Duty of Care Flashcards
What is negligence?
Negligence is the breach of a legal duty to take care by the defendant resulting in loss or damage to the claimant.
What are the elements that needs to be considered for a negligence claim?
- Loss or damage - of a kind recognised by the court
- Duty - the defendant owed the claimant a duty of care
- Breach - the defendant breached said duty of care
- Causation - the breach of the duty of care caused the loss to the claimant (both in law and in fact)
- Remoteness - loss not too remote (proof that damage suffered was reasonably foreseeable)
- Defences - absence of any defence
What are examples of common losses?
- Physical/body injury eg broken arm, fractured skull
- Psychiatric harm - generally this must be something beyond emotional distress - must be a recognised mental illness eg reactive depression
- Property damage - damage to your car, roof of house
- Consequential economic loss - loss of wages due to not being able to work because of broken arm, loss of revenue in shop from loss of roof
- Pure economic loss - lost savings due to investment based on bad advice. Harm to your reputation due to negligent design of unpopular advert
What is the first thing that should be considered in determining whether a duty of care is owed in a particular situation?
Whether there is an existing precedent for a duty of care to be imposed
What should be done if it is a novel case, ie there is no precedent as to whether a duty of care should be imposed?
Caparo v Dickman test is to be followed:
- Foreseeability of harm - would the reasonable person foresee that the defendant’s lack of care would cause the claimant harm
- Proximity - there must be a relationship of sufficient proximity between the claimant and defendant
- It must be fair, just and reasonable to impose a duty
What will the courts consider in deciding the third limb of the Camaro test ie whether it is fair, just and reasonable to impose a duty of care?
a. the courts will consider the impact of a decision socially, politically, and economically on society as a whole; and
b. Policy considerations
What policy considerations are potentially relevant when considering if it is fair just a reasonable to impose a duty of care?
i. Floodgates - would flood the court with similar claims
ii. Insurance - defendant more likely to liable if they are or should have been insured because they have means to pay damages for loss
iii. crushing liability - if defendant liable they would need to pay damages out of all proportion to the wrong committed
iv. deterrence
v. maintenance of high standards
vi. likelihood of parties adopting defensive practices which has a negative overall effect
When may there be an exception to the general rule that there is no duty to act so omissions will not result in a claim of tort?
Duty may be opposed for omission where:
- Where there is a statutory duty
- Where there is a contractual duty
- Where the defendant has sufficient control
- Where the defendant assumes responsibility
- Where the defendant creates the risk
What duty of care does the ambulance service owe?
They owe a duty of care to respond to a 999 call within a reasonable time
What duty of care does the fire service owe?
They owe no duty of care to attend a fire but if they do attend owe a duty to not make the situation worse through a positive act
What duty of care does the police service owe?
They owe no duty of care to respond to emergency calls
What exceptions are there to the rule that a duty is not imposed for failing to prevent a third party from causing harm to another?
Duty will be imposed generally if:
i. Sufficient proximity between the defendant and claimant (is established where the claimant is an identifiable victim, at risk over and above that of the general public at large and where the defendant has assumed responsibility for the claimants safety) and/or
ii. Sufficient proximity between the defendant and third party (the defendant has a duty to supervise the third party at the time of the incident) and/or
iii. Defendant created the danger (which is then taken advantage of by third party) and/or
iv. Risk was on defendant’s premises (duty to abate danger if danger is known or foreseeable)
Do public bodies owe a duty of care the same as individuals?
Generally speaking yes
How may a public body’s duty of care be restricted?
Where is it incompatible with the intentions of the statutory scheme under which the public body operates
Will a public body automatically have a duty of care imposed simply because it has a statutory duty or power to act?
No
