Duty of Care

Question 1

What is negligence

Answer 1

The breach by D of a legal duty to take care causing some recoverable damage to the C’

Question 2

To establish negligence what must be proved

Answer 2

1. That D owes C a DoC;
2. That D has acted in breach of that duty, and
3. As a result, the C has suffered damaged which is not too remote a consequence of the D’s breach (causation in fact, and causation in law)

Question 3

In Bolom V Friern Hospital Management Committee how is negligence defined

Answer 3

some failure to so some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and in that failure or doing of that act results in injury, then there is a cause of action’

Question 4

Is negligence actionable without proof of damage

Answer 4

no

Question 5

What did Donoghue V Stevenson say about the need for proof of damage

Answer 5

‘It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage’

Question 6

For the damage to be actionable it must be what

Answer 6

more than minimal - de minimise test

Question 7

Give examples where damage will not be recoverable (cases)

Answer 7

Grieves V FT Everard & Sons Ltd (pleural plaques- no decreased function and no actual damage)
Greenway V Johnson Matthew Plc- (platinum sensitisation- interdemidate step to suffering a platinum allergy)

Question 8

Employer- employee is a recognised duty of care situation case

Answer 8

Wilsons & Clyde Coal V English (The employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all reasonable care in entrusting the job to a competent employee, nor could it have been held liable vicariously since common employment would have been a defence. )

Question 9

Driver- other road users is a recognised duty of care situation case

Answer 9

Nettleship V weston (learner driver)

Question 10

Doctor to patient is a recognised DoC case

Answer 10

Bolitho V City and Hackney HA (A 2 year old child was admitted to hospital suffering from breathing difficulties. A doctor was summoned but did not attend as her bleep was not working due to low battery.)

Question 11

Solicitor- client is a recognised duty case

Answer 11

hatch V Lewis

Question 12

Manufacturer- consumer

Answer 12

donoghue v Stevenson

Question 13

Which case first developed the common law with the judgement of Lord Atkin?

Answer 13

Donoghue V stevenson where the neighbourhood principle was developed

Question 14

What was the legal principle coming from D v S

Answer 14

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. It was given that a neighbour is law is “persons who are so closely and directly affected by my act that I ought to have reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions in question”- Lord Atkin

Question 15

What are the two tests coming from D V S?

Answer 15

1) foreseeability

2) neighbourhood

Question 16

What test came after D V S

Answer 16

Anns V Merton (A local authority had failed to notice that the foundations of a block of maisonettes had not been dug to an adequate depth. C sued the local authority for the costs of rebuilding. (Note this is a case of pure economic loss and has since been overruled by Murphy V Brentwood) )

Question 17

Who reformulated the test for duty and what was the test

Answer 17

Lord Wilberforce:

1: “a sufficient relationship of ‘proximity or neighbourhood’ such that the defendant can reasonably foresee that carelessness on his or her part would
2: Any considerations which should nevertheless lead the court to deny a duty of care, or to limit its scope, in these particular circumstances’ (i.e. policy considerations that should negate liability, which addresses the floodgates argument) so a prima facie duty of care arises

Question 18

The generous approach was adopted in which case

Answer 18

Junior Brooks Ltd V Veitch & Co Ltd

Question 19

Why has the approach in Anns been rejected

Answer 19

it has been seen as a defensive practice

Question 20

In which case where judges openly critical of Anns

Answer 20

Yuen Kun Yue V AG of HK : foreseeability not being enough- proximity is also needed, and you can’t leave it to policy. – “It is clear that foreseeability dos not itself, and automatically lead to a duty of care.’

Question 21

Which case came after Anns?

Answer 21

Caparo V Dickman (Financial loss case when an investor relied on published annual accounts and a company report that had been negligently prepared by the company’s auditor)

Question 22

What did Caparo do to Anns

Answer 22

the House of Lords overruled Anns and went back to the incremental approach whereby the claimant may only bring their action where they can establish an existing duty situation.

Question 23

When is the Caparo test used

Answer 23

in novel situations

Question 24

What is the trifold test/ what does it consist of?

Answer 24

1. The damage must be foreseeable
2. There must be a sufficiently proximate relationship between the parties; and
3. It must be ‘fair, just and reasonable’ for the court to impose a duty of care in the light of policy considerations with which the court is concerned.

Question 25

What is foreseeability

Answer 25

What did the reasonable person in the circumstances of D ought to have foreseen?

Question 26

Which case demonstrates foreseeability

Answer 26

Bourhill V Young (Pregnant woman heard a tram crash caused by D’s negligence. She arrived at the scene later and saw blood on the road. She subsequently suffered a miscarriage.) The claimant must show that the damage sustained was of a kind which was reasonably foreseeable. In this case there was not a sufficiently close relationship, and it was not reasonably foreseeable that she would suffer- she was too far removed from the scene of the accident to be a reasonably foreseeable victim.

Question 27

Another case to demonstrate foreseeability in regards to trains

Answer 27

• Videan V BTC: (a 2 year old child had trespassed onto the train lines, the station master went to rescue him. The child was injured, and the station master killed.) It was held the claim of the station master could succeed as the rescue was foreseeable, but it was not foreseeable that the child would be on the tracks.
• In regards to foreseeability and acts of rescue, a duty will be wed to a rescuer where D act negligently endangers the safety of others so that a rescue attempt is reasonably foreseeable.

Question 28

Foreseeability case regarding a blind man

Answer 28

Haley V London Electricity Board: (Some workmen left a trench without a fence. C, a blind man tripped over the items left to warn other pedestrians, and subsequently became deaf as a result). It was held it was reasonably foreseeable that a blind man could walk down the street.

Question 29

What is the position for rescuers and foreseeability

Answer 29

a duty will be owed to a rescuer where D act negligently endangers the safety of others so that a rescue attempt is reasonably foreseeable.

Question 30

Rescue attempt case

Answer 30

Baker V TE Hopkins: (Mr Ward and Mr Wileman were employed by D to clean out his well. D tested the atmosphere using a candle and concluded that it was safe. A petrol motor pump was put down the well. In breach of orders by D Mr Ward went down the well and was overcome by the fumes. C arrived after a call for assistance and went down the well the rescue the two men. All died of carbon monoxide poisoning.) Held that the actions were unreasonable in the circumstances and were foreseeable.

Question 31

What is the second test and what does it mean

Answer 31

proximity- it is hard to define in concert terms but it refers to the closeness of the relationship between D and C- this degree to closeness can differ

Question 32

proximity case regarding wells

Answer 32

Sutradhar V Natural Environment Research Council: (The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks.) It was held there was no proximity.

Question 33

proximity case (american)

Answer 33

• Palsgraf V Long Island Railways (American): (The Plaintiff was standing on a railroad platform purchasing a ticket, when a train stopped and two men ran forward to catch it. One of the men nearly fell, and two railroad employees attempted to help him. In the process, a package containing fireworks fell and the contents exploded)

Question 34

Gambling proximity case

Answer 34

Calvert V William Hill: (C was addicted to gambling and had asked for them to refuse his bets, which they agreed to do. However, due to negligence this arrangement was not implemented and resulted in him losing £1.8m.) Here, although a duty was due, there was nothing to suggest that they had assumed responsibility.

Question 35

who criticised the use of proximity

Answer 35

Michael V chief constable of South Wales Police: “the concept of proximity is not susceptible of any definition which would make it useful as a practical test.”

Question 36

What is the final test in caparo and how did lord brown define it

Answer 36

fair, just and reasonable

Lord Brown: ‘more colloquially- but to my mind no less accurate- would this be a good idea?”

Question 37

How did lord hope define fair, just and reasonable

Answer 37

Hope ‘if liability is to attach, it should be in situations where this is readily understandable because, looking at both sides of the argument, it is fair and reasonable that there should be liability’

Question 38

In considering Fair, just and reasonable what is considered

Answer 38

maintaining induvial autonomy, imposing proportionate burden on liability, protecting the vulnerable, maintaining coherence and consistency in system and weighing up concerns of policy.

Question 39

Case for maintaining individual autonomy

Answer 39

Calvert V William Hill: It would not be F, J & R, the law wants to promote that people should take responsibly for their own actions and not pass blame. William Hill had no assumed responsibility in anyway. However, it was pointed out that “in exceptional circumstances may give rise to a common law duty of care to prevent or mitigate the consequences or aggravation of self-inflicted harm’

Question 40

Another case for indicual autonomy/ information about genetic disease

Answer 40

Does a hospital owe a duty of care to detect and inform individuals about genetic diseases suffered by relatives who are their patients? ABC V St George’s Healthcare NHS Foundation Trust (patient found with a genetic disease that could have been transferred to other family members). It was decided it would not be F,J & R to impose a duty of care because it would take away a patient’s individual autonomy as to whether to give away information about their own health and would take away a patients right to a private life.

Question 41

Proportionate liability case

Answer 41

Ultramares Corporation V Touche: Underdesirabilty of exposing d to an potential liability ‘in an indertiminate amount for an inderminate time to an indeminate class’

Question 42

Protecting the vulnerable case

Answer 42

Protecting the vulnerable: White V Jones (Failure to draft a will). Courts are more likely to impose a duty where there is an imbalance of power- it was F,J & R because beneficiaries were in a vulnerable position and relied on the solicitor.