Negligence Duty of Care - Gernal Priciples and Public Policy

Question 1

What Is Negligence?

Answer 1

Negligence is an omission to do something which a resonable guided person would do or doing something that a reasonable person would not do without proper legal defence

Question 2

What are the four hudles in negligence

Answer 2

Did the defendant owe a Duty of care
Was that duty breached
Suffered damage cuased by the breach
Damages not too remote

Question 3

Duty of Care What is the Neighbour Test

Answer 3

Anyone so closely connected to my actions that i should have them in my mind when thinking of the acts or ommiusions which are called into question

Question 4

Duty of Care What is the 2 Stage Test

Answer 4

Is there sufficient proximity between C & D if yes are there any considerations that ought to reduce or negate the duty classd or scope

Question 5

Duty of Care What is the Three Stage Test

Answer 5

1 Forseeablity of Harm/Damage
2 Proximity of reationship between C & D
3 Fair Just and reasonable to impose a duty in all the circumstance of the case

Question 6

Duty of Care What is the Modern day test

Answer 6

1) Caparo is a formulation not a test
2) Courts should look at existing precedents first
3) For truly nocvel situsations they shpould use an incrimental approach drawing on Caparo for Guidance

Question 7

Duty of Care Whats is Test one

Answer 7

Foreseeablity - A reasonable person would forseen damage occuring - The claimant must prove that the damage they have received was forseeable

Question 8

Duty of Care What is Test Two

Answer 8

• Proximity - People so closley and directly affected actions

Question 9

Duty of Care What is Test Three

Answer 9

Fair Just and Reasonable to apply duty - What are the wider implications - such as Opening the floodgates and appropirate allocation of Risk and Loss

Question 10

Duty of Care - Incramental increase of assignement of duty

Answer 10

When assigning a duty. The court should look for exsiting case law for guidance only using an incramental apprach In truly novel situations

Question 11

Should there be Liability for ommisions

Answer 11

General priniciple no liablity for a simple failure to act for another persons benifit unless there is a positive duty to do so ie stranger to rescue there is no duty however if there is a legal relationship a positive duty may be assigned.

Question 12

No liabilty for ommisions exclusions rules

Answer 12

1) D exercises control over C
2) D has assumed responsibility for C
3) D created (or adopted) the risk (ie fire service)

Question 13

What are the exclusions for liablity for the acts of third parties

Answer 13

1) If there is a special relationship between the parties Such as a contractual relationship
2) If there is a special relationship between the defendant and the thrid party
3) D permits of casuses as source of danager
4) D Knew or had means of knowing a third party was creatinga damage and failed to take resdaonable steps to abate it.

Question 14

Do the police enjoy blanket immunity for ommisions

Answer 14

Ommissions - No - For ommisions on operational matters no immunity same shoes as everyone else unless duty of care has been assumed.

Question 15

CASE LAW - Defines Negligence

Answer 15

Blyth V Birmingham Waterworks 1856

Question 16

Do emergancey services owe a duty of care to the public or other thrid parties Rule

Answer 16

Rule other emergancey services only for acts not ommisions but ambulance duty owed to those calling their service from the moment the call is accepted

Question 17

Do Public bodies owe a duty of care when acting under statutory powers

Answer 17

No unless two pre conditions are met
1) It would have been irrational for the authority not to have exercised its power in the circumstances
2) Clear grounds exsisted for discerning a policy in the statute to confer a right to compensation

Question 18

CASE LAW - Original Test for Duty of Care

Answer 18

Donoghue V Stevensons 1932

Question 19

CASE LAW - Duty of Care 2 Stage Test

Answer 19

Anns V Merton LBC 1978

Question 20

CASE LAW - Duty of Care 3 Stage Test

Answer 20

Caparo Industies V Dickman 1990

Question 21

CASE LAW - Duty of Care - Challenging Caparo

Answer 21

Michael and Others V Cheif contsable of South Wales Police and another 2015

Question 22

CASE LAW - Duty of Care - Modern Day approach Incrimental

Answer 22

Robinson V Cheif Constable of West Yorkshire Police 2018

Question 23

CASE LAW - Duty of Care -Foreseeability of harm - removed from incident - injury not foreseeable

Answer 23

Bourhill V Young 1943 - can not base action on a wrong doing to someone else.

Question 24

CASE LAW - Duty of Care - Foreseeability of harm - Foreseeablity and proximity overlaps

Answer 24

Evens and another V Vowles 2003

Question 25

CASE LAW - Duty of Care - Assumption of Duty

Answer 25

Wattleworth V Goodwood Road Racing 2004

Question 26

CASE LAW - Duty of Care - Incremental appoach Novel Situation not novel Duty already established

Answer 26

Darnley V Croyden Health services NHS Trust 2018 - C attened A&E he was assulted and hit in the head they told the receptionist thta they were feeling very unwell and was told incorrectly by the receptionist the wait was 5 hours (would have been triaged within 30 mins) so went home later had to have emergancy surgery for a blot clot and ended up with brain damage.

Question 27

CASE LAW - Duty of Care - Incremental appoach Novel Situation endorsed - Public Bodies no duty assigned

Answer 27

Poole Borough Council V GN and another 2019 were subjected to anti social behaviour council were monitoring.

Question 28

CASE LAW - liability for omission no duty assigned - third party causing harm not known

Answer 28

Smith V Littlewoods org 1987 - D owned empty building vandels started fire prev unknown to D

Question 29

CASE LAW - liability for ommisions Duty assigned - D exercises Control over C

Answer 29

Reeves V Commissioner of Met Police 1999 detainee committed suicide whilst in police custody

Question 30

CASE LAW - Liablity for ommissions Duty assigned - D assumed responsibilty for C

Answer 30

Barrett V Ministry of Defence - navel officer drunk - officer in charge ordered they be taken to bed died by assperating on vomit - assumed responsibility and should have ensured was watched over

Question 31

CASE LAW - Liabilty for positive acts - Duty assigned - Defendant created(or adopoted) the risk

Answer 31

Capital & Counties Plc V Hampshire County Council 1997 - Created the risk but incorrevtly advisingthe sprinkler system be turned off

Question 32

CASE LAW Liablity for acts of thrid party duty assigned -Special relationship between D and Third party

Answer 32

Home Office V Dorset Yacht 1970 - Borstal kids caused dmamge to boats on a holiday

Question 33

CASE LAW - Liablity for acts of thirds parties duty assigned - D knew or had means of knowing a third party was creating a danger and did not take reasonable steps to abate it

Answer 33

Sedleigh Denfield V O’Callaghan 1940 tresspasser laid a drainage pipe mesh blocked up D was aware of the pipe

Question 34

CASE LAW - Liabilty for ommsions - Police - No duty assigned

Answer 34

Hill V Cheif Constable of West Yorkshire 1988 - Peter Sutcliffes last victims family alleged police had failed to use reasonable care in detainig sutcliffe earler

Question 35

CASE LAW - Duty of care owed - Ambulance

Answer 35

Kent V Griffiths 2000

Question 36

CASE LAW - Public bodies acting under statutory powers no duty assigned

Answer 36

Stovin V Wise 1996 Highways auth failed to clear earth mound obstructing view of road - held failure to maintain the highway did not create a duty of care in negligence