Negligence: Duty of care Flashcards
A solicitor is instructed by the owner of a plant nursery. The owner wishes to pursue a claim in negligence against a friend who is a horticulturist. The owner had asked the friend to assist them with the planting and settling of some of newly delivered plants. The friend had recently returned from the Amazonian forest. The friend had not yet had their work clothes cleaned and checked for insects and parasites as was their usual and recommended professional practice. Their work clothes carried a parasite. The parasite attacked and killed the majority of the native plants stocked at the nursery, causing a huge loss to the owner.
Which of the following best explains whether a duty of care would be found to arise in this situation?
A- A duty may be found as there was proximity of relationship between the parties and the friend knew they were taking a chance by not having their work clothes cleaned.
B-No duty of care would be found to exist as the harm suffered is pure economic loss.
C-No duty of care would be found as this is not an established duty situation for a duty between friends and it would not be fair since the friend offered help for free.
D-No duty of care would be found as there was an omission by the friend and no duty is imposed when someone omits/fails to act.
E-A duty may be found as the Caparo criteria are all satisfied.
Option E is the correct answer. This is not an established duty situation. There was foreseeability of harm to the nursery plants, there was proximity of relationship and there are no policy factors against finding a duty of care.
Option A is wrong because this is not an established duty situation and only one of the 3 Caparo criteria is relied upon.
Option B is wrong as this is not pure economic loss but damage to property (the plants) followed by consequential economic loss.
Option C is wrong as this is not an established duty situation and all 3 Caparo criteria are not relied upon.
Option D is wrong as while the friend’s failure to have her clothes cleaned may be labelled an omission, once the friend decided to provide assistance, a duty not to make the situation worse arose.
Caparo test:
The duty of care is borne out of the relationship between the claimant and defendant. The Caparo test lays down three main ingredients for breach of duty which are reasonably foreseen, requisite proximity and reasonability.
A pedestrian crossing a road was hit by a police car. The police car was pursuing another car that was speeding and being driven dangerously.
Did the police owe a duty of care in negligence to the pedestrian?
A- Yes, because the situation falls within the established duty of care between the police and members of the public.
B-Yes, because the situation falls within the established duty of care between a road user and pedestrians.
C-No, because the police were not in control of the driver of the other car.
D-No, because it would not be fair, just or reasonable to impose a duty of care on the police while they were attempting to arrest the driver of the other car.
E-No, because the police were protecting the public by attempting to arrest the driver of the other car.
B is the correct answer as the police owe the same established duty of care to pedestrians as all other road users.
A is wrong because, while the police do owe a general duty of care to the public, this duty cannot be relied upon by an individual member of the public in order to bring a civil claim for damages in negligence (Hill v Chief Constable of West Yorkshire [1989]).
Where one person has a relationship of control over another, they may have a duty to take positive action to prevent harm being caused to third parties. It is correct that the police were not in control of the other driver. However, statement C is wrong on the facts of the scenario because the pedestrian was injured due to the police’s own positive act while driving and the pedestrian can rely on the established duty of care between a road user and pedestrians.
D is wrong because the situation falls within an established duty and the Caparo ’test’ is therefore not relevant.
E is wrong because the reason for the police’s actions may be relevant to whether they were in breach of duty and not whether a duty of care is owed (Watt v Hertfordshire County Council [1954].
A police constable has been despatched to an emergency situation in a local shop which is being held up by two men armed with machetes.
The constable speeds around a roundabout and ploughs into a motorcyclist on their motorbike, coming from the constable’s right.
The motorcyclist suffers massive internal injuries.
Does the police constable owe a duty of care in negligence to the motorcyclist?
A- No, because the police do not owe a duty to individual members of the public as there is no proximity of relationship.
B-No, because it would not be fair just and reasonable as the police is a public body.
C-No, because although a duty would be owed in normal circumstances, the duty is suspended when acting in an emergency situation.
D-Yes, because the constable is driving and the Road Traffic Act 1988 states any driver owes a duty of care to other road users.
E-Yes, because the constable is driving and this is a well established duty situation.
Option E is the correct one. Members of the police force owe a duty of care when driving vehicles in the same way as any other drivers. Robinson v Chief Constable of West Yorkshire confirms.
Option A is wrong. There was proximity between the parties here as for any other road traffic collision situation. The fact that the driver is a police constable has no bearing on it.
Option B is wrong. This is not a novel duty situation so fair just and reasonable considerations have already been considered when deciding a duty between road users exists.
Option C is wrong. The fact that the incident occurred in the context of an emergency situation may become relevant to breach of duty but not the existence of the duty.
Option D is wrong. The question is about common law duty of care not a duty arising under statutory provisions.
Twice last week a shop owner saw a teenager attempting to start a fire outside her shop. She tried to speak to the teenager but he ran off on each occasion. She reported the matter to the police on both occasions, saying that she was afraid he might start a fire. The officer who took the calls allocated them a low priority and no action has yet been taken.
Yesterday, the same teenager set light to some rubbish stacked on top of full bins outside the shop. The shop suffered fire damage as a result. Fortunately, no-one was hurt, however, it will be expensive to carry out the repairs. The shop owner feels that the police could have prevented the fire and wishes to pursue a claim in negligence.
Which of the following arguments would it be most appropriate for the police to rely on in defending the claim?
A- The police do not owe a duty to members of the public in respect of property damage.
B- In the investigation of crime, no duty of care is owed by the police to individual members of the public such as the shop owner.
C- It was not reasonably foreseeable that the shop would suffer from arson.
D- The officer who took the call made a reasonable and careful judgement in allocating the call low priority.
E- The shop owner is guilty of contributory negligence having left rubbish stacked up outside her shop.
Option B is correct. In the investigation of crime no duty of care is owed by the police to individual members of the public such as the shop owner. This is in respect of investigatory decisions by the police, as opposed to their operational activities (see for example Hill v Chief Constable of West Yorkshire [1989] AC 53).
Option A is wrong because the police would owe a duty of care when encountering the public day-to-day when on operational activities, including in respect of property damage.
Options C and D are not the best answers because it might be successfully argued, by the shop keeper, that arson to her shop was reasonably foreseeable given the two events occurring in the last week and therefore the officer should have made the call a higher priority.
Option E is not the best answer, as contributory negligence is only a partial defence. Furthermore, it is unclear whether the shop keeper is responsible for the bins in question and/or whether she would be deemed to have failed to have taken reasonable care which contributed to the damage.
A claimant is employed by a laboratory as a technician. One afternoon, while doing some work in the laboratory, they lit a gas burner and there was a small explosion. As a result of the explosion the claimant sustained burns to their hand.
The laboratory have had the gas burner inspected by an expert who has reported that they cannot find anything wrong with it.
Which statement best explains whether the claimant will be owed a duty of care by the laboratory?
A- Yes, because the type of harm was foreseeable, the claimant and the laboratory were in a proximate relationship and it is fair, just and reasonable to impose a duty of care on the laboratory.
B-Yes, because there is an established duty between the claimant and the laboratory as the type of harm was foreseeable, the claimant and the laboratory were in a proximate relationship and it is fair, just and reasonable to impose a duty of care on the laboratory.
C-No, because the expert evidence suggests that it would not be fair, just or reasonable to impose a duty of care on the laboratory.
D-Yes, because there is an established duty between the claimant and the laboratory.
E-No, because the expert evidence suggests that the harm suffered by the claimant was unforeseeable.
Option D is correct as the claimant can rely upon the established duty of care between an employer and its employees.
Option A is wrong because, while the foreseeability, proximity and fairness would seem to be satisfied, this is not why a duty of care would be owed in this case. The Caparo test (from Caparo Industries plc v Dickman [1990] 1 All ER 568) is only relied upon in novel (new) duty situations. If the claimant falls within an established duty situation then they will not be required to satisfy the Caparo test.
Option B is wrong because, while it does correctly state that this is an established duty situation, it does not depend upon this claimant having to satisfy the Caparo test.
Option C is wrong because it is confusing the issue of whether a duty of care is owed with whether the defendant may be in breach of its duty.
Option E is wrong for the same reason as option D.
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Caparo test 3 elements:
What factors are to be taken into consideration when determining whether a duty of care exists between the parties?
3 stage test to establish a novel (new) duty:
(1) Foreseeability of damage; and
(2) a relationship of proximity; and
(3) that the existence of a duty would be ‘fair, just and reasonable’
The claimant owns and occupies property which is next to a nightclub. The nightclub is being redeveloped by the defendants. The defendants have commenced work, but leave the building locked and unattended at night. Vandals have broken in on a few occasions and started small fires. These fires were dealt with by the defendants. However, on the last occasion the vandals broke in and started a large fire which spread and caused extensive damage to the claimant’s property. The claimant is seeking advice as to whether it should sue the defendants in negligence for the damage caused.
Which of the following statements best describes why the defendants do not owe the claimant a duty of care in negligence?
A- Because the general rule is that there is no duty of care owed for omissions.
B-Because the duty on an occupier would be too wide if it was held responsible for damage caused to neighbouring property by third parties entering the occupier’s property.
C-Because the defendants are not at fault as they did not start the fire
D-Because the claimant’s damage was caused by the defendants’ failure to act and the defendants had no control over the vandals.
E-Because there is never a duty of care owed by a defendant to a claimant for the actions of third parties
Option D is correct – defendants can be liable for their omissions if they have a positive duty to exercise control over third parties but this principle does not apply to the facts of the claimant’s case. The defendants were not in a special (proximate) relationship with the vandals and would not be expected to exercise control over them.
Option A is only partially correct because, while the general rule is that there is no duty of care owed for omission, there are exceptions to this general rule.
Option B is also only partially correct because, while the courts can consider the wider ramifications of their decision (ie policy), this is not in itself cause of an exception to the general rule that there is no duty for omission.
Option C is wrong as, while the defendants may or may not have been at fault, this is not an issue that determines whether a duty of care is owed (it is, however, relevant to breach).
Option E is wrong as the statement is too absolute, ie there are exceptions (eg Home Office v Dorset Yacht Co Ltd [1970] AC 1004), but this exception does not apply to the claimant’s facts.
A man read an article written by an experienced hill walker which recommended a particular hill walk as suitable for novices. Unfortunately, the writer of the article made an error and the walk he suggested was only suitable for experts with good navigation skills. The man, a novice, was seriously injured when attempting the suggested route as he fell into a ravine having lost the correct path.
On the assumption that there is no prior case law covering this situation, which of the following statements correctly describes whether the writer of the article is likely to owe the man a duty of care in negligence?
A- No, the writer will not owe a duty of care because whilst the man might be a foreseeable victim, the writer has not assumed responsibility for the man and so there is no relationship of proximity between them.
B- No, the writer will not owe a duty of care because the man should have checked the route himself before heading off and so it is not fair, just and reasonable to impose a duty.
C- Yes, the writer will owe a duty to the man as he should have checked the details of the route carefully before publication and so it is fair, just and reasonable for him to owe a duty
D- Yes, the writer will owe a duty as readers of his article are foreseeable victims and it is fair, just and reasonable for him to owe them a duty of care.
E- Yes, the writer will owe a duty as readers of his article are foreseeable victims and there is a sufficient relationship of proximity between the writer and readers to justify the imposition of a duty of care.
Option A is the correct answer because it considers and applies the test for duty of care in situations where there is no prior case law (Caparo Industries v Dickman [1990] UKHL 2). As there is no proximity of relationship between the man and the writer the court would not need to consider whether it is fair just and reasonable to impose a duty.
Option B is wrong because whether the man should have checked the route for himself is not relevant to the issue of whether a duty of care is owed under Caparo.
Option C is wrong because the failure of the writer to check the route carefully would be relevant to whether any duty of care had been breached but is not relevant to the application of the Caparo test to determine whether a duty is owed.
Option D is wrong because it does not consider the issue of proximity which must be present under Caparo for a duty to arise.
Option E is wrong because the fact that readers are foreseeable does not mean that a relationship of proximity also exists. These are separate requirements under Caparo and there would be no proximity on these facts.
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