Law of Tort / Duty of care (General Negligence) Flashcards
Define ‘negligence’
The breach of a legal duty to take care by the defendant resulting in loss or damage to the claimant.
The elements you must consider to establish a claim in negligence are …
- Loss or Damage
- Duty
- Breach
- Causation
- Remoteness (i.e. reasonably foreseeable)
- Defences (i.e. are there any valid defences to claim?)
Case - Donoghue v Stevenson [1932]
Manufacturer owes a duty to the ultimate consumer
Case - Caparo Industries v Dickman [1990]
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.
Caparo Three-Stage Criteria
- Proximity of relationship
- Foreseeability of harm
- Fair, just and reasonable to impose duty
Define ‘analogy with established authority’
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.
Define ‘fair, just and reasonable’
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.
Policy consideration - Floodgates
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Policy consideration - Insurance
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Policy consideration
- Crushing liability
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Case - Robinson v Chief Constable of West Yorkshire Police [2018]
The police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.
Case - Cassidy v Ministry of Health [1951]
Medical professionals owe a duty of care to patients once they have accepted them for treatment.
Case - Baker v T.E. Hopkins & Son Ltd [1959]
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.
Case - Watson v British Boxing Board of Control [2001]
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General rule of tort on liability
Law of tort only imposes liability on those who cause injury or damage to another.
General rule of tort on liability
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.
Exceptions to there is no duty to avoid omissions (Smith) …
- Statutory duty
- Contractual duty
- Defendant has sufficient control over the claimant
Exceptions to there is no duty to avoid omissions (Smith) …
- Statutory duty
- Contractual duty
- Defendant has sufficient control over the claimant
- Defendant assumes responsibility for the claimant
- Defendant creates the risk
Statute - Occupiers’ Liability Act 1957
Example of a positive duty being imposed by statute.
Case - Stansbie v Troman [1948]
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?)
Case - Reeves v Commissioner of Police for the Metropolis [1999]
Example of positive duty because defendant has a high degree of control over the claimant.
Case - Barrett v Ministry of Defence [1995]
Example of positive duty because of assumption of responsibility for claimant’s welfare by the defendant.
Case - Goldman v Hargrave [1967]
Example of positive duty because defendant created the risk through an omission.
Case - Kent v Griffiths & Others [2002]
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!!!***)
Case - Capital and Counties plc v Hampshire County Council [1997]
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.
Case - Alexandrou v Oxford [1993]
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).
General rule regarding liability for acts of third parties
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.
Exceptions to there is no duty for failing to prevent a third party from causing harm (Smith) except where …
- There is sufficient proximity between the defendant and claimant
- There is sufficient proximity between the defendant and third party
- The defendant created the danger
- The risk was on the defendant’s premises
(Overlapping and ill-defined exceptions to the general rule)
Case - Home Office v Dorset Yacht Co [1970]
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Case - Swinney v Chief Constable of Northumbria (no.2) [1999]
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Case - Hill v Chief Constable of West Yorkshire [1989]
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Case - Mitchell v Glasgow City Council [2009]
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Case - Palmer v Tees Health Authority [2002]
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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?
(1) see slideshow
(2) see slideshow
Case - CN and GN v Poole Borough Council [2019]
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.
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?
- 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.
- 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’).
Case - Rigby v Chief Constable of Northamptonshire [1985]
About distinction between operational and policy matters?
See slideshow but also check if OLD LAW.
Case - Phelps v Hillingdon London Borough [2000]
A The dyslexia one
Case - Jebson v Ministry of Defence [2000]
A
Case - Mulcahy v Ministry of Defence [1996]
The army do not owe a duty to soldiers in battle conditions (during active combat).
Make a flashcard from summary of public bodies and duty of care regarding general rule and exceptions
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Case - Smith v Littlewoods Organisation Ltd [1987]
No such duty is imposed on a mere failure to act, otherwise known as an omission
