Unit 2.1- Duty and Breach

Question 1

What are the established duty situations?

Answer 1

Situations in case law where a duty of care is owed

• Teacher to pupil
• Employer to employee
• Driver to pedestrians and passengers
• Doctor to patient
• Advocate to client
• Referee to sports player
• Manufacturer to the ultimate consumer of the products
• Parent/ adult in loco parentis to a child
• One road user to another
• Defendant to rescuer

Question 2

Where don’t established duties exist?

Answer 2

Soldier to colleague (Mulcahy v Ministry of Defence)

Fire service to emergency caller (Capital & Counties v Hampshire County Council)

Question 3

What is a novel duty situation?

Answer 3

anything not established in case law yet

Question 4

Case law concerning Established duty situations

Answer 4

Nettleship v Weston- driver to pedestrians and passengers

Arthur J S Hall and Co. v Simmons- advocate to client

Vowels v Evans- Referee to sports player

London Passenger Transport Board v Upson- one road user to another

Baker v Hopkins- where defendant has created dangerous situations so that it reasonable that someone may attempt a rescue

Question 5

Define negligence

Answer 5

Breach by defendant of legal duty of care owed to claimant that results in actionable damage to claimant

Unintended by defendant

Question 6

Where does the neighbour principle come from?

What does it apply to?

Answer 6

Donoghue v Stevenson, novel duty situations

‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’

Question 7

Do the police owe a duty of care? The application of Caparo

Answer 7

Due to public policy generally no, only to public at large

Hill v Chief Constable of West Yorkshire

Question 8

Exceptions to the general rule that police don’t owe a duty of care?

Answer 8

Where police have assumed responsibility for someone (Kirkham v Chief Constable of Greater Manchester)

Additionally police may owe duty of care

• To protect ID of informants (Swinney v Chief Constable of Northumbria Police)
• To take action with reasonable care (Rigby v Chief Constable of Northampshire Police)

Question 9

What is the general rule in Stovin v Wise

Answer 9

There is no liability for pure omissions and you do not owe a duty to the world for doing nothing to prevent harm

Question 10

What does Caparo Industries plc v Dickman do?

Answer 10

Refines Donoghue ratio, created three part test
- Reasonably foreseeable that defendant’s actions will affect this particular claimant? (Bourhill v Young- motorcycle/ miscarriage case)

• Is there sufficient proximity of relationship?
• Fair just and reasonable to impose a duty? (Marc Rich v Bishop Rock Marine Co Ltd- here was not as defendant was non-profit)

Question 11

What does the neighbour principle from Donoghue tell us?

Answer 11

There is a duty through consideration of whether this particular defendant ought reasonable to have foreseen the likelihood of injury to this claimant

Question 12

What are the policy considerations when deciding whether duty of care should be owed?

Answer 12

Floodgates- one case encourages more

Deterrence of certain type of behaviour

Resources- often insurers who pay

Public benefit- increased public safety

Upholding the law- part of court’s duty

Defensiveness- need bodies to act properly

Question 13

Exception to Stovin v Wise

Answer 13

Home Office v Dorset Yacht- special relationship of control
Duty does not extend to those outside of defendant’s control
Lewis case- educational authority owed duty to prevent child endangering others

Question 14

Two part test for establishing breach?

Answer 14

Standard of care (how ought the defendant have behaved)- question of law

How did the defendant behave? Whether defendant fell below relevant standard of care- question of fact

Question 15

What is the standard of care?

Answer 15

Standard of a reasonable person- Blythe

Objective test- Glasgow Corporation

Take into account the knowledge of the defendant at the time- Roe v Ministry of Health

Question 16

What is the standard of care of a professional?

Answer 16

That of a reasonable person in the same profession- Bolam

But ultimately up to courts to decide- Bolitho

Question 17

What is the standard of care of an inexperienced person?

Answer 17

That of a competently skilled person

Nettleship v Weston- learner driver judged to standard of normal driver

Question 18

What is the standard of care of a child?

Answer 18

That of a child of the same age- Mullin v Richards

Question 19

What is the exception to the standard of care rule?

Answer 19

Mansfield v Weetabix- defendant suffers from unexpected disability

Question 20

What are the relevant factors to consider when deciding whether the defendant fell below the reasonable standard of care?

Answer 20

Bolton v Stone- if there was a low risk of harm, justifiable to not take steps to mitigate

Miller v Jackson- if medium risk, should take steps

Paris v Stepney- if risk high of serious harm then MUST take steps to mitigate

Latimer- cost and practicability of measures, if high then may be justifiable that they were not taken

Watt- if defendant acted in public benefit may be justified

Fardon- defendant has no obligation to protect against fantastic possibility

Bolam- escape liability if complied with accepted practice of trade/ profession

Scott v London and St Katherine Docks- Res Ipsa Loquitor can be used

Question 21

What three elements have to be met for res ipsa loquitor to apply?

Answer 21

Thing causing damage must be under control of defendant or someone for whom defendant is responsible

Accident must not normally happen without negligence

Cause unknown to claimant so claimant has no evidence of failure by defendant to exercise reasonable care