Duty of care & Breach Flashcards
What is the neighbour principle?
Case: Donoghue v Stevenson.
Whether the defendant had ought reasonably to
have foreseen the likelihood of injury to this claimant.
What is the current test for establishing a duty of care in novel situations?
Case: Caparo Industries plc v Dickman [1990]
The three questions to be considered are:
* reasonable foresight of harm to the claimant;
* sufficient proximity of relationship between the claimant and defendant; and
(^neighbour principle)
* that it is fair, just and reasonable to impose a duty. (policy matters)
What are some policy factors to consider for a duty of care in novel situations?
Against
Floodgates argument – if one case is allowed to succeed, the floodgates will open
to admit hundreds of other similar cases.
Resources argument - it is often the defendant’s insurers who will pay the compensation rewarded, creating an overall increase in premiums, funded by society in general.
What are some policy factors to consider for a duty of care in novel situations?
For
Deterrence - deter others from acting in a way they consider wrong or anti-social,
Public benefit - increased public saftey
What are the exceptions for the general rule of no liability for omissions to act?
The duty not to make the situation worse - if the person does act they will be liable if they make the situation worse.
Occasions when there is a duty to act positively - special relationships e.g employer employee, parent child
Liability for omissions to act?
General rule: a duty of care is not owed for omissions Stovin v Wise
What is the test to determine whether a person has breached their duty of care
Two-stage test:
What standard of care the defendant should have exercised? (a question of law)
Has the defendant’s conduct fell below the required standard
(a question of fact)
What is the standard of care?
The defendant must meet the standard of ‘the reasonable man’. Objective test
What is the standard of care for skilled defendants and available defence?
The standard of care required is that of a reasonable person in the
defendant’s position (occupation).
As long as a defendant’s actions are supported by a
reasonable body of professional opinion, they should not be judged to be negligent. (still up to the court to make final decision)
What is the standard of care for under-skilled defendants?
They owe the same standard of care as normal defendants e.g a learner driver owes the same standard of care as an experienced one.
What is the standard of care for children?
A child defendant will, therefore, be expected to show such care as can reasonably be
expected of an ordinary child of the same age
Who has the burden of proof in negligence cases?
The claimant has the burden and must prove their case ‘on a balance of probabilities’.
What is Res ipsa loquitur?
Translates as ‘the thing speaks for itself’ - when the court prepared to draw an inference of negligence against the defendant without evidence.
The defendant must provide a reasonable explanation of how the accident occurred without negligence
What are the conditions for the application of Res ipsa loquitur?
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 – so that the claimant has no direct
evidence of any failure by the defendant to exercise reasonable care
What evidence can the defendant show to defend against Res ipsa loquitur?
how the accident actually happened and that this was not due to negligence on their
part; or
* if they cannot show how the accident actually happened, that they had at all times used
all reasonable care.
