Tort: Duty of Care

Question 1

What was the attitude towards negligence pre 1932?

Answer 1

There was no general duty of care principle, there was a restrictive attitude towards recovery of loss suffered as a result of negligence.

Question 2

Which case changed this?

Answer 2

DONOGHUE V STEVENSON 1932.

Question 3

What was this case and what principle did it introduce?

Answer 3

C found a decomposing snail in her bottle of ginger beer, causing her to suffer from shock and gastroenteritis. The court decided every person owed a duty of care to his neighbour, so D was liable. It created the neighbour principle.

Question 4

Who is a neighbour?

Answer 4

Somebody that a person could reasonably foresee would be injured by his acts or omissions.

Question 5

Who laid this principle down?

Answer 5

Lord Atkin.

Question 6

What are some established duty situations?

Answer 6

> Employer - Employee.
> Doctor - Patient.
> Manufacturer - Consumers.
> Parent - Children.
> Teacher - Pupil.

Question 7

What are policy reasons?

Answer 7

When making decisions a court should take into account the implications the decision will have in law in society, EG: Can D afford to pay? Will it cause a flood of claims?

Question 8

What is the 3 stage test and what case did it come from?

Answer 8

It is a test to establish duty of care for cases not previously decided, it comes from the case of CAPARO V DICKMAN 1990.

Question 9

What is the CAPARO V DICKMAN 1990 case?

Answer 9

C relied on financial statements produced by D when making the decision to buy shares of a company. The accounts were in accurate and C lost money. Court decided D was not liable as auditor did not owe a duty of care to individual shareholders.

Question 10

What are the 3 steps of establishing if there is a duty of care?

Answer 10

> Is it reasonably foreseeable that D’s negligence will cause harm to C?
Is there sufficient proximity?
Is it fair, just and reasonable in all circumstances to impose a duty of care?

Question 11

What is a good example of reasonable foreseeability?

Answer 11

HOME OFFICE V DORSET YACHT ( 1970 ). Borsalino boys escaped. and damaged claimants yacht. The officers in charge were held liable as they should have foreseen the damage that occurred.

Question 12

What does proximity mean?

Answer 12

It can be a multiple of things EG: Relationship, location, time etc…

Question 13

What is a good example of Proximity?

Answer 13

EVANS V TRIPLEX SAFETY GLASS Co LTD ( 1936 ). The claimants has a new car window fitted, the window shattered causing injury to C. However because it didn’t happen for over a year after the window was fitted, the claim lacked proximity, so no duty of care.

Question 14

Does the level of proximity required remain the same for all cases?

Answer 14

No, it differs from case to case EG: In a financial case the proximity required is greater.

Question 15

Give an example of a financial case lacking proximity?

Answer 15

WEST BROMWICH ALBION FOOTBALL CLUB V EL-SAFTY ( 2006 ).

Question 16

What does the fairness step mean?

Answer 16

It usually comes down to a matter of public policy and is decided subjectively by the court.

Question 17

Give an example of when a judge has ruled against duty of care because of fairness/Public policy?

Answer 17

HILL V CHIEF CONSTABLE OF WEST YORKSHIRE ( 1989 ). C was the mother of the Yorkshire rippers last victim, she claimed that had the police done their job properly her daughter wouldn’t have died. The court decided that the Police don’t owe a duty of care to individuals as to how they carry out investigations, had they imposed a duty it may have meant police acted in a defensive matter in the future.

Question 18

Give another example of when courts ruled against liability on the basis of fairness?

Answer 18

ASHTON V TURNER ( 1981 ). 3 drunk men commit a burglary, whilst escaping they crash, C claimed for injury, but the courts ruled the driver was not liable for injury of persons included in commission of crime.

Question 19

Why might courts be reluctant to expand duty of care?

Answer 19

Because they don’t want to encourage a large number of similar claims, this is called the floodgates argument.

Question 20

Do the courts take into account the Humans rights act 1998 when extending duty and if so give an example?

Answer 20

Yes they do, one example is SMITH V MINISTRY OF DEFENCE ( 2013 ). D’s were injured or dead soldiers claiming that MOD failed to provide training and equipment. The MOD claimed no duty of care as it happens abroad, but according to article 2 of Human rights there was a duty, even abroad.