Negligence: Duty of Care

Question 1

What is the difference between misfeasance and non-feasance?

Answer 1

Misfeasance: C’s harm due to positive act
Nonfeasance: C’s harm due to failure to act

Question 2

Definition of Negligence

Answer 2

A breach of a legal duty of care owed to the claimant that results in harm to the claimant undesired by the defendant

Question 3

Elements of Negligence

Answer 3

1. D must owe C a duty of care
2. D must be in breach of duty
3. Causation
4. Defences

Question 4

Duty of care rule

Answer 4

D is only liable in negligence if they are under a legal duty to take care for C

Question 5

Types of duty situations

Answer 5

Established duty: duty established in existing case law
Novel duty: no established duty

Question 6

Examples of established duty situations

Answer 6

1. Road user to road user: driver to passenger, pedestrian or other user
2. Doctor to patient
3. Employer to employee
4. Manufacturer to consumer
5. Teacher to pupil
6. Rescuer IF: D creates dangerous situation + reasonably forseeable someone may rescue

Question 7

When does D owe a duty to a rescuer?

Answer 7

1. D creates a dangerous situation; and
2. Reasonably forseeable someone may rescue

Question 8

What is the neighbour principle?

Answer 8

You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour

Question 9

Caparo Test (novel duty)

Answer 9

1. Forseeability: Is it reasonably foreseeable D’s acts will affect this particular C (loss foreseeable)?
2. Proximity: relationship between C & D (No if omission, PEL or PPH)
3. Fair, just and reasonable to impose a duty: (public policy considerations)

Question 10

When is it likely and unlikely a duty will be owed under Caparo Test?

Answer 10

Likely:
* D is an individual; and
* Positive Act; and
* Harm is property damage / personal injury

Unlikely:
* D is a public body; or
* Omission to act: or
* harm is PPH or PEL

Question 11

Duty of care

Rule relating to omissions

Answer 11

GR: No liability for failure to act

EXCEPTIONS: D liable for failure if:
1. D intervenes and makes situation worse
2. Special relationship between D and C
* Relationship of control (e.g. employer, school, parent, teacher)
* Statutory duty (e.g. OLA)
* Contractual duty (e.g. Lifeguard)
* Risk is created by D

Question 12

Situations where court is reluctant to impose a duty of care

Answer 12

1. Negligent police investigation (duty to public at large)
2. Careless ommission by LA
3. Economic Loss
4. Phychiatric Harm

Question 13

Do public authorities have a duty to respond to emergency calls?

Ambulance, police and fire

Answer 13

Ambulance: duty to respond to call in reasonable time

Police: No duty to respond to 999 calls

Fire: No duty to attend fire but if attend positive duty not to make situation worse

Question 14

General rule in relation to liability for acts of 3rd parties

Answer 14

No duty for failure to prevent a 3rd party causing harm to another

Question 15

Exceptions to the general rule that D owes no duty to prevent a 3rd party causing harm to another

Answer 15

• Sufficient Proximity between D and C (e.g. contractual relationship OR informer OR C is identifiable victim over and above public at large + D assumes resonsibility for C)
• Sufficient Proximity between D and 3rd party (3rd party under D’s control when tort committed)
• D created danger
• Risk was on D’s premises (know of danger + harm foreseeable)

If one or more factors are applicable D may owe a duty