where someone will obviously be a rescuer
- Police owe DOC to public to protect them from reasonably foreseeable injury when carrying out arrest
When and how is the Caparo test applied?
When there is no precedent and we are dealing with a novel case
- Consider if duty should be imposed by drawing analogy with existing cases within context of Caparo criteria
- Harm must have been reasonably foreseeable, D and C in close proximity, excercise judgement on whether fair and reasonable…
To develop incramentally (no magic formula)
Drawing analogy with earlier authority for novel cases = identifying the legally significant features of the earlier authorities
What are policy considerations?
In context of fair, just and reasonable
- Floodgates (one claim>deluge of claims)
- Insurance (finding insured party liable spreads cost through society)
- Crushing liability (D needs to pay damages disproportionate to wrong committed)
- Deterrence (for undesirable behaviour)
- Maintenance of high standards/defensive practice (parties act in undesirable ways to avoid claims)
Example of establishing DOC with no clear precedent…
Boxer claimed that immediate medical attention should have been provided at ringside - upheld:
- Brain damage was foreseeable
- D had assumed responsibility for determining nature of medical facilities by making regulations setting out medical care
- It was fair, just and reasonable to impose a duty - would not necessarily extend to other sporting organisations
What is the general rule on liability for omissions?
Generally, no duty for a failure to act e.g. save a drowning stranger
Exceptions! E.g. relationship, statutory duty, creates danger etc.
What are the 5 exceptions to the general rule on liability for omissions?
- Statutory duty (e.g. occupier’s liability - must check safe for visitors)
- Contractual duty
- D has sufficient control over C (parent should save drowning child, police should save suicidal prisoner)
- D assumes responsibility for C (once started giving medical attention, can be liable if they die/get worse e.g. off-duty lifeguard [even if they had never started to help in the first place!])
- D creates risk (then have duty to mitigate danger e.g. starting fire)
For creating risk - Goldman - D liable for naturally occuring fire on his land - extinguished fire but did not douse the embers, wind reignited fitre and caused damage to C’s land - held that D had physical/financial means to spray water over embers and this omission gave rise to DOC
Do all 3 emergency services face ommissions liability?
- Fire brigade cannot make situation worse through positive act (Capital - firefighter ordered sprinkler system at fire to be turned off)
- Police owe no duty to respond to emergency calls
- Ambulance owe duty to respond to 999 call in reasonable time (but consider allocation of resources)
What is the general rule on liability for preventing someone else causing harm to C?
I.e. acts of third parites
Generally no duty to prevent a third party causing harm to C; liability only imposed on those who directly cause harm or damage to another
What are the 4 exceptions to liability for acts of third parties?
Where the act is done by the TP
- Sufficient proximity between D and C (D responsible for C)
- Sufficient proximity between D and third party (D responsible for TP)
- D created the danger - e.g. decorator failing to secure building and allowing burglars to enter
- Risk on D’s premises
Can be multiple at once (e.g. contracted decorator not securing house)
Also phrased as:
- A has assumed responsibility to B to protect from danger
- A has control over TP so can protect B from danger
- A has a special control over that source of danger
- A’s status creates an obligation to protect from danger
Re exceptions to liability for acts of TP
What degree of proximity should D and C have for exception?
2 things needed
For D to be held responsible for acts of TP that harm/cause loss to C (because of relationship of D and C)
Where C is an identifiable victim at risk over and above public at large + D has assumed responsibility
- Stansbie - C contracted with D decorator, D owed DOC to lock C’s property when he left when his failure to do so allowed burglars into property
- Home Office - Ds supervising borstal boys who had history of escape and Cs had yachts which were only way to escape island = Cs were identifiable victims and sufficient proximity between them and D
- Swinney - C police informer gave info on suspect on condition she remained anonymous, criminal found police file containing details she gave and harassed her causing psychiatric illness - D police assumed responsibility to protect C for info she gave
- Hill - mother of last victim of Yorkshire Ripper failed in negligence claim against police; insufficient proximity between police and the victim who was an unidentifiable member of massive group of potential victims (all women in area)
