DUTY OF CARE

Question 1

What is negligence?

Answer 1

key case = DONOGHUE V STEVENSON

• Negligence is the breach of a recognised duty of care which causes legally recognised loss. Duty, breach and causation.
• Loss must be actionable i.e damage not too remote, must be predictable.
• May need to consider potential defences e.g contributory negligence.

Question 2

Elements of a successful claim in negligence?

Answer 2

1. Duty of care ‘duty to take care’ - a legal duty owed.
2. Breach of duty ‘failure in that duty’ i.e failure to take reasonable care to the level required by the duty of care.
3. Causation ‘caused damage’ i.e did the breach of duty both factually and legally cause the claimant damage? Legal causation considers whether the damage is actionable or too remote.

Question 3

Why is duty of care important?

Answer 3

“i must take reasonable care to avoid acts and omissions which I can reasonably foresee would be likely to injure persons who are closely and directly affected by my act, that I ought reasonably to have them in contemplation i.e my neighbours” - Lord Atkin per Donoghue v Stevenson

^ Only owe duty of care to neighbours in that sense.

• It limits the class of potential claimants.
• Through the use of duty of care, Donoghue established that liability of a manufacturer to the ultimate consumer which did not previously exist.
• People that you predict are going to get hurt (neighbours)
• It determines the required standard of care which needs to be known in order to determine if its been breached.
• Determines types of harm that there is a duty of care to avoid which needs to be known in order to determine whether claimant caused an actionable type of harm.
• Standard of care is higher in children than adults.

Question 4

ROBINSON V CHIEF CONSTABLE OF WEST YORKSHIRE POLICE points?

Answer 4

Per Reed LJ in Robinson:

1) if there is precedent, courts will consider what has been previously decided and follow this.
2) In clearly established cases, no need to reconsider whether the existence (or not) of a duty of care is fair, just and reasonable, as these issues are considered when the cases are originally decided (unless court is asked to depart from precedent)
3) If novel case arises, test from Caparo will be considered where established principles do not answer the question at issue.

Question 5

CAPARO INDUSTRIES PLC V DICKMAN test?

Answer 5

1) Was the possibility of the claimant suffering harm reasonably foreseeable?
2) Was there a sufficient relationship of proximity between the claimant and defendant?
3) Would it be fair, just and reasonable to impose a duty of care on the D to take reasonable care not to cause that damage to the claimant?

Question 6

When to use the Caparo 3-stage test?

Answer 6

• Is relevant to whether duty o care should exist but not is it does exist.
• If situation has never been considered before/if supreme court is being asked to change law and not recognise a duty.
• Lower courts do not need to use test if previous case law has already determined a duty of care.

Case=
DARNLEY V CROYDON HEALTH SERVICES NHS TRUST
^ hospital receptionist - caparo test - supreme court found a duty of care.

Question 7

CAPARO summary?

Answer 7

• A duty of care will be found to exist incrementally and by analogy.
• three stage test:
  1. foreseeability
  2. sufficiently proximate relationship
  3. just and reasonable to impose a duty - courts need to be reasonable