Tort Law - Duty of care (general negligence)

Question 1

What is negligence? (1)

Answer 1

The breach of a legal duty to take care by the defendant resulting in damage or loss to the claimant.

Question 2

What must you consider when establishing a loss in negligence? (1)

Answer 2

Loss or damage, duty, breach, causation, remoteness and defences.

Question 3

What is loss / damage?

Answer 3

Loss or damage of a recognised kind sustained by the claimant.

Question 4

What is duty? (1)

Answer 4

The existence of duty of care owed by the defendant to the claimant.

Question 5

What is breach? (1)

Answer 5

The breach of duty by the defendant.

Question 6

What is causation? (1)

Answer 6

Proof that the breach caused the damage, both in law and fact.

Question 7

What is remoteness? (1)

Answer 7

Proof that the damage suffered was reasonably foreseeable ie. not too remote.

Question 8

What are defences? (1)

Answer 8

The defendant may have one or more valid defences to the claim.

Question 9

What are common types of loss? (5)

Answer 9

Physical / bodily injury, psychiatric harm, property damage, consequential economic loss and pure economic loss.

Question 10

What should you consider when attempting to ascertain if a duty of care is owed? (1)

Answer 10

If there are any existing authorities which have already established a duty of care in the situation being considered.

Question 11

What is the key case in relation to duty of care? (1)

Answer 11

Donoghue V Stevenson 1932.

Question 12

What is the neighbour principle and who established it? (2)

Answer 12

Lord Atkin, he developed the principle that attempted to create a test which could be used by the courts when considering if a duty of care should be imposed using the concepts of foreseeability and proximity.

Question 13

What is the key case in establishing duty of care with no clear precedent? (1)

Answer 13

Eatson V BBBC

Question 14

What case set out a three stage approach for establishing a duty of care where there is no precedent? (1)

Answer 14

Caparo V Dickman

Question 15

What should be considered when imposing a duty in a new area? (2)

Answer 15

The aim is to develop the law incrementally so you should consider the relationship between the claimant and the defendant (proximity) and whether imposing the duty would be fair, just and reasonable.

Question 16

What is the general rule when establishing a duty on a failure to act? (1)

Answer 16

No duty is imposed on a mere failure to act.

Question 17

What are the exceptions on the general rule in terms of duty of care and failure to act? (5)

Answer 17

1. Where there is a statutory duty to act.
2. Where there is a contractual duty to act.
3. Where the defendant has sufficient control over the claimant.
4. Where the defendant assumes responsibility for the claimant.
5. Where the defendant has created the risk through an omission.

Question 18

What is the key case that states the ambulance service owe a duty of care to respond to a 999 call within a reasonable time? (1)

Answer 18

Kent V Griffiths & Others 2000.

Question 19

What case established that the fire brigade owes no duty of care to attend a fire, but if they do they owe a duty not to make the situation worse through a positive act? (1)

Answer 19

Capital Countries PLC V Hampshire County Council 1997.

Question 20

What case established that the police do not owe a duty of care to respond to emergency calls? (1)

Answer 20

Alexandrou V Oxford 1993.

Question 21

What case established the police can owe a duty for omissions? (1)

Answer 21

Reeves.

Question 22

What is the general rule in terms of liability for acts of third parties and the key case? (2)

Answer 22

No duty is imposed on a failure to prevent harm from a third party to another, Smith V Littlewoods Organisation Ltd 1987.

Question 23

What are the exceptions to the general rule on liability for acts of third parties? (4)

Answer 23

1. Where there is sufficient proximity between the defendant and the claimant and / or
2. Where there is sufficient proximity between the defendant and third party and / or
3. Where the defendant created the danger and / or
4. Where the risk created by the third party was on the defendant’s premises.

Question 24

What circumstances were approved in Robinson in which party A can be held to owe a duty to party B in relation to harm by a third party? (4)

Answer 24

1. A has assumed responsibility to protect B from that danger.
2. A has done something which prevents another from protecting B from that danger.
3. A has a special level of control over that source of danger
4. A’s status creates an obligation to protect B from that danger.

Question 25

Do the same principles apply to public bodies as individuals when ascertaining whether a duty of care is owed and what are the complications? (3)

Answer 25

In the first instance, yes. However, many public bodies derive their powers or duties from statutes and this can have an impact on the court’s findings in relation to duty and when deciding whether to develop the law of negligence into a new area the court must look at what is fair, just and reasonable and take into account policy considerations.

Question 26

What flows from above in terms of public bodies and duty of care? (1)

Answer 26

A duty of care will not be imposed on a public body in relation to an omission simply because the public body has a statutory duty or power to act.

Question 27

What may the court conclude when considering the intentions of a statutory scheme under which a public body operated? (1)

Answer 27

The intention was that difficult decisions about resourcing or other ‘policy’ matter would not give rise to a common law duty if care in negligence.

Question 28

What is the key case in terms of relevance of powers or duties derived from statute? (1)

Answer 28

CN and GN V Poole Borough Council 2019.

Question 29

What is the key case in terms of fair and just reasonable policy considerations? (1)

Answer 29

Hill V Chief Constable of West Yorkshire 1989.

Question 30

What are the key cases in terms of duties imposed on public bodies? (2)

Answer 30

Phelps V Hillingdon London Borough 2000 and Jebson V Ministry of Defence 2000.

Question 31

Which case established that the army do not owe a duty to soldiers in battle conditions / during active combat? (1)

Answer 31

Mulcachy V Ministry of Defence 1996.