Law of Tort / Duty of care (General Negligence)

Question 1

Define ‘negligence’

Answer 1

The breach of a legal duty to take care by the defendant resulting in loss or damage to the claimant.

Question 2

The elements you must consider to establish a claim in negligence are …

Answer 2

1. Loss or Damage
2. Duty
3. Breach
4. Causation
5. Remoteness (i.e. reasonably foreseeable)
6. Defences (i.e. are there any valid defences to claim?)

Question 3

Case - Donoghue v Stevenson [1932]

Answer 3

Manufacturer owes a duty to the ultimate consumer

Question 4

Case - Caparo Industries v Dickman [1990]

Answer 4

Replaced ‘test’ in Donoghue v Stevenson (1. Foreseeability 2. Proximity)

Caparo case set out the current three stage test for establishing a duty of care (where there is no precedent).

BUT NOT a magic formula for a general test! Instead developing the scope of duty of care INCREMENTALLY, by analogy with established authorities.

Question 5

Caparo Three-Stage Criteria

Answer 5

1. Proximity of relationship
2. Foreseeability of harm
3. Fair, just and reasonable to impose duty

Question 6

Define ‘analogy with established authority’

Answer 6

The drawing of an analogy depends on identifying the legally significant features of the earlier authorities i.e. in those previous cases why was a duty found or not found.

Question 7

Define ‘fair, just and reasonable’

Answer 7

Involves a broad analysis where the court will consider (expressly or implicitly) the impact of a decision socially, politically and economically on society as a whole.

Question 8

Policy consideration - Floodgates

Answer 8

A

Question 9

Policy consideration - Insurance

Answer 9

A

Question 10

Policy consideration

- Crushing liability

Answer 10

A

Question 11

Case - Robinson v Chief Constable of West Yorkshire Police [2018]

Answer 11

The police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.

Question 12

Case - Cassidy v Ministry of Health [1951]

Answer 12

Medical professionals owe a duty of care to patients once they have accepted them for treatment.

Question 13

Case - Baker v T.E. Hopkins & Son Ltd [1959]

Answer 13

Dr Baker knowingly descended into a well containing poisonous fumes in an attempt to rescue two workers and died from the fumes.

The Court of Appeal held that Dr Baker was owed a duty of care as it was reasonably foreseeable that someone would seek to rescue the workers in danger.

Question 14

Case - Watson v British Boxing Board of Control [2001]

Answer 14

A

Question 15

General rule of tort on liability

Answer 15

Law of tort only imposes liability on those who cause injury or damage to another.

Question 16

General rule of tort on liability

Answer 16

Law of tort only imposes liability on those who cause injury or damage to another.

I.e. No liability is imposed on a mere failure to act.

Question 17

Exceptions to there is no duty to avoid omissions (Smith) …

Answer 17

1. Statutory duty
2. Contractual duty
3. Defendant has sufficient control over the claimant

Question 18

Exceptions to there is no duty to avoid omissions (Smith) …

Answer 18

1. Statutory duty
2. Contractual duty
3. Defendant has sufficient control over the claimant
4. Defendant assumes responsibility for the claimant
5. Defendant creates the risk

Question 19

Statute - Occupiers’ Liability Act 1957

Answer 19

Example of a positive duty being imposed by statute.

Question 20

Case - Stansbie v Troman [1948]

Answer 20

Example of a contractual duty.

Can also be used as an example of a contractual relationship and thus exception to the general rule regarding liability for acts of third parties. (DC?)

Question 21

Case - Reeves v Commissioner of Police for the Metropolis [1999]

Answer 21

Example of positive duty because defendant has a high degree of control over the claimant.

Question 22

Case - Barrett v Ministry of Defence [1995]

Answer 22

Example of positive duty because of assumption of responsibility for claimant’s welfare by the defendant.

Question 23

Case - Goldman v Hargrave [1967]

Answer 23

Example of positive duty because defendant created the risk through an omission.

Question 24

Case - Kent v Griffiths & Others [2002]

Answer 24

The ambulance service (regarded as part of the health services) owe a duty of care to respond to a 999 call within a reasonable time.

(See more notes on slideshow!!!***)

Question 25

Case - Capital and Counties plc v Hampshire County Council [1997]

Answer 25

The fire brigade owes NO duty of care to attend a fire but if THEY DO attend a fire, they OWE a duty not to make the situation worse through a positive act.

A fire-fighter ordered a sprinkler system, operating at the fire, to be turned off.

Question 26

Case - Alexandrou v Oxford [1993]

Answer 26

The police owe NO duty of care to respond to emergency calls.

The police did not owe the claimant a duty to respond to his burglar alarm. However, police can owe a duty in other circumstances eg in Reeves the police owed a duty in relation to an omission (but the omission was not a failure to respond to an emergency call).

Question 27

General rule regarding liability for acts of third parties

Answer 27

NO such duty is imposed on a failure to prevent a third party causing harm to another.

However, there are a number of EXCEPTIONS to this general rule, in which the law DOES impose a positive duty to act to prevent a third party causing harm to another.

Question 28

Exceptions to there is no duty for failing to prevent a third party from causing harm (Smith) except where …

Answer 28

1. There is sufficient proximity between the defendant and claimant
2. There is sufficient proximity between the defendant and third party
3. The defendant created the danger
4. The risk was on the defendant’s premises

(Overlapping and ill-defined exceptions to the general rule)

Question 29

Case - Home Office v Dorset Yacht Co [1970]

Answer 29

A

Question 30

Case - Swinney v Chief Constable of Northumbria (no.2) [1999]

Answer 30

A

Question 31

Case - Hill v Chief Constable of West Yorkshire [1989]

Answer 31

A

Question 32

Case - Mitchell v Glasgow City Council [2009]

Answer 32

A

Question 33

Case - Palmer v Tees Health Authority [2002]

Answer 33

A

Question 34

If the same principles apply to private individuals and public bodies, why is ascertaining whether duties of care are owed by public bodies particularly problematic?

Answer 34

(1) see slideshow

(2) see slideshow

Question 35

Case - CN and GN v Poole Borough Council [2019]

Answer 35

Court held that even if the Council had the power to take the children into care, this was insufficient to show that the Council had the duty to do so.

Question 36

What are some limitations that may be somewhat relevant or not when considering whether to impose a duty on a public body in a new area?

Answer 36

1. Money - In successful claims against public bodies it is often ultimately the taxpayer who actually pays the damages. This might point away from a finding of a duty of care in a new case.
2. Restrictions - The impositions of a duty might lead to public services being restricted in their operation for fear of litigation (sometimes referred to as ‘defensive practices’).

Question 37

Case - Rigby v Chief Constable of Northamptonshire [1985]

Answer 37

About distinction between operational and policy matters?

See slideshow but also check if OLD LAW.

Question 38

Case - Phelps v Hillingdon London Borough [2000]

Answer 38

A The dyslexia one

Question 39

Case - Jebson v Ministry of Defence [2000]

Answer 39

A

Question 40

Case - Mulcahy v Ministry of Defence [1996]

Answer 40

The army do not owe a duty to soldiers in battle conditions (during active combat).

Question 41

Make a flashcard from summary of public bodies and duty of care regarding general rule and exceptions

Answer 41

A

Question 42

Case - Smith v Littlewoods Organisation Ltd [1987]

Answer 42

No such duty is imposed on a mere failure to act, otherwise known as an omission