Duty of care and breach of duty

Question 1

What is required to establish a claim in negligence?

Answer 1

There is a duty of care between the claimant and the defendant

That duty of care has been breached by falling below the required standard of care

Was the breach of duty the factual cause of the claimant’s injury?

Question 2

What are some established relationships where the courts recognise a duty of care?

Answer 2

One road user to another
Doctor to patient
Employer to employee
Manufacturer to consumer
Tutor to tutee / Teacher to pupil

Question 3

What is a novel duty situation?

Answer 3

A new situation where a court is asked to decide for the first time whether or not a particular relationship or set of facts would give rise to a duty of care.

Question 4

How is a duty of care established in a novel situation?

Answer 4

Applying the neighbour principle.

Question 5

What is the the three-part test of the neighbour principle?

Answer 5

1. Is there reasonable foresight of harm to this particular claimant?
2. Is there sufficient proximity of relationship between the claimant and defendant?
3. Is it fair, just and reasonable to impose a duty?

Question 6

What is the general rule for omissions in respect of a duty of care?

Answer 6

A duty of care is not owed for omissions. There are exceptions to this rule.

Question 7

What are the exceptions to the general rule for omissions?

Answer 7

There is a duty not to make the situation worse.

There is a duty when a person has some sort of power or control over the other person e.g. employer/employee, schools/children, parents/children.

Question 8

How is breach of a duty of care established?

Answer 8

Consider what standard of care the defendant should have exercised

Whether the defendant’s conduct fell below the required standard of care

Question 9

What test is applied to establish the defendant’s standard of care?

Answer 9

What a reasonable person would have been expected to do in the situation.

Question 10

Is there a difference between a defendant’s standard of care if they are skilled?

Answer 10

Where a person exercises a special skill, that person is not judged objectively and is instead be judged according to the degree and skill expected from a person who has that skill.

Question 11

Is there a difference between a defendant’s standard of care if they are unskilled?

Answer 11

In some circumstances - no.

Eg. a learner driver is expected to reach the standard of a reasonably competent driver.

Question 12

Is there a difference between a defendant’s standard of care if they are a child?

Answer 12

Yes - they are expected to show such care as can reasonably be expected of an ordinary child of the same age.

The younger the child, the less likely the child is able to foresee the harm.

Question 13

Can a child under 18 be sued?

Answer 13

Only if they have an adult representing them known as a litigation friend.

Question 14

How do you determine whether a defendant has achieved the required standard of care?

Answer 14

Weigh up the risk created by the defendant’s activities

AND

Whether the defendant took any, or ought to have, taken any precautions in response to that risk

Question 15

When looking at the risk created by a defendant, what elements are considered by a court?

Answer 15

How likely it was that the defendant’s actions could cause an injury.

If an injury was caused, how serious it was likely to be.

Question 16

What is the principle relating to likelihood of injury?

Answer 16

It is justified not to take steps to eliminate a real risk if the risk of injury is small and if the circumstances are such that a reasonable person would think to neglect it.

If there is a greater risk of injury, the defendant should take more care and reasonable precautions.

Question 17

Is the defendant’s knowledge important when considering if a standard of care is breached?

Answer 17

Yes - it must be what a reasonable person would have foreseen.

E.g. an anaesthetic contaminated by seepage which caused paralysis was unknown at the time, so defendants could not be expected to take precautions against it.

Question 18

What is the general rule about precautions should a defendant take to alleviate the risk?

Answer 18

If the risk of injury could have been substantially reduced at a low cost, the defendant will have acted unreasonably.

If the precaution would incur a great expense to only produce a small reduction in risk, it is reasonable for a defendant to do nothing.

Great expense to reduce great risk is still required.

Question 19

Can a defendant be sued for negligence if they act within an accepted trade/profession practice?

Answer 19

Most likely not

e.g. a doctor who performed an act with others within the profession who agree they would have done the same thing would most likely not constitute negligence.

Question 20

How important is the value of the defendant’s purpose/activities when considering reasonableness in their actions?

Answer 20

If the defendant’s behaviour is in the public interest (e.g. saving a life), the defendant is likely to be held negligent.

Question 21

Who must prove there is a breach of duty and what is the standard of proof?

Answer 21

The claimant has the burden of proof and must prove their case on a balance of probabilities.

Question 22

What evidence can be used to prove a breach of duty?

Answer 22

Witness evidence

Expert evidence

Rep ipsa loquitur

Question 23

What is ‘res ipsa loquitur’?

What happens to the burden of proof when it applies?

Answer 23

Meaning ‘the thing speaks for itself’. It can be rarely applied by the court where there is no evidence.

When it applies, it raises inference of negligence and the defendant must provide a reasonable explanation by way of evidence or that they had taken reasonable care.

Question 24

What conditions are required for ‘res ipsa loquitur’?

Answer 24

The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible

The accident must be such as would not normally happen without negligence

The cause of the accident is unknown to the claimant - the claimant has no direct evidence of any failure by the defendant

Question 25

How does the Civil Evidence Act 1968 assist a claimant pursuing a defendant who has been convicted of a criminal offence?

Answer 25

Any defendant convicted of a criminal offence is presumed, in any subsequent civil proceedings, to have committed that offence e.g. careless conduct when driving.