Negligence: Duty of Care and Breach of Duty

Vocabulary practice flashcards covering the essential legal rules, statutory authorities, and leading cases for establishing a duty of care and proving breach of duty in tort law.

Negligence

An act or omission which breaches a legal duty of care owed by one party (defendant) to another (claimant) and as a consequence causes loss and damage to that party.

Duty of Care

The legal obligation owed by the defendant to the claimant to take reasonable care to avoid causing the claimant injury or loss.

The Neighbour Principle

The foundational principle established by Lord Atkin in Donoghue v Stevenson stating that one must take reasonable care to avoid acts or omissions reasonably foreseen as likely to injure persons so closely and directly affected that they ought reasonably to be in contemplation.

Incremental and Analogous Approach

The judicial approach where courts establish a duty of care by looking to established precedents or by extending analogous situations where a duty has previously been recognized, without resorting to the Caparo three-stage test.

Caparo Three-Stage Test

A test formulated in Caparo Industries plc v Dickman used in novel cases to determine whether a duty of care exists by examining: (1) reasonable foreseeability of harm, (2) a relationship of proximity between the parties, and (3) whether it is fair, just, and reasonable to impose a duty.

Reasonable Foreseeability

The first limb of the Caparo test, requiring that the claimant falls within a class of individuals who were put at a foreseeable risk of injury or damage by the defendant's conduct.

Proximity

The second limb of the Caparo test, requiring a sufficient legal relationship or connection between the claimant and defendant before a duty of care can arise.

Fair, Just and Reasonable

The third limb of the Caparo test, which weighs legal and public policy considerations to determine whether imposing a duty of care is desirable or whether it would create indeterminate liability and a flood of claims.

Omissions Rule

The general principle in negligence that there is no positive duty to act to prevent harm to another person outside established tortious, contractual, or special relationships.

Assumption of Responsibility

An exception to the rule on omissions and third-party actions where a defendant explicitly or implicitly undertakes responsibility for a claimant's safety or well-being and carelessly fails to protect them.

Adoption of Risk

An exception to the rule on omissions where a defendant creates or fails to deal with a known hazard on their property, thereby adopting the risk and coming under a positive duty to take reasonable steps to prevent it from causing damage.

Third-Party Liability Exceptions (Smith v Littlewoods)

Four specific situations where a defendant may owe a duty of care for harm caused by third parties: special relationship between claimant and defendant, special relationship of supervision/control over the third party, creation of a source of danger, or failure to stop a known danger created by a third party.

Breach of Duty

The failure of a defendant who owes a duty of care to meet the standard of care required by law, judged by whether their behaviour fell below the expected legal standard.

Balance of Probabilities

The civil standard of proof requiring the claimant to prove that it is more likely than not (greater than $50\%$ probability, such as $51\%$) that the breach occurred as alleged.

Standard of Care

The legal test used by the court to assess whether the defendant's actions matched those expected of a reasonable person in all the circumstances.

The Reasonable Person

The objective legal construct representing the average person, described as free from over-appreciation and over-confidence, guided by ordinary human affairs, and neither excessively timid nor nonchalant about obvious dangers.

Bolam Test

The legal standard applied to professionals, establishing that a defendant is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical or professional opinion.

Bolitho Qualification

A modification to the Bolam test requiring that the responsible body of professional opinion relied upon by the defendant must withstand logical analysis and have a defensible, logical basis.

Material Risk Disclosure

The standard established in Montgomery v Lanarkshire Health Board requiring doctors to warn patients of any material risk to which a reasonable person in the patient's position would attach significance, or which the doctor knows or ought to know that particular patient would deem significant.

Scope of Duty Principle

The principle established in Khan v Meadows providing that a defendant is only liable for consequences and losses falling within the precise scope and purpose of the advice or service they were engaged to provide.

Standard of Care for Inexperienced Defendants

The rule from Nettleship v Weston and Wilsher v Essex Area Health Authority stating that inexperience or learner status is no defence, and the defendant is held to the objective standard of a reasonably competent person performing that task.

Standard of Care for Children

A modified standard of care where a child defendant is judged according to the objective standard expected of an ordinary, reasonably careful child of the same age.

Standard of Care in Sporting Activities

A modified standard from Wooldridge v Summer holding that participants in sports only breach their duty of care toward spectators if they act with reckless disregard for safety, rather than making a mere error of judgment.

State of Knowledge Principle

The rule from Roe v Minister of Health that the defendant's conduct and foreseeability of risk must be evaluated according to the state of scientific and medical knowledge existing at the time of the incident, rather than with hindsight.

Cost of Precautions

A risk factor considered in breach of duty where the court balances the expense and practicality of taking preventative measures against the likelihood and severity of the harm (Latimer v AEC Ltd).

Social Value / Utility

A factor considered under common law and the Compensation Act 2006 allowing courts to lower the standard of care or find no breach if taking burdensome precautions would discourage or prevent a socially desirable activity.

Social Action, Responsibility and Heroism Act 2015 (SARAH)

Legislation directing courts assessing breach of duty to consider whether the defendant was acting for the benefit of society, demonstrating a responsible approach, or acting heroically in an emergency to assist a person in danger.

Likelihood of Harm

A factor in assessing breach where courts evaluate the probability of an injury occurring; where the risk of injury is very low, a reasonable person may take no precautions (Bolton v Stone).

Seriousness of Injury

A factor in assessing breach requiring a defendant to take greater precautions where the potential gravity or severity of injury to a known vulnerable claimant is high (Paris v Stepney Borough Council).

Res Ipsa Loquitur

A Latin maxim meaning 'the thing speaks for itself', allowing negligence to be inferred where the cause of the accident is unknown, the thing causing damage was under the defendant's control, and the accident would not normally occur without negligence.

Section 11 Civil Evidence Act 1968

A statutory provision allowing a conviction from a criminal court involving negligent conduct to be admitted as evidence in civil proceedings, shifting the burden of proof to the defendant to prove they were not negligent.