Duty of care

Question 0

Full negligence formula

Answer 0

Duty of care + Breach of that duty + (causation - remoteness) = successful negligence claim

Question 1

Function of the duty of care

Answer 1

To define the boundaries of liability for damage caused by negligent conduct by reference to what are commonly called ‘policy considerations’ (Cane)

A way of telling people how to behave (McBride)

Question 2

‘Crushing liability’

Answer 2

A common consideration in not allowing a duty of care is to avoid crushing liability - ‘liability in an indeterminate amount for an indeterminate time to an indeterminate class’ (Ultramares Corp v Touche, Niven [1931])

Question 3

Donoghue v Stevenson [1932]

Answer 3

The seminal duty of care case
Lord Atkins expounded the ‘neighbour principle’: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour?… persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to… acts or omissions.”

This case opened up the duty of care to potentially being anyone at all.

Question 4

Anns v Merton LBC [1978]

Answer 4

Lord Wilberforce, in his dictum, expanded on the Donoghue neighbour principle, setting a two-stage test:

1. there is a sufficient relationship of proximity
2. are there any considerations which ought to negate or limit the scope of duty?

This was criticised in Smith v Littlewoods [1987] as being too broad… “the broad general principle of liability for foreseeable damage is so widely applicable that the function of the duty of care is not so much to identify cases where liability is imposed as to identify those where it is not.”

McLoughlin v O’Brien [1982] showed how the first step is no hurdle.

Question 5

Junior Books v Veitchi [1983]

Answer 5

Roskill noted the immediate expansion of the law following Anns and criticised it substantially.

Question 6

Yuen Kun-Yeu v AG of HK [1987]

Answer 6

The court in this instance rejected the test outright.

Question 7

Murphy v Brentwood District Council [1990]

Answer 7

This case overruled Anns.

Question 8

Caparo v Dickman [1990]

Answer 8

This case provides the authority for novel cases of a duty of care in negligence.
Two approaches are to be taken, the incremental and the three stage caparo test.

This test changed the starting point of a nelgignece claim to prima facie a duty of care was NOT owed as opposed to Anns prima facie duty of care owed.

Question 9

Incremental approach

Answer 9

If a piror precdent alraedy exists in establishing a duty of care, this will be used as authority. This was accepted from the dictum of Brennan J in the Australian case of Sutherland Shire Council v Heyman [1985].

This test alone is arbitrary and unsatisfactory as it would rely on accidents of legal history and not merits of the case.

Question 10

Caparo test

Answer 10

The three stage ‘Caparo test’, in which all three of the following circumstances must be met:

1. Was it reasonably foreseeable that D’s failure could cause C’s loss? An example of this is in Haley v London Electricity Board [1965] in which it was deemed reasonable that a blind man would walk in the street and thus a sign stating to avoid the hammer is inadequate to protect them from owing a duty of care to him.
2. Do they share a relationship of proximity? It does not require merely physical closeness, but some sort of relationship (of which Caparo tells us very little). It must be reaosnable foreseeable.
3. Is it fair, just and reasonable to impose a duty on D? This allows for policy considerations. In Marc Rich v Bishop Rock Marine (The Nicholas H) [1996] it was deemed not fair just and reaosnable to impose a duty as it would disturb the contractual allocation of risks between cargo holders and ship owners and might undermine international trade. Similarly in XA v XY [2010] it was not fair just and reaosnable to impose a duty on a mother to prevent her son frmo being physically abused over a period of years because of the fragility of a domestic abuse relationship in families.

Question 12

Is Caparo always used?

Answer 12

In The Nicholas H both tests were ignored and the general fairness and circumstances of the case were looked at to establish a duty of care.

In Excise Commissioners v Barclays Bank [2006] it was stated that the test provided only a ‘set of fairly blunt tools’.