Duty of care Flashcards
Define negligence
legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would regard as a foreseeable risk.
duty of care in late victorian england
Assumption = limited range of situations where duty could exist
Lord Atkin’s neighbour principle
Donoghue V Stevenson
‘reasonable care to avoid acts or omissions which you can reasonably foresee would likely injure your neighbour’
keep in mind ‘notion of proximity’
fleming - law of torts desc the test as ‘apodictic’ - concerned with a necesary truth - so straightforward it yields straightforward answers
issues with neighbour principles
too broad applicability
‘law as an educational subject’ - ‘covers a large field of law’
no. of cases in future to limit the application of neighbour principle
Anns V merton LBC
Lord Wilberforce’s universal two stage test
- is there a sufficient relationship of proximity between C and D (it was foreseeable C would be harmed if D = careless)
- are there any policy considerations which may limit or negate scope of the duty
W = concerned with policy here - limited cases where policy may trump principle - e.g. public auths enjoy greater protection from liability
W also stated ‘not nec to bring the facts of that situation within those of prev. situations in which a DoC has been held to exist’ - embracing novel cases
Harris case - DoC could arise to parents where bouncy castle hired to take care- large person injured small person - we live in a dynamic soc - respond to novel situations which prev weren’t thought of
Murphy V Brentwood
Anns = too broad - disapproved
caparo test
Lord bridge’s three stage exam
- reasonable foreseeability of harm
- must be a proximity of relationship bet C and D (narrows circ claims could succeed)
3.fair, just and reasonable for DoC to be imposed on D - any broad policy concerns
Hand formula
economic approach
cost of taking care is less than the expected harm
B < P x L
B = cost of taking care
P = probability of harm
L = gravity of harm
P x L = expected harm
if P x L = greater then B then reasonable to impose DoC
e.g. P - driving from NCL to durham and you speed, costs you £5 to arrive later
P = you’re in a motor vehicle - harm could be fatal (0.50)
L = £20.00
0.5 x 20.00 = £10.00 - impose duty of care
caparo test in action
Spring V Guardian Assurance PLC - C = former employee of D and C wanted new job so asked D to write references, C didnt get job as reference was bad
HoLs concluded this reference had been carelessly prepared - liability imposed - loss = purely economic
White v Jones - C hoped to benefit from will but will negligently prepared so C did not benefit from it - negligence law could be extended incrementally to note facts of case
When to apply Caparo
Robinson case (frail old woman getting knocked down by police officers and suspected drug dealer) - Lord Reed
Where law has established principles (precedent) don’t apply Caparo
inc. doctor-patient, solicitor-client, manufacturer-consumer, employer-employee and road users - It will be sufficient to simply state that the duty of care in such a situation has long been established
in novel cases look to Sutherland incremental development then Caparo
Liability for Omissions
DoC = person should not act in a way which causes harm, in general no duty of care for an individual act to prevent a foreseeable harm.
E.g. driver = duty to not cause an accident carelessly BUT no duty to help those involved in an accident they happen to come across or no req. for an ind. to save a drowning child from a shallow pond
Stovin v Wise - C injured when knocked off his motorbike by D at a junction. Visibility was impaired by bank of earth at junction. C claimed council had duty to remove bank of earth so council partially responsible - failed as council had not purposely put bank there they had simply failed to remove it
Scenarios where DoC arises
- defendant has control of a situation, - D - control over an ind/responsibility inc carer (parent/teacher) - ‘whos in charge?’ answer = D
Carmarthenshire County Council v Lewis
4-year-old schoolchild left unsupervised for 10 minutes by a teacher, left the classroom and walked onto a busy road. A truck driver swerved to avoid the child, hit a telephone pole and was killed. The courts held that the teacher had a duty to act (in this case, to supervise the child). Again, the teacher was in control of the situation and the harm was foreseeable.
defendant has assumed responsibility,
- one individual implicitly takes on a duty of care by merit of a contract or employment.
Barrett v Ministry of Defence - naval officer was held to have assumed responsibility for an extremely drunk pilot after ordering him to be taken to his bed. The pilot was not monitored, and subsequently choked on his own vomit.
- defendant has created or adopted a risk.
Cases after Robinson
Darnley V Corydon Health Services NHS trust -
C = physically attacked and had head injury went to A+E - receptionist said wait for 4-5 hrs - incorrect advise - should have been seen promptly by triage nurse - he left within 20 mins but an hour later pain worsened - taken to emergency surgery but permanent brain damage
Duty - settled law that medical facility owe a duty to those who present themselves with injuries and this arises from the moment they are booked in to booked out
Poole Borough Council V GN - C housed by local auth and put next to family known to be aggressive - C suffered mental and physical abuse
No duty - no common law principles, council did not create danger and no assumed responsibility
James- Bowen v Commissioner of Police for the Metropolis commissioner he had been sued for assault and ind who sued = suspected terrorist. C = officers involved with his arrest and in court commissioner accepted liability and apologised for police conduct, police prosecuted then acquitted due to prosecution suffered financial, mental and reputational harm and sued D - Novel case - SC concluded wouldnt be fair, just and reasonable to impose duty on commissioner on these facts - would undermine effectiveness of his role
