Negligence - Duty of Care Flashcards
Elements of the tort of negligence
- Duty of care: did the defendant owe a duty of care to the plaintiff?
- Breach: If a duty of care was owed, did the defendant’s actions (or omission) breach that duty? ie Did the defendant conform to the required standard of behaviour?
- If the duty was breached, has the plaintiff suffered loss, or damage? (eg physical injury)
- Can it be said that the damage was caused by that breach?
Three important principles from Donoghue v Stevenson [1932]
- Negligence is a tort, and there does not have to be a contract between the parties for a claim to be brought.
- The manufacturer, Mr Stevenson, had a duty of care in tort law to the consumer of his ginger beer.
- The ‘Neighbour Principle’ – you must not injure your neighbour
What is the neighbour principle?
“Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.” (Lord Atkin, Donoghue v Stevenson)
What is incrementalism in negligence tort law?
Instead of using the neighbour principle or two step test to say that a duty of care could be owed to many different people, instead, we should look to past decisions to see if the facts of a case before the court were in any way similar, and use that to decide whether a duty of care should be owed.
What is the Caparo three-step test?
- Whether the harm was reasonably foreseeable
- Whether there was a relationship of proximity
- Whether it is fair, just and reasonable to impose a duty of care
What is the Glencar four step test?
- Whether the harm was reasonably foreseeable
- Whether there was a relationship of proximity
- Whether there are countervailing public policy considerations
- Whether it is fair, just and reasonable to impose a duty of care
- Duty of care: did the defendant owe a duty of care to the plaintiff?
- Breach: If a duty of care was owed, did the defendant’s actions (or omission) breach that duty? ie Did the defendant conform to the required standard of behaviour?
- If the duty was breached, has the plaintiff suffered loss, or damage? (eg physical injury)
- Can it be said that the damage was caused by that breach?
Elements of the tort of negligence
“Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.” (Lord Atkin, Donoghue v Stevenson)
What is the neighbour principle?
Instead of using the neighbour principle or two step test to say that a duty of care could be owed to many different people, instead, we should look to past decisions to see if the facts of a case before the court were in any way similar, and use that to decide whether a duty of care should be owed.
What is incrementalism in negligence tort law?
Case was unusual for negligence law because it concerned economic loss, rather than physical injury.
Caparo Industries had bought shares in Fidelity Plc. They relied on the audited FS which said that the company had made a pre-tax profit of £1.3M. In fact Fidelity had made a loss of over £400,000. Caparo brought an action against the auditors claiming they were negligent in certifying the accounts.
No duty of care was owed. There was not sufficient proximity between Caparo and the auditors since the auditors were not aware of the existence of Caparo nor the purpose for which the accounts were being used by them.
Resulted in Caparo three step test.
Caparo Industries Plc v Dickman [1990]
- Whether the harm was reasonably foreseeable
- Whether there was a relationship of proximity
- Whether it is fair, just and reasonable to impose a duty of care
What is the Caparo three-step test?
Plaintiffs were granted prospecting licenses, or mining licenses, by the Minister for Energy to explore for gold in Westport. They went ahead and spent large sums of money.
The County Council then decided to implement a mining ban in County Mayo.
The ban was later held to have been ultra vires, which is a legal term meaning that the County Council didn’t have the lawful power to impose the ban.
So, the plaintiffs sued the county council in negligence. At first instance, which means in the first court that decided the case, and then the Supreme Court, it was decided that the county council did not owe a duty of care to the plaintiffs.
Resulted in Glencar four step test. Recent precedent re: duty of care in Ireland.
Test is: Reasonable foreseeability; Proximity of relationship; The absence of countervailing public policy considerations; and. The fairness, justice and reasonableness of imposing a duty of care.
Glencar Explorations plc and Andaman Resources plc v Mayo County Council (No.2) [2002]
- Whether the harm was reasonably foreseeable
- Whether there was a relationship of proximity
- Whether there are countervailing public policy considerations
- Whether it is fair, just and reasonable to impose a duty of care
What is the Glencar four step test?
British Case
Yorkshire Ripper
The claim was struck out on the alternative bases of (i) the police owed no specific duty of care to a member of the general public, and (ii) on public policy grounds.
Hill v Chief Constable of West Yorkshire
Generally Gardai do not owe a duty of care to the general public, but one could arise in exceptional circumstances.
Smyth v Commissioner of An Garda Siochana
