Negligence and Duty of Care

Question 1

What is an overview of the negligence sequence?

Answer 1

1) Duty
2) Breach
3) Causation
4) Remoteness
5) Defences

Claimant has to prove 1-4 on the balance of probability

Question 2

What is the first step for finding whether there is a duty of care?

Answer 2

First step is to see if a precedent exists, and if so, apply it

Question 3

What if there is no precedent for a duty of care?

Answer 3

Apply the three stage test from Caparo v Dickman

Question 4

What is the three stage test from Caparo v Dickman?

Answer 4

1) was the harm reasonably foreseeable?
2) was there proximity between the claimant and defendant?
3) Whether it would be fair, just and reasonable to impose a duty (have to balance policy considerations)

Question 5

Under omission, what are the few situations where a duty is owed

Answer 5

1) Where there is a statutory duty
2) Contractual duty
3) where the defendant has sufficient control over the claimant
4) where the defendant assumes responsibility over the claimant
5) where the defendant creates the risk

Question 6

what is the explanation behind omission for a failure to prevent a third party from causing harm

(i.e there is no duty in relation to an omission except- where the omission is a failure to prevent a third party from causing harm and…)

Answer 6

1) there is sufficient proximity between D and C
and/or
2) There is a sufficient proximity between D and third party
and/or
3) D created the danger
and/or
4) the risk is on D’s premises