General duty of care Flashcards
Principle for duty of care
Donoghue v Stevenson
Neighbour principle (Lord Atkin)
Depends on how close the situation is to a situation where duties have been established (Lord MacMillan)
Rationale: public sentiment of moral wrongdoing
Academic response to Lord Atkin
a) Winfield: dismissive
b) Lawson: duty not in term of positive requirement, but to identify where there is no duty
c) Fleming: approves of neighbour principle as a control on when liability can exist
General test for duty of care
a) Two stage, in Anns v Merton LBC
b) Three stage in Caparo Industries plc v Dickman
Elements of the Caparo DOC test
a) Foreseeability (what D anticipated would happen if careless)
b) Proximity (closeness of relationship)
c) Fair, just and reasonable (policy factors)
Hill v Chief Constable of West Yorkshire (daughter killed by Yorkshire Ripper)
a) Foreseeability present (killer operated in that area)
b) No proximity (victim was one of large group of potential victim)
c) Not fair/just/reasonable (impose duty on police)
When should we apply Caparo?
Check for established duty of care first
If don’t have, apply Caparo
(Robinson v Chief Constable of West Yorkshire Police, Darnley v Croydon Health Services NHS Trust)
Implication: prevalence of Lord MacMillan’s view in Donoghue v Stevenson
James-Bowen v Commissioner of Police of the Metropolis (excessive force on suspected terrorist)
Not just/fair/reasonable – need to uphold freedom of litigation
Examples of established NO duty of care categories
a) Parent to child (NO) (XA v YA)
b) Hospital for unintended child (NO) (McFarlane v Tayside Health Board)
c) Soldiers in combat (NO) (Mucahy v Min of Def), except if there is lack of preparation (Smith v Min of Def)
d) Policy duty to victim of crime (NO) (Hill v Chief Constable of West Yorkshire, Van Colle v Chief Constable of Hertfordshire, Michael v Chief Constable of South Wales)
