Duty of Care
Duty of care originates from DONOGHUE V STEVENSON - Woman became ill after drinking ginger beer containing decomposing remains of a snail. However there was No Contractual Duty as she did not buy the beer.
Lord Atkin then introduced the Neighbour Principle;
"You must take reasonable care to avoid acts or omissions which could foreseeably injure your neighbour!"
CAPARO INDUSTRIES V DICKMAN - Introduced the Incremental Approach
Which asked 3 Questions:
3 Questions asked...
1, Was the damage or loss foreseeable?
Illustrated in LANGLEY V DRAY - A police officer was injured in a crash while pursuing a stolen car. It was foreseeable as the defendant knew by speeding up there was a risk of injury.
2, Is it proximate?
Illustrated in BOURHILL V YOUNG - The claimant suffered a miscarriage after hearing a car accident. Not proximate as she only heard it; If she had seen it, it would have been proximate.
3, Is it just and reasonable to impose a duty of care?
Illustrated in MULCAHY V MOD - Claimant suffered hearing damage when a shell was fired next to him. Not just and reasonable as if this case was successful then it would open floodgates and every other soldier with a similar case would try to claim.
Breach of duty of care
Once the claimant has shown the defendant owed the a duty of care, it is necessary to prove the defendant breached this duty.
Baron Anderson said in BLYTHE V BIRMINGHAM WATERWORKS;
"Negligence is the omission to do something which a reasonable man would do"
There are 5 tests to assist the courts in deciding whether the defendant breached their duty:
1, Degree of probability that harm will be done
Illustrated by BOLTON V STONE - The claimant was injured by a cricket ball whilst standing outside the stadium. Evidence shows this had only happened 6 times in 30 years! Therefore they were found not to have been negligent as a reasonable man would disregard the risk. OR (HALEY V LONDON ELECTRICITY BOARD)
5 tests continued...
2, Magnitude of likely harm
Illustrated by PARIS V STEPNEY BOROUGH COUNCIL - The claimant, who had one eye, was employed as a welder in the defendants garage. Goggles weren't normally supplied, and when a piece of metal flew into the claimants good eye, The defendants were liable, but wouldn't have been for a normal sighted person. The greater the risk, the greater precautions need to be taken.
3, Cost and practicality of preventing the risk
Illustrated by LATIMER V AEC Ltd. - A factory was flooded, and the owner put sawdust down to soak up the excess water. Parts of the factory remained slippery and an employee was injured. However, The defendant was not liable as the only way to avoid the risk would be to shut the factory completely.
5 Questions contiued...
4, Potential benefits of the risk
Illustrated by DABORN V BATH TRAMWAYS - It was held that "If all trains were restricted to a speed of 5mph, there would be fewer rail accidents, but our lives would be slowed down.
5, Professional Persons
Illustrated by BOLAM V FRIEN BARNET HOSPITAL MANAGEMENT - It was held that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular art.