Duty of care Flashcards

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1
Q

What are the key elements to succeed in a general negligence claim?

A

Loss/damage
Duty of care
Breach of duty of care
Causation
Remoteness
Any valid defences?

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2
Q

What is the test to determine whether a duty of care is owed?

A

Caparo v Dickman (1990) test:
-Is there already an established precedent?
-Was the loss reasonably foreseeable?
-Is there a relationship of proximity between the parties?
-Is it fair, just and reasonable to impose a duty of care?

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3
Q

What is the key case that outlined a manufacturer owes a duty of care to the ultimate consumer?

A

Donoghue v Stevenson (1932)-decomposed snail in ginger beer, House of Lords held that a manufacturer owed a duty of care to the ultimate consumer.

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4
Q

Outline the key policy concerns that are taken into account when determining whether a duty of care is owed.

A

Floodgates-allowing one claim would open the legal floodgates leading to a deluge of claims ‘flooding’ the courts

Crushing liability-finding a party liable where the result would be that the party would need to pay disproportionate damages to the wrong committed

Insurance-more likely for D to be liable if they are insured because they will have the means to pay damages

Defensive practices-imposition of a duty might lead to public services being restricted in their operation in fear of litigation

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5
Q

Do road users owe a duty of care to other road users?

A

Yes, as per Nettleship v Weston (1971) – road users owe a duty of care to other road users not to cause them physical injury by careless driving.

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6
Q

Do medical professionals owe a duty of care to patients?

A

Yes, as per Cassidy v Ministry of Health (1951) - but only once they have accepted them for treatment.

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7
Q

What happened in the case of Watson v British Boxing Board of Control (2001)?

A

A boxer’s claim that immediate medical attention should have been available ringside was upheld as the injury was foreseeable, the D had assumed responsibility for the medical facilities at the fight and it was fair, just and reasonable due to no policy considerations.

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8
Q

Do the police owe a duty of care to the public when carrying out an arrest?

A

Yes, as per Robinson v CC of West Yorkshire Police (2018) - police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.

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9
Q

Is there liability for a mere failure to act (omission)?

A

As a general rule, there is no duty for a failure to act as per Smith v Littlewoods Organization (1987) but there are a number of exceptions.

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10
Q

What are the exceptions to the general rule regarding omissions?

A

-Where there is a statutory duty eg under OLA 1957

-Where there is a contractual duty as seen in Stansbie v Trotman (1948) where the D failed to secure the premises which led to theft

-Where the D has sufficient control eg parent over children and Reeves v Commissioner of Police for the Metropolis (1999)-police owed a duty to prisoners to ensure they did not take their own life

-Where the D assumes responsibility for C’s welfare as seen in Barrett v MOD (1995) where the officer in question assumed responsibility for the C’s welfare but then left him and he choked on his own vomit

-Where the D creates the risk through an omission as seen in Goldman v Hargrave (1967) where the D failed to clear a fire on his land and mitigate the danger

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11
Q

What is the duty of care owed by the ambulance service?

A

The ambulance service owe a duty of care to respond to a 999 call within a reasonable time as per Kent v Griffiths (2000), however this duty may not be breached where the service properly exercised its discretion to deal with a more pressing emergency/allocation of resources.

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12
Q

What is the duty of care owed by the fire brigade?

A

The fire brigade owes no duty of care to attend a fire but if they do attend, they owe a duty not to make the situation worse through a positive act as per Capital and Counties plc v Hampshire CC (1997).

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13
Q

What is the duty of care owed by the police to respond to emergency calls?

A

The police owe no duty of care to respond to emergency calls (Alexandrou v Oxford (1993).

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14
Q

What is the duty of care owed by the army to soldiers during battle?

A

The army do not owe a duty to soldiers in battle conditions (during active combat) as per Mulcahy v MOD (1996).

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15
Q

Is there a duty for failing to prevent a third party from causing harm to another?

A

As a general rule, there is no duty for failing to prevent a third party from causing harm as per Smith v Littlewoods Organization (1987) but there are a number of exceptions.

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16
Q

What are the exceptions to the general rule regarding liability for acts of third parties?

A

-Sufficient proximity between the D & C
C is an identifiable victim at risk over and above the public at large and D has assumed responsibility for the C’s safety as seen in Swinney v CC of Northumbria (1991)

-Sufficient proximity between D and third party
Sufficient proximity is established where at the time the harm was committed, the third party was under the care and control of the D. In Hill v CC of West Yorkshire (1989) , there was no duty as the victim was not under police care and control at the relevant time

-The D created the danger
Stansbie v Trotman (1948) the D failed to secure the property thereby creating the danger of theft

-The risk was on the D’s premises
Smith v Littlewood (1987) there is a duty owed to abate danger if danger known or foreseeable

17
Q

In the case of Robinson v CC of West Yorkshire Police (2018), what were the exceptions categorized to the general rule regarding liability for acts of third parties?

A

-C has assumed a responsibility to protect D from that danger

-C has done something which prevents another from protecting D from that danger

-C has a special level of control over that source of danger

-C’s status creates an obligation to protect D from that danger

18
Q

In the case of CN and GN v Poole Borough Council, what was established in relation to the liability of public authorities?

A

-Liability of a public authority is in principle the same as a private person, but may be restricted by statutory powers or duties

-It is difficult to argue that because a public body has a duty or power to act in a particular area, that a failure to act would give rise to a duty in negligence