Duty Of Care

Question 1

Why was ‘the Wagon Mound’ important?

Answer 1

It was not sufficient that damage was the direct result of the nuisance if such injury was not foreseeable. Had been taking oil onto ship, oil let alight by flecks of firey metal coming off someone else’s ship. Caused huge damage to wharf. Not foreseeable that taking oil onto a boat would have this result.

Question 2

Lord Wilberforce’s test from Ann’s v Merton said that…

Answer 2

In order to succeed with a negligence claim, the pursuer had to show that there was a sufficient relationship of proximity between himself and the defender and that there were no considerations which might negative or reduce the class of person to whom it was owed

Question 3

What were the three requirements of the Caparo test?

Answer 3

1) reasonable foreseeability
2) relationship of proximity
3) fair, just and reasonable to impose

Question 4

The court in Fairchild v Glenhaven Funeral Services held that:

Answer 4

Where multiple defenders had all exposed the pursuer to some risk of harm, they could each be liable, provided it could be shown that each defendant had made a ‘material contribution’ to the risk of loss

Question 5

Why was D v East Berkshire important?

Answer 5

Reinforced proximity and how the requirement could sometimes be unfair. Parents who had been accused (wrongly) of child abuse could not claim where the medical and social work professionals had come to this concussion negligently but in good faith. Defensive duty.

Question 6

Why is Mitchell v Glasgow important?

Answer 6

Held that no duty to warn another if he was at risk of loss, injury or damage as result of behaviour of 3rd party if the first person had not assumed responsibility for the safety of the pursuer.

Question 7

Ingredients for negligence

Answer 7

Duty of care (proximity, foreseeability, FJ&R)
Duty breached
Causation
No defences

Question 8

Three tests for liability?

Answer 8

Caparo
Incremental steps
Assumption of responsibility (Hedley)

Question 9

Drawbacks of duty of care

Answer 9

Conceptually confusing - not really duties. Duty only arises once you have done something wrong, odd. Does not promote responsibility for generally sensible behaviour, only liable if caught.

Uncertainty as to which test to use. Incremental seems better

But DoC deeply ingrained! But necessary to change to avoid injustice e.g. Sutradhar and D v East Berkshire

Question 10

What is the normal standard of care in negligence?

Answer 10

The ordinary reasonable person
Objective - subjective would be too hard. Independent of defendants own attitudes or qualities e.g. Learner drivers judged by standard of normal driver (Nettleship v Weston), senility also not defence, children set to standard of their own age but not if engaging in adult activities e.g. Riding a bike.

Question 11

Is it desirable to have an objective standard of care?

Answer 11

Ignores idiosyncrasies of individual - easier, doesn’t take account of idiocy.
BUT conflicts with thin skull rule. Why allow this for victims but not defenders?

Incapacitation, children etc still allowed lower standard.

Too variable to make it subjective.

Doesn’t stop people from behaving negligently if they only have to behave at their own poor standards.

Question 12

Is damage always necessary for liability?

Answer 12

No, some torts actionable per se i.e. You don’t need to prove loss e.g. Defamation and trespass.

Tort can also play vindicatory role e.g. Declarator that you have these rights

Question 13

What is harm?

Answer 13

Serious change in physical state or structure destroying the function of something. Socially constructed e.g. Wrongful conception, reduction in child’s level of achievement by dyslexia because of negligent birth, pleural plaques.

Question 14

What is causation?

Answer 14

Causal link between act or omission of defender which amounted to a breach of their duty of care to the pursuer and caused them harm / loss.

In fact (but for) not always enough.
In law (sufficiently effective legal cause)
- material contribution (Fairchild)
- material increase in risk (McGhee)

Question 15

Why is proximity crap?

Answer 15

Only about floodgates - only reason! You can’t know how much of an issue this will be as concerns future parties.

Can result in injustice, another tricky hoop through which pursuers must jump

Used to mask policy considerations, which involve judicial intuitionism (Beever), too arbitrary.

Vague + can’t be divorced from fair, just and reasonable

Question 16

What is the neighbourhood principle and why was it important?

Answer 16

Lord Atkin’s neighbourhood principle is from Donoghue v Stevenson and states that you must take reasonable care to avoid acts or omissions which you could reasonably foresee would be likely to injure your neighbour.
It was important because it reinforced an underlying duty of care which could be imposed. This concept goes to foreseeability, but ignores proximity.