tort 1 negligence

Negligence

The breach of a legal duty to take care by the defendant resulting in loss or damage to the claimant

Elements of negligence

Loss, duty of care, breach, causation, remoteness, and absence of a valid defence

Loss or damage

Harm of a recognised kind suffered by the claimant

Physical injury

Bodily harm suffered by the claimant

Psychiatric harm

A recognised mental illness, not mere grief or emotional distress

Property damage

Physical damage to land or chattels

Consequential economic loss

Financial loss flowing from physical injury or property damage

Pure economic loss

Financial loss unconnected to physical injury or property damage

Duty of care

A legal obligation requiring the defendant to take reasonable care to avoid causing harm to the claimant

Donoghue v Stevenson (1932)

Established that manufacturers owe a duty of care to ultimate consumers

Neighbour principle

A person must take reasonable care to avoid acts or omissions likely to injure those closely and directly affected

Caparo Industries v Dickman (1990)

Established a three-stage test for duty of care in novel situations

Caparo test

Foreseeability of harm, proximity, and whether it is fair, just and reasonable to impose a duty

Foreseeability of harm

Harm must be objectively reasonably foreseeable

Proximity

A relationship of closeness between claimant and defendant

Fair, just and reasonable

Consideration of social, economic and policy consequences of imposing a duty

Floodgates argument

Concern that recognising a duty may open excessive litigation

Crushing liability

Liability disproportionate to the defendant’s wrongdoing

Incremental approach

Developing duties of care by analogy with existing cases

Robinson v Chief Constable of West Yorkshire (2018)

Confirmed duty of care develops incrementally by precedent

Precedent in duty of care

Existing authority establishing whether a duty exists in similar circumstances

Nettleship v Weston (1971)

Drivers owe a duty of care to other road users

Cassidy v Ministry of Health (1951)

Doctors owe a duty of care once they accept a patient

Baker v T E Hopkins & Sons (1959)

Duty of care extends to rescuers where rescue is foreseeable

Robinson v CC West Yorkshire (2018)

Police owe a duty to protect the public from foreseeable physical injury during arrests