Negligence: Duty of Care & Breach

Question 1

What are the steps in a negligence claim?

Answer 1

Duty of Care

Breach of Duty

Causation

Remoteness

(Defences)

Question 2

What is the definition of the tort of negligence?

Answer 2

Breach of a legal duty to take care resulting in damage to the claimant by the defendant

Question 3

If the defendant does not owe the claimant a duty of care, are they liable in negligence?

Answer 3

No (no duty = no negligence)

Question 4

What are some of the established duties of care?

Answer 4

Manufacturer & consumer

Road users (passengers & pedestrians)

Doctor & patient

Employer & employee

Employees to each other

Referee & competitor

Participants in sporting events

Employers re providing references

Solicitors to proposed beneficiaries of a will

Some categories of emergency services

(Usually relating to positive acts only)

Question 5

Does a manufacturer owe a consumer a duty of care?

Answer 5

Yes (precedent: Donoghue v Stevenson)

Question 6

Who do road users owe an established duty of care to?

Answer 6

Passengers (Nettleship v Weston)

Pedestrians (Fitzgerald v Lane & Patel)

Question 7

Do doctors owe patients a duty of care?

Answer 7

Yes (precedent: Cassidy v Ministry of Health)

Question 8

Do employers owe their employees a duty of care?

Answer 8

Yes (precedent: Wilson v English)

Question 9

Who do employees owe an established duty of care to?

Answer 9

Other employees (ICI v Shatwell)

Question 10

Does a referee owe a duty of care to a competitor?

Answer 10

Yes (precedent: Vowles v Evans)

Question 11

Do participants in sporting events owe a duty of care to each other?

Answer 11

Yes (precedent: Condon v Basi)

Question 12

What are employers’ established duties of care?

Answer 12

To their employees (Wilson v English)

Providing references (Spring v Guardian Assurance)

Question 13

Do solicitors owe a duty of care to proposed beneficiaries of a will?

Answer 13

Yes (precedent: White v Jones)

Question 14

What is the established duty of care of an ambulance?

Answer 14

To respond to a call within a reasonable time (Kent v Griffiths)

Question 15

Do the fire service have a duty of care to attend a fire?

Answer 15

No

But they do owe a duty if they make the situation WORSE through a POSITIVE ACT (eg. turning off sprinklers)

Question 16

Do the coastguard owe a duty of care to rescue?

Answer 16

No

But they do owe a duty if they make the situation worse through a positive act

Question 17

What are the established duties of care of the police?

Answer 17

To protect the public from reasonably foreseeable personal injury when carrying out arrest
(but nb. this duty can’t be relied upon by an individual member of the public to bring a negligence claim)

Not to cause physical harm or property damage through a positive action which ought reasonably to be avoided
(Nb. distinction between operational (duty) & policy (no duty))

Question 18

Do the police have a duty of care to attend an emergency call?

Answer 18

No - no duty for failing to attend an emergency call

Question 19

What is the importance of the distinction between operational and policy matters re the police’s duty of care?

Answer 19

There will be a duty if it is operational, but not if it is policy (Rigby v CCNorthamptonshire)

eg. Police fired gas canister into Rigby’s shop without adequate precautions
- They owed duty of care because did not have adequate provisions (= operational)
- Would not have owed duty of care if had been policy decision to use flammable equipment

Question 20

When is the 3 stage test (Caparo v Dickman) used to establish whether there is a duty of care?

Answer 20

If there is no precedent

or

If it is a problem category (psych damage, PEL, omissions, rescuer)

Question 21

What is the 3 stage (Caparo v Dickman) test for establishing duty of care?

Answer 21

1. Was the damage to the claimant reasonably foreseeable?
2. Was there a relationship of proximity between the claimant & the defendant?
3. Is it fair, just & reasonable for the law to impose a duty of care in the situation?

Question 22

What are some factors to take into account when considering whether it is fair, just & reasonable for the law to impose a duty of care?

Answer 22

–> Opening the floodgates of litigation

–> Insurance

–> Crushing liability/loss allocation

–> Deterrence/maintaining high standards

–> Defensive practices

–> Justice

Question 23

Will there be a duty of care for an omission?

Answer 23

General rule: No duty of care for failure to act

Exceptions:
- Duty not to make the situation worse
- If existing duty to act positively, can owe duty for failure to act (eg. parent & child)

Question 24

Is there a duty of care to rescue?

Answer 24

No duty to rescue - but law will treat favourably a person who attempts to rescue & is harmed in the process because of someone’s negligence

Question 25

What are 5 exceptions to the general rule that there is no duty of care for pure omissions?

Answer 25

1. Existing duty to act positively imposed by statute (occupiers liability)
2. Existing contractual duty to act positively
3. Defendant has a high degree of control over the claimant
   (eg. suicide in prison: prisoner in care & control of the police)
4. Pre-existing relationship where the defendant assumes responsibility for the claimant
   (eg. doctor having begun to care for patient)
5. Defendant creates a dangerous situation
   (eg. decorator leaving door unlocked; man leaving horse untethered on busy street)

Question 26

Is there a duty of care for the failure to prevent a third party from causing harm?

Answer 26

General rule: no duty for failure to act

Exceptions:

i. Proximity between claimant & defendant
(eg. contractual relationship, identifiable victims at particular risk)

ii. Proximity between defendant & third party
(eg. TP under care & control of D; D had assumed responsibility of TP - eg. school over pupil)

iii. Defendant negligently creates (or allows the creation of) a dangerous situation, and claimant injured as a result
(eg. leaving door unlocked)

iv. Defendant knows or ought to know of a danger on their premises created by a third party
(eg. knowing vandals will enter home)

Question 27

What are the 2 steps to establishing if there has been a breach of the duty of care?

Answer 27

Step 1: Establishing the standard of care (general or special?)

Step 2: Has the standard been breached (question of fact, balancing risks & precautions)

Question 28

Is the burden on the claimant or the defendant to prove a breach of duty, and to what standard?

Answer 28

Burden is on the claimant to prove there has been a breach of duty on the balance of probabilities

Question 29

If the defendant owes the claimant a duty of care but is not in breach of that duty, are they in liability in negligence?

Answer 29

No (no breach = no liability)

Question 30

What is the general standard of care?

Answer 30

The standard of the ‘reasonable person’

This is an objective test

Court will look at the ‘ACT not the actor’ to determine the objective standard
(eg. learner driver judged by standard of reasonably competent driver)

Question 31

What is the professional standard of care?

Answer 31

The standard of the reasonable professional in that field (Bolam)

(Ask: does the behaviour measure up to that of a responsible/reasonable body of such professionals? eg. standard of a reasonably competent prison card; common practice adopted by a reasonable body of doctors)

Question 32

For the professional standard of care, if the professional acted in accordance with common practice adopted by reasonable professionals in that field, will they be in breach?

Answer 32

Usually no

eg. A doctor who acted in accordance with common practice adopted by a reasonable body of practitioners held not to be negligent

But the courts can rule that the common practice itself is negligent
eg. Ferry sank because common practice to sail with back door open for convenience - held this was negligent practice which could not be justified with good reason

Question 33

If there is a choice of standard of care (general or professional), what will the courts look at?

Answer 33

The act undertaken

If normally undertaken by ordinary person, test is that of reasonable man

If normally undertaken by professional, test is the professional standard

Question 34

Which are the two categories where the standard of care will be lower than that of the reasonable man?

Answer 34

Children (test is that of a reasonable child of the defendant’s age)

Illness (only if don’t know it’s coming)

Question 35

What is the standard of care of children?

Answer 35

That of a reasonable child of the defendant’s age

Question 36

Once the standard of care has been established, how do you decide if that standard has been breached?

Answer 36

Question of fact: look at what happened & why

Need to balance:
- Likelihood of harm
(if more likely to get injured, more likely to be a breach)

• Magnitude of harm
  (if injury that may occur would be serious, greatercare needed)
• Cost & practicality of precautions
  (How easily could the risk have been avoided - balance the cost & practicality against the severity of the risk)
• Utility of action
  (If defendant took risk with aim of preserving or protecting life, limb or property - weighing the potential benefits to safety against possible damage resulting from risk)
• Usual or common practice

Question 37

What different factors need to be considered when assessing whether the standard of care has been breached?

Answer 37

Likelihood of harm

Magnitude of harm

Cost & practicality of precautions

Utility of action

Usual or common practice

Question 38

When assessing whether the standard of care has been breached, what happens if the defendant is aware that the claimant is particularly vulnerable?

Answer 38

If there is something about the claimant that makes them particularly vulnerable, so that the magnitude of harm is greater to them

&

The defendant is aware

–> Must take more precautions

(Paris v Stepney BC: No goggles supplied in welding factory. P blind in one eye & employers knew. Hit by spark & lost sight. BREACH: magnitude of harm for that work w/o goggles high anyway, but even more serious for someone with limited vision, employers knew he had limited vision, precautions easy to take)

Question 39

What is the maxim res ipsa loquitur, & when can the claimant use it to prove breach of the standard of care

Answer 39

Res ipsa loquitur = ‘the thing speaks for itself’

Applies in situations where it is obvious there would have been a breach so long as:
1. The thing causing the damage was under the defendant’s control
2. Negligence
3. The cause of the accident is unknown to the claimant (no direct evidence as to what happened)

Nb. Rare

Question 40

In proving breach, when can a claimant rely on the defendant’s criminal conviction?

Answer 40

If the defendant has been convicted of a criminal offence involving carelessness, claimant doesn’t need to prove breach - conviction is enough

(Civil Evidence Act 1968)