Duty of Care Flashcards
Key original case for establishing duty of care?
Donoghue v Stevenson [1932]
Who was a key judge in Donoghue v Stevenson [1932]
Lord Atkin
What principal did Lord Atkin develop in Donoghue v Stevenson [1932]
The neighbour principal
What is the neighbour principal defined as?
persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”
How has the law developed the forseeable harm from the neighbour principal
There must be proximity AND forseeablity AND policy considerations
Which 1990 case criticised the expansion of liability in negligence?
Caparo Industries v DIckman [1990]
Who was a key judge in Caparo Industries v Dickman [1990]
Lord Bridge
What did Lord Bridge say in Caparo Industries v Dickman [1990]
That the court must consider it ‘fair just and reasonable’ that the proximity and forseeability give rise to liability
Which case confirmed the Caparo [1990] approach?
Robinson v Chief Constable of West Yorkshire Police [2018]
What did Robinson v Chief Constable of West Yorkshire Police [2018] make absolutely clear
Where there is no clear precedent, the question of whether to impose a duty should be approached by analogy with established authority.
What are common types of policy considerations?
1) Floodgates argument
2) Insurance
3) Crushing liability
4) Using liability as a deterrent
Cases for examples of a duty of care being imposed?
Baker v T.E. Hopkins & Son Ltd [1959]
Robinson v Chief Constable of West Yorkshire Police [2018]
Why was a duty imposed in Robinson v Chief Constable of West Yorkshire Police [2018] ?
Police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.
Why was a duty imposed in Baker v T.E. Hopkins & Son Ltd [1959]?
The Court of Appeal held that Dr Baker was owed a duty of care as it was reasonably foreseeable that someone would seek to rescue the workers who were in danger.
Example of a duty of care being imposed where there was no clear precedent?
Watson v British Boxing Board of Control [2001]
What were the facts in Watson v British Boxing Board of Control [2001] ?
A boxer’s claim that immediate medical attention should have been available at the ringside was upheld. The injury (brain damage) was foreseeable; the defendant had assumed responsibility for determining the nature of the medical facilities and assistance to be provided to boxers by making regulations setting out the details of the medical care which should be available; and it was fair, just and reasonable to impose a duty. There were no policy reasons why a duty should not be imposed since the duty would not necessarily extend to other sporting organisations and the fact the defendant was a non-profit making body should not provide immunity in negligence.
What is the rule for liability for omissions?
Generally there is no liability for injury/damage for omissions
What is the case for general rule of no liability for omissions?
Smith v Littlewoods Organisation Ltd [1987]
What are the 6 exceptions to the no duty to avoid omissions rule?
1) Where there is statutory duty
2) Where there is contractual duty
3) Where the defendant has sufficient control
4) Where the defendant assumes responsibility
5) Where the defendant creates the risk
6) Where the omission is a failure to prevent a third party from causing harm
What are the additional elements to ‘failure to prevent a third party causing harm’?
(i) There is sufficient proximity between D and C; and/or
(ii) There is sufficient proximity between D and third party; and/or
(iii) D created the danger; and/or
(iv) The risk is on D’s premises
Example of a statute that imposes a positive duty (requirement to act)?
Occupiers Liability Act 1957
Which case demonstrates when a contractual duty will impose a duty to act?
Stansbie v Troman
Which case demonstrates a high degree of control over C giving rise to a duty to act?
Reeves v Commissioner of Police for the Metropolis [1999]
What was Reeves v Commissioner of Police for the Metropolis [1999]?
Case that showed the police had a high level of control over C and had a duty to prevent him harming himself
Which case demonstrates positive action for assumption of responsibility?
Barrett v Ministry of Defence [1995]
What happened in Barrett v Ministry of Defence [1995]?
Although D was not responsible for C getting drunk, he became responsible after he started to help him and should have prevented him choking on his own vomit
Which is the case for a defendant creating the risk?
Goldman v Hargrave [1967]
Facts of Goldman v Hargrave [1967]
A farmer extinguished a fire on his land, but not the embers. They reignited and caused fire damage to C’s land. D had physical/financial ability to put out the embers and that would have been reasonable to expect him to do so
What is the case of Stansbie v Truman [1948] illustrative of?
PROXIMITY between D and C for failure to prevent a third party causing harm
Stansbie v Truman [1948] is not only a case for proximity in third party causing harm but what other type of omission giving rise to duty?
Defendant causing harm
Which case states that C must be someone at particular risk of damage over and above the public at large to give rise to preventing a third party causing harm?
Home Office v Dorset Yacht
How was Hill v Chief Constable of West Yorkshire [1989] distinguishable from Dorset Yacht?
The House of Lords accepted that personal injury was reasonably foreseeable (if the police failed to apprehend a seral killer, it was reasonably foreseeable that he would kill again). However, the House of Lords refused to impose a duty of care as there was insufficient proximity between any woman, as a potential victim of a crime, and the police (the victim was an unidentifiable member of a massive group) distinguished from Home Office v Dorset Yacht
What is the case in establishing proximity between D and the third party for failure to prevent a third party causing harm giving rise to a positive duty?
Home Office v Dorset Yacht Co [1970]
D had supervision over the third party (borstal boys)
What is important to note about Home Office v Dorset Yacht [1970]
It was decided in the 70s when the courts were expanding liability
How are the exceptions to the general rule of a third party causing harm categorised?
(i) A has assumed a responsibility to protect B from that danger,
(ii) A has done something which prevents another from protecting B from that danger,
(iii) A has a special level of control over that source of danger, or
(iv) A’s status creates an obligation to protect B from that danger
What kind of bodies have been particularly problematic in deciding if they owe a duty of care?
Public bodies
Why are public bodies more complicated than private individuals?
1) Many public bodies derive their powers or duties from statutes – and this can have an impact on the court’s findings in relation to duty.
2) When deciding whether to develop the law of negligence into a new area, the court must look at what is fair, just and reasonable, and take into account policy considerations – public bodies often present different concerns than individuals.
Which case illustrates the law on public bodies and duty of care?
CN and GN v Poole Borough Council [2019]
How is CN and GN v Poole Borough Council [2019] summarised
i) When looking at positive acts and omissions, the liability of a public authority is in principle the same as a private person, but may be restricted by statutory powers or duties. So an act which would normally amount to a breach of duty cannot be so if it is specifically authorised by an Act of Parliament. This principle therefore gives effect to the principle of parliamentary sovereignty.
ii) When looking at omissions, the usual law applying to individuals would again apply, and it would be very hard to argue that because a public body has a duty or power to act in a particular area, that a failure to act would give rise to a duty in negligence.
Why is it often NOT fair, just and reasonable to impose new duties of care onto public bodies?
1) In successful claims against public bodies it is often ultimately the taxpayer who actually pays the damages. This might point away from a finding of a duty of care in a new case.
2) Imposition of a duty might lead to public services being restricted in their operation for fear of litigation (sometimes referred to as ‘defensive practices’).
What is meant by ‘defensive practices’ of public bodies?
Public services being restricted in their operation for fear of litigation
Why did the courts not find a duty of care by the police in Hill v Chief Constable of West Yorkshire [1989]
A. Insufficient proximity: unidentifiable victim
B. Threat of liability: risk of defensive practices
C. Floodgates: potential for a deluge of claims against police
