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SQE1 FLK1 > Negligence: Duty of Care > Flashcards

Negligence: Duty of Care Flashcards

1
Q

what does tort mean?

A

a legal wrong involving violation of legal right or breach of legal duty

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2
Q

where are tort claims resolved?

A

civil courts

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3
Q

what is a person committing a tort called?

A

tortfeasor

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4
Q

what is the liability of a tortfeasor called?

A

tortious liability

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5
Q

what is the role of tort law?

A

allows C to sue D for their actions in civil courts

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6
Q

what was the C previously known as before 1999?

A

plaintiff

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7
Q

what does tort of negligence provide?

A

compensation for harm caused by someone’s carelessness

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8
Q

how is legal negligence different from everyday carelessness

A

specific criteria for legal negligence

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9
Q

what is the legal definition of neglgience?

A

breach of legal duty of care owed to someone, causing harm, which D did not intend

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10
Q

key questions/steps in negligence?

A
  1. did D owe C legal DOC?
  2. did D breach this DOC?
  3. did failure directly cause harm to C?
  4. are there valid defences for the D?
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11
Q

which order do courts examine negligence cases?

A

DOC –> breach of DOC –> causation –> defences

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12
Q

what happens if any element of negligence case is not proven?

A

there is no liability for negligence

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13
Q

is negligence defined by an AP?

A

no, it’s based on case law - decisions from court cases.

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14
Q

is D automatically liable for negligence if they act carelessly or cause harm?

A

no, carelessness alone is not enough to establish liability for negligence

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15
Q

what must be proven to hold someone liable for negligence?

A

D must have owed injured person a legal duty of care

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16
Q

who is responsible for proving that a legal duty of care exists?

A

C must prove that D owed them this duty

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17
Q

what happens if legal DOC cannot be established?

A

then there’s no liability for negligence

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18
Q

what determines whether a DOC exists?

A

relationship b/w C + D

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19
Q

how do courts decide if DOC applies in specific situation?

A

they can rely on past cases (precedents) to guide their decision

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20
Q

do courts always impose a DOC in relationships?

A

no, court can decide that no DOC exists in certain relationships

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21
Q

eg of relationship where no general DOC exists?

A

police don’t owe a general DOC to suspects re how investigations are conducted (hill v chief constable of west yorkshire [1989])

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22
Q

what type of damage must C suffer for established DOC to apply?

A

physical damage: PI (personal injury) or property damage

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23
Q

what types of harm require special rules to establish DOC?

A

pure economic loss or pure psychiatric harm

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24
Q

common established DOC situations?

A

road users (drivers, pedestrians, passengers, cyclists)

doctors + patients

employers + employees

manufacturers + consumers

teachers + students

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25
Q

eg of DOC b/w road users?

A

if A, a careless driver causes accident injuring B, A owes B DOC as both are road users

26
Q

do rescuers have DOC owed to them?

A

yes, if a rescuer, C, is injured while helping, A (person creating dangerous situation) owes C a DOC

27
Q

what case established DOC to rescuers?

A

baker v TE hopkins & son ltd [1959]

28
Q

why are established DOC situations important?

A

they provide clear guidance on when DOC exists, but courts can expand or limit these based on new cases.

29
Q

are all relationships covered by established DOC?

A

no, courts must decide if DOC exists in new or “novel” situations

30
Q

what type of damage must occur for novel duty of care to apply?

A

physical damage eg PI or property damage

31
Q

what is the modern test for deciding novel duty cases?

A

the Caparo test, which refines the earlier neighbour principle from Donoghue v Stevenson

32
Q

what does the neighbour principle state?

A

“you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

33
Q

who is considered “a neighbour”?

A

anyone so closely + directly affected by your actions that you should have them in mind when acting

34
Q

why is the neighbour principle important?

A

it provides a foundation for deciding whether a DOC exists in novel situations

35
Q

what are the 3 parts of the caparo test?

A
  1. reasonable foresight of harm: could D reasonably foresee harm to C?
  2. proximity: was there a sufficiently close relationship b/w C + D?
  3. fair, just + reasonable: is it fair to impose DOC in circumstances?
36
Q

what case introduced the caparo test?

A

caparo industries plc v dickman (1990)

37
Q

why was the caparo test created?

A

to refine the neighbour principle + add flexibility + policy-based limits for novel cases

38
Q

1st requirement for DOC?

A

harm to C must be reasonably foreseeable

39
Q

what does reasonably foreseeable mean?

A

D could reasonably foresee their actions affecting this specific C

40
Q

what case demonstrates foreseeability?

A

bourhill v young (1943)

41
Q

why did C fail in bourhill v young?

A

C was not foreseeable V of motorcyclist’s actions, as she was not directly involved or near the accident

42
Q

what does proximity mean in caparo test?

A

close relationship b/w C + D, not just physical closeness but also their legal or situational connection

43
Q

what happens if there’s no proximity?

A

no DOC exists, as seen in cases involving omissions or pure economic loss

44
Q

what does fair, just + reasonable mean in caparo test?

A

courts must decide if its fair to impose DOC, considering broader policy implications - hill v chief constable of west yorkshire 1989

45
Q

why no DOC was imposed in hill v chief constable case?

A

imposing duty of police would hinder their ability to serve the public effectively

46
Q

what do courts consider when deciding if DOC is F, J, R in novel situations?

A

floodgates argument: avoiding surge of similar claims.

deterrence: discourage harmful behaviour

resources/insurance: considering who pays compensation + its societal impact

public benefit: promoting safety + better standards of care

upholding the law: prioritising legal rules over perceived public injustice

47
Q

when is caparo test not needed?

A

when DOC is already established eg road users, doc/patients, employer/employees

48
Q

when must caparo test be applied?

A

in novel situations where no established duty applies

49
Q

when is DOC likely to be owed?

A
  1. harm caused by positive act of wrongdoing
  2. harm results in foreseeable physical injury or property damage
  3. caparo criteria of foreseeability, proximity, fairness = satisfied
50
Q

when is DOC less likely to be owed?

A

harm caused by public body eg police/local authority

harm results from omission rather than positive act

harm - pure psychiatric injury or pure economic loss.

51
Q

what types of harm fail the caparo test?

A
  1. omissions (failure to act)
  2. pure psychiatric harm
  3. pure economic loss
52
Q

general rule about liability for omissions?

A

person is not generally liable in negligence for failing to act to prevent harm to another

authority: stovin v wise [1996] ac 923: highway authority not liable for failing to reduce a known road junction danger

53
Q

can someone be sued in negligence for failing to save a stranger?

A

no, unless exception applies, no DOC to act positively

54
Q

moral obligation to act even if no legal duty?

A

yes, but they don’t create legal duties

55
Q

exception to general rule of no liability for omissions?

A

person choosing to intervene has duty not to make situation worse

east suffolk v kent 1940: D was not liable for slow repairs but would have been liable if their actions worsened the flooding

56
Q

what happens if someone intervenes + makes situation worse?

A

may be held liable in negligence for causing further harm

57
Q

when does duty to act positively arise?

A

where 1 party has control or power over another eg:

  1. employer + employee
  2. parent + child
  3. teacher + pupil
  4. instructor + learner driver
  5. supervisor + young offenders (home office v dorset yacht co ltd [1970])
58
Q

key principle behind duty to act in special relationships?

A

when 1 party has control over another, they are responsible for preventing harm caused by their inaction

59
Q

eg of duty to act positively? (hint: lifeguard)

A

lifeguard has duty to save drowning swimmer

60
Q

when does driving instructor have duty to act?

A

duty to ensure learner driver does not cause accident

61
Q

legal position if passenger fails to prevent accident?

A

passenger has no duty to prevent accident unless they are in a position of control eg being a driving instructor

SQE1 FLK1 (11 decks)

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