General Princples of Duty of Care

Question 1

Objective of Tort Law

Answer 1

To put the person who suffered the tort in the position they were in before they suffer the Tort.

Question 2

Elements of a Negligence action

Answer 2

Damage
Duty of Care - Was it owed?
Breach of Duty - Did the defendant fail to meet his duty
Causation - was it this breach of duty which resulted in the damage suffered by the claimant.
Defences

Question 3

Vicarious Liability

Answer 3

Renders one person liable for the Torts of another

Question 4

Rationale for Vicarious Liability

Answer 4

• The employer benefits from the economic activity so they should bare the risk of anyone being harmed
• Better positioned than employees to pay out financial loss
• Through insurance financial loss can be spread
• Encourages employers to maintain good standards of practice to avoid compensation pay outs.

Question 5

Alternatives to the Tort System

Answer 5

Royal Commission on civil Liability and compensation for personal injury
First Party Insurance
New Zealand System offers up to 80% on loss of earnings

Question 6

Defences

Answer 6

Contributory Negligence - Claimant also negligent
Illegality - were laws broken when the claimant was harmed
Voluntary Assumption of risk - Did the claimant put themselves at risk?

Question 7

Hinz v Berry Principle

Answer 7

No damages are awarded for grief or sorrow, unless mental damage suffered can be medically proven - Lord Hoffmann

Question 8

Rothwell v Chemical insulating Principle

Answer 8

Damage abstract concept of being worse off

Question 9

Caparo Test

Answer 9

Claimant should point to direct precedent or closely analogous precedent
Where there is no precedent courts apply tripartite test for duty:
- Foreseeability
- Proximity
-Fairness, Justice and Reasonableness

Question 10

Donoghue v Stevenson

Answer 10

Neighbourhood Principle:
Must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely to injure your neighbour.

Question 11

Anns v Merton London Borough Council Principle

not facts

Answer 11

Subject to heavy Criticism - Led to an expansion of claims which is now controlled by the Caparo test.

1) Is there sufficient relationship of proximity or relationship such that the defendants carelessness may be likely to cause damage
2) Are there any considerations which ought to reduce or limit the scope of duty or the class of persons to whom is it owed.

Question 12

Michael v Chief Constable of South Yorkshire Principle

Answer 12

No liability on a defendant for injury or damage to the person or property of a claimant caused by the conduct of a third party
Supreme court held that the police had not assumed responsibility for Michaels wellbeing

Question 13

Smith v Littlewoods Organisation Principle

Answer 13

No duty of care placed onto someone for an omission unless there is;
Control - Reeves v Commissioner of Police
Assumption of Responsibility - Barnet v MOD

Question 14

Hill v Chief constable of West Yorkshire

Answer 14

Hill murder by a serial killer, police had no duty of care would fail the tripartite test established in in Caparo.
Was it reasonably foreseeable?
Is there a sufficient relationship of proximity?
Public policy arguments about fairness, justice and reasonableness of imposing a duty of care on the police.

Question 15

Smith v Chief Constable of Susses Police

Answer 15

Police failed to respond to death threats made to someone by their partner. He was attacked and left with skull fractures.
Police not liable - Hill principle applied, No liability for omissions

Question 16

Rigby V chief constable of Northamptonshire

Answer 16

Plaintiffs gun shop under siege. Police fired a can of CS gas into the shop without taking adequate precautions against the risk of fire.
Police liable as they assumed responsibility.

Question 17

Striking out action

Answer 17

A procedural tactic whereby one party applies to the court to strike out all or part of the other party’s statement of case because it shows no reasonable grounds for bringing/defending the action.

Saves time and expenses

Question 18

Costello v Chief constable of Northumbria

Answer 18

Employee of the police force called for help and her college did not come to her aid. This is an omission but the police were still liable in negligence because there is a duty of care which police have assumed for each other.

Question 19

Brooks v Commissioner of Police of the Metropolis

Answer 19

Police failed to treat brooks appropriately as a witness and did not take reasonable care when handling his statements. Case of no duty. Considered as an omission.

Question 20

Robinson v Chief constable of west Yorkshire

Answer 20

Police did not take reasonable care in making an arrest. Police and drug deal accidently bump into Robinson leaving her injured.
Court of appeal: Not fair just or reasonable to expect the police to have regard for the safety of people around them.
Supreme court: Unnecessary to use Caparo in such a case and instead precedent in cases like Rigby were used. It was a negligent act which led to Robinsons injuries and they should be liable for it.

Question 21

Alternative to bringing a negligence claim

Answer 21

Article 2 ECHR ‘Right to life’ - only can be brought against public bodies

Question 22

Osman vs the UK - The Osman Test:

Answer 22

The police knew or ought to have known with the information at the time that were was a real and immediate threat to life of the identified individual.
(Hard to satisfy)

Question 23

Capital and Counties v Hampshire

Answer 23

Fire brigade ordinarily do not have a duty of care when responding to an emergency but in this case they were negligent in their act to turn of the sprinkler system which led to the growth of the fire.

Question 24

OLL v Secretary of State for the Home Department

Answer 24

When the coast guard is dealing with the failure to rescue a person from the sea. They will not be liable if they fail as it is an omission.

Question 25

Kent v Griffiths

Answer 25

Only emergency service which does owe a duty of care if the ambulance service - part of the health service not the rescue service. They have assumed responsibility for their wellbeing as soon as they accepted the call.