Establishing Duty of Care

Question 1

What is the general principle of negligence?

Answer 1

You owe a duty to your neighbour, e.g a duty to take reasonable care not to cause injury which is reasonably foreseeable to persons so closely and directly affected by your actions that you ought reasonably to have them in your contemplation when you act.

Question 2

What are the ways in which a duty of care can arise?

Answer 2

1. Precedent
2. Incrementally by analogy to existing precedent, using the test in Caparo Industries v Dickman

Question 3

In which circumstances has a duty of care been established by precedent?

Answer 3

1. Road user to road user
2. Doctor to patient
3. Rescuers where attempt to rescue is foreseeable
4. Police and the general public

Question 4

What are the elements of the test in Caparo v Dickman for incrementally developing duty of care?

Answer 4

1. Foreseeability of Harm
2. Proximity
3. It is just, fair and reasonable to impose a duty of care in the circumstances.

Question 5

How to Assess Foreseeability of Harm?

Answer 5

• Need only foresee the kind of harm, not the specific injury.
• Can this be reasonably foreseen? e.g burns or scalding is a type of injury.

Question 6

Proximity

Answer 6

Is the claimant so closely and directly affected by the defendant’s actions that the defendant should reasonably have had them in their contemplation?

• No duty generally to prevent harm to C arising from omissions except in the certain circumstances.
• No duty generally to prevent harm caused to C by a third party except in certain circumstances.

Question 7

Proximity: Duty arising from omissions

Answer 7

• D creates a dangerous or risky situation
• statutory duty
• contractual duty
• D has a high degree of control over C
• D has assumed responsibility for C
• Ambulance must respond to 999 calls within reasonable time but has discretion to respond to more urgent calls first by order of priority.

Question 8

Proximity: Duty arising from Third Parties

Answer 8

• D creates a dangerous or risky situation and third party uses those circumstances created by D to be negligent
• contractual duty
• D assumes liability for identifiable victim
• police informants
• C is identifiable victim at risk of damage over and above duty to public general
• Duty owed to abate danger on own premises if known or foreseeable
• D has care or control of third party at time of harm

Question 9

Fair, Just and reasonable?

Answer 9

Must be fair, just and reasonable to impose a duty of care on the defendant.

Court will consider public policy and economic and social factors, e.g:
- defensive practices (create fear of litigation)
- open the floodgates
- Crushing liability (damages out of proportion to loss)
- Deterrance
- Insurance
- for public bodies only, waste of resources.