Duty of care & Breach of duty Flashcards
What are the needed elements to establish a claim in negligence?
- 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
What did Donoghue v. Stevenson establish? - drink with something in it
neighbour principle
Define the Neighbour Principle:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
Define reasonable foreseeability test:
a reasonable person has to be able to predict or expect any harmfulness of their actions
What did Anns v. Merton London Borough Council [1978] establish in regards to Expansion of Liability?
- established the Two-stage test
- sufficient relationship of proximity?
relationship, time and space - if yes then should a duty be imposed?
- sufficient relationship of proximity?
Retreat from Anns - Which case overruled Anns?
Murphy v Brentwood District Council [1990]
What is the Three Stage Test and which case established this test?
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?
What is an important observation of Caparo Industries v. Dickman?
- Overlap between the three limbs
- Very important point: Caparo is only applied in ‘novel’ situations ( no example cases)
Which test is applied for Reasonable Foreseeability?
Objective test (would a reasonable person have foreseen)
Which case connects to reasonable foreseeability?
-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
Which two cases connects to the assessment of proximity?
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
Which case relates to the assessment of whether it is Fair, Just and Reasonable?
- 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
Under Fair, Just and Reasonable which case relates to policy?
- 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
Under the Breach of DOC which case relates to the objective standard?
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
Under the objective standard, when is it possible for DOC not to have been breached?
- 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
Give context to the standard of reasonableness:
- 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
Which case relates to the likelihood of harm?
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
Which cases relate to the severity of damage?
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
Which case relates to the Practicality of precautions?
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
Special breach of duty - which case relates to children?
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
What is a professional duty?
The standard of a competent person within that profession
Special breach of duty - which case relates to professionals?
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
What is the Bolam Test?
Is to point to a body of opinion and say well they would have done the same
What case used the Bolam Test?
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
