Duty of Care

Question 1

Key original case for establishing duty of care?

Answer 1

Donoghue v Stevenson [1932]

Question 2

Who was a key judge in Donoghue v Stevenson [1932]

Answer 2

Lord Atkin

Question 3

What principal did Lord Atkin develop in Donoghue v Stevenson [1932]

Answer 3

The neighbour principal

Question 4

What is the neighbour principal defined as?

Answer 4

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 which are called in question”

Question 5

How has the law developed the forseeable harm from the neighbour principal

Answer 5

There must be proximity AND forseeablity AND policy considerations

Question 6

Which 1990 case criticised the expansion of liability in negligence?

Answer 6

Caparo Industries v DIckman [1990]

Question 7

Who was a key judge in Caparo Industries v Dickman [1990]

Answer 7

Lord Bridge

Question 8

What did Lord Bridge say in Caparo Industries v Dickman [1990]

Answer 8

That the court must consider it ‘fair just and reasonable’ that the proximity and forseeability give rise to liability

Question 9

Which case confirmed the Caparo [1990] approach?

Answer 9

Robinson v Chief Constable of West Yorkshire Police [2018]

Question 10

What did Robinson v Chief Constable of West Yorkshire Police [2018] make absolutely clear

Answer 10

Where there is no clear precedent, the question of whether to impose a duty should be approached by analogy with established authority.

Question 11

What are common types of policy considerations?

Answer 11

1) Floodgates argument
2) Insurance
3) Crushing liability
4) Using liability as a deterrent

Question 12

Cases for examples of a duty of care being imposed?

Answer 12

Baker v T.E. Hopkins & Son Ltd [1959]

Robinson v Chief Constable of West Yorkshire Police [2018]

Question 13

Why was a duty imposed in Robinson v Chief Constable of West Yorkshire Police [2018] ?

Answer 13

Police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.

Question 14

Why was a duty imposed in Baker v T.E. Hopkins & Son Ltd [1959]?

Answer 14

The Court of Appeal held that Dr Baker was owed a duty of care as it was reasonably foreseeable that someone would seek to rescue the workers who were in danger.

Question 15

Example of a duty of care being imposed where there was no clear precedent?

Answer 15

Watson v British Boxing Board of Control [2001]

Question 16

What were the facts in Watson v British Boxing Board of Control [2001] ?

Answer 16

A boxer’s claim that immediate medical attention should have been available at the ringside was upheld. The injury (brain damage) was foreseeable; the defendant had assumed responsibility for determining the nature of the medical facilities and assistance to be provided to boxers by making regulations setting out the details of the medical care which should be available; and it was fair, just and reasonable to impose a duty. There were no policy reasons why a duty should not be imposed since the duty would not necessarily extend to other sporting organisations and the fact the defendant was a non-profit making body should not provide immunity in negligence.

Question 17

What is the rule for liability for omissions?

Answer 17

Generally there is no liability for injury/damage for omissions

Question 18

What is the case for general rule of no liability for omissions?

Answer 18

Smith v Littlewoods Organisation Ltd [1987]

Question 19

What are the 6 exceptions to the no duty to avoid omissions rule?

Answer 19

1) Where there is statutory duty
2) Where there is contractual duty
3) Where the defendant has sufficient control
4) Where the defendant assumes responsibility
5) Where the defendant creates the risk
6) Where the omission is a failure to prevent a third party from causing harm

Question 20

What are the additional elements to ‘failure to prevent a third party causing harm’?

Answer 20

(i) There is sufficient proximity between D and C; and/or
(ii) There is sufficient proximity between D and third party; and/or
(iii) D created the danger; and/or
(iv) The risk is on D’s premises

Question 21

Example of a statute that imposes a positive duty (requirement to act)?

Answer 21

Occupiers Liability Act 1957

Question 22

Which case demonstrates when a contractual duty will impose a duty to act?

Answer 22

Stansbie v Troman

Question 23

Which case demonstrates a high degree of control over C giving rise to a duty to act?

Answer 23

Reeves v Commissioner of Police for the Metropolis [1999]

Question 24

What was Reeves v Commissioner of Police for the Metropolis [1999]?

Answer 24

Case that showed the police had a high level of control over C and had a duty to prevent him harming himself

Question 25

Which case demonstrates positive action for assumption of responsibility?

Answer 25

Barrett v Ministry of Defence [1995]

Question 26

What happened in Barrett v Ministry of Defence [1995]?

Answer 26

Although D was not responsible for C getting drunk, he became responsible after he started to help him and should have prevented him choking on his own vomit

Question 27

Which is the case for a defendant creating the risk?

Answer 27

Goldman v Hargrave [1967]

Question 28

Facts of Goldman v Hargrave [1967]

Answer 28

A farmer extinguished a fire on his land, but not the embers. They reignited and caused fire damage to C’s land. D had physical/financial ability to put out the embers and that would have been reasonable to expect him to do so

Question 29

What is the case of Stansbie v Truman [1948] illustrative of?

Answer 29

PROXIMITY between D and C for failure to prevent a third party causing harm

Question 30

Stansbie v Truman [1948] is not only a case for proximity in third party causing harm but what other type of omission giving rise to duty?

Answer 30

Defendant causing harm

Question 31

Which case states that C must be someone at particular risk of damage over and above the public at large to give rise to preventing a third party causing harm?

Answer 31

Home Office v Dorset Yacht

Question 32

How was Hill v Chief Constable of West Yorkshire [1989] distinguishable from Dorset Yacht?

Answer 32

The House of Lords accepted that personal injury was reasonably foreseeable (if the police failed to apprehend a seral killer, it was reasonably foreseeable that he would kill again). However, the House of Lords refused to impose a duty of care as there was insufficient proximity between any woman, as a potential victim of a crime, and the police (the victim was an unidentifiable member of a massive group) distinguished from Home Office v Dorset Yacht

Question 33

What is the case in establishing proximity between D and the third party for failure to prevent a third party causing harm giving rise to a positive duty?

Answer 33

Home Office v Dorset Yacht Co [1970]

D had supervision over the third party (borstal boys)

Question 34

What is important to note about Home Office v Dorset Yacht [1970]

Answer 34

It was decided in the 70s when the courts were expanding liability

Question 35

How are the exceptions to the general rule of a third party causing harm categorised?

Answer 35

(i) A has assumed a responsibility to protect B from that danger,
(ii) A has done something which prevents another from protecting B from that danger,
(iii) A has a special level of control over that source of danger, or
(iv) A’s status creates an obligation to protect B from that danger

Question 36

What kind of bodies have been particularly problematic in deciding if they owe a duty of care?

Answer 36

Public bodies

Question 37

Why are public bodies more complicated than private individuals?

Answer 37

1) Many public bodies derive their powers or duties from statutes – and this can have an impact on the court’s findings in relation to duty.
2) When deciding whether to develop the law of negligence into a new area, the court must look at what is fair, just and reasonable, and take into account policy considerations – public bodies often present different concerns than individuals.

Question 38

Which case illustrates the law on public bodies and duty of care?

Answer 38

CN and GN v Poole Borough Council [2019]

Question 39

How is CN and GN v Poole Borough Council [2019] summarised

Answer 39

i) When looking at positive acts and omissions, the liability of a public authority is in principle the same as a private person, but may be restricted by statutory powers or duties. So an act which would normally amount to a breach of duty cannot be so if it is specifically authorised by an Act of Parliament. This principle therefore gives effect to the principle of parliamentary sovereignty.
ii) When looking at omissions, the usual law applying to individuals would again apply, and it would be very hard to argue that because a public body has a duty or power to act in a particular area, that a failure to act would give rise to a duty in negligence.

Question 40

Why is it often NOT fair, just and reasonable to impose new duties of care onto public bodies?

Answer 40

1) In successful claims against public bodies it is often ultimately the taxpayer who actually pays the damages. This might point away from a finding of a duty of care in a new case.
2) Imposition of a duty might lead to public services being restricted in their operation for fear of litigation (sometimes referred to as ‘defensive practices’).

Question 41

What is meant by ‘defensive practices’ of public bodies?

Answer 41

Public services being restricted in their operation for fear of litigation

Question 42

Why did the courts not find a duty of care by the police in Hill v Chief Constable of West Yorkshire [1989]

Answer 42

A. Insufficient proximity: unidentifiable victim
B. Threat of liability: risk of defensive practices
C. Floodgates: potential for a deluge of claims against police