- Created by: erw16
- Created on: 15-12-18 20:24
In order for a defendant to be liable for negligence the defendant must first owe a duty of care to the claimant. The neighbour principle established by Lord Atkin in Donoghue v Stevenson. You owed a person a duty of care if they were 'so closely and so directly affected by your acts or omissions.' This has since been modfied into a three part test, known as the Caparo taste taken from the case of Caparo v Dickman.
The first strand is was the damage reasonably foreseable? Foresight of the consequence is necessary. If the ordinary reasonable man could not forsee the damage to the defendant, then a duty of care is not owed. This is an objective test. As set out in Bourhill v Young.
The second strand is was there sufficient proximity between the claimant and the defendant? Proximity requires there to be a legal connection between the claimant and the defendant. This link can be either physical as in Donoghue v Stevenson or a relationship McLoughlin v O'Brian. Proximity is distance in time or space as in Hill v Chief constable of West Yorkshire.
The third and final strand of the Capro test is is it just and fair to impose a duty of care? This allows judges to make policy decisions in cases where they do not think it would be fair to impose a duty of care as in Mulcahy v Ministry of Defence or in Alcock v Chief Constable of South Yorkshire Police. Policy decisions are often made to control 'floodgates'. As in Griffiths v Lindsay.
Secondly the defendant must breach their duty of care. This is the fault element of negligence. The defendant must have been careless and done an act or omission that fell below the standard of care…