Duty of Care

Question 1

What is the duty of care under tort law?

Answer 1

A legal relationship between a claimant and a defendant, under which the defendant owes the claimant a legal responsibility.

If that duty is breached, and such breach causes the claimant to suffer loss, then the claimant may have a claim in negligence.

But to establish a claim in negligence, the claimant must first show that there is a duty of care between them and the defendant.

Question 2

What the ways a duty of care can be established?

Answer 2

1) Established Duty - a relationship that automatically gives rise to a duty of care or one that has been identified in precedent (a case that has already been determined before the courts)/the facts before the court are analogous to an existing precedent.

2) Caparo 3-stage test, to use then there isn’t an established duty - novel situation.

Question 3

What are the established duties of care?

Answer 3

• One road user to another
• Doctor to patient
• Employer to employee
• Manufacturer to consumer
• Teacher to pupil
• Rescuer: when defendant creates a dangerous situation which causes a third party to try and rescue another and that third party is injured.

Question 4

When is a duty of care breached?

Answer 4

A breach occurs when the defendant falls below the standard of care required by law.

You need to determine what the standard of care is for the defendant and whether on the facts they have fallen below that standard.

Question 5

What are the questions that need to be asked when deciding if there has been a breach of a duty of care?

Answer 5

1. How D ought to have behaved in the circumstances - the standard of care (legal question).
2. How did D behave - did they fall below the standard of care? (factual question)

Question 6

What is the standard of care?

Answer 6

What a reasonable person would have done in the defendant’s circumstances.

This is an objective test. (ignore personal circumstances- act not actor!!)
Ask: what level of care and skill did the activity the defendant was undertaking require? Eg if D is driving, the standard is that of a reasonably competent drive.

If someone is doing something that requires a certain amount of skill or knowledge, the standard is that of a reasonably competent person carrying out that task.

Personal circumstances of D are ignored.

Question 7

What is the standard of care if the defendant has a profession?

Answer 7

An ordinary member of that profession in the defendant’s circumstances

Question 8

What factors does the court look at when “setting the standard”?

Answer 8

1. Probability of the risk of injury and seriousness: higher the risk of injury/seriousness, the higher the standard of care required
2. Cost of precautions: the lower the costs of taking steps to avoid the injury, the more likely D will be liable (and vice-versa)
3. The social value of the activity: the more beneficial the activity is to society, the less likely D will be liable

Question 9

How is the breach of the standard of care established?

Answer 9

Assess whether the defendant fell below the standard of care that has been set - a question of fact determined by the court on the evidence before them

Question 10

Who has the burden in establishing the duty of care?

Answer 10

The burden is on the claimant to establish on the balance of probabilities that D’a actions fell below the required standard of care.

Question 11

What is the doctrine of “res ipsa loquiter”?

Answer 11

Courts can infer liability under the doctrine of res ipsa loquiter. This is when the circumstances surrounding the negligence are enough to be evidence of carelessness - in other words, it is common sense to say there is negligence.

To arise, D must have had control of the thing that caused the injury and the accident would not have happened had D managed the thing properly.

Question 12

Are criminal convictions relevant for an action in tort?

Answer 12

A criminal conviction for the same action that caused the negligent injury to C can be used as evidence in the tort claim.

Question 13

When should the Caparo test be used?

Answer 13

It should be used as the starting point when determining if there is a duty of care in a novel case.

Meant to develop the law incrementally and by analogy with established authority.

Question 14

What are the stages of the Caparo test?

Answer 14

1. Foreseeability of harm: Objective - what the reasonable person would expect to foresee. Must be reasonably foreseeable that the defendant’s lack of care would cause the claimant harm.
2. Proximity: Must be a relationship of sufficient proximity between the claimant and the defendant.
3. It must be fair, just and reasonable to impose a duty.

Question 15

What are the policy considerations of Caparo?

Answer 15

• Floodgates
• Insurance
• Crushing liability
• Deterrence
• Maintenance of high standards
• Defensive practices

Question 16

What is the first question you should ask when determining a duty of care?

Answer 16

Is there precedent making clear whether or not a duty is owed?

Question 17

When does a road user owe a duty of care?

Answer 17

Owes a duty of care to other road users not to cause them physical injury by careless driving.

Question 18

When does a medical professional owe a duty of care?

Answer 18

Owe a duty to patients once they have accepted them for treatment.

Question 19

When do the police owe a duty of care to the public?

Answer 19

Owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.

Question 20

What is the general rule for liability for omissions?

Answer 20

General rule: no liability for omissions. There are exceptions.

Question 21

What are the exceptions to the rule that there is no liability for omissions?

Answer 21

1. Statutory Duty
2. Contractual Duty
3. Defendant has sufficient control over the claimant
4. Defendant assumes responsibility for the claimant
5. Where the defendant creates the risk

Question 22

What is the general rule for liability for acts of third parties?

Answer 22

General Rule: law of tort only imposes liability on those who directly cause injury or damage to another. No such duty is imposed on a failure to prevent a third party causing harm to another.

Exceptions.

Question 23

What are the exceptions for a duty for failing to to prevent a third party from causing harm?

Answer 23

1. Sufficient proximity between the defendant and the claimant
2. Sufficient proximity between the defendant and third party
3. Defendant created the danger
4. The risk was on the defendant’s premises

Also be categorised as:

1. A has assumed a responsibility to protect B from that danger
2. A has done something which prevents another from protecting B from that danger
3. A has a special level of control over that source of danger
4. A’s status creates an obligation to protect B from that danger

Question 24

What is the starting point for whether public bodies owe a duty of care?

Answer 24

Public bodies may owe a duty of care where the principles applicable to private individuals would impose such a duty.

Question 25

What are the two complicating factors for whether public bodies owe a duty of care?

Answer 25

Two complicating factors:

a) Many public bodies derive their powers or duties from statutes - which can impact the court’s findings in relation to duty

b) When deciding whether to develop the law of negligence into a new area, the court must look at what is fair, just and reasonably and take into account policy considerations

Question 26

Does it matter if a public body has the power to act?

Answer 26

No a duty of care does not arise simply because the public body has a statutory duty or power to act.

Question 27

What are the stages of the negligence sequence?

Answer 27

1. Loss
2. Duty
3. Breach
4. Causation
5. Remoteness