Duty of Care Flashcards
what was the state of duty of care in victorian england? (incl. 2 cases)
- Heaven v Pender - rejection of a generally applicable duty test
- Le Lievre v Gould - emphasis placed on the concept of physical closeness/proximity between C and D
what was the ‘first’ advancement in duty of care? (incl. case)
Donoghue v Stevenson (Lord Atkin) - neighbour principle; take reasonable care to avoid acts or omissions which can be reasonably foreseen to injure your neighbour
Lord Atkin and proximity
- the relationship between C and D should be suitably close
- ‘persons who are closely and directly affected by my act’
commentary: Atkin’s neighbour principle
Atkin commented on his own principle, stating:
- ‘[A person] is not to injure his neighbour by acts of negligence, and that certainly covers a very large field of the law’ - implies broad applicability
- duty of care is really concerned with the question ‘what would i expect of people when they interact with me closely?’
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commentary: other academics on Atkin’s neighbour principle
Fleming:
- ‘a sacrosanct preamble to any judicial disquisition on duty’ - neighbour principle is a great success; the ‘go-to’ reference point on duty of care
- HOWEVER it contains a ‘noticeable ambiguity’ - is it merely a test of foresight, or does it make allowance for other factors? (raising a tension between principle and policy)
reasonable foreseeability? (incl. case)
- British Virgin Islands v Hartwell - the concept of reasonable foreseeability embraces a wide range of degrees of probability; it gives judges discretion about how they decide cases
Lord Wilberforce’s two-stage duty test (incl. case)
Anns v Merton Borough Council:
1. ‘sufficient relationship of proximity or neighbourhood’ between C and D?
2. ‘considerations which ought to negative, or to reduce… the scope of duty’?
Lord Wilberforce on the second limb of his test
‘it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist’
- society needs a doctrinal device to respond to novel sets of circumstances
criticisms of Lord Wilberforce’s test
- too broad; encouraged too many people to bring claims to the court
- also led to the courts taking an approach to duty which was heavily reliant on policy, which caused uncertainty as to how claims would be decided
in what case was Lord Wilberforce’s duty test rejected?
Murphy v Brentwood DC
what is Lord Bridge’s duty test? (incl. case)
Caparo Industries plc v Dickman:
1. reasonable foreseeability of harm
2. relationship of proximity
3. is it ‘fair, just and reasonable’ to impose a duty?
conceptual blurring within the caparo test?
- in the CA, Bingham MR noted that the interrelationship between reasonable foreseeability of harm and proximity is very close
- there is also an interrelationship between proximity and justice, fairness and reasonableness - if there is policy, there is a need to consider proximity of the parties (James McNaughten)
Lord Oliver on proximity in Caparo
- Proximity is ‘no more than a label’ and is ‘not a definable concept’
- Proximity is to be used ‘pragmatically’ by judges (exercising of discretion)
incremental development? (incl. case)
Sutherland Shire Council v Heyman - ‘the law should develop novel categories incrementally and by analogy with established categories’ (Brennan J)
american approach to duty of care? (incl. case)
- Hand Formula, US v Carroll
- D (cost of taking precautions) < P (probability of harm) x L (gravity of harm)
