How to determine whether a duty of care is owed Flashcards
What is the concept of ‘a duty of care’?
A defendant cannot be liable for carelessness unless the law requires them to be careful in the first place. The courts reflect this by using the concept of ‘a duty of care
Who created the ‘duty of care’ concept?
The judiciary- it is a judicial creation
Which case was first to attempt to establish a test for duty of care? Is this new or old law?
Donoghue v Stevenson[1932] - old law
What were the facts and principle of the Donoghue v Stevenson case?
Donoghue ate an ice cream float made with ginger beer in a cafe. The ginger beer was in an opaque bottle, and turned out to have had a decomposed snail in it. She then fell ill and sued the ginger beer manufacturer.
Principle: Established the concept of the duty of care in Tort. - test of foreseeability
What is the test of foreseeability?
Objective test.
- what a reasonable person could have been expected to foresee.
Define proximity.
Broadly, it concerns the degree of connection between the parties and whether a duty ought to be imposed on the tortfeasor bearing in mind his connection to the victim.
What case brought forward the incremental approach that is now used - 3 stage test?
Caparo Industries pls v Dickman (1990)
How do you determine whether a duty of care is owed?
- First look at precedent
- consider whether there any analogies in existing cases that can be used
- Use the 3 stage test
When should you use the 3 stage test?
During novel cases
- where there is not yet an established duty
What are the 3 different stages to look at for duty of care?
foreseeability of damage, proximity and ‘fair, just and reasonable’
What case explains why ‘proximity’ is important to determine?
Poole BC v GN[2019] makes clear that the court will continue to look at legally significant features of the situation.
- In many cases the significant features are connected with the relationship between the claimant and the defendant – i.e. their proximity.
- This focus on the relationship between the claimant and defendant will therefore remain important
What case explains why ‘fair, just and reasonable’ is important to determine?
- The judgment inRobinsonexpressly states that this will remain a relevant consideration when judging whether a duty of care should be recognised in a novel type of case.
Consideration of what is fair, just and reasonable involves a broad analysis. As part of this, the court will consider (expressly or implicitly) what might be termed ‘policy considerations
What are ‘floodgates’?
This refers to the fear on the part of the judges that to allow one claim would open the legal floodgates leading to a deluge of claims ‘flooding’ the courts.
Why is insurance an important policy consideration?
- The courts are more likely to find a defendant liable if they are (or should have been) insured because they will have the means to pay damages.
- There is also the connected loss distribution argument that finding an insured party liable effectively spreads the cost of compensation through society.
What is crushing liability?
- refers to a concern to finding a party liable when the result would be that he/she would need to pay damages out of all proportion to the wrong committed.
