Duty Of Care Flashcards
What is the recipe for negligence?
Duty of care, breach of duty, this caused the harm
What were some of the first established relationships where liability was clear?
Doctor-patient
Ferryman-passenger
Blacksmith-customer
Donogue v Stevenson
Girl buys her friend a ginger beer that has a rotten snail in it, she gets gastroenteritis. Neighbour principle established.
What is the neighbour principle?
Created by Lord Atkin, “persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being affected when I am directing my mind to the acts or omission in question”
- a general duty of care must be owed to those who may be affected by my acts or omissions
Anns v Merton LBC (1977)
New houses were being built, the council didn’t inspect them properly and cracks appeared in the walls, C won case.
Established the Anns test.
What was the Anns test?
1) do the parties satisfy the Neighbour test? I.e is there proximity?
2) if so, are there any policy reasons why a duty should not exist?
Give 1 case that criticised the Anns test and why judges didn’t like it.
Peabody - judges asked if it was just and fair as a better test.
The Aliakman - judges didn’t like Anns as it gives judges too much freedom
Yuen kun yeu v attorney general of Hong Kong - criticised Anns and thought it was being taken too seriously
Murphy v Brentwood DC (1990)
Council should have inspected houses but didn’t. House of Lords were worried that duty of care had gone too far
What is the Caparo Test? (1990)
1) reasonably foreseeable
2) proximity
3) fair, just and reasonable
Foreseeability - Kent v Griffiths (2000)
Doctor called ambulance for patient having serious asthma attack but ambulance was late and she suffered serious harm.
Reasonably foreseeable that ambulance actions would effect a patient
Jolley v Sutton LBC (2000)
14 year old boy planned to fix boat left by council and was left paralysed.
LP- repairing boat was foreseeable form of plays foreseeable that injury would occur
Proximity - home office v Dorset yacht co (1970)
Boys escape from young offenders and damage a yacht.
Emotions proximity - mcloughlin v o’Brian (1983)
C’s husband and children are in a serious car accident, she suffers shock.
It was foreseeable that she would suffer
Fair, just and reasonable - Ephesians v Newham LBC (1993)
C was injured in a house fire as there was no fire escape. Not fair just and reasonable to impose a duty of care to ensure the existence of a fire escape.
What are some policy factors judges consider when determining fair, just and reasonable?
- floodgates
- protection of professionals
- loss allocation
- practical issues
- moral issues
The floodgates argument - Calvert V William Hill (2008)
Calvert was a gambling addict who lost 2m pound after D said they would close his account but didn’t
LP- bookmakers don’t owe a duty of care to stop people gambling
Protection of professionals - Hall v Simons
The House of Lords held that there was no longer a need for solicitors to have immunity.
Sirros v Moore (1975)
Held that judges would not be liable for decisions made in court.
Liability of the police - reeves v MPC (2001)
Prisoner known to be at risk of suicide and killed himself, court held that they owed him a duty of care
Liability of fire fighters/ coast guard - John Munroe (1996)
Firefighters must concentrate on detectable fires and don’t have to check every surrounding building if there is no evidence of fire
Liability of public bodies - K v Secretary of State for the home department (2002)
Man who was supposed to be deported by home dept wasn’t and raped the claimant. Victim pool too large for a claim
Osman v UK
English courts struck out the Osman’s claim against police. European court of human rights said 4 human rights laws were broken, claim won
Z v UK (2001)
Z and her siblings neglected by their parents, accused the council of failing to take away the children. Kids won under article 3 of HRA but court said they made a mistake in osman and misunderstood Caparo test
Moral principles - McKay v Essex AHA (1982)
Morally unacceptable to claim for what the couple called a ‘wrongful life’ as the doctor hadn’t told them their baby would be born with down syndrome
