Negligence: Duty of Care Flashcards
what is a tort and what does it involve?
- Tort means wrong
- A tort involved the infringement of a legal right or breach of legal duty
who is a tortfeasor and what is their action described as?
- A person who commits a tort is called a tortfeasor and their liability is described as tortious
as a whole, what is the tort of negligence?
- The tort of negligence can be described as ‘a breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant’
what is the outcome of a successful claim?
An award of damages
what type of tort is negligence?
- Negligence is a common law tort – this means that the law governing it is made by the courts and case law. It is not in an Act of Parliament.
what are the three key elements to establish a claim in negligence?
o Did D owe C a duty of care?
o Was D in breach of duty?
o Did D’s breach cause damage to C?
when will a careless act not give rise to liability in negligence?
if a duty of care is not owed. D must have owed a legal duty to C for negligence to arise.
how will the court determine if there is a duty of care?
- if a precedent has been set (i.e. a court has previously decided on similar facts that a duty is / is not owed), the court will follow this decision.
- if it is a novel situation, the court will apply the caparo test
list some established duty situations
what is important to remember about these?
o One road user to another inc. driver to driver, driver to pedestrian, cyclist to driver, cyclist to pedestrian
o If a road user causes an accident and a non-road user but rescues someone and is then subsequently injured (Baker v TE Hopkins)
o Doctor to patient
o Employer to employee
o Manufacturer to consumer
o Tutor to tutee
o Teacher to pupil
o Manufacturer to consumer
these duties can only be relied upon when C has suffered physical damage (either personal injury or damage to property). There are different rules around DOC in relation to economic loss and pure psychiatric harm
give an example where it has been established that a duty of care is not owed
o Police to a suspect regarding the way in which the police conduct their investigation (Hill v CC of West Yorkshire)
when is the caparo test used?
this is used in novel duty decisions where the court has not already set a precedent.
NB: this can only be relied upon by C if they have suffered physical damage (i.e. PI or damage to property). They cannot be relied upon where the damage suffered is pure economic loss or pure psychiatric harm
what is the caparo test?
Caparo set out a three-part test used to establish whether a DOC is owed:
o Reasonable foresight of harm to C
o Sufficient proximity of relationship between C and D; and
o That it is fair, just and reasonable to impose a duty
re: caparo test
explain foreseeability. Give an example.
is it reasonably foreseeable that D’s actions will affect this particular C?
- Bourhill v Young - an example where the injury suffered was not reasonably foreseeable
o C heard a collision and walked to the scene.
o She saw blood on the road and suffered a miscarriage.
o She bought a claim against the negligent deceased motorcyclist’s estate
o It was held that the claimant was not a foreseeable victim of the motorcyclist’s negligence so a DOC was not owed to her
when is the caparo test unlikely to find a duty of care?
- Harm caused by a public body i.e. police or LA (i.e. may not be fair)
Because there are special rules regarding the below:
2. Harm caused by an omission to act
3. Harm caused is pure psychiatric injury
4. Harm caused is pure economic loss
re: caparo test
explain proximity
i.e. the relationship between C and D. They must be sufficiently close. As such, the duty of care may be limited where there has been an omission, pure economic loss or psychiatric harm.
