Negligence - duty of care & breach

Question 1

What is an established duty situation?

Answer 1

Where case law identifies that a duty of care exists - can be relied upon by a claimant when they have suffered physical damage (either PI or to property)

Question 2

What are the established duty situations?

Answer 2

o One road user to another
o Doctor to patient
o Employer to employee
o Manufacturer to consumer
o Tutor to tutee, teacher to pupil
o Defendant’s duty to rescuer where their actions have created a dangerous situation so that it is reasonably foreseeable that someone may attempt a rescue

Question 3

What are novel duty situations?

Answer 3

Test established in Caparo (expanding on neighbour principle from Donoghue v Stevenson) to allow courts to identify whether a duty of care exists

Question 4

What are some example situations in which the courts have been wary of imposing a new duty?

Answer 4

 A negligent police investigation
 A careless omission to act by a local authority
 A negligent statement by a journalist causing economic loss
 Psychiatric injuries caused by a major train crash

Question 5

What is the Caparo test?

Answer 5

1. Reasonable foresight of harm to the claimant
2. Sufficient proximity of relationship between claimant and defendant
3. Fair, just and reasonable to impose a duty

Question 6

If someone is unaware of a disabling event (e.g. sudden and unexpected drop in blood sugar causing a crash), would they still be deemed to have fallen below the standard of a reasonable person?

Answer 6

No

Question 7

What policy decisions may have an impact on stage 3 of the Caparo test?

Answer 7

 “Floodgates” argument
 Deterrence of a certain type of behaviour
 Resources
 Public benefit
 Upholding the law

Question 8

What is the general rule regarding liability for omissions?

Answer 8

No liability for failure to act

Question 9

What are the exceptions to no liability for omissions?

Answer 9

Duty not to make the situation worse

Some occasions where there is a duty to act positively

Question 10

In what occasions is there a duty to act positively?

Answer 10

 Employer and employee
 Schools and children
 Parents and children
 Instructors and pupils

Question 11

What is the 2 stage test for establishing whether the defendant breached their duty of care?

Answer 11

1. How defendant ought in circumstances to have behaved (law)
2. Whether conduct fell below required standard (fact)

Question 12

What is the normal standard of care?

Answer 12

That of a “reasonable person” - “the man on the Clapham omnibus”

Question 13

What is the standard for a child?

Answer 13

As much care as can reasonably be expected of an ordinary child of the same age - Mullins v Richards

Question 14

What standard is applied for a skilled defendant?

Answer 14

Where a person exercises a special skill, that person is judged according to the degree of skill or competence to be expected from a person who has that special skill

Test from Bolam

Question 15

For a skilled defendant, what consideration is given to other people of that profession in assessing whether the defendant breached the duty of care?

Answer 15

As long as a defendant’s actions are supported by a reasonable body of professional opinion, they should not be judged to be negligent

Additional test from Bolam

Question 16

How does Bolitho expand on the additional principle from Bolam?

Answer 16

In a particular case, a claimant might be able to demonstrate that the professional opinion relied on by the defendant is not capable of withstanding logical analysis

No breach found if court finds it would not be irresponsible for another skilled professional to adopt the same method

Question 17

What standard is applied for an under-skilled defendant?

Answer 17

Generally that of a reasonably competent person performing that task

Question 18

Examples of under-skilled defendant cases:

Answer 18

Nettleship v Weston - learner driver should reach standard and reasonably competent driver

Wilsher v Essex - inexperienced doctor should be standard of doctor in same post (however will meet this by seeking advice of more senior doctor then following this)

Wells v Cooper - standard of reasonably competent amateur carpenter (however not professional standard)

Question 19

What 2 things will the courts consider in establishing whether defendant has achieved the required standard of care?

Answer 19

1. Risk created by defendant’s activities, and
2. Precautions which defendant ought reasonably to have taken in response to risk

Question 20

How may courts consider magnitude of risk when establishing whether defendant has achieved the required standard of care?

Answer 20

How likely was it that the defendant’s actions could cause an injury? Reasonable probabilities not fantastic possibilities

If an injury was caused, how serious was it likely to be? The more serious = more care should have been taken

Question 21

What additional factors may the courts consider when establishing whether defendant has achieved the required standard of care?

Answer 21

Cost and practicality of precautions

Defendant’s purpose (i.e. value of defendant’s activities to society)

Common practice (i.e. if can prove complied with accepted practice in their trade or profession)

Current state of knowledge

Question 22

What conditions must be satisfied in order for the courts to (very rarely) infer negligence against defendant, without hearing their evidence? Based on res ipsa loquitur

Answer 22

o The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible
o The accident must be such as would not normally happen without negligence
o The cause of the accident is unknown to the claimant – so that the claimant has no direct evidence of any failure by the defendant to exercise reasonable care