Duty of Care - Statements (?) Flashcards
(42 cards)
what is a tort
a civil wrong.
allows for claimant to claim for damages suffered.
what needs to be established for a prima facie in negligence
- D owes C a DOC
- D has breached that DOc.
- D’s breach has caused harm to C
- the damage suffered wasn’t remote
who does the legal burden to prove the prima facie fall on
the claimant
initially, for it to be considered there is a Duty of Care between C and D - what two things does there need to be
(word this better?)
Carelessness and a Special Relationship
what happens if D and C dont have a special relationship under DOC
D can not be found liable
give some examples of special relationships
Extra: where did you find these examples
doctor and patient
parent and child
treacher and student
Road users
solicitor client
employer to employee
Manufactor to consumer
Horsey and Rackley - ‘Tort Law’
special relationships established in Hedley Byrne v Heller (1964)
has DOC been established through common law or statute
common law
what are the main development cases of DOC
Donoghue v Stevenson 1932
Anns v Merton LBC 1978
Murphy v Brentwood DC (1990)
Sutherland Shire Council v Heyman (1985) (Australian)
Caparo v Dickman
what is the significance of Donoghue v Stevenson 1932 in Duty of Care
established Neighbourhood Principal
what is the neighbour hood principle
D should take reasonable care to avoid acts or omissions which can reasonably be foreseen to injure someone directly affected by your act or omission who should have been reasonably contemplated.
who is classified as a neighbour
Someone directly affected by your act or omission
who established the neighbourhood principle
Lord Atkin in Donoghue v Stevenson
Evaluate Lord Atkins Neighbourhood Principle
PRO :
establishes the DOC
extended liability to new areas e.g., economic loss
lasted 50 years w/o chance in law.
CON :
problematic bc of broadness
Floodgate of Cases
changed to Anns v Merton LBC 1978
Smith v Littlewoods Organisation Ltd (1987)
generally no DOC in affirmative action (not preventing harm you didnt cause)
UNLESS there is exceptions
case which states there is no DOC in affirmative action
Smith v Littlewoods Organisation Ltd (1987)
what are the exceptions to Smith v Littlewoods Organisation Ltd (1987)
Special relationship between D and C
special relationship between D and Third party - who causes damage to C (think prisons) (Home Office v Dorset Yacht Co Ltd 1970)
stranger creates danger on D’s land, D is aware, D does nothing about it. (Sedleigh-Denfield v O’Callaghan 1940) BUT!!! argue - could this create a novus actus intervenious
what is the significance of Anns v Merton LBC 1978 in Duty of Care
established the ‘two stage test’.
who established the ‘two stage test’
Lord Wilberforce - Anns v Merton LBC 1978
what is the ‘two stage test’
Stage 1 - do the parties satisfy the neighbour principle?
if YES :
Stage 2 - is there any policy reason for limiting , restricting or excluding the duty?
if YES - no DOC.
If NO : DOC can be imposed.
evaluate the ‘Two Stage Test’
PRO :
courts were given
Stage 2 meant that the courts were not compelled to find a DOC based solely on if it was foreseeable; they could limit themselves on who was own a duty of care.
CON :
it was presumed that unless there were policy reasons to limit the DOC - a DOC was owed. opened the floodgates too far.
what was Anns v Merton LBC overruled by
Murphy v Brentwood District Council (1990)
(this is never brought up again idk)
what is the significance of Sutherland Shire Council v Heyman (1985) in Duty of Care
Australian case which used the incremental approach.
influenced the Caparo test
was the ruling in Sutherland Shire Council v Heyman (1985) binding
no! it was from an AUS court; however its incremental approach was favoured over Anns v Merton.
what is the significance of Caparo v Dickman 1990 in Duty of Care
established the Caparo test
