Negligence: Duty of Care Flashcards
what does tort mean?
a legal wrong involving violation of legal right or breach of legal duty
where are tort claims resolved?
civil courts
what is a person committing a tort called?
tortfeasor
what is the liability of a tortfeasor called?
tortious liability
what is the role of tort law?
allows C to sue D for their actions in civil courts
what was the C previously known as before 1999?
plaintiff
what does tort of negligence provide?
compensation for harm caused by someone’s carelessness
how is legal negligence different from everyday carelessness
specific criteria for legal negligence
what is the legal definition of neglgience?
breach of legal duty of care owed to someone, causing harm, which D did not intend
key questions/steps in negligence?
- did D owe C legal DOC?
- did D breach this DOC?
- did failure directly cause harm to C?
- are there valid defences for the D?
which order do courts examine negligence cases?
DOC –> breach of DOC –> causation –> defences
what happens if any element of negligence case is not proven?
there is no liability for negligence
is negligence defined by an AP?
no, it’s based on case law - decisions from court cases.
is D automatically liable for negligence if they act carelessly or cause harm?
no, carelessness alone is not enough to establish liability for negligence
what must be proven to hold someone liable for negligence?
D must have owed injured person a legal duty of care
who is responsible for proving that a legal duty of care exists?
C must prove that D owed them this duty
what happens if legal DOC cannot be established?
then there’s no liability for negligence
what determines whether a DOC exists?
relationship b/w C + D
how do courts decide if DOC applies in specific situation?
they can rely on past cases (precedents) to guide their decision
do courts always impose a DOC in relationships?
no, court can decide that no DOC exists in certain relationships
eg of relationship where no general DOC exists?
police don’t owe a general DOC to suspects re how investigations are conducted (hill v chief constable of west yorkshire [1989])
what type of damage must C suffer for established DOC to apply?
physical damage: PI (personal injury) or property damage
what types of harm require special rules to establish DOC?
pure economic loss or pure psychiatric harm
common established DOC situations?
road users (drivers, pedestrians, passengers, cyclists)
doctors + patients
employers + employees
manufacturers + consumers
teachers + students
eg of DOC b/w road users?
if A, a careless driver causes accident injuring B, A owes B DOC as both are road users
do rescuers have DOC owed to them?
yes, if a rescuer, C, is injured while helping, A (person creating dangerous situation) owes C a DOC
what case established DOC to rescuers?
baker v TE hopkins & son ltd [1959]
why are established DOC situations important?
they provide clear guidance on when DOC exists, but courts can expand or limit these based on new cases.
are all relationships covered by established DOC?
no, courts must decide if DOC exists in new or “novel” situations
what type of damage must occur for novel duty of care to apply?
physical damage eg PI or property damage
what is the modern test for deciding novel duty cases?
the Caparo test, which refines the earlier neighbour principle from Donoghue v Stevenson
what does the neighbour principle state?
“you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”
who is considered “a neighbour”?
anyone so closely + directly affected by your actions that you should have them in mind when acting
why is the neighbour principle important?
it provides a foundation for deciding whether a DOC exists in novel situations
what are the 3 parts of the caparo test?
- reasonable foresight of harm: could D reasonably foresee harm to C?
- proximity: was there a sufficiently close relationship b/w C + D?
- fair, just + reasonable: is it fair to impose DOC in circumstances?
what case introduced the caparo test?
caparo industries plc v dickman (1990)
why was the caparo test created?
to refine the neighbour principle + add flexibility + policy-based limits for novel cases
1st requirement for DOC?
harm to C must be reasonably foreseeable
what does reasonably foreseeable mean?
D could reasonably foresee their actions affecting this specific C
what case demonstrates foreseeability?
bourhill v young (1943)
why did C fail in bourhill v young?
C was not foreseeable V of motorcyclist’s actions, as she was not directly involved or near the accident
what does proximity mean in caparo test?
close relationship b/w C + D, not just physical closeness but also their legal or situational connection
what happens if there’s no proximity?
no DOC exists, as seen in cases involving omissions or pure economic loss
what does fair, just + reasonable mean in caparo test?
courts must decide if its fair to impose DOC, considering broader policy implications - hill v chief constable of west yorkshire 1989
why no DOC was imposed in hill v chief constable case?
imposing duty of police would hinder their ability to serve the public effectively
what do courts consider when deciding if DOC is F, J, R in novel situations?
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
when is caparo test not needed?
when DOC is already established eg road users, doc/patients, employer/employees
when must caparo test be applied?
in novel situations where no established duty applies
when is DOC likely to be owed?
- harm caused by positive act of wrongdoing
- harm results in foreseeable physical injury or property damage
- caparo criteria of foreseeability, proximity, fairness = satisfied
when is DOC less likely to be owed?
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.
what types of harm fail the caparo test?
- omissions (failure to act)
- pure psychiatric harm
- pure economic loss
general rule about liability for omissions?
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
can someone be sued in negligence for failing to save a stranger?
no, unless exception applies, no DOC to act positively
moral obligation to act even if no legal duty?
yes, but they don’t create legal duties
exception to general rule of no liability for omissions?
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
what happens if someone intervenes + makes situation worse?
may be held liable in negligence for causing further harm
when does duty to act positively arise?
where 1 party has control or power over another eg:
- employer + employee
- parent + child
- teacher + pupil
- instructor + learner driver
- supervisor + young offenders (home office v dorset yacht co ltd [1970])
key principle behind duty to act in special relationships?
when 1 party has control over another, they are responsible for preventing harm caused by their inaction
eg of duty to act positively? (hint: lifeguard)
lifeguard has duty to save drowning swimmer
when does driving instructor have duty to act?
duty to ensure learner driver does not cause accident
legal position if passenger fails to prevent accident?
passenger has no duty to prevent accident unless they are in a position of control eg being a driving instructor
