General Duty of Care

Question 1

Elements to a negligence claim

Answer 1

1) Duty of care
2) Breach of duty
3) Damage suffered by C
4) Causation
5) Remoteness

Question 2

Donoghue v Stevenson

Answer 2

Seminal case in the development of a general tort of negligence - first established a general duty of care test. Lord Atkin held that D must take reasonable care to avoid acts/omissions which they can reasonably foresee would harm their neighbour. D’s neighbour is any persons so closely and directly affected by D’s act that he ought reasonably to have them in contemplation. So set the groundwork for the first two elements of duty of care - foreseeability and proximity

Question 3

Hedley Byrne v Heller

Answer 3

D v S does NOT apply to pure economic loss - there are different tests for this

Question 4

Home Office v Dorset Yacht

Answer 4

D v S does NOT apply to D for harm caused by third parties

Question 5

Caparo Industries v Dickman

Answer 5

Set out the three stage modern test for establishing a duty of care

1) Foreseeability
2) Proximity - neighbour test (Lord Atkin in D v S)
3) Whether it is fair, just and reasonable to impose a duty of care

Question 6

Hill v Chief Constable of West Yorkshire

Answer 6

For proximity to be satisfied, it must be shown that D ought to have had that individual in their contemplation during the time they committed negligence. D was not liable here because there was nothing to identify that C would be the next victim of the serial killer

Question 7

XA v YA

Answer 7

Need to consider the effects that imposing a duty would have on the family overall in FJR assessment. So if it would lead to the certainty of family breakdown, then it is less likely that a duty will be imposed

Question 8

McFarlane v Tayside Health Board

Answer 8

It is NOT possible for C to claim for living expenses for their child if their doctor negligently performs a sterilisation procedure. C can only claim for damage suffered due to the negligently performed operation itself

Question 9

Mulcahy v MoD

Answer 9

General duty of care is not owed to soldiers in combat situations - combat immunity principle. This is to prevent distortion of military operations

Question 10

Smith v MoD

Answer 10

Combat immunity only applies to actual battlefield situations - so D can be liable for negligence outside of immediate battle situations, e.g. for not sufficiently armouring a vehicle

Question 11

Z v United Kingdom

Answer 11

ECtHR overruled the previous Osman v UK decision and held that Hill (police cases) did not create police immunity, but instead was just a principle of liability which was not established. So Art.6 right to fair trial was not violated

Question 12

Brooks v Commissioner of the Metropolis

Answer 12

Police do not owe a duty of care to eye witnesses of crimes who suffer injury as a result, UNLESS the police’s negligence was especially egregious

Question 13

Smith v Sussex Police

Answer 13

HL majority affirmed Hill. But two further points of interest:

1) Lord B-W explained that often it is unlikely to be FJR to impose a duty of care on police officers because it would skew their incentives and result in neglect of other important functions
2) In dissent, Lord Bingham wanted to create a small exception to Hill - said there should be a duty in situations where C himself alarmed police of the threat of IMMEDIATE VIOLENCE

Question 14

Michael v Chief Constable of South Wales

Answer 14

Police do NOT owe a duty of care even where they are alerted to a threat of potential danger - court will only impose a duty if there is an IMMINENT threat of danger alerted to the police.

Majority reasoning was the same as Hill - courts do not want to distort police operations etc.