1
Q
When May a duty of care be established?
A
- where D and C fall within one of the established duty situations
- according to the principles developed by case law
2
Q
Give an example of established duty situations?
A
- one road user to another
- employer to employee
- solicitor to client
3
Q
What is the neighbour principle?
A
It comes from the case of Donoghue v Stevenson - it is persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected.
4
Q
Which case re formulated the neighbour principle?
A
Caparo v Dickman - it established:
- reasonable foresight of harm
- sufficient proximity of relationship
- that it is fair, just and reasonable to impose a duty
5
Q
Do we owe a duty of care to the whole world?
A
No as it would not be fair, just or reasonable (Caparo).
6
Q
Do you have a general duty to act positively if you see someone in peril?
A
No, you do not have a legal obligation to rescue them unless a special relationship exists.
7
Q
In omissions when is thee a positive duty to act imposed?
A
Where there is an existence of a special relationship or a relationship of power or control:
- employer/employee
- occupier/visitor
- parent/child
8
Q
Is there a duty of care in relation to acts of third parties?
A
There is no duty to secure your own property in order to protect another’s (King v Liverpool City Council), but there is a duty to protect another’s if you have assumed responsibility of taking care of it (Stansbie v Trotman).
9
Q
What are the facts of Smith v Littlewoods?
A
Cinema stood empty, was going to be torn down for a supermarket. A D could owe a duty in relation to acts of third parties if:
- a special relationship existed between D and C
- D negligently created a source of danger and it was reasonably foreseeable that a third party would interfere
- D knew or was capable of knowing that a third party had created a danger or risk of danger and failed to take reasonable steps to prevent it
10
Q
When might you be liable in negligence for the criminal acts of another? Give a case example.
A
Mitchell v Glasgow City Council - M and D neighbours, D kept threatening to kill M. D attended meeting and told if antisocial behaviour continued he could be evicted. D attacked M and killed him, LA not responsible. There may be liability where:
- there is vicarious responsibility for the crimes of the third party
- where D had an obligation to supervise the acts of the third party
- where the D created the risk of danger (arming with a weapon)
- where there is an assumption of responsibility for the V
11
Q
What is the definition of a psychiatric injury?
A
It must be medically recognised and it must be caused by a sudden event (post traumatic stress (Leach), pathological grief (Vernon), personality disorder (Chadwick)).
12
Q
Is simple grief a medically recognised psychiatric injury?
A
No (Vernon).
13
Q
Is distress a medically recognised psychiatric injury?
A
No (Kralj).
14
Q
What are the facts of Alcock and what is the legal principle?
A
Football fans crushed and was televised. Shock involves the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind.
15
Q
What re the three factors laid out in Alcock in determining whether a duty of care is owed in psychiatric injury cases?
A
- foreseeability - reasonably foreseeable that a person of normal fortitude in the position of the claimant would suffer illness due to his close ties of love and affection
- proximity - there must be temporal (time related) and spatial proximity to the claimant in relation to the accident
- how the shock was caused (through unaided sight or hearing)
16
Q
Which case established primary and secondary victims?
A
Page v Smith - car crash which caused C ME which he has been in remission for Of reasonably foreseeable to cause physical harm then that is sufficient to recover psychiatric injury even if physical harm does not occur.
17
Q
What is a primary victim?
A
They are directly involved in the accident.
18
Q
Can a rescuer be classed as a primary victim?
A
They were in Alcock however in White and Others it was confirmed they must show actual or apprehended danger.
19
Q
What is a secondary victim?
A
They must satisfy the test in Alcock:
- close relationship of love and affection with the primary victim
- passers by may be able to claim if the incident was particularly horrific
20
Q
Give a case example that deals with proximity for secondary victims?
A
McLoughlin v O’Brian - car crash, family were all in the state they were at the scene when she arrived at the hospital 2 hours later. Nervous shock was reasonably foreseeable.
21
Q
What is a special claimant?
A
An unborn child (congenital disabilities act)
Police (Hill - Yorkshire ripper killed daughter, duty is to the public at large, could not claim).
22
Q
What test should you use for imposing a duty of care for personal injury and property?
A
Caparo
- harm was reasonably foreseeable
- relationship of proximity
- it is fair, just and reasonable to impose a duty of care
23
Q
What is the definition of negligence?
A
The breach by the D to take care causing some recoverable damage to C.
24
Q
What interests are protected by negligence?
A
- personal injury
- property damage
- economic loss
25
How do you establish liability in negligence?
- you must establish a duty of care
- there must be a breach of that duty
- the breach must have caused loss to the claimant
- the loss caused is not too remote
26
What are the facts of Donghue v Stevenson?
Friend bought a ginger beer, after drinking half she found the remains of a decomposed snail. No contract between her and shop, no contract between her and a friend. Held manufacturer owed a duty of care. This created the neighbour principle.
27
What is the neighbour principle?
Established in Donoghue v Stevenson, you must take reasonable care to avoid acts or omissions which you can reasonably foresee will be likely to injure your neighbour.
28
Who is my neighbour?
Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions in question.
29
How did the case of Hedley Byrne extend liability in negligence?
To include economic loss however the neighbour principle alone was too wide to deal with it, they preferred the need of a special relationship.
30
What happened to the neighbour principle following Anns v Merton?
- before Anns - if the neighbour principle was met there should be a duty
- after Anns - the neighbour principle will always apply, unless policy says it should not
This created problems by expanding the scope of liability in negligence, signals also emerged to say this decision should be reconsidered.
31
What was said in the case of Yuen Kun Yeu v AG of Hong Kong?
Some proximity of relationship was needed (neighbour principle) and it could not be left alone to policy and they has concerns over the scope of Anns.
32
What was the correct test to be applied in Caparo and what is the three stage test?
They overruled Anns and went back to the incremental approach where the claimant can only bring an action where:
- the harm was reasonably foreseeable
- there was a relationship of proximity
- that it is fair, just and reasonable to impose a duty of care
33
What limit did Caparo put on negligence with regards to duty of care?
That it's not enough to just establish a duty of care existed, but it is necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B from.
34
What types of damage are covered by the duty of care in negligence?
- physical property damage (Murphy)
| - psychiatric injury (Alcock)
35
What was said about duty of care in Mitchell v Glasgow City Council?
If I collide with a cyclist and knock them unconscious I must take reasonable steps to remove her from the path of oncoming vehicles, whether I must take care to avoid her belongings being stolen is debatable. Recognising the type of damage will influence the duty of care and the scope of the duty.
36
The first stage in Caparo v Dickman is foreseeability of harm, what is reasonable foreseeability?
It comes from the neighbour principle in Donoghue v Stevenson, a duty of care is only imposed where it is reasonably foreseeable that the D's actions may injure a class of persons which includes the claimant.
37
In clams of physical damage or personal injury is reasonable foreseeability enough?
Probably (Brentwood District Council v Murphy).
38
How do you define proximity?
By looking at the neighbour principle outlined in Donoghue v Stevenson.
39
What are the issues in relation to proximity?
It is relevant to the type of harm:
- physical damage
- economic loss
- psychiatric injury
It is relevant to the way in which harm is caused:
- omissions
- third parties
40
What is the third element of the Caparo test?
Whether it is fair, just and reasonable to impose a duty.
41
Give some case examples where no duty existed on policy grounds?
- wrongful birth
- auditors liability to prospective investors (Caparo)
- employers liability to soldiers on active service
- landlords duty to protect tenants from neighbours (Mitchell v Glasgow City Council)
42
Give some case examples where a duty did exist on policy grounds?
- referees of adult amateur rugby matches
- fire brigade (not making the situation worse)
- negligent references
43
What did Lord Hope say in the case of Mitchell v Glasgow City Council with regards to defensive measures/practice?
If you were to have defensive measures it would be likely to result in giving warnings as a matter of routine, most of which would be for no good reason, it is impracticable.
44
When should the Caparo test be used?
In situations where there is no existing precedence on that type of relationship. Then when the Caparo test has been satisfied Stovin v Wise said you need to ask whether there are considerations of analogy (similarity), policy, fairness and justice for extending it to cover the new situation.
45
How do you establish liability in negligence?
- needs to be a duty of care owed by the D to the C
- that duty needs to have been breached
- the breach needs to have caused in fact the C damage
- the breach needs to have caused in law (proximity) the C damage
46
What is a breach of duty?
When the D behaviour falls below the standard of care expected in law.
47
Can accidents happen without fault?
Yes, in Cole it was said sometimes accidents can be pure accidents in the sense that the V cannot recover damages for the resulting injury because fault cannot be established.
48
What standard is expected of a trainee or a learner?
The same as if they were qualified (Nettleship v Weston) this is an objective test based on the reasonable man.
49
What is negligence in law?
Bolam said in a case which does not involve any special skill, negligence in law means a failure to do some act which the reasonable man would do, or doing some act the reasonable man would not do, and if that failure or doing results in injury then there is a cause of action.
50
What are the facts of Roberts v Ramsbottom?
D driver suffered a series of health problems and over the course of the day had a series of collisions driving. D liable as the reasonable man would have known the risk he imposed to other drivers and stopped after the first collision.
51
What are the facts of Mansfield v Weetabix?
D driver suffered hypoglycaemic attack, never happened before and was unaware of the risk of it. Not liable as the reasonable man would not have acted any differently, he had no knowledge.
52
When can the standard of care be higher or lower than that expected of the reasonable man?
Skilled people, the standard will be raised and lowered if the D is a child or if the D is engaged in sporting activities.
53
How is the standard of care judged for a child?
By the same standard of the ordinary, prudent and reasonable child of the same age as the D (Gough v Thorne). It would be inappropriate to judge the child by an adults standard.
54
Can a parent or guardian be liable for a child's actions?
They may be liable judged by the reasonable and prudent adult for failing to exercise proper supervision and control of the child if the child then goes on to cause harm to another (Lewis).
55
Why is there a lower standard of care in relation to sporting activities and how are they judged?
- errors can happen in the heat of the moment
- participants may accept risk of injury
- they are judged by the reasonable man of the sporting world
56
Who do sports people owe a duty of care to?
Spectators and participants.
57
What is the standard of care expected of a skilled person?
Bolam said the test is the standard of the ordinary skilled man exercising and professing to have that special skill, it does not have to be the highest standard expected.
58
What was said in the Bolitho case?
They tweaked Bolam and said it not only applied to positive acts but also to omissions. The Bolam test is applied but HoL said there needed to be a competent professional opinion with a logical basis and a weighing up of risks and benefits, it needs to be logically defensible.
59
Can Bolam and Bolitho apply to non medical skills?
Yes it applies to anything where someone professes something beyond the ordinary care and skill of the reasonable man (Anderson).
60
What factors affect the standard of care?
- whether harm is foreseeable
- likelihood of harm
- the seriousness of the consequences
- whether precautions could have been taken to mitigate the risk
- is the use to society of the D actions to be taken into account
- emergency action
61
When we look at whether harm is foreseeable what principle came from Roe and what are the facts of the case?
There were microscopic cracks in test tubes causing the substance (not a recognised hazard) contained in them to leak and cause some harm to C. Foreseeability of harm concerns foresight, not hindsight of the reasonable man.
62
What is said with regards to the likelihood of harm?
The greater the likelihood of harm, the greater the care expected of a reasonable man to avoid the harm (Bolton v Stone - cricket ball)
63
What was said in Fenton v Thruxton with regards to harm?
The case involved motor racing where it was said that where the harm to spectators may be very, very small, if the consequences are fatal or severe the risk cannot be ignored.
64
With regards to degree of foresight, what was said in the case of Haley v London Electricity Board?
Blind person had fallen down an exposed manhole, they had taken steps to try and make it safe but they were mainly aimed at sighted people. It was not long after WW2 and there were a number of visually impaired people because of this, this may have influenced their vote.
65
What are the facts of Walker v Norumberland County Council?
C suffered from work related stress and took a significant period of time off work, employers assured him on his return to work his workload would be a lot less to avoid it happening again. This never happened and he suffered from further stress. Liable for second bout as they had the knowledge and should have taken reasonable steps to prevent it happening again.
66
What makes up risk?
The likelihood of harm and the seriousness of it.
67
Give a case example showing the seriousness of harm and the care that should be taken?
Beckett v Newalls it was said that greater care is needed in carrying a pound of dynamite compared to a pound of butter, meaning reasonable care in one set of circumstances is not in another.
68
What is the case of Paris authority for?
The seriousness of the harm and the practicability of the precautions. P was already blind in one eye working as a metal grinder. Goggles available in one part of the workshop but not the other. P had a vulnerability which meant any harm to his good eye would have been more serious than the average worker, this influenced the degree of care expected of his employers.
69
What factors are taken into account when assessing the relevant precautions that are to be taken?
- cost
- ease in which precautions can be put into place
- effectiveness and whether precautions will make any difference
- availability (could be newly developed precautions)
- impact on others
- unwanted side effects
- usefulness in society
70
What is the principle concern in precautions?
The more reasonably practicable the precautions are that could be taken to avoid harm, the more likely it is a D will be expected to take those precautions.
71
Looking at precautions that could have been taken in previous cases, what could they have done?
Haley v London Electricity Board - blind man falling down hole, they could have used a tape barrier.
Paris v Stepney Borough Council - blind man working angle grinder, they could have provided goggles as the were already in another part of the workshop.
72
What case looked at precautions being costly and what was the outcome?
Lattimer- factory flooded and they out sawdust down but didn't have enough to cope with the level of flooding. Held they done all that was possible, C said it should have been closed but looking at the bigger picture, loss of earnings for employees and to the factory may have also been taken into account.
73
Do precautions have any risk?
They may be unreasonable as they generate other risks and also there is a danger of information overload.
74
Is there a duty to warn of risks that are obvious?
Generally the courts have been unsympathetic. In Tomlinson (lake) said a duty in this situation only exists where there is no genuine or informed choice (as in the case of employees whose work requires them to take the risk) or lack of capacity as in children not recognising danger.
75
Give a definition of negligence?
A breach of legal duty to take care which results in damage to the claimant (Winfield v Jolowicz).
Tort - Negligence Duty Of Care
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