Negligence and Duty of Care Flashcards

A set of vocabulary flashcards covering the core principles of negligence and duty of care based on the SQE1 syllabus.

Tort

A word meaning ‘wrong’ that involves the infringement of a legal right or breach of a legal duty, giving rise to a claim in the civil courts.

Tortfeasor

A person who commits a tort and whose liability is described as tortious.

Claimant

The person bringing a case in civil court; prior to $1999$, this person was known as a plaintiff.

Defendant

The person against whom a legal case is brought.

Negligence (Legal Definition)

A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant.

Established duty situations

Situations where case law has already determined that a duty of care is owed, such as road user to road user, doctor to patient, and employer to employee.

Novel duty situations

New situations coming before the courts where they must decide for the first time whether a particular relationship or set of facts gives rise to a duty of care.

The neighbor principle

A test formulated by Lord Atkin in Donoghue v Stevenson [$1932$] stating that one must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.

Neighbor (Legal Definition)

Persons who are so closely and directly affected by an act that a person ought reasonably to have them in contemplation when directing their mind to the acts or omissions in question.

Caparo test

A three-part test set out in Caparo Industries plc v Dickman [$1990$] used to determine duty of care in novel situations, consisting of reasonable foresight of harm, sufficient proximity, and whether it is fair, just and reasonable to impose a duty.

Reasonable foresight of harm

The first requirement of the Caparo test, which asks if it is reasonably foreseeable that the defendant’s actions will affect the particular claimant.

Proximity

The second requirement of the Caparo test, relating to the relationship between the claimant and defendant, interpreted as having the other person in mind when performing an act.

Fair, just and reasonable

The third requirement of the Caparo test that allows the court to reach a conclusion based on policy matters to limit the scope of the duty of care.

Floodgates argument

A policy factor where the court considers if allowing one case to succeed will open the way for hundreds of other similar cases.

Deterrence

A policy consideration where the court rules in favor of a claimant to discourage others from acting in a way considered wrong or anti-social.

Omission

A failure to act to prevent harm to the claimant; the general rule from Stovin v Wise [$1996$] is that a duty of care is not owed for omissions.

Duty not to make the situation worse

An exception to the general rule on omissions; if a person decides to intervene despite having no duty to act, they owe a duty of care not to worsen the situation.

Special relationship of control

A relationship where one party has power over another (e.g., employer/employee, parent/child, teacher/pupil), giving rise to a positive duty to act and safeguard others or prevent harm to third parties.