Duty of Care Flashcards
What are the established duty of care relationships?
One road user to another
Doctor to patient
Employer to employee
Manufacturer to consumer
Teacher to pupil
Occupier to visitor or tresspasser.
Where a defendant’s
actions have created a dangerous situation so that it is reasonably foreseeable that
someone may attempt a rescue, the defendant owes a duty of care to the rescuer
When can the established duties of care be relied upon by a claimant?
When they have suffered physical damage - either personal injury or damage to property.
They cannot be relied upon where the damage suffered is classed as pure economic loss or pure psychiatric harm.
What is the ‘neighbour principle’?
You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour
Neighbour includes persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my
mind to the acts or omissions which are called in question.’
What are the three elements of the Caparo test?
Reasonable foresight of harm to the claimant;
Sufficient proximity of relationship between the claimant and defendant; and
That it is fair, just and reasonable to impose a duty.
What are the factors the court may take into account in determining whether it is ‘fair, just and reasonable’ to impose a duty of care on a defendant in a novel duty situation.
The ‘floodgates’ argument: If one case is allowed to succeed, the floodgates will open to admit hundreds of other similar cases.
Deterrence of a certain type of behaviour.
The resources of the defendant to pay any compensation awarded.
Any benefit to the public as a result of its decision.
What happened in the case of Hill v Chief Constable of West Yorkshire [1989]?
A claim was brought against the police by the parents of a murder victim. The victim had been murdered by a serial
killer, whom the police had been unable to apprehend. The claimants contended that the police had been negligent in the way they conducted the investigation.
The police were exonerated from liability, on the basis that they did not owe a duty of care to any individual, as their duty is to the public at large. If a duty had been imposed on the police the duty owed to the public would be too wide and too onerous.
When may there not be a duty of care?
Harm is caused by a public body, such as a local authority or the police.
Harm is caused by an omission to act.
Harm caused is pure psychiatric injury.
Harm caused is pure economic loss.
What is the rule for omissions to act?
The general rule is that a duty of care is not owed for omissions.
What are the exceptions to the general rule of no liability for omissions?
If someone
decides to act, they have a duty not to make the situation worse.
There is a duty to act positively in tort if a person has some sort of power or control over the other person or object.
Where one person has a relationship of control over another, they may have a duty to take positive action to prevent harm being caused to third parties. For example, the duty of an instructor to make sure that a learner driver does not cause an accident.
What are examples of special relationship of control?
Employer and employee;
Schools and children;
Parents and children;
Instructors and pupils.
