Duty of Care

Question 1

What is the definition of negligence?

Answer 1

The breach of a legal duty to take care by the defendant, resulting in loss or damage to the claimant

Question 2

What is the chain of a negligence claim?

Answer 2

Loss or damage

Duty

Breach

Causation

Remoteness

Defences

Question 3

What is the three step Caparo v Dickman test for establishing duty of care whether there is no precedent?

Answer 3

Was harm foreseeable? Objective - the reasonable person expected to foresee

Proximity between claimant and defendant

Fair, just and reasonable

Question 4

How does the court approach duty cases where there is no pre-existing precedent?

Answer 4

Adopts a cautious, incremental approach in line with existing authority

Question 5

Limb 3 of Caparo: Fair, just and reasonable: what does this mean?

Answer 5

Court will consider policy considerations:

• Floodgates
• Insurance
• Crushing liability
• Deterrence
• Maintenance of high standards
• Defensive practices

Question 6

What is the precedent on duty of care for road users?

Answer 6

Drivers owe a duty of care to other road users not to cause them physical injury.

Question 7

What is the precedent on duty of care for medical professionals?

Answer 7

Medical professionals owe a duty of care to patients once they have accepted them for treatment.

Question 8

What precedent was established by Baker v TE Hopkins?

Answer 8

It is reasonably foreseeable that someone would try and rescue workers in danger

Question 9

What is the precedent on the police?

Answer 9

The police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.

Question 10

Give an example where the courts have applied Caparo:

Answer 10

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

Question 11

What is the general rule on omissions?

Answer 11

There is no general duty to act

Question 12

What are the five exceptions to the general rule that there is no duty to act?

Answer 12

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

Question 13

What is the general rule on the ambulance service?

Answer 13

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

Question 14

What is the general rule on the fire brigade?

Answer 14

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

Question 15

What is the general rule on the police re responding to emergency calls?

Answer 15

No duty of care to respond

Question 16

What is the general rule on third parties?

Answer 16

There is no duty imposed on a failure to prevent a third party causing harm to another.

Question 17

What are the four exceptions to the general rule on third parties?

Answer 17

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

Question 18

What amounts to sufficient proximity between D and C?

Answer 18

• 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

Question 19

When is there sufficient proximity between D and a 3rd party?

Answer 19

• Supervisory relationship
• 3rd party not under police care and control - no proximity

Question 20

Give examples when the defendant created the danger?

Answer 20

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.

Question 21

How did the court understand the exceptions to the general rule on 3rd parties in Robinson?

Answer 21

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

Question 22

What is the starting principle when considering whether duties of care are owed by public bodies?

Answer 22

They may owe a duty of care where the principles applicable to private individuals would impose duty a duty

Question 23

What two factors complicate decisions about duty and public bodies?

Answer 23

Statutory duties

Wider policy considerations

Question 24

What key considerations are there re “Fair just and reasonable” for public bodies?

Answer 24

Successful claims against public bodies - ultimately the taxpayer who funds this.

Defensive practices - public bodies shrink remit to avoid litigation.

Question 25

How do courts navigate the difference between operational and policy matters?

Answer 25

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.

Question 26

Give two examples of how duties have been imposed on public authorities?

Answer 26

Psychologist had a duty of care to accurately diagnose dyslexia

Commander owed a solider responsibility for safety of return trip on a night out

Question 27

Does the army owe a duty of care to soldiers in combat?

Answer 27

No