Tort - Duty of Care and Breach (1) Flashcards
What is negligence?
Negligence: Negligence occurs where a tortfeasor breaches a legal duty to take care in respect of another individual, resulting in damage undesired by that person (Winfield & Jolowicz).
In Practice: To establish negligence, a claimant must prove on the balance of probabilities that a defendant owed them a duty of care, breached that duty, and caused their harm, dispelling any applicable defences (Hotson v East Berkshire).
What is the duty of care?
Duty of Care: A duty of care is a legal obligation imposed on an individual by virtue of their relationship to another individual. These may be established, but in some cases courts will need to establish novel situations.
Neighbour Principle: Duties of care are typically owed to ‘neighbours’, those who could be closely and directly affected by an act to the extent that said neighbours should be in consideration when said act is committed (Donoghue v Stevenson).
What are established duty situations?
Established Duty Situations: A legal duty of care is established if previously identified in case law and relevant to the facts.
Examples: Manufacturer to ultimate consumer (Donoghue v Stevenson); road-user to road-user (Nettleship v Weston).
Fairness: It is irrelevant to consider whether an established duty is fair, unless you are the Supreme Court attempting to depart from precedent (Robinson v West Yorkshire).
What are omissions to act?
Omissions to Act: Generally, a legal duty of care will not arise in respect of omissions to act, e.g. where a defendant failed to prevent harm in respect of a situation (Stovin v Wise).
Exceptions: This is subject to exceptions:
Voluntary Assumption: Where an individual assumes responsibility in a situation in which they had no duty to do so, they therein become liable for any harm caused by their act or omission (East Suffolk v Kent).
Special Relations: There is a duty to prevent harm to individuals if the Defendant has a position of responsibility over them, i.e. parent-to-child - this can be de facto or assumed.
Third Parties: There is a duty to prevent harm to third-parties provided the individual has some sort of control or responsibility over the tortfeasor, i.e. parents and teachers (Home Office v Dorset; Carmarthernshire v Lewis).
Dangerous Situations: Where an individual creates a dangerous situation, they must take reasonable steps to abate it (Hayne v Harwood).
Third Parties: Where an individual knows of dangers created by third-parties in respect of their property, they must take steps to reduce this harm, lest they become liable to any parties harmed by future dangers (Clarke v Dudley).
What test needs to be appliedv if there is a novel duty of care?
Novel Duty Situations: Courts are sometimes required to consider potential new duties of care. Novel duties must satisfy the Caparo Test to become legal duties. To satisfy the Caparo Test, a potential duty situation must satisfy the following tests (Caparo v Dickman):
(1) Reasonable Foreseeability: It must have been reasonably foreseeable to a person of normal fortitude that the acts of the Defendant could have caused the type of harm experienced by the Claimant or someone of their description (Bourhill v Young).
(2) Proximal Relation: There must be a proximal relationship between the parties, meaning the Defendant should reasonably have expected their act to be able to harm the Claimant.
Proximal: A journalist or guidebook offering advice is not proximal.
(3) Fairness: It must be fair, just and reasonable to impose the new duty, in reference to public policy (Rich v Bishop).
Floodgates: Novel duties may expose the courts to a litany of cases.
Deterrence: A new duty may counter a ‘wrong’ behaviour.
Public Purse: New claims may act as a detriment on the public purse.
Consistent Law: The law should be fairly consistent and predictable.
(4) Exceptions: Novel duties are very unlikely to apply in respect of public bodies, omissions, psychiatric injuries and pure economic loss.
Public Bodies
Public Bodies: Courts will often refuse specific duties of care on public bodies, as a duty to the entire public may be too wide and inhibit their ability to act (Hill v West).
Exceptions: Duty will still apply in respect of existing situations, i.e. a police officer owes a duty of care on the road or to those they have taken into custody (Kirkham v Greater Manchester). They do not owe a duty in regards to their job itself.
How is breach of duty established?
Breach of Duty: Where A owes B a duty of care (law), they are deemed to have breached it by falling below the reasonable standard expected of that duty (fact).
Reasonable Standard
Reasonable Standard of Care: A’s conduct must not fall below the standard of the reasonable person in that same situation, subject to certain exceptions (Blyth v Birmingham).
Test: This is an objective test, it does not matter if A is not the ‘reasonable person’ (Glasgow v Muir).
Inexperience: It is irrelevant if A is less skilled than the ordinary person in that position, they must meet the reasonable standard expected of all people (Nettleship v Weston).
Professional Standard (Higher Threshold)
Professional Standard of Care: Where A is acting in a professional capacity, their conduct must not fall below the standard of the reasonable professional in that position (Bolam v Friern; Bolitho v Hackney).
Test: This is an objective test, it does not matter if A is not the ‘reasonable professional’.
Inexperience: It is irrelevant if A is less skilled than the ordinary professional in that position, they must meet the reasonable standard expected of the reasonable professional (Wilsher v Essex). If the inexperienced individual seeks and acts on the advice of a senior professional, they are not in breach.
Children (Lower Threshold)
Child’s Standard of Care: Children are held to the expectations of reasonable children of their age in their position (Mullins v Richards).
Litigation Friends: Children in tortious claims are represented by ‘litigation friends’.
Determining the Reasonable Standard
Determining Reasonable Standard: Whilst ‘reasonable standard’ is objective, the courts will apply it based on the context within which the duty was owed. They consider factors such as:
Magnitude of Risk: Where there is a high risk of damage (especially injury), the more precautions a reasonable person would be expected to take (Bolton v Stone; Miller v Jackson; Paris v Stepney).
Cost: If it is cost-effective to take a precaution against a risk, a reasonable person would be expected to do so. It is irrelevant whether the specific defendant is impecunious. High court, low reward remedies are usually not seen as reasonable. Serious risks should be addressed irrespective of costs.
Practicality: If it is practical (with regard to cost) to take a precaution against a risk, a reasonable person would be expected to do so.
Value of Act: Where an action was valuable to society, such as an endeavour to rescue, it is considered more ‘reasonable’ to perform (Watt v Hertfordshire).
Standard Practices: Where an action reflects a standard practice for an individual in that role, it is more likely to be reasonable (Bolam).
Exception: Where a standard practice is obviously and grossly negligent as a whole, it is less likely to be ‘reasonable’ to follow it (Herald of Free Enterprise).
State of Knowledge: Where an action was reasonable at the time of the cause of action occurring owing to the state of then-knowledge, it is reasonable during court proceedings (Roe v Ministry of Health).
**Establishing Breach **
Establishing Breach: A Claimant must establish that the Defendant breached the duty owed to them on the ‘balance of probabilities.
Evidence
Evidence of Breach: Evidence of breach may occur in various forms.
Documentary Evidence: Such as CCTV, documents, medical reports etc.
Witness Evidence: The statements of witnesses.
Expert Witnesses: Experts may furnish the court with specialist knowledge in respect of claims.
Criminal Conviction: Where a Defendant has been criminally prosecuted in respect of a corresponding tortious claim, it is presumed that they committed the breach (s11 Civil Evidence Act 1968).
Res Ipsa Loquitur
Res Ipsa Loquitur: In the absence of physical evidence, courts may ‘draw inference’ by matter of obviousness. It means ‘the thing speaks for itself’ (Scott v London).
Test: Breach must have been under control of the Defendant, the breach must not have occurred without negligence, and the cause of breach must be unknown to the Claimant.
Rebuttal: A Defendant may rebut this presumption with evidence to the contrary.
Example: Where a Claimant walks beneath scaffolding and is hit by a hammer falling from above, it is presumed negligence has occurred.
