Duty of Care Flashcards
What elements are necessary to establish a claim in negligence?
Loss or Damage
Duty
Breach
Causation
Remoteness
Defences
What are the different types of loss?
Physical/bodily injury
Psychiatric harm
Property Damage
Consequential economic loss
Pure economic loss
What is the three-stage approach to establish whether a duty of care is owed?
Foreseeability of harm - harm is objectively reasonably foreseeable.
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 does the fair, just and reasonable analysis involve?
It involves the court looking at policy considerations such as:
- floodgates
- insurance
- crushing liability
- deterrence
- maintenance of high standards
- defensive practices
What precedents exist making it clear a duty is owed?
Driver owes a duty of care to other road users.
Medical professionals owe a duty of care to patients
Police owe a duty of care to the public to protect them from physical injury when carrying out an arrest.
A common theme in relation to precedents is that the defendant had assumed responsibility.
What is the general rule in relation to liability for omissions?
No duty is imposed on a mere failure to act.
What are the exceptions to the general rule that no duty is imposed on a mere failure to act?
Where there is a statutory duty.
Where there is a contractual duty.
Where the defendant has sufficient control over the claimant.
Where the defendant assumes responsibility for the claimant.
Where the defendant creates the risk.
What is the position in relation to omissions and the emergency services?
The ambulance service - owe a duty to respond to a 999 within a reasonable time. However, a duty might not be breached where there is a need to deal with a more pressing matter.
Fire brigade - owes no duty of care to attend a fire, but if they do attend a fire, they owed a duty not to make the situation worse through a positive act.
The police owe no duty of care to respond to emergency call, however, they do owe a duty in other situations such as Reeves.
What is the general rule in relation to liability for acts of third parties?
No duty is imposed on a failure to prevent a third party causing harm to another.
What are the exceptions to the general rule that no duty is imposed on a failure to prevent a third party from causing harm to another?
There is sufficient proximity between the defendant and claimant.
AND/OR
There is sufficient proximity between the defendant and third party.
AND/OR
The defendant created the danger
AND/OR
The risk was on the defendant’s premises.
What is the starting point in relation to whether public bodies owe a duty of care?
Public bodies may owe a duty of care where the principles applicable to private individuals would impose such a duty i.e. Caparo test
Why is it difficult to determine if a public body owes a duty of care?
Many public bodies derive their powers or duties from statutes, therefore, no duty of care will be imposed if it would be incompatible with the intentions of the statutory scheme.
The court must decide whether it is fair, just and reasonable to impose a duty.
- need to think if successful claims are made against public bodies it is ultimately the tax payer that pays the damages; and
- might lead to defensive practices.
- there is also a distinction between operational and policy matters. Historically, the suggestion was that a public body can be held liable for the former, but not the latter.
