Duty of Care Flashcards
What is the definition of negligence?
The breach of a legal duty to take care by the defendant, resulting in loss or damage to the claimant
What is the chain of a negligence claim?
Loss or damage
Duty
Breach
Causation
Remoteness
Defences
What is the three step Caparo v Dickman test for establishing duty of care whether there is no precedent?
Was harm foreseeable? Objective - the reasonable person expected to foresee
Proximity between claimant and defendant
Fair, just and reasonable
How does the court approach duty cases where there is no pre-existing precedent?
Adopts a cautious, incremental approach in line with existing authority
Limb 3 of Caparo: Fair, just and reasonable: what does this mean?
Court will consider policy considerations:
- Floodgates
- Insurance
- Crushing liability
- Deterrence
- Maintenance of high standards
- Defensive practices
What is the precedent on duty of care for road users?
Drivers owe a duty of care to other road users not to cause them physical injury.
What is the precedent on duty of care for medical professionals?
Medical professionals owe a duty of care to patients once they have accepted them for treatment.
What precedent was established by Baker v TE Hopkins?
It is reasonably foreseeable that someone would try and rescue workers in danger
What is the precedent on the police?
The police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.
Give an example where the courts have applied Caparo:
Watson v BBBC: a boxer’s claim that immediate medical attention should have been available was upheld
Injury - foreseeable
defendant - assumed responsibility
FJR - no policy reasons why it wouldn’t be imposed
What is the general rule on omissions?
There is no general duty to act
What are the five exceptions to the general rule that there is no duty to act?
Positive duty imposed by statute
Contractual duty
Defendant has a high degree of control over the claimant
Assumption of responsibility the claimant’s welfare by the defendant
Defendant created the risk through an omission
What is the general rule on the ambulance service?
Ambulance service owe a duty of care to respond to a 999 call within a reasonable time.
But this can be mitigated by a decision to attend a more pressing emergency first
What is the general rule on the fire brigade?
They owe no duty of care to attend a fire, but if they do attend one they must not make it worse through a positive act
What is the general rule on the police re responding to emergency calls?
No duty of care to respond
What is the general rule on third parties?
There is no duty imposed on a failure to prevent a third party causing harm to another.
What are the four exceptions to the general rule on third parties?
There is sufficient proximity between the defendant and claimant
Sufficient proximity between the defendant and a third party
Defendant created the danger
Risk was on the defendant’s premises
What amounts to sufficient proximity between D and C?
- Contractual relationship e.g. failing to secure the building
- Identifiable victims at risk over and above the public.
- Police informant - duty of care
- No duty of care if you are an unidentifiable members
- D must assume responsibility if duty is to be owed
When is there sufficient proximity between D and a 3rd party?
- Supervisory relationship
- 3rd party not under police care and control - no proximity
Give examples when the defendant created the danger?
Contractual obligation e.g. failing to secure a building
If D knows or ought to know of a danger on their property created by a 3rd party, they may owe a duty to anyone who is subsequently damaged.
How did the court understand the exceptions to the general rule on 3rd parties in Robinson?
A can be held to owe a duty to B in relation to harm caused by a 3rd party when:
(i) A has assumed a responsibility to protect B from that danger,
(ii) A has done something which prevents another from protecting B from that danger,
(iii) A has a special level of control over that source of danger, or
(iv) A’s status creates an obligation to protect B from that danger
What is the starting principle when considering whether duties of care are owed by public bodies?
They may owe a duty of care where the principles applicable to private individuals would impose duty a duty
What two factors complicate decisions about duty and public bodies?
Statutory duties
Wider policy considerations
What key considerations are there re “Fair just and reasonable” for public bodies?
Successful claims against public bodies - ultimately the taxpayer who funds this.
Defensive practices - public bodies shrink remit to avoid litigation.
How do courts navigate the difference between operational and policy matters?
A public body can’t be held responsible for policy decisions e.g. having tear gas but they can be for operational decisions e.g. how it is deployed.
Give two examples of how duties have been imposed on public authorities?
Psychologist had a duty of care to accurately diagnose dyslexia
Commander owed a solider responsibility for safety of return trip on a night out
Does the army owe a duty of care to soldiers in combat?
No
