Flashcards in Section 2 Deck (17)
Define duty of care
A moral or legal obligation to ensure the well being of others e.g. employers have a duty of care to their employees.
what is the nature of a duty of care?
A common law duty of care "does not usually demand compliance with a specific obligation. It is only when an act is undertaken by a party that a general duty arises to preform the act with reasonable care"
Nature of a duty of care CASE: Lewis v British Colombia?
Who do you owe a duty of care, what is the neighbourhood principle?
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then in law, is my neighbour? The answer seems to be- persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation when I am directing my mind to the acts or omissions which are called into question.”
Donoghue v Stevenson (1932) SC (HL) 31 per Lord Atkin at 44
Who is the duty of care owed to?
A duty of care is NOT owed to the world at large, but to those who injury may reasonably and probably be anticipated if the duty is not observed.
Who is a duty of care owed to, Bourhill v Young 1942
A pregnant women gets off a tram, at which point a motorcycle driver, drives past her at an excessive speed and collides with a car 50 feet from where the women was standing. The defendant was killed by the impact. The women heard all of this but did not see anything. A short time later she walked past where the incident occurred, the body was removed and their was a great deal of blood on the road. The women went into shock and the baby was still born. She brought a claim of negligence against the defenders estate. It was held that their was no duty of care. Their was not sufficient proximity between the two when the incident occurred.
who is duty of care owed to? CASE
Hill v Chief constable West Yorkshire?
Jacqueline Hill was the last victim of Peter Sutcliffe, the Yorkshire ripper. Who committed 13 murders and 8 attempted murders over the course of 5 years. Her mother made a claim against the chief constable on the grounds that the police had been negligent on their detention and detection of Sutcliffe. The defendant applied to have the case struck on the ground that their was no cause of action since no duty of care was owed by the police in the detection of the crime.
How much care should be taken to ensure the well being of others?
1) "Their is no absolute standard, but it may be said generally that the degree of care required, varies directly with the risk involved" Per Lord MacMillan in Muir v Glasgow corporation.
2) the standard also varies with the probability of injury
3) the standard is objective that standard is that of the ordinary reasonable person in the circumstances of the defender.
In what case was a learner driver in an accident and given a lesser punishment, as they were a learner. (how much care)
Nettleship v Weston (1971)
Other factors that determine negligence
what is the THIN SKULL RULE?
The unexpected fragility of an injured person is not a valid defence to the seriousness of any injury caused to them.
THIN SKULL RULE CASE: McKillen v Barclay-Curle 1967 SLT 41
A mans working arm is broken, meaning he can no longer work, the employer is liable for this. This caused his TB to reactivate. Defender said that this is not a foreseeable consequence. You take your victim as you find them. However, they were still liable even though the injury was beyond what they could have seen.
what happens in the case of Paris v Stephney BC (1951)
-Man lost eye, while employed as a mechanic.
-While working he manages to lose his good eye.
-he sues his employer as he didn't provide safety googles
-the employer didn't usually do this, however, duty of care higher for him as risk of blindness higher
A means of connective conduct, with a resulting effect, typically an injury.