Tort - Topic 2 - Negligence (Duty and Breach)

Question 1

Define Negligence

Answer 1

A breach by the Defendant of a legal duty of care owed to the Claimant that results in actionable damage to the Claimant unintended by the Defendant.

Question 2

Steps of establishing duty of care…

Answer 2

1) Consider established duty (or no duty) situations i.e. case law

2) If not covered by case law (i.e. novel situation), apply Caparo test
(Caparo Industries v Dickman):

i) Is it REASONABLY FORESEEABLE that D’s actions will affect this particular C?
ii) Is there sufficient PROXIMITY OF RELATIONSHIP between C and D?
iii) Is it FAIR, JUST AND REASONABLE to impose a duty?
e. g. it may not be fair if D is a non-profit org. / acting in a quasi-public capacity (Marc Rich v Bishop Rock Marine)

Question 3

Required steps of proving negligence…

Answer 3

1. Loss or damage of a recognised kind sustained by the Claimant
2. Existence of a duty of care owed by D to C and…
3. …a breach of that duty by the defendant
4. Proof that the breach caused the damage
5. Proof that the damage suffered was reasonably foreseeable
6. Defences?

Question 4

Nervous shock - define damage

Answer 4

Must be a medically recognised form of psychiatric illness. Liability will not arise for normal human emotions e.g. fear, distress (Riley v Merseyside HA)

Question 5

Nervous shock - Distinguish between primary and secondary victims

Answer 5

Primary victim suffers nervous shock as a result of reasonable fear for their OWN safety (n.b. doesn’t have to actually suffer physical harm)

Secondary victim suffers shock due to fear for another’s safety

Question 6

Nervous shock - duty of care to primary victims

Answer 6

Apply Caparo test:

1. Foreseeable (Physical harm rather than psychiatric)
2. Proximity of C to D
3. Fair, Just and reasonable to apply duty

Question 7

Nervous shock - duty of care for secondary victims

Answer 7

Apply Alcock Criteria (Alcock v Chief Constable of South Yorkshire):

1. whether C suffered psychiatric illness
2. foreseeability of PSYCHIATRIC damage
3. relationship between C and the ‘victim’
4. proximity in time and space and…
5. … manner of perception

n.b. also consider fair, just and reasonable