duty of care
- 3 part rules- caparo rules- foreseeability, proximity,fair just and reasonable
- Caparo v Dickman(1990) sets the modern three-part test to decide whether a duty of care exists in situations where there is no example for a duty of care
- 1st part-foreseebility objective test- would a reasonable person in the defendant's position have foreseen that someone in the claimant's position might be injured?- Donoghue v Stevenson(1932) - it can be seen that failing to stop the snail getting in the bottle will affect the consumer( mrs donoghue) of the contents. this is a consequence of producing food that has foreign bodies in it, and a reasonable person in the defendant's position(a soft drink manufacturer) would foresee that the claimants( a consumer) might be injured.
- A good example of the first part of the test can be seen in the case of Kent v Griffths(2000) - in this case it was decided that the ambulance service owed a duty of care to a member of the public on whose behalf a 999 call had been made. this was because it was reasonable foreseeable that a person in the claimant position( an injured or sick person waiting for an ambulance to take them to hospital) would be further injured if the ambulance failed to arrive or took too long to arrivel.
- 2nd part-proximity- means closeness. there can be proximity by space, time, or relationship. e.g:if i crash my car into yours there is a proximity in space and time but not necessarily in relationship. If i crash into my son's car, whilst there is relationship, it is not relevant to my liability which is based on time and space. relationship only becomes relevant when it makes the loss foreseeable to a person in the defendant's position.- Bournhill v Young(1943) - preg. lady heard a car crash and went to see it. she suffered a shock and claimed that the shock caused her to miscarry her baby. the defendant was found not to owe the claimant a duty of care as she was in a safe place and had not seen the accident but went to see the aftermath voluntarily- in proximity terms, there was no proximity in space as she was away from the accident even though she was nearby at the time.
- The result would have been different if she had been related to the victim as in the case of McLoughin v O'Brien(1983)- Mrs. McLoughin was told of a serious acccident involving her husband and children. she wasn't near the accident when it occured- she went to the hospital- discovered that one of children had died and other was seriously ill and her husband was still alive had not been cleaned up or sedated and was very distressed and was in great pain- she suffered shock and the court had decided that the person who caused the accident owed a duty of care to her even though there was no proximity in time and space. the proximity of relationship was the deciding factor in establishing the duty of care in this case.
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Duty of Care...
3rd part- reasonableness- whether its fair, just and reasonable to impose a duty of care, is really a matter of public policy.
- It is not fair, just and reasonable to impose a duty of care when: situation covered by statues, there is professional immunity, sometimes for public authorities e.g police and rescue service.
- e.g - Hill v Chief Constable of West Yorkshire - yorkshire ripper's last victim's mother claimed police should have caught him before daughter killed= not fair just or reasonable to impose a duty of care on police to identified and apprehend a unknown criminal
- however, the police do owe a duty of care in some circumstances. - MPC v Reeves (2001)- police took man in custody who was known to be at risk of commiting suicide. whilst in police custody he hanged himself in the cell. the court found that the police owed him a duty of care.
- Capital v Hampshire County Council - Fire brigade made mistake and led to more serious damage+ it was fair just and reasonable to impose a duty of care as brigade's own negligence created danger.
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Breach of Duty
- Once it has estabilshed that a duty of care exists, breach of duty has must be proved.
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