Law of Tort - duty of care (negligence)

Question 1

What are the elements required for negligence?

Answer 1

Duty of care
Breach of duty
Damage caused

Question 2

Explain duty of care

Answer 2

Establishing if someone has a duty of care to act carefully around another person

Who owes who a duty of care has been developed through judicial precedent

Question 3

What was the original test to decide whether a duty of care should be created
- what did it say? (2)

Answer 3

Neighbour principle - Donoghue v Stevenson (1932)

You must take reasonable care to avoid acts or omissions which you can reasonably foresee are likely to injure your neighbour

• you owe someone a duty of care if you are in close proximity to them and if it is reasonably foreseeable that your actions/omissions could harm said person

Question 4

What was the problem with the original test?

Answer 4

Courts had trouble applying the duty of care to new situations

Courts had to decide on a case by case basis whether there was a duty of care owed

Some judges were concerned with ‘opening the floodgates’

Question 5

What was the new test
- what did it say? (3)

Answer 5

Caparo v Dickman (1990)

The damage must be reasonably foreseeable

There must be a relationship of proximity between the parties

It must be fair, just and reasonable to impose a duty of care

Question 6

Damage being reasonably foreseeable:
- state and explain the case for this

Answer 6

Whether the injury or damage was reasonably foreseeable depends on the facts of the case

Kent v Griffiths
1. Claimant suffered asthma attack and ambulance was called to take them to hospital
2. Ambulance failed to arrive, claimant suffered respiratory arrest
3. Court found it was reasonably foreseeable that claimant would suffer further injury if ambulance did not arrive promptly

Question 7

Proximity of the relationship:
- state and explain the case for this

Answer 7

Even if harm is reasonably foreseeable, a duty of care will only exist if the relationship between D and claimant is sufficiently close

Bourhill v Young (1943)
A pregnant women (claimant) on the street saw an accident happen, accident was caused by motorcyclist (D) who died in the crash

Women suffered such shock, from what she saw that she had a miscarriage, sued relatives of dead motorcyclist

Court held that motorcyclist could not have foreseen that the crash would have caused a mental injury to a bystander - he was not proximate and therefore no duty of care

Question 8

Just, fair and reasonable to impose a duty:
- state and explain the case for this

Answer 8

Hill v Chief constable of West Yorkshire 1990

• Yorkshire ripper had been attacking women across north England
• Claimants daughter was the last women to be murdered, at the time of her death, police had enough info to arrest ripper but had failed to do so
• Court found it was not just, fair and reasonable to impose a duty of care
• Police knew ripper might strike again but had no way of knowing who the victim might be

Question 9

What are the 3 reasons that the supreme court held that the caparo test does not always apply?

Answer 9

1. There is no single test to decide if there is a duty of care
2. If there is an existing duty of care from a previous case that should be followed
3. Caparo test can still be used if a new situation comes up