TORT Flashcards
‘An employer’s duty to its employees is personal and non-delegable.’ What does this mean?
The employer is held legally responsible when a contractor it employed is negligent.
Define negligence.
The breach of a legal duty to take care which results in damage, undesired by the defendant to the claimant.
How to deal with claim of negligence?
- Identify parties to the claim.
- What was the damage/loss suffered?
- Was a duty of care owed to C by D?
- Was there a breach of that duty by D?
- Can you establish causation? I.e., a novus actus broke the chain, and must have been unforseeable.
- Remoteness? Was the damage reasonably forseeable?
Describe burden and standard of proof in negligence claims.
- The BofP is on C.
- The standard of proof is the balance of probabilities, i.e., more likely than not.
- Generally, there is no liability for an omission (exceptions).
What is the ‘neighbour principle?’
- In negligence claims, there must exist a duty of care owed by D to C.
- In Donoghue v Stevenson, Lord Atkin coined this principle: A duty would be owed to anyone who could reasonably be conceived as being affected by one’s act.
- Case law: Established Duty Situations.
Negligence
What are the Established Duty Situations?
- Doctor and Patient [Gillick v West Norfolk]
- Hospital and Patient
- Manufacturer and Consumer [Donoghue v Stevenson]
- Highway Users/Driver to Pedestrian [Nettleship v Weston]
- Employer and Employee [Wilsons & Clyde Coal Co Ltd v English]
- Parent/Guardian and Child [S2 Children’s Act 1989]
- Teacher and Pupil [in loco parentis CA ‘89]
- Participants in sporting events [Condon v Basi]
- Ds to Rescuers (if D creates dangerous situation) [Haynes v Harwood]
- Ambulance Service (duty to arrive on time) [Kent v Griffiths]
Negligence
Discuss police and duty of care.
- There is no general duty on police to individuals .
- Instead they have a duty to protect public as a whole. [Hill v Chief Constable of West Yorkshire]
- Exception: where police have an implied duty of care for someone they are responsible for [Brookes] [Kirkham]
Negligence
Explain Caparo V Dickman duty.
- This case further developed neighour principle/Triparte test:
- Was it reasonably forseeable that D’s failure to take care could cause the type of loss suffered?
- Was there a relationship of proximity between C and D?
- Is it fair just and reasonable, in all the circumstances, that the law should impose a duty of care on D? (policy concerns)
Caparo v Dickman
Was it reasonably forseeable that D’s failure to take care could cause the type of loss suffered?
- The objective reasonable man test is used.
- Only the particular type of loss that has occurred needed to be forseeable, NOT that that loss would be suffered by C.
- Miscarriage after hearing bike crash nearby not forseeable. [Bourhill v Young]
- It can be forseeable that rescuers will try to assist, and consequently suffer personal injury. [Haynes v Harwood]
- It was forseeable that if young offenders were left unsupervised, they might cause property damage [Home Office v Dorset Yacht]
Caparo v Dickman
Was there a relationship of proximity between C and D? (CONTROL)
- Police had care and control over D and were consequently reponsbile for D’s actions. [Home Office v Dorset Yacht]
- Police held to have a duty to take reasonable steps to assess the suicide risks of all prisoners in custody, inc those with unknown mental illness. [Reeves v MPC]
Caparo v Dickman
Was there a relationship of proximity between C and D? (ASSUMPTION OF RESPONSIBILITY)
- ECofHR held that the police ‘knew or ought to have known…of the existence of a real and immediate risk to life of the identified individual.’ [Osman v UK] Police failed to take reasonable steps in their power to protect the individual.
Caparo v Dickman
Was there a relationship of proximity between C and D? (CREATION OF A DANGEROUS SITUATION)
- Courts look favourably towards rescuers when imposing a duty of care [Haynes v Harwood]
- A duty to abate a danger will only be owed if the danger is known or forseeable. [Smith v Littlewoods]
Caparo v Dickman
Was there a relationship of proximity between C and D? (SPECIAL RELATIONSHIP)
- A pre-existing contractual relationship between the parties will be sufficient to create proximity. I.e, a decorator owed a duty of care to the homeowner not to leave the property unsecured. [Stansbie v Troman]
Caparo v Dickman
Is it fair, just and reasonable in all the circumstances to impose duty of care of D?
- Policy concerns: over-defensiveness, floodgate of litigation, resources.
- Deemed unfair to impose duty where D is a non-profit organisation. [Marc Rich v Bishop Rock Marine]
- Where threat of liability would lead the police to adopt defensive practices. [Hill v CC of W Yorkshire]
