duty of care Flashcards
Define negligence.
breach of a legal duty to take care by D resulting in loss or damage to C.
What elements must be established to bring a negligence claim?
- loss or damage
- duty
- breach
- causation
- remoteness
- defences
What are the different types of loss / damage?
- physical injury
- psychiatric harm
- property damage
- consequential economic loss
- pure economic loss
What test did Donoghue establish?
duty of care- foreseeability & proximity
- now old test, replaced by caparo
What test does Caparo v Dickman establish?
3 stage duty of care test
1- foreseeability of harm
- what a reasonable person would be expected to foresee
2- proximity
- the relationship between C&D
3- must be fair, just & reasonable
- to impose a duty
What does the court take into consideration when deciding if duty to impose is fair, just & reasonable?
- policy concerns
- floodgates
- insurance
- crushing liability (liable party to pay damages out of all proportion to the wrong committed.)
- maintaining high standards
Is the Caparo test applied automatically to all cases?
No, when determining duty of care, the first question should be: Is there a precedent making clear whether or not a duty is owed?
*if not, then apply Caparo
What is the general rule for duty in tort?
The law of tort only imposes liability on those who cause injury or damage to another; no such duty is imposed on a mere failure to act, otherwise known as an omission.
What are the exceptions to the general rule for duty & omissions?
- imposed by statuary duty
- imposed by contractual duty
- Where D has high degree of control over C
- Where D chooses to take on responsibility
- Where risk is created by D
What are the duties owed by police, ambulance and fire fighters?
police- no duty of care to respond to emergency calls
ambulance- owe a duty of care to respond to a 999 call within a reasonable time unless attending to more pressing emergency beforehand
fire brigade- no duty of care to attend a fire but if they do attend a fire, they owe a duty not to make the situation worse through a positive act
What is the general rule for duty imposed on third parties?
no such duty is imposed on a failure to prevent a third party causing harm to another.
However, there are a number of exceptions to this general rule, imposing a positive duty to act to prevent a tp causing harm to another.
What are the exceptions to the general rule for duty of third parties?
D failed to prevent tp from causing harm and:
- there’s proximity between C&D
- there’s proximity between tp & D (Home office v Dorset Yacht)
- D created danger
- danger was on D’s property & D knew of the risk
What are the rules for public bodies regarding duty?
same principles applicable to private individuals, but when it comes to fair, just & reasonable:
- Just because the public body has the power to do something, doesn’t mean they owe a duty.
*key case:
CN and GN v Poole Borough Council [2019]
A public body has power to repair a highway. It fails to do so, and a cyclist suffers an injury as a result. Which of the following is the best way to analyse whether the public body owes a duty of care?
public body is unlikely to owe a duty to repair the highway unless the normal principles applying to individuals would suggest liability for omitting to do so.
