Negligence: Duty of Care

Question 1

What is Duty of Care?

Answer 1

In SOME instances there is a legal duty to take reasonable care.

This is not a universal duty.

Duty of care will arise in some situations between D+C

Question 2

How do you find out if there is a duty of care?

Answer 2

To find whether there is a duty of care, it may arise in two situations:

1) It is either already an established duty – lots of care precedent
2) It’s a novel situation- new and unique situation with no precedent

Question 3

What are some examples of Established Duties?

Answer 3

Road users (drivers, passengers and pedestrians)

Doctor - Patient

Client - Solicitor

Employer - Employee

Question 4

What do you do if the duty of care comes under established duty?

Answer 4

You apply the existing case precedent.

Incremental approach SC mentioned in Robinson v CC West Yorkshire Police [2018]

Question 5

What if the duty does not come up in the established duties?

Answer 5

Then this is a new, novel situation and you would use the duty of care test set out in Caparo v Dickman [1990]

Question 6

What is the Caparo Test?

Answer 6

This is a 3 stage test only for novel situations

1) Is it reasonably foreseeable that Ds actions would cause harm to C? (any harm is sufficient)

Bourhill v Young (1943)- pregnant lady witnessing aftermath of crash by D causing husbands death + baby dead- Court said this wasn’t foreseeable that she would be a witness

2) Is there a relationship of proximity between C and D? (any closeness)
3) Is it fair, just and reasonable for the law to impose a duty? (policy considerations)