Duty of Care in Negligence
- Created by: cephillips
- Created on: 10-05-14 10:44
View mindmap
- Duty of Care: Negligence in Tort
- Three Requirements
- 1. D owes a duty of care
- 2. D breached his duty of care
- 3. Because of that breach, C suffered actionable damage
- Does D owe a Duty of Care?
- Caparo v Dickman [1990] 2 AC 605
- Three Stage Test: "Caparo Tripartite Test"
- 1. "Would the reasonable man foresee the harm to that particular claimant?
- 2. Proximity of relationship: "a reasonable area for the imposition of liability" Lord Oliver in Alcock
- The type and seriousness of harm affects the area of liability. As does the relationship between D + C and the scope of the DoC
- 3. Is it "Fair, Just and Reasonable" to impose liability? - Policy long stop
- Three Stage Test: "Caparo Tripartite Test"
- Three Stage Test: "Caparo Tripartite Test"
- 1. "Would the reasonable man foresee the harm to that particular claimant?
- 2. Proximity of relationship: "a reasonable area for the imposition of liability" Lord Oliver in Alcock
- The type and seriousness of harm affects the area of liability. As does the relationship between D + C and the scope of the DoC
- 3. Is it "Fair, Just and Reasonable" to impose liability? - Policy long stop
- Caparo v Dickman [1990] 2 AC 605
- Policy Considerations
- Misfeasance or Nonfeasance?
- Nonfeasance - Pure Omissions
- Lord Goff in Smith v Littlewoods [1987] - "Common Law does not impose liablilty for Pure Ommissions"
- No Duty to rescue - The Ogopogo [1971] - A relationship of prior care must exist for there to be a duty to rescue
- No general duty to prevent others from causing harm - Lamb v Camden LBC
- 4 Situations where Liability can be imposed for the actions of a TP
- 1. SR between D + C Stansbie v Thomas [1948]
- 2. SR between D + TP Home Office v Dorset Yacht [1970
- 3. Creating a Source of Danger sparked by TP - Haynes v Harwood [1935]
- 4. Failure to take reasonable steps to abate a danger created by TP on D's premises. Clark Fixing Ltd v Dudley MBC [2001]
- 4 Situations where Liability can be imposed for the actions of a TP
- Nonfeasance - Pure Omissions
- The Type of Defendant
- Local Authorities
- Objections to Imposing Authority
- 1. Defensive Practices
- 2. Expensive to Public
- 3. Waste of LA time
- 4. Distorts statutory protection
- Just because an LA can do something doesn't mean it has a duty too - Stovin v Wise [1996]
- Established Liability Scenarios:
- 2. Health: Stovin v Wise [1996]
- 1. Education: Phelps v Hilingdon LBC [2001]
- 3. Where the LA has created the danger: Kane v New Forest LBC [2002]
- Objections to Imposing Authority
- Police
- Liable for "operational negligence" which is damage caused by negligent performance of day to day activites
- Rigby v CC of Northamptonshire Pollice - CS gas caused fire
- Not liable for errors made in the course of fulfilling general duties of investigating and preventing crime
- Hill v CC of West Yorkshire [1988] and the Van Colle and Smith Cases [2008] (Osman Threshold)
- Liable for "operational negligence" which is damage caused by negligent performance of day to day activites
- Fire Service are not liable as long as they don't make the situation worse and their attendance does not fulfill proximity
- Capitol and Counties PLC v Hampshire CC [1997]
- Same for Coastguard - OLL v ** of Home Dep [1997]
- Ambulances are health and not a rescue service - Kent v Griffith [2000]
- Armed forces owe no duty of care in battle conditions but do in down time - Mulachy [1996] /Jebson [2000]
- Advisory bodies (as they are volunteers) get the relaxed Hill Criteria - Marc Rich & Co [1996]
- Judges cannot be sued (Sirros v Moore [1996] but Lawyers can Hall v Simons [2002]
- Local Authorities
- Misfeasance or Nonfeasance?
- Three Requirements
- Local Authorities
- Objections to Imposing Authority
- 1. Defensive Practices
- 2. Expensive to Public
- 3. Waste of LA time
- 4. Distorts statutory protection
- Just because an LA can do something doesn't mean it has a duty too - Stovin v Wise [1996]
- Established Liability Scenarios:
- 2. Health: Stovin v Wise [1996]
- 1. Education: Phelps v Hilingdon LBC [2001]
- 3. Where the LA has created the danger: Kane v New Forest LBC [2002]
- Objections to Imposing Authority
Comments
No comments have yet been made