Garden Principles of Negligence Flashcards
(44 cards)
Elements of Garden of Negligence
1.) Duty of Care
2.) Breach
3.) Causation
4.) Remoteness
Tests of Duty of Care
- Caparo Test
- Voluntary Assumption of Responsibility Test
How strictly should Caparo test be used?
Incremental Test -> Per Caparo
Should be used analogously and they should “hug the coastline”
Three step Caparo test
1.) Reasonable Foreseeability
2.) Requisite Degree of Proximity existed between C and D
3.) Is the Duty “fair, just and reasonable” (policy concerns)
In which situations might a duty of care already be established?
Employer/ Employee
Doctor/Patient
Teacher/Pupil
Road Users
Transport Operators
Custodian - Prisoner
Occupiers (lawful visitors)
In these scenarios it is already recognised
Carve-outs where a duty of care does not, even within these recognised categories:
- Employers-Employees: Duty of care does not exist to avoid psychiatric illnesses which employee might suffer
Hatton v Sutherland
- **Doctors to patients ** No duty to avoid or minimise all adverse consequences flowing from a failed sterilisation:
McFarlane v Tayside Health Board
1st Step Caparo Test: What does it actually mean?
**Reasonable Foreseeability **
Was the risk of some personal injury reasonably foreseeable to the claimant, or to a class of whom the claimant is one
How easy is the test of reasonable foreseeability to satisfy in relation to the Caparo Test
Quite easy to satisfy
For a D it is a “poor control mechanism”
How do the courts define reasonable foreseeability in relation to duty of care?
Smith v Littlewoods
“real risk and not a mere possibility”
Hill v West Yorkshire Police
- C’s daughter victim of the yorkshire ripper
- She was coming out of uni
- Courts held the class of girls, for which D was a part of was **reasonably foreseeable
**
This failed in the later stages
Cases where it was C’s harm was unforeseeable to D?
Palsgraf v Long Island
Series of quite extra ordinary unexpected events -> Not foreseeable
Haley (1965)
An example of how easy it is to satisfy the reasonable foreseaability principle of DoC
Hole left open by the London Electricity Board (LEB) during roadworks.
The LEB had placed a hammer around the hole as a warning, but this was not sufficient for someone who was blind and used a white stick.
**
IT WAS REASONABLY FORESEEABLE AND THE STATS OF (1 IN 500 PEOPLE ARE BLIND) HELPED THE COURTS TO REACH THIS DECISION**
Is harm done to the foetus reasonably foreseeable?
Initially NO per Walker 1891
BUT
They are foreseeable now as long as they are born per Burton v Islington
BUT THEN the Congential Disabilities Act came about which tells us more
(Relevant to the DoC test and whether a foetus counts)
Congential Disabilities Act 1976
1.) Child must be born alive
2.) Disability due to act or omission
3.) Derivative duty of care to mother (should be owed as well)
4.) After 1976
2nd step of Caparo
**Proximity **
- Geographical Proximity
- Temporal Proximity (closeness in time)
- Relational Proximity (What degree of control did D have over C)
- Causal Proximity (clear link almost causation like)
Cases on Relational proximity?
Geary v JD Wetherspoon plc
The claimant was injured after voluntarily sliding down a staircase banister in a Wetherspoon pub.
❌ No causal proximity: The risk was obvious and self-inflicted, and the premises were not unsafe for normal use, so no duty of care was owed.
3rd element of Caparo and the factors involving
Policy Reasons “just, fair and reasonable that one should owe a DoC in the circumstances?”
1.) Children
2.) Police
3.) Bad Samaritans
Any policy reasons precluding DoC
What is the policy on Children in relation to Duty of Care
CHILDREN DO NOT OWE A DUTY OF CARE
3 year old ran in front of a lorry (after escaping school) and driver swerved out of the way and died
BUT THEY CAN BE HELD FOR CONTRIBUTORY NEGLIGENCE Young v Kent CC
Carmarthenshire CC v Lewis
What is the policy on police involved in criminal investigations:
DoC
- Initially from the **Hill **case it was established they cannot owe a duty of care
- BUT* Robinson v CC of West Yorkshire Police* said DoC can be owed and 3/5 said Hill case only applies to omissions (this was what was argued!)
- Ringby v Northamptonshire -> Positive acts do owe a DoC but not omissions
Is it due to omissions or policy?
Floodgate policy reasons
Pre-identified victims policy reasons? Are they owed a duty of Care?
No DoC is owed Hill principle applied
(Here, police made mistake of downgrading the priority of the call made when contacting another department, before the police arrived ex-bf killed her)
So pre-identified victim is no different to member of public
Michael 2015
Policy reasons (for Bad Samaritans)
No DoC to rescue someone who is in distress
Stems from Caparo third limb
Gibson -> person saw a blind man walking into a full road
Courts do not want to infringe on individual liberty (Stovin Wise)
Where does the test of voluntary assumption of responsibility come from?
Hedley Byrne and Co
Usually for personal injury claims
Is an assumption of responsibility taken by a D or imposed by the law on D?
It is imposed on the law by D (Phelps v Hilingson)
Kent v Griffiths
1st part of voluntary assumption test
Satisfies first + second part of test (assumption of responsibility)
1.) Voluntary assumption triggered as soon as ambulance accepted
2.) Detrimental Reliance when they had another choice of bringing the C
**Example of voluntary assumption of responsibility
