Negligence - Duty of Care

Establishing Duty of Care...

The Old Tests

Donoghue v Stevenson - Neighbour Principle

•  you must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour.                        
• neighbour is someone who is so closely and directly affected by your acts that you ought reasonably to have them within your mind whilst doing such acts.

Anns v Merton - Proximity and Policy

1) there should be sufficient proximity between c and d        

2) there are no policy reasons why there shouldn't be liability

Establishing Duty of Care...

The Modern Test

Caparo v Dickman

1) Where the consequences of d's actions reasonably forseeable?

2) Is there sufficient relationship of proximity between c and d?

3) Is it fair, just and reasonable to impose a duty of carE?

Murphy v Brentwood Council

HL overruled Anns Test, preferring Caparo v Dickman

Reasonable

Forseeability

Gunn v Wallsend Slipway

no DofC to a woman with lung disease from inhaling asbestos dust of husband's overalls as at the time risk was unforseeable

Margereson v JW Roberts

The danger of children playing neart an asbestos factory inhaling dust and contracting lung disease was said to be forseeable even in 1933.

Gunn decision due to policy reasons - don't want to open floodgates?

Proximity

Hill v Chief Constable of West Yorkshire

there was insufficient proximity between police and members of public for a duty to be imposed for specific crimes, so relatives of last Yorkshire Ripper victim were unable to claim against police for ineffective handling of the case.

Reeves v Commissioner of Met Police

there was sufficient proximity between police and prisoner who was a known suicide risk when the prisoner committed suicide whilst in police custody as this was the risk they should have been guarding against.

Fair, Just and

Reasonable

Ephraim v Newham Council

court felt it would be unfair to impose duty of council to ensure existence of fire escapes in private landlord accommodation when c was injured in a fire in a flat with no fire escape

Policy

Factors

Loss allocation - judges more likely to impose liability on parties that can withstand the loss

Floodgates - judges reluctant to impose liability where to do so might encourage large numbers of claims on the same issue

Practical considerations - the courts may be willing to impose liability so people e.g. companies can plan for future

Protection of Professionals - professionals should not be prevented for working effectively

Moral considerations - judges will be reluctant to impose liabilty in unethical situations