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1) `Explain, using examples, the term duty of care'.
In Donoghue v Stevenson, Lord Atkin established the Neighbour principle as a test for deciding the
existence of duty of care. He said `you must take care to avoid acts and omissions which you can
reasonable foresee that can harm your neighbour'. The courts use a three part test established in
Caparo v Dickman. The first part is whether the injury or harm is foreseeable. In Haley v LEB it was
reasonably foreseeable that a blind man would be injured by a trench dug by the defendants.
Secondly, there must be proximity between the defendant and the victim. This can be seen in time,
area and relationship. In Bournhill v Young, the pregnant woman was related to the motorcyclist, and
wasn't present at the accident, but still blamed him for the miscarriage of her baby.
Finally, it must be fair, just and reasonable to impose a duty of care. Sometimes the police, rescuers
and emergency services are exempt as it is not fair and could open the floodgates of litigation. In Hill
v Chief Constable of W Yorkshire, the court decided that it would not be fair for the police to owe a
duty to all potential victims of crime. In Kent v Griffiths, it was fair for the ambulance to owe a duty of
care to a patient.
2) `explain, using examples, the meaning of the term breach of duty'
The courts use the `reasonable man' to decide if someone is in breach of their duty. This is an
objective test. The reasonable man is in competent in his chosen activity. A learner driver is judged
against the standard of a reasonable driver, in the case of Nettleship v Weston. A doctor is judged
against the standard of a competent doctor, as shown the Bolam principle. However, a child is judged
against the standard of the reasonable child, shown in the case of Mullins v Richards.
Courts look at factors to help decide what is reasonable. They first look at the size of the risk. In
Bolton v Stone, the size of the risk of the cricket ball being hit out of the ground was tiny, as there
was a high fence around it. The second factor is precautions. In Latimer v AEC, the factory had taken
all reasonable precautions after the oil spill, and therefore was not in breach. Finally, if it belongs to
social value, the reasonable man is allowed to take risks. In the case of Watt v Hertfordshire County
Council, the fire engine was rushing to the scene of the accident. If there is a risk of serious injury, the
defendant is expected to take greater care. Reasonable employers would have taken extra care in
the case of Paris v Stepney Borough Council.
3) Explain, using examples, the meaning of the term damage'.
The courts consider factual causation. In Barnett v Chelsea and Kensington HMC, a patient died shortly
after receiving negligent treatment. However, he died after consuming arsenic poison. The hospital
did not cause his death and was not negligent. Courts must also consider if the damage happened
because of multiple causes or whether intervening events broke the chain of causation. In Smith v
Littlewoods, the defendants were not negligent because the vandalism was the real cause of the
damage and broke the chain of causation.
The courts then ask whether the harm was reasonably foreseeable. In the Wagon Mound, it was
unforeseeable that an oil spill would lead to a spark from welding igniting the oil and setting fire to
another ship. The damage therefore was too remote. This test is to establish the type of injury, not in
the manner it occurred. In Hughes v Lord Advocate, the burns suffered by the boy were expected
when leaving a paraffin lamp around.
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Finally, the thin skull rule is considered. In the case of Smith v Leech Brain, the claimant was burned on
the lip my molten metal. This led to a pre-cancerous condition, from which he died. The defendants,
were not only liable for the burn, but also for his death, as the burn triggered the cancer.…read more