- Created by: Natwallace
- Created on: 12-11-19 14:13
Duty of Care
- Most duties of care already exist in law like those between road users between teachers and pupils, and doctors and patients.
- Donoghue v Stevenson - created the neigbour principle:
- Your neighbour is anyone so closely and directly affected by your actions that you ought reasonbly to have them in your contemplation.
- You must take reaosnble care to avoid cats or omissions you can reasonbly forsee are likely to injure your neigbour.
- Caparo v Dickaman - only used when a novel situation occurs to test whether there is a duty of care owed as per Robinsion v Chief Constable of West Yorkshire:
- The damage must be reasonbly forseeable Kent v Gritths
- There must be a relationship of proximity bewteen the between the parties. Not in Bourhill v Young but worked McLoughlin v O'Brien.
- It must be fiar just and reasonble to impose a duty of care, Courts reluctant to impose duty on Police as per Hill v Chief Constable of West Yorkshire
- If the relationship is not stated in law already and there are no similar cases then the Caparo test is used. The first question is objective, the second relates to time, space and relationship and the last one is a policy test which restricts imposition of duty where it will lead to a burden on public services or open the floodgates.
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Breach of Duty
- An objective case for this comes from Blyth v Birmingham Water Works: 'omitting to do something a reasonable man would do or doing something a reasonable man would not do'.
- A professional will be judged by the standards of a reasonable professional in that field, Bolam, Montgomery v Lanarkshire.
- Trainees will be judged by the standard of a professional like for example a learner driver being judged as a reasonable driver, Nettleship v Weston
- A child will be judged by the standards of a reasonable child, Mullins v Richards
- The court will also examine other factors:
- Degree of risk involved - the greater the risk the more precautions necessary to of acted reasonably - Bolton v Stone
- Cost of precautions - court does not expect cost to outweigh the risk involved - Latimer v AEC
- Potential Seriousness of Injury - the more serious the potential injury the greater the level of care required to be deemed reasonable - Paris v Stepney Borough Council, Bolton v Stone Haley v London Electricity Board,
- Importance of Activity - some risk is important if it is socially important - Watt v Hertfordshire County Council, Day v High Performace Sports
- The risk must be known - Roe v Minister of Helath
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- Factual Causation must first be proved if it can be then legal causation is not necessary. The 'but for' test from Barnett v Chelsea and Kensington hospital is used to determine legal causation.
- Intervening events can break the chain of causation, if there is Novus Actus Interveniens then the chain is broken, the princip0le applied is whether the injury or damage was a reasonbly foreseeable consequence of the original negligent act or omission.
- The damage must not be too remote as per Wagon Mound No2, the rule from this is that the injury or damage must be reasonably foreseeable this is also the test of legal causation. The exact chain of events does not have to be foreseeable as per Hughes v Lord Advocate and Bradford v Robinson Rentals, the court may not be reasonbly foreseeable as in Doughty v Turner Asbestos.
- Take your victim as you find him - Smith v Leech Brain, D must take Claimant as they find them with pre-existing medical conditions
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Liability for Pure Economic Loss
- Generally, any money damages rewarded to a claimant has to relate to physical injuries or damage to property as a result of negligence, pure economic loss is not rewarded anything as in Spartan Steel and Alloys Ltd v Martin.
- However, there are scenarios where pure economic loss can be claimed for, this requires it to be caused by negligent misstatement, Hedley v Byrne and Co. Ltd v Heller and Partners Ltd.
- As per Hedley a person owes a duty of care to a claimant in the making of a statement if a 'special relationship' exists between the two parties:
- the D has a special skill relating to the statement
- knows that it is highly likely the D will act on their statement which leads to
- the D relying on it and suffering financial loss
- it was reasonable for the D to rely upon the advice.
- Once this 'special relationship' is said to exist then the typical rules for negligence set in, these being breach and damage.
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Liability for Psychiatric Injury
- Must cause a long-term, diagnosed mental injury which is greater shock of grief, they must suffer from a diagnosed psychiatric injury, Behrens and Ors v Bertram Mills Circus Ltd.
- Grief, fear, panic and terror are not sufficient enough: Hinz v Berry and Hicks v Chief Constable of South Yorkshire.
- The court will take a different approach depending on whether they are a Primary or Secondary victim
- If they are a primary vic9itm there is an objective test, this is: was the physical harm foreseeable, there is no need to prove psychiatric injury was foreseeable provided the personal injury was, Page v Smith, McFarlane v E.E. Caledonia.
- If they are a secondary victim, they must fulfil the Alcock test:
- have a close tie of love and affection with a primary victim, usually parent child, siblings, spouses etc.
- witness the event with their own unaided senses, radio and tv broadcasts do not count
- proximate to the event or the immediate aftermath, Lord Wilberforce from O'Brian ' sight or hearing of the event or of its immediate aftermath'
- receive the psychiatric injury as a result of the event, this excludes injury sustained over time due to caring for primary victim. 'Sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind' - Lord Ackener in Alcock v Constable of South Yorkshire
- Aid workers do not count and cannot claim
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- Partial defense
- Revill v Newberry
- Section 1(1) of the Law Reform Act 1945 where a person suffers damage as a result partly his own fault and partly the fault of another, a claim shall not be defeated by reason of the fault of the person suffering damage.
- The burden of proof is on the D, they must prove:
- 1. The C must have failed to take proper care in the circumstances for their own safety, this is not the same as 'breach of duty'. All factors are considered by the court in cases like age Gough v Thorns.
- 2. The failure to take care was a contributory cause of the damage suffered. This includes:
- Failure to wear a seatbelt - Froom v Butcher
- Failure to wear a motorbike helmet - O'Connell v Jackson
- Failure to fasten a helmet on a motorcycle - Capps v Miller
- Exposing oneself to danger by incorrectly using a vehicle - Davies v Swan Motor Co. and Jones v Livox Quarries
- Suicide - Reeves v Commissioner of Police of the Metropolis
- Failure to follow safety instructions - Stapley Gypsum Mines
- There is an overlap with consent but courts are less likely to find consent as it is a full defense
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Res Ipsa Loquitur
- The burden of proving the negligence is on the claimant, on the balance of probabilities.
- In some situations, it is difficult for the claimant to know exactly what happened even though it seems obvious that the defendant must have been negligent.
- An example of this is when instruments are left inside patients after surgery, they do not know exactly how the duty was breached but it is obvious that it was at some point.
- When this happens Res Ipsa Loquitur is used, it translates to 'the thing speaks for itself'
- The claimant must show:
- The defendant was in control of the situation which caused the injury
- The accident would not have occurred unless someone was negligent and
- there is no other explanation for the injury
- If this is proved then the burden of proof is on the defendant to prove that they were not negligent.
- An example of this is in Scott v London and St Katherine Docks.
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