Duty Of Care Chapter 2

Question 1

What is required to establish a claim in negligence?

Answer 1

That a duty of care exists and that that duty of care has been breached

Question 2

If an automatic duty of care doesn’t exist, what analogy will the court use.

Answer 2

Three stage formulation developed by Campari Industries plc v dickman

Question 3

What is the neighbour test- donoghue v Stevenson

Answer 3

Take reasonable care to avoid acts of omissions which can be reasonably foreseen

NEED TO KNOW: persons who are 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 into question

Question 4

Three questions asked in Capro to establish duty of care where established duty does not already exist.

Answer 4

1) was the risk of injury or hand to the claimant reasonably foreseeable.
2) was there sufficient proximity between the parties
3) is it fair, just and reasonable on public grounds to impose a duty of care?

ALL NEED TO BE YES

Question 5

Case which supports foreseeable injury or harm

Answer 5

Smith v littlewoods - building site broken into and fire started by kids which damaged neighbouring buildings.

Question 6

What is proximity

Answer 6

Relationship between the parties to establish duty of care

Watson v British Boxing Board

Question 7

Case law for fair, reasonable and just

Answer 7

L v Reading borough council

Question 8

Alternative to caparo

Answer 8

Robinson v chief constable of West Yorkshire police
To consider whether there is existing precedent and weigh up reasons for and against imposing liability in order to decide whether a duty of care exists.

Question 9

S1 compensation Act 2006 court considers …

Answer 9

Further implications of imposing liability

Prevent a desirable activity from being undertaken

Or

Discourage persons from undertaking functions

Question 10

3 groupings of public policy-

Answer 10

1) statutory authorities
2) flood gate claims
3) claims involving harm to claimant rescuers

Question 11

Statutory authority cases

Answer 11

Hill v Cheif Constable West Yorkshire - Yorkshire ripper case. Not reasonable, fair or just to prevent further victims.

Robinson v Cheif constable of West Yorkshire-
Bystander woman. Positive act meant 3 test capro was satisfied and duty of Care was owed.

Question 12

What is the general rule for duty of care owed to a rescuer

Answer 12

The defendant owes a duty of care to the rescuer, provided that a reasonable person in the rescuers situation would feel obliged to assist.

Question 13

When will a rescuer not succeed in their claim

Answer 13

When they have interfered unnecessarily as they have accepted the risk and no duty is owed.

Question 14

Rescuers receive physical harm …

Answer 14

Will be treated favourably Ward v T E Hopkins

Question 15

Osman case

Answer 15

Duty of care was declined between police and Victim. This was rebutted by ECHR as was a breach of Art 6 rights to fair trial.

Later Z stated a fair reasonable and just inclusion of policy within a decision does not breach a claimant human rights.

Question 16

What is consequential psychiatric harm?

Answer 16

Psychiatric harm which is as a result of physical injury.

Question 17

Two types of psychiatric injury

Answer 17

Someone has nervous shock because of an accident they were involved in or witness to.

Workplace stress

Question 18

Case example for secondary victim receiving psychiatric compensation

Answer 18

Chadwick v British railways

He was a primary victim not because he was involved but his own safety was believed to be at risk comforting the dying and injured in the dangerous train

Question 19

Mc Loughlin v O’Brien

Answer 19

Wife recovered compensation as she saw her family immediately after their injuries and was a secondary victim.

Question 20

Current law case for secondary victims

Answer 20

Alcock v Cheif Constable South Yorkshire

Question 21

What 3 points must be established by a claimant for psychiatric harm

Answer 21

The defendant owed a duty of care to the claimant

The defendant breached that duty

The claimant has clinically recognised psychiatric illness that is considered to be potentially worth compensation and was caused by the defendants negligence.

Question 22

Pure psychiatric harm diagram

Answer 22

Must be a claimable harm

Primary victim. Secondary victim
Foreseeabllity: Foreseeablity:
PI must have been Foreseen in someone
foreseen Of reasonable fortitude

Proximity: Proximity: close to victim
Claimant must be in In time and space,
The danger zone Relationship/perception
Or believed to be in it

Question 23

Psychiatric claimable harm case

Answer 23

Hinz v Berry

Question 24

Primary victims case psychiatric harm

Answer 24

Page v smith - claimant must prove some injury was foreseeable .

NB: if claimant is involved in an accident and injury was foreseeable. The court will not distinguish between physical or psychiatric injury.

Question 25

Alcock 5 factors to be considered on secondary victims

Answer 25

1) must be sudden shock
2) psychiatric harm
3) proximity of time and space to the accident
4) proximity of relationship (love involved)
5) proximity of perception- how the claimant became aware of the events. (Cannot be told about it must see or hear it for themselves)

Question 26

Is deliberately caused shock actionable?

Answer 26

Yes, under Wilkinson v Downton / Rhodes v Opo