DUTY OF CARE

Question 1

INTRO

Answer 1

• negligence existed one way or another in the centuries before however not until the 19th century that duty existed
• only between doctor patient ferryman passenger liability existed
• outside of these there was no test to see if liability existed

Question 2

NEIGHBOUR TEST 1932

Answer 2

• Lord Atkin in D v S : reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour
• 1) reasonable foresight of harm
• 2) relationship of proximity
• starting point

Question 3

HEDLY BYRNE & CO v HELLER & PARTNERS LTD 64

Answer 3

• rejection of the neighbour test as it was believed it would make finding liability too wide
• Instead they decided that there should be a special relationship between parties.

Question 4

LORD WILBERFORCES TEST 78

Answer 4

• Anns v Merton London borough council
• neighbour test considered to be to broad allowing liability in many situations subsequent cases led it to be narrowed to were only a consumer was suing a manufacturer
• Anns sought to resurrect an all embracing test for duty of care
• 1) reasonably forseeable and proximity if so a prima facie duty arises
• 2) D can put forward policy considerations to negate liability

Question 5

CAPARO V DICKMAN 90

Answer 5

• Anns still considered too wide
• Caparo v dickman overulled decision going back to incremental approach
• this approach means C can only bring action where they can show an existing duty
• Caparo text: neighbour and fair
• explanation eg how these relate to previous tests
• different from Anns as requires C for imposing liability whereas liability would arise after and D demonstrate policy factors negating liability

Question 7

FOUR STAGE TEST

Answer 7

• notes that murphy v Brentwood district council overulled Anns
• end of 1990 courts now had a 3-4 stage test
• policy fourth element and sometimes included with the 3rd