Duty of care & Breach of duty

Question 1

What are the needed elements to establish a claim in negligence?

Answer 1

• D owed C a duty of care
• D breached Duty of care
• Breach by D caused damage to C
• Damage is reasonably foreseeable
• Defences?
• Remedies

Question 2

What did Donoghue v. Stevenson establish? - drink with something in it

Answer 2

neighbour principle

Question 3

Define the Neighbour Principle:

Answer 3

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

Question 4

Define reasonable foreseeability test:

Answer 4

a reasonable person has to be able to predict or expect any harmfulness of their actions

Question 5

What did Anns v. Merton London Borough Council [1978] establish in regards to Expansion of Liability?

Answer 5

• established the Two-stage test
  
  • sufficient relationship of proximity?
    relationship, time and space
  • if yes then should a duty be imposed?

Question 6

Retreat from Anns - Which case overruled Anns?

Answer 6

Murphy v Brentwood District Council [1990]

Question 7

What is the Three Stage Test and which case established this test?

Answer 7

Caparo Industries v. Dickman [1990]

• Was the damage reasonably foreseeable?
• Was there a relationship of proximity between D and C?
• Is it just, fair and reasonable to impose a duty?

Question 8

What is an important observation of Caparo Industries v. Dickman?

Answer 8

• Overlap between the three limbs
• Very important point: Caparo is only applied in ‘novel’ situations ( no example cases)

Question 9

Which test is applied for Reasonable Foreseeability?

Answer 9

Objective test (would a reasonable person have foreseen)

Question 10

Which case connects to reasonable foreseeability?

Answer 10

-Grant v Australian Knitting Mills [1936] - Australia
- sold pants - only one person suffered an allergic reaction
- HOL held that the manufacturer was liable and the risk was considered foreseeable

Question 11

Which two cases connects to the assessment of proximity?

Answer 11

Muirhead v Industrial Tank Specialists Ltd [1985]
- they didn’t know each other but there is still legal proximity
- reasonably foreseeable and a sufficient proximity

-Watson v British Boxing Board of Control [2001]
- Importance of control over the situation which resulted in injury
- reasonable care wasn’t exercised
- DOC was owed - there was proximity

Question 12

Which case relates to the assessment of whether it is Fair, Just and Reasonable?

Answer 12

• Floodgates argument
• Calvert v William Hill Credit Ltd [2008]
• Calvert rang WH to ask them to stop him from being able to place bets
• the claimant is the author of his own misfortune
• it isn’t fair just and reasonable to place a duty on WH to insure that C didn’t lose money
• the imposition of a duty would have financial consequences

Question 13

Under Fair, Just and Reasonable which case relates to policy?

Answer 13

• Hill v Chief Constable of West Yorkshire [1989]
• Hill was the last victim of Sutcliffe - they did not catch him
• Policy reasons for not imposing DOC
• ‘the police were doing their job to the best of their ability’
• where the defendant is a public authority exercising a public function

Question 14

Under the Breach of DOC which case relates to the objective standard?

Answer 14

Nettleship v Weston [1971]
- learner driver crashed and harmed their driving instructor
- Reasonable person: objective test
- learner has the same responsibility as a qualified driver

Question 15

Under the objective standard, when is it possible for DOC not to have been breached?

Answer 15

• Also applies to loss of control due to a medical emergency
• However prior knowledge of medical history is taken into consideration
• Are they aware that their ability is impaired? if they were unaware they have no duty

Question 16

Give context to the standard of reasonableness:

Answer 16

• Consideration of magnitude of risk - reasonable precautions
• Relevant considerations include: practicality of precautions, seriousness of the harm, likelihood of the harm occurring and the purpose of the activity

Question 17

Which case relates to the likelihood of harm?

Answer 17

Bolton v Stone [1951]
- magnitude of risk - Rare for a cricket ball to fly out of the grounds and hit a passer by
- practicality of precautions - 17 foot fence surrounding the grounds
- risk was small -no breach of duty
- likelihood of the harm - low
- however even if a risk is small if precautions were not put in place then the defendant may owe a duty to the claimant

Question 18

Which cases relate to the severity of damage?

Answer 18

Glasgow Corp. v Muir [1943] per Lord Macmillan
- People who engage in inherently dangerous activities must take precautions which people engaging in ordinary daily life wouldn’t have to.

Paris v Stepney Borough Council [1951]
- failed to provide goggles which resulted in a loss of sight following a chip of metal entering Ps eye
- serious damage - owed DOC

Question 19

Which case relates to the Practicality of precautions?

Answer 19

Latimer v AEC Ltd [1953] - slipped over oil spill

• AEC placed down saw dust over the spill + couldn’t afford to close down but took precautions - no DOC owed
• Practicality of precautions judged in the context of likelihood of harm and severity of damage
• If a risk can be substantially reduced at relatively little cost, then a defendant will be acting unreasonably if he fails to take precautions.
• Conversely, if a great expense would only produce a very small reduction in risk, then it will be reasonable for a defendant to do nothing

Question 20

Special breach of duty - which case relates to children?

Answer 20

Mullins v Richards [1998]

• Two students fighting with ruler, damage was sustained. - no DOC owed
• The duty and standard of care is dependant on age - the reasonable child

Question 21

What is a professional duty?

Answer 21

The standard of a competent person within that profession

Question 22

Special breach of duty - which case relates to professionals?

Answer 22

Bolam v Friern Barnet Hospital Management Committee [1957]

• B sustained injury
• FBH was not negligent as they were acting in accordance with a practice accepted as proper by a responsible body of medical men
• reverse - a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view

Question 23

What is the Bolam Test?

Answer 23

Is to point to a body of opinion and say well they would have done the same

Question 24

What case used the Bolam Test?

Answer 24

Bolitho v City & Hackney Health Authority [1997]

• doctor didn’t show up - didn’t provide treatment - child suffered brain damage
• However the doctor said they wouldn’t have provided said treatment even if they had turned up
• expert witness said that the treatment that wasn’t provided wouldn’t have been correct. supported defendant
• Courts decided that refusing the treatment was not illogical and there was no breach of DOC