Negligence: Duty of Care Flashcards
What is a tort?
A tort is a wrong that involves the infringement of a legal right or breach of a legal duty, giving rise to a claim in civil court
Define the tort of negligence.
Negligence is a breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant. It’s important to distinguish between everyday carelessness and legal negligence
What is the first element a claimant must prove in a negligence claim?
The first element is that the defendant owed them a legal duty of care
What is an ‘established duty situation’?
An established duty situation is a relationship where case law has already determined a duty of care exists. These typically apply when a claimant has suffered physical damage (personal injury or property damage)
Give some examples of established duty situations.
Examples include:
○One road user to another
○Doctor to patient
○Employer to employee
○Manufacturer to consumer
○Tutor to tutee/teacher to pupil
○Rescuer to person who created a dangerous situation
What is a ‘novel duty situation’?
A novel duty situation is a new situation where courts must decide for the first time whether a duty of care exists
What is the ‘neighbour principle’ from Donoghue v Stevenson?
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Your ‘neighbour’ is someone so closely and directly affected by your act that you ought reasonably to have them in contemplation
What is the Caparo test for novel duty situations?
The Caparo test has three parts:
○Reasonable foresight of harm to the claimant
○Sufficient proximity of relationship between the claimant and defendant
○That it is fair, just, and reasonable to impose a duty
What is the general rule regarding liability for omissions?
Generally, a duty of care is not owed for omissions, i.e., failing to act to prevent harm
What are the exceptions to the general rule regarding omissions?
Exceptions include:
○A duty not to make a situation worse, if you choose to act
○ A duty to act positively when there’s a special relationship of control
Give examples of when a duty to act positively exists.
Examples include:
○ Employer and employee
○ Schools and children
○ Parents and children
○ Instructors and pupils
○ Lifeguard to swimmer
What is the significance of Hill v Chief Constable of West Yorkshire in regards to duty of care?
The police do not owe a duty of care to any individual, as their duty is to the public at large. This is an example of a case based on policy where it was not fair, just, and reasonable to impose a duty of care
What is the significance of Caparo Industries plc v Dickman in regards to duty of care?
Auditors did not owe a duty of care to the claimant as the accounts were not prepared for the claimant, but for a statutory audit. This case provided a three-part test that is now used to determine whether a duty is owed in any novel situation
What are some policy factors considered when determining whether a duty of care should be imposed in a novel situation?
Factors can include:
○ The floodgates argument
○ Deterrence
○ Resources
○ Public benefit
○ Upholding the law
