Negligence- duty of care Flashcards
What did Lord Akin say in the Neighbour principle in Donoghue v Stevenson
‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’
2 principles from Donoghue v Stevenson that we must establish in order to determine if there is a duty of care
- proximity
- reasonable foreseeability of harm
what does Fleming say about the neighbour principle
it is ‘apodictic’- concerned with the necessary truth
what did Lord Atkin want to set out with the neighbour principle
a universal application, to secure the interests of everyone in society- achieving corrective justice
what does Fleming critique about the neighbour principle
he questioned whether it is a test of foresight, or does it raise a tension between principle and policy?
British Virgin Islands v Hartwell- what does Lord Nicholls say about reasonable foreseeability
(probability)
It embraces a wide range of degrees of probability from:
-highly probable to
possible but highly improbable
(this gives judges greater discretion in the way they apply the law)
Lord Reid in Dorset Yacht- what does he say about the neighbour principle
the neighbour principle should apply unless there is some justification or valid explanation for its exclusion’
-in favour of applying neighbour principle
Lord Wilberforce in Anns v Merton: what 2 questions did he say judges should address
1) Is there a sufficient relationship of proximity or neighbourhood between C and D?
2) Are there any considerations which ought to negative, or reduce the scope of duty?
consideration- policy- which judges are sceptical about- they want principle
Lord Wilberforce in Anns v Merton: what did he say that it is not necessary to now do
it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist’
- the law is open to novel claims
- law is receptive to novelty
outcome in Murphy v Brentwood DC
House of Lords disapproved of the two-stage duty of care test set out by Lord Wilberforce in Anns v Merton LBC
(retreat from Anns)
Lord Bridge: Caparo v Dickman
what are the three considerations
1) Reasonable foreseeability of harm (Atkinian)
2) Proximity (Atkinian)
3) Is it fair, just and reasonable to impose a duty?
Caparo v Dickman: conceptual blurring
what does Lord Bingham say in Caparo, is blurred
The interrelationship between reasonable foreseeability of harm and proximity
Caparo v Dickman: conceptual blurring
What does Neil LJ in James McNaughten say is blurred
The interrelationship between proximity and justice, fairness and reasonableness is blurred
what does Lord Oliver say in Caparo about proximity
discretion
that it gives judges considerable discretion because it is a deniable concept, used ‘pragmatically’
Sutherland Shire Council v Heyman, what does Brennan J say about incremental development
- the law should develop novel categories incrementally and by analogy with established categories
- He said the new decision must remind us of earlier case law-analogist to the cases we already have
how does Simon Blackburn define analogy
something which is similar to another
what is the economic approach called
the Hand Formula
what case was the Hand Formula first found in
United States v Carroll Towing
what are the 2 objections to the hand formula
- The dignitarian objection: should our security be a matter of cost-benefit calculation?
- The empirical objection: can we put precise figures on the cost of taking care, the probability of harm, and gravity of harm?
what does Hand J say about the hand formula
that it will yield clear answers- but this may not be the case
what does Howarth say about generality
that it has been uneasy for judges to generalise on the topic of duty of care
what does Fleming say about the impossibility of generalising
- ‘No generalisation can solve the problem upon what basis a duty must arise out of some “relation”, or some “proximity” between the parties’
- ‘no one has ever succeeded in capturing in any precise formula’
what 2 things does Fleming say are control devices
remoteness and duty of care
why does Fleming argue that duty of care and reasonableness are control devices
-because judges expertise strong discretion when they use these control devices- they can apply these doctrines in ways they think take into account the particular circumstances, and policies they see relevant
if Fleming is right about the idea of control devices, what 2 things clash
the distinction between principle and policy collapses
Australian High Court’s ‘Salient Features’ Approach
what approach did they abandon and what approach did they develop
- they abandoned the approach to duty of care set out by Lord Bridge in Caparo
- they adopted the ‘salient features’ approach (which embraces considerations of principle and policy).
Australian High Court’s ‘Salient Features’ Approach
what matters do the Australian courts address first then second
they address matters of principle before they turn to policy considerations
Australian High Court’s ‘Salient Features’ Approach
leading case
Sullivan v Moody
