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Duty of care
To establish duty of care the neighbour principle by Lord Atkin in Donoghue v Stevenson must be
satisfied. It must be shown C is closely and directly affected by what D does or does not do.
Also, the modern approach from Caparo v Dickman must be satisfied. Firstly, the damage is
reasonably foreseeable from Ds act or omission. In Bourhill v Young the miscarriage suffered by C was
not reasonably foreseeable so D was not liable. Secondly, there is proximity between the parties
which can either be a relationship or a physical closeness. In Watson v BBBC there was proximity
between the boxer and the Board as they licensed the game. In McLoughlin v O'Brien there was
proximity as C witnessed the immediate aftermath of the accident. Finally, it is fair and reasonable to
impose a duty. In Barrett v MoD it was not fair to hold the MoD responsible for the sailor's death as
he was off duty at the time.
A duty will not be owed if it is a matter of public policy. In Hill v Ch. Const. W. Yorks it was not in the
public interest to impose a duty on the police.
Breach of duty
To decide if there is a breach of duty, D is judged against the standards of the reasonable man. In
Bolam v Friern Hospital, it was decided that where D is a professional, he must be judged against that
standard, i.e. the reasonable competent Doctor. In deciding if there has been a breach, we must
consider what we expect D to have done and did he fail to do it or do it but to a poor standard.
Before it is decided if there has been a breach, other factors need to be addressed. Firstly, the
magnitude of risk. This means that if the risk was large, there is more likely to be a breach. In Haley v
LEB the risk of a blind person falling in the hole was large. If the risk was small, there is less likely to be
a breach. In Bolton v Stone the risk of being hit by a cricket ball was small. If D has taken all reasonable
precautions and a risk still occurs, there will not be a breach. In Latimer v AEC he had taken all
precautions other than close the factory (which would be unreasonable) so when the damage
occurred D was not liable. If D acts out of social utility to prevent greater harm but causes damage,
there will not be a breach. In Watts v Herts CC D had caused damage when responding to an
emergency call but was not liable as he was preventing greater harm. Finally, if D is inexperienced he
will still be liable for his breach. In Nettleship v Weston Ds learner experience was irrelevant and he
was still liable for the breach.
To establish damage as a result of the breach, there must be personal injury or damage to property.
This must be the cause of Ds actions and the damage must not be too remote.
Both factual and legal causation must be proven on the balance of probabilities. For factual causation,
the result would not have happened `but for' Ds actions. In Barnett the man died regardless of the
doctors failure to treat him so they were not liable. For legal causation, D must contribute to the
result in a material way. The egg shell skull rule means D must take his victim as found and will be liable
for the end result if his negligent act caused damage that led to it. In Smith v Leech Brain D was
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Cs lip and the cancer that resulted from this. D must take V with any
weaknesses and is responsible for the outcome.
If other factors could have caused the result D will not be liable. In Wilsher v Essex HA a number of
factors could have caused Cs blindness so D could not be held liable. If an event breaks the chain D will
not be liable.…read more
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Therefore, damage is established.
Court & Procedure
Here, because C is claiming for £... the case would be allocated to the: ... track.
Many cases are dealt with by Alternative Dispute Resolution (ADR): negotiation, mediation,
conciliation, arbitration. The burden of proving the case is on C who must prove it on the balance of
Pre action protocols are a list of things to do before court. C must send D information (letter) stating
why D is at fault, details of the injury, etc.…read more
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Pecuniary loss is financial and is known as special damages as the amount can be calculated precisely.
E.g. loss of earnings: actual or future (multiplier and multiplicand); replace or repair property; private
medical expenses (Law Reform (Personal Injury) Act 1948). C can claim for ...
Non-pecuniary loss is non financial and is known as general damages as the amount cannot be
calculated precisely. E.g.…read more