Tort Unit 1 chapter 2 Duty of Care and Breach of Duty

What is negligence?

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

What are the four elements a claimant must prove in negligence?

1. The defendant owed a duty of care. 2. The defendant breached that duty. 3. The breach caused damage to the claimant. 4. No applicable defence prevents liability.

Is negligence a common law tort?

Yes. It is developed by the courts through judicial precedent rather than being contained in an Act of Parliament.

What is the difference between intentional conduct and negligence?

Intentional conduct involves deliberate actions, whereas negligence involves careless conduct that falls below the required standard of care.

What is an established duty situation?

A relationship in which case law has already established that a duty of care is owed.

Give examples of established duty situations.

Road users; doctor to patient; employer to employee; manufacturer to consumer; teacher to pupil.

Does a driver owe a duty of care to a rescuer?

Yes. A defendant whose actions create a dangerous situation owes a duty to a rescuer where an attempt at rescue is reasonably foreseeable.

Which case establishes that a duty of care is owed to rescuers?

Baker v TE Hopkins & Son Ltd [1959].

What did Baker v TE Hopkins & Son Ltd establish?

A defendant who creates a dangerous situation owes a duty of care to a rescuer where it is reasonably foreseeable that someone may attempt a rescue.

What is a novel duty situation?

A situation in which it is not already established by case law whether the defendant owes the claimant a duty of care.

What did Donoghue v Stevenson [1932] establish?

The neighbour principle, providing the basis for deciding whether a duty of care exists in a novel situation.

What happened in Donoghue v Stevenson?

The claimant drank ginger beer bought by a friend. An opaque bottle contained a decomposed snail, causing her shock and gastro-enteritis. She could not sue in contract because she had not bought the drink herself.

What is Lord Atkin's neighbour principle?

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Who is a 'neighbour' under Lord Atkin's principle?

A person so closely and directly affected by the defendant's act that the defendant ought reasonably to have them in contemplation.

Does proximity in the neighbour principle mean physical closeness?

No. It means a sufficiently close and direct relationship between the parties.

What is the Caparo three-part test?

1. Reasonable foreseeability of harm. 2. Sufficient proximity between claimant and defendant. 3. It must be fair, just and reasonable to impose a duty.

Which case established the three-part Caparo test?

Caparo Industries plc v Dickman [1990].

What is the relationship between the Donoghue neighbour principle and Caparo?

The first two Caparo limbs reflect the neighbour principle. The third limb, fair, just and reasonable, allows the courts to consider policy.

What did Robinson v Chief Constable of West Yorkshire Police [2018] clarify?

The Caparo test should not automatically be applied to every duty question. Courts should follow established authority and develop the law incrementally by analogy in novel cases.

According to Robinson, what should courts do where an established duty authority applies?

Follow the existing authority. It is unnecessary and inappropriate to reconsider whether imposing a duty is fair, just and reasonable.

According to Robinson, when may courts consider whether it is fair, just and reasonable to impose a duty?

When the Supreme Court is invited to depart from an established line of authority, or when deciding a genuinely novel case.

According to Robinson, how should courts approach genuinely novel duty situations?

They should develop the law incrementally and by analogy with established authority, considering the Caparo factors.

What does reasonable foreseeability mean under Caparo?

Whether it was reasonably foreseeable that the defendant's actions would cause harm to this particular claimant.

Which case illustrates lack of reasonable foreseeability?

Bourhill v Young [1943].

What happened in Bourhill v Young?

The claimant heard a motorcycle collision, later saw blood at the scene and suffered shock and miscarriage. She was not a foreseeable victim of the motorcyclist's negligence.

What did Bourhill v Young establish?

A duty of care is not owed where harm to the particular claimant was not reasonably foreseeable.

What does proximity mean under Caparo?

The relationship between the claimant and defendant must be sufficiently close.

What are examples of situations where proximity may be insufficient?

Omissions, pure economic loss and pure psychiatric harm.

What does the fair, just and reasonable limb of Caparo consider?

Whether imposing a duty is justified, including by reference to policy considerations.

Which case illustrates the fair, just and reasonable limb of Caparo?

Marc Rich v Bishop Rock Marine Co Ltd [1996].

What happened in Marc Rich v Bishop Rock Marine?

A ship sank after a classification society had certified it as seaworthy. The cargo owner sought compensation from the society for the lost cargo.

What did Marc Rich v Bishop Rock Marine establish?

No duty was owed to the cargo owners. It was not fair, just and reasonable to impose liability on the independent, non-profit classification society, which promoted safety at sea.

What is the significance of Marc Rich for the Caparo test?

Even where foreseeability and proximity are satisfied, a court may refuse to impose a duty because it is not fair, just and reasonable.

What did Hill v Chief Constable of West Yorkshire [1989] establish?

The police did not owe a duty of care to the victim's parents for failing to apprehend a serial killer, as their duty was to the public at large.

Why was no duty owed in Hill?

The court considered that imposing a duty would create an excessively wide and onerous liability for the police.

What happened in Kirkham v Chief Constable of Greater Manchester Police [1990]?

The police knew a man in custody was a suicide risk but failed to pass this information to prison authorities. He subsequently committed suicide.

What did Kirkham establish?

The police owed a duty because they had assumed responsibility for passing on information relevant to the prisoner's wellbeing.

What is the key distinction between Hill and Kirkham?

In Hill, the police owed a duty to the public at large. In Kirkham, they had assumed responsibility towards a particular individual, creating proximity.

What did Osman v UK [1999] decide?

The European Court of Human Rights considered blanket police immunity from negligence claims to be a disproportionate restriction on access to a court under Article 6.

What did Z v UK [2002] decide?

The European Court of Human Rights concluded that the domestic courts' approach to negligence claims, including policy considerations, did not breach Article 6.

What did Robinson v Chief Constable of West Yorkshire Police [2018] establish about police liability?

The police may be liable for injuries caused by their positive acts, including injuries to third parties that are a foreseeable consequence of those acts.

What distinction did Robinson make between positive acts and omissions?

A positive act may give rise to a duty of care, whereas a failure to act generally does not.

What are examples of policy factors considered when deciding whether to impose a duty?

Floodgates, deterrence, resources, public benefit and upholding the law.

What is the floodgates argument?

The concern that allowing one claim to succeed could open the door to hundreds of similar claims.

When is the Caparo test required?

When there is no established duty situation that applies to the facts.

When will a duty of care usually be owed in a novel situation?

Where one individual causes foreseeable physical injury or property damage to another through a positive act of wrongdoing.

In what situations may a duty of care be less likely to arise?

Where harm involves a public body, an omission, pure psychiatric injury or pure economic loss.

What is the general rule regarding liability for omissions?

There is generally no duty to act positively to prevent harm to another person.

Which case illustrates the general rule on omissions?

Stovin v Wise [1996].

What happened in Stovin v Wise?

A highway authority knew a junction was dangerous but failed to use its powers to reduce the danger. It was held not to owe road users a duty to alleviate the danger.

Does a stranger generally owe a duty to rescue someone who is drowning?

No. There is generally no duty to act positively to save a stranger, although there may be a moral reason to do so.

Can a person be liable if they voluntarily intervene to help someone?

Generally, only if they positively make the situation worse.

Which case establishes the principle concerning voluntary intervention?

East Suffolk Rivers Catchment Board v Kent [1940].

What happened in East Suffolk Rivers Catchment Board v Kent?

The defendant had no duty to repair a breached sea wall but chose to do so. The repairs took a long time, leaving the claimant's land flooded.

What did East Suffolk Rivers Catchment Board v Kent establish?

A person who has no duty to act will not generally be liable for careless intervention unless they make the situation worse.

What are the main exceptions to the general rule on omissions?

A special relationship involving control, assumption of responsibility, or control over a third party who causes harm.

How can a special relationship create a positive duty to act?

Where one party has power or control over another, they may have a duty to take positive action to protect them or prevent them harming others.

Give examples of relationships that may create a positive duty to act.

Employer and employee; school and child; parent and child; instructor and pupil; lifeguard and swimmer.

What happened in Home Office v Dorset Yacht Co Ltd [1970]?

Young offenders escaped while unsupervised by officers and damaged the claimant's yacht.

What did Home Office v Dorset Yacht Co Ltd establish?

A duty of care could arise because the officers had control over the young offenders and should have foreseen the damage caused by their failure to supervise them.

What happened in Smith v Littlewoods Organisation Ltd [1987]?

Vandals entered an empty cinema owned by the defendants, started a fire and damaged the claimant's neighbouring property.

What did Smith v Littlewoods establish?

No duty was owed because the defendants had no control over the vandals and there was no special relationship. The occupier was not generally required to secure the premises against third-party wrongdoing.

What happened in Carmarthenshire County Council v Lewis [1955]?

A four-year-old child escaped from a nursery school and caused a lorry driver to swerve and die.

What did Carmarthenshire County Council v Lewis establish?

The education authority owed a duty to prevent the child endangering others because it had assumed responsibility for controlling the child.

What is the first element of a negligence claim?

The claimant must establish that the defendant owed them a duty of care.

What is breach of duty in negligence?

A failure by the defendant to meet the standard of care required by law.

What are the two stages of assessing breach of duty?

1. Determine the standard of care required (a question of law). 2. Decide whether the defendant's conduct fell below that standard (a question of fact).

Which case provides the classic definition of negligence for the standard of care?

Blyth v Birmingham Waterworks (1856).

What did Blyth v Birmingham Waterworks establish?

Negligence is the omission to do something a reasonable person would do, or doing something a prudent and reasonable person would not do.

What is the reasonable person test?

The defendant must meet the standard of care expected of an ordinary reasonable person in the circumstances.

Is the reasonable person test objective or subjective?

Objective. The defendant's personal characteristics and what they themselves foresaw are not generally decisive.

Which case confirms that the reasonable person test is objective and impersonal?

Glasgow Corporation v Muir [1943].

What did Glasgow Corporation v Muir establish?

The test is impersonal: the question is what a reasonable person would have foreseen in the circumstances, not what the particular defendant foresaw or whether they did their best.

What is the standard of care for a skilled defendant?

The standard of a reasonable person possessing the relevant skill or professional competence.

Which case established the professional standard for doctors?

Bolam v Friern Hospital Management Committee [1957].

What is the Bolam test?

A professional is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular field.

Does Bolam apply only to doctors?

No. It applies to anyone exercising a special skill.

Which case qualifies the Bolam test?

Bolitho v City and Hackney Health Authority [1997].

What did Bolitho establish?

The court may reject professional opinion if it cannot withstand logical analysis. The final decision on reasonableness remains with the court.

What standard applies to a learner driver?

The standard of a reasonably competent driver, regardless of their inexperience.

Which case established the standard for learner drivers?

Nettleship v Weston [1971].

What did Nettleship v Weston establish?

A learner driver is judged by the same objective standard as any other driver and receives no allowance for inexperience.

What standard applies to a junior doctor?

The standard of a reasonably competent doctor holding the same post, regardless of inexperience.

Which case establishes the standard for junior doctors?

Wilsher v Essex Area Health Authority [1987].

What did Wilsher establish?

No allowance is made for a junior doctor's inexperience. They must meet the standard of a competent doctor in the same post and seek expert assistance when necessary.

What did Wells v Cooper [1958] establish?

A householder doing DIY must meet the standard of a reasonably competent amateur. Undertaking a task beyond their capability may itself be negligent.

What standard applies to a child defendant?

The standard of an ordinary, prudent and reasonable child of the same age.

Which case established the standard of care for child defendants?

Mullin v Richards [1998].

What happened in Mullin v Richards?

Two 15-year-old schoolgirls were mock sword fighting with plastic rulers. One ruler broke and a fragment injured the claimant's eye.

What did Mullin v Richards establish?

The standard of care is adjusted for the child's age. The defendant was judged against a reasonable 15-year-old, not a reasonable adult.

Can a child be sued in negligence?

Yes, but a child under 18 must have an adult litigation friend to represent them in proceedings.

What factors determine whether a defendant has met the reasonable standard of care?

The magnitude of the risk and the precautions reasonably available, including cost, practicality, purpose, common practice and current knowledge.

What two elements make up the magnitude of risk?

The likelihood of injury occurring and the seriousness of the potential injury.

What is the principle from Bolton v Stone [1951]?

A very small risk of injury may not require precautions where a reasonable person would consider it right to neglect that risk.

What happened in Bolton v Stone?

A cricket ball was hit out of a ground and injured the claimant. It had only happened six times in 30 years, so the risk was extremely small.

What did Bolton v Stone establish?

The defendants were not in breach because the likelihood of injury was very low. A small risk may reasonably be ignored depending on the circumstances.

What is the principle from Paris v Stepney Borough Council [1951]?

The seriousness of potential injury is relevant. A defendant may need to take greater precautions where they know a particular claimant is especially vulnerable.

What happened in Paris v Stepney Borough Council?

The claimant was blind in one eye. His employer failed to provide safety goggles, and a metal fragment blinded his remaining eye.

What did Paris v Stepney establish?

The employer was in breach because it knew the claimant was blind in one eye and the potential consequences of injury were particularly serious.

How does the cost and practicability of precautions affect breach?

If precautions could substantially reduce risk at low cost, failing to take them may be unreasonable. High cost may justify not taking precautions where the risk is small.