Duty Of Care

Question 1

What is the recipe for negligence?

Answer 1

Duty of care, breach of duty, this caused the harm

Question 2

What were some of the first established relationships where liability was clear?

Answer 2

Doctor-patient
Ferryman-passenger
Blacksmith-customer

Question 3

Donogue v Stevenson

Answer 3

Girl buys her friend a ginger beer that has a rotten snail in it, she gets gastroenteritis. Neighbour principle established.

Question 4

What is the neighbour principle?

Answer 4

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

Question 5

Anns v Merton LBC (1977)

Answer 5

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.

Question 6

What was the Anns test?

Answer 6

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?

Question 7

Give 1 case that criticised the Anns test and why judges didn’t like it.

Answer 7

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

Question 8

Murphy v Brentwood DC (1990)

Answer 8

Council should have inspected houses but didn’t. House of Lords were worried that duty of care had gone too far

Question 9

What is the Caparo Test? (1990)

Answer 9

1) reasonably foreseeable
2) proximity
3) fair, just and reasonable

Question 10

Foreseeability - Kent v Griffiths (2000)

Answer 10

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

Question 11

Jolley v Sutton LBC (2000)

Answer 11

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

Question 12

Proximity - home office v Dorset yacht co (1970)

Answer 12

Boys escape from young offenders and damage a yacht.

Question 13

Emotions proximity - mcloughlin v o’Brian (1983)

Answer 13

C’s husband and children are in a serious car accident, she suffers shock.
It was foreseeable that she would suffer

Question 14

Fair, just and reasonable - Ephesians v Newham LBC (1993)

Answer 14

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.

Question 15

What are some policy factors judges consider when determining fair, just and reasonable?

Answer 15

• floodgates
• protection of professionals
• loss allocation
• practical issues
• moral issues

Question 16

The floodgates argument - Calvert V William Hill (2008)

Answer 16

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

Question 17

Protection of professionals - Hall v Simons

Answer 17

The House of Lords held that there was no longer a need for solicitors to have immunity.

Question 18

Sirros v Moore (1975)

Answer 18

Held that judges would not be liable for decisions made in court.

Question 19

Liability of the police - reeves v MPC (2001)

Answer 19

Prisoner known to be at risk of suicide and killed himself, court held that they owed him a duty of care

Question 20

Liability of fire fighters/ coast guard - John Munroe (1996)

Answer 20

Firefighters must concentrate on detectable fires and don’t have to check every surrounding building if there is no evidence of fire

Question 21

Liability of public bodies - K v Secretary of State for the home department (2002)

Answer 21

Man who was supposed to be deported by home dept wasn’t and raped the claimant. Victim pool too large for a claim

Question 22

Osman v UK

Answer 22

English courts struck out the Osman’s claim against police. European court of human rights said 4 human rights laws were broken, claim won

Question 23

Z v UK (2001)

Answer 23

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

Question 24

Moral principles - McKay v Essex AHA (1982)

Answer 24

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