Negligence - duty of care

Question 1

Requirements for an action in negligence

Answer 1

duty, breach, cause in fact, cause in law

Question 2

How to establish a duty of care

Answer 2

• precedent says certain relationships have a duty

- Caparo v Dickman

Question 3

Capar v Dickman duty of care

Answer 3

• foreseeability of damage
• proximity of parties
• just, fair and reasonable to impose a duty

Question 4

Is there every a duty to act

Answer 4

generally no duty to act but some exceptions

Question 5

exceptions to general rule that there’s no duty to act

Answer 5

assumption of responsibility, control, allow/create/fail to remove danger which is interfered with by a third party

Question 6

Do the police have a duty of care

Answer 6

2 categories:

• operational: owe a duty of care when they directly cause damage by a positive act
• crime control: less likely but no blanket immunity

Question 7

is there a duty of care to unborn babies

Answer 7

Congenital Disabilities (Civil liberty) act 1976 - damage caused due to negligence to child born alive 
negligence during or before pregnancy or during delivery 
defences that apply to parent also apply to an action by the child 
not liability of mother unless related driving a car

Question 8

what is pure economic loss

Answer 8

financial loss not stemming from damage to property or person.
e.g. defective property
not receiving expected profit

Question 9

what is consequential loss

Answer 9

financial loss due to damage to property

Question 10

is pure economic loss every recoverable

Answer 10

not unless Hedley Byrne applies

Question 11

What is Hedley Byrne v Heller

Answer 11

pure economic loss can be recovered if negligent misstatement and special relationship

Question 12

How to establish special relationship - Hedley Byrne

Answer 12

• C was relying on skills of D
• D knew or ought to know C was relying
• Reasonable for C to rely in the circumstances

Question 13

can there be a special relationship in a social setting

Answer 13

not normally

Question 14

Is a negligent statement and a special relationship enough to recover for pure economic loss

Answer 14

No this only establishes a duty. Must also establish breach and causation

Question 15

Can a duty of care be avoided using a disclaimer

Answer 15

Not for personal injury of death. Other disclaimers subject to test of fairness. CRA 2015

Question 16

Can Hedley Byrne apply when a statement is indirect or made for a purpose other than to influence C

Answer 16

Need proximity between D and C. Was it foreseeable, reasonable and fair for C to rely on it.

Question 17

Voluntary assumption of responsibility

Answer 17

if D assumed responsibility there is a duty of care and no need to consider Caparo fair, just and reasonable test
Demonstrates special relationship sufficient to recover pure economic loss

Question 18

is there a duty to avoid causing mental illness

Answer 18

recognised mental illness not general upset
condition must be result of sudden event or immediate aftermath - not prolonged exposure.
depends if primary or secondary victims

Question 19

primary victims

Answer 19

directly involved in accident. within range of foreseeable physical injury

Question 20

secondary victims

Answer 20

spectator or bystander

Question 21

duty to avoid mental illness - primary victims

Answer 21

duty to avoid physical injury and mental injury

Question 22

duty to avoid mental illness - secondary victims

Answer 22

alcock criteria:
sufficiently close relationship between C and primary V
proximity of C to accident of immediate aftermath
suffering nervous shock due to what was seen or heard at accident or immediate aftermath

Question 23

does thin skull rule apply to mental illness

Answer 23

yes applies to physical and mental illness the same