- Created by: Chloe
- Created on: 09-06-10 16:23
Duty of care
The idea of duty of care, in the tort of negligence, has developed through judges making decisions in cases.
Duty of care was first established with the case of Donoghue V Stevenson 1932.
Ms Donoghue went to a cafe, with her friend, who brought her a drink of ginger beer. When she reached the end of the drink, she saw it contained a decomposing snail.Because of the impurities in drink, she got ill. She wanted to claim for her illness, but couldn't as she herself had not brought the drink. So she sued the manufacturer,claiming they owed her a duty of care.
In Caparo v Dickman 1990, the neighbour test, was replaced, by the 3 part test:
- was damage and harm reasonably foreseeable ? Bourhill V Young.
- Is there a sufficient proximate relationship between claimant ans defendant? Hill V C.C.W. Yorkshire Police.
- Is it fair, and reasonable to impose duty? Capital plc v hampshire county council.
Breach of duty
Where under the 3 caparo tests, there is a duty of care, the claimant still has to prove that that duty of care has been broken.
Degree of risk
It is important that risk is foreseeable. If the risk of harm is not known there is no breach. Another way of looking at it is whether there is fault on the defendants part. Where a risk is small it sis unlikely to have a duty of care. However where it is known there is a risk and no steps are taken to guard against that risk, there is likely to be a breach of care. Hayley v london electricity board 1965.
Standard of care
If defendant, falls below the standard of care which a prudent and reasonable man would take, then there is a breach of duty. Where the consequences of harm to a particular person are greater than for other people. they are owed a higher standard of care.
Even where the claimant, has proved that the defendant owed him a duty of care, and that the defendant has broken that duty, the claimant must still prove that the damage, suffered was caused by the breach.
Barnett v Chelsea and Kensingtion Hospitals.
Remoteness of damage
The damage must not be too remote from the negligence of the defendant. The rule comes from aussie case, The wagon mount 1961.
What must be proved for negligence:
Duty of care + Breach of duty + damage caused = liable for negligence.
Thin Skull Rule
Means defendant must take his victim as found. So if the type of damage is reasonably foreseeable, but is more serious because of something unusual about claimant, such as a thin skull. E.g. Smith v Leech Brain and Co 1962.
Starting a court case
Most injured will not want to go to court. They will try negotiate for a, settlement.
Most use ADR= NEGOTIATION, MEDIATION, CONCILIATION, ARBITRATION.
Which court to use?
Personal injury, claim up to £50,000 = COUNTY COURT.
Personal injury, claim over £50,000= HIGH COURT or COUNTY COURT.
Damage to property, claim up to £15,000= COUNTY COURT.
Damage to property, claim over £15,000= HIGH COURT or COUNTY COUNTY.
Issuing a claim
If using the county court, you can chose to issue claim in any county court in the country. If using a high court, you can go to one of the district registries or the main court in london. You will need a claim form called an N1. Once filled in you take it to the court office.
The Three Tracks
1. SMALL CLAIMS TRACK.
Normally used for disputes under £5000, for personal injury the limit is usually £1000. Small claims usually heard in private, but can be heard in usual court.
2. THE FAST TRACK.
This is used, for straightforward disputes of £5000 to £15000. Fast track means that the court will set down a very strict timetable for the pre-trial matters. This is aimed at preventing wasting time and running up costs.
This is for cases, over £15000, or for complex cases. Case will be heard by a district judge who is expected to manage the case.
Res ipsa Ioquitur
in some cases, negligence is difficult, for the claimant to know exactly what happened, even though it seems obvious, that the defendant must have been negligent.
Res ipsa Ioquitur, the claimant has to show:
- the defendant, was in control of the situation. that caused the injury
- The injury was more likely than not to have been caused by negligence.
If claimant can show these, then the burden of proof, moves to the defendant, who has to prove he was not, negligent.
E.g. was used in Scott v London and St Katherine Docks 1865.
Pecuniary and Non- Pecuniary
Pecuniary. This is loss that has an easily, calculated value, in money terms, E.g. the cost of replacing or repairing damaged goods. The court could award, special damages, compensation for exact value of loss.
Non-pecuniary. This is loss that can not easily be put in money value. E.g. pain or disability. The court court award, general damages, an amount to compensate for pain, suffering loss of amenity.