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Flashcards in Negligence - Duty of Care Deck (47)
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1

What has the requirement of a Duty of Care been described as?

Duty of care effectively acts a gateway to recovering damages in negligence – if C can’t pass through it, their action will fail from the outset. If D owes C no duty of care in respect of the kind of loss suffered, then D will incur no liability regardless of how carelessly he acted and how much loss he caused to the claimant.

2

What issues have the courts had regarding the pre-requisite of a duty of care?

The courts have had great difficulty in setting down any single test which will determine when a duty of care is owed to the claimant.

3

What were the two early tests conceived for establishing a duty of care (discussed in the introduction cards)?

Donoghue v Stevenson – the neighbour principle - take reasonable care to avoid harming others whom it is reasonably foreseeably would be directly affected by your actions
Anns v Merton LBC – a duty of care will arise wherever it is reasonably foreseeable that others may be harmed by your carelessness, unless there are policy reasons for denying or restricting such a duty

4

Which case rejected both of these early conceptions/tests for a duty of care?

Caparo v Dickman

5

What were the details of the Caparo Case?

The claimants bought shares in F plc in reliance on an audit into the company’s finances carried out by the defendant. In fact the accounts published by the defendant were inaccurate and the claimants sued in negligence.

6

What was the finding in the Caparo Case?

It was held that no duty of care was owed, so the claim failed.

7

How did Lord Bridge signal rejection of the Donoghue and Anns tests for a duty of care?

He said, in Caparo - “[S]ince the Anns case a series of decisions … have emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope.”

8

How did Lord Bridge, in Caparo, suggest that the previous (Donoghue and Anns) tests for a duty of care were too narrow and thus insufficient/inappropriate?

He said - 'in addition to the foreseeability of damage, ... there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty'.

9

How did Lord Bridge recognise a shift in the values/reasoning of the law?

He said - 'I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes.'

10

To whose words did Lord Bridge crucially refer in discussing the implications of Caparo?

Brennan J - saying - 'We must now, I think, recognise the wisdom of the words of Brennan J. in the High Court of Australia in Sutherland Shire Council v. Heyman'.

11

To which words of Brennan J was Lord Bridge referring?

Brennan J said, in the case of Sutherland Shire Council v Heyman - ‘It is preferable ... that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable “considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.’”

12

What test did Caparo lay down for establishing the existence of a duty of care?

Caparo is typically read as setting down a tripartite test for the establishment of a duty of care;
1. Was it reasonably foreseeable that a failure to take care could cause damage to the claimant? (e.g. Palsgraf v Long Island Railroad Co)
2. Was there a relationship of proximity between the claimant and the defendant?
3. Is it fair, just and reasonable that the law should recognise a duty on the defendant to take reasonable care not to cause that damage to the claimant?

13

What is the significance of the three stages laid down in Caparo?

The first two considerations are arguably given more concrete or explicit recognition in the previous Donoghue and Anns tests - even the third point is eluded to somewhat in Anns - the ‘fair, just and reasonable’ criterion recognises that the imposition of a duty of care is an issue of policy and that any extension of tortious liability will occur on an incremental basis.

14

What are the practical implications of the notion that the 'fair, just and reasonable criterion' is an issue of policy to be approached incrementally?

This appears to mean that a court should recognise a duty of care as arising on a given set of facts only where it can find some previous decision where a duty of care has been recognised in an analogous situation. In such circumstances it may be justified to extend the duty of care incrementally to the new situation.

15

What are the problems with the Caparo test?

1. The three-stage ‘test’ doesn’t seem to do what we want a legal test to do
2. The ‘incremental and by analogy’ approach is retrogressive – suggesting a return to the law as it was pre-Donoghue – and, importantly, it is unjust.

16

How has the Caparo test been criticised for being imprecise or overly vague?

Lord Roskill, in Caparo, said - 'Phrases such as ‘foreseeability’, ‘proximity’, ‘neighbourhood’, ‘just and reasonable’, ‘fairness’ … will be found used from time to time in the different cases. But … such phrases are not precise definitions. At best they are but labels or phrases descriptive of the very different factual situations which can exist in particular cases and which must be carefully examined in each case before it can be pragmatically determined whether a duty of care exists'

17

How has the Caparo test been criticised for an overlap of the supposedly 3 separate parts/components?

Lord Oliver, in Caparo, said - 'it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court’s view that it would not be fair and reasonable to hold the defendant responsible'.

18

Does the three-stage Caparo test apply to all claims in negligence?

No - such a position was observed by Lord Reed in the case of Robinson v Chief Constable of West Yorkshire.

19

How was the inapplicability of Caparo to all situations reinforced?

Lord Toulson JSC observed, in Michael v Chief Constable of South Wales Police, that the whole point of Caparo was to repudiate idea that there was a single test to determine whether a duty of care exists.

20

What were the details of the Robinson Case?

The claimant was a relatively frail woman of 76. She was walking down a busy shopping street when she was knocked over by two police officers attempting to arrest a suspected drug dealer. They all fell to the ground, with the claimant underneath. Did the police officers owe a duty of care to the claimant?

21

What was the finding of the Robinson Case?

The Supreme Court held that since there was a reasonably foreseeable risk of injury if the arrest was attempted, when pedestrians ... were close to the suspect and might be knocked into and injured in the course of his attempting to escape, the police officers owed a duty of care towards pedestrians, including the claimant, in the immediate vicinity when the arrest was attempted.

22

How does the finding in the Robinson Case illustrate that the Caparo test is not applied/applicable in all instances of negligence?

It was said that the Robinson case did not depend on Caparo, but on the application of existing principles of the law of negligence. Indeed, in the Robinson case it was found that reasonably foreseeable risk of injury was (alone) sufficient to impose a duty of care - consideration was not given to all three facets of the Caparo test.

23

What else was established in the Robinson case, by Lord Reed?

It was also established that - In the absence of a ‘general principle’ or ‘universal touchstone’ for imposition of duty of care, common law has taken established categories of situations where a duty of care is recognised.

24

What examples are there of established categories in which a duty of care will be recognised?

1. By motorists to other road users
2. By manufacturers to consumers
3. By employers to their employees
4. By doctors to patients

25

Which case demonstrated the practical application of the notion of 'established categories' for the recognition of a duty of care, laid down in Robinson?

Darnley v Croydon Health Services NHS Trust

26

What were the details of the Darnley Case?

1. The claimant suffered a head injury after being struck on the head by an unknown assailant. 2. He went to an ‘A & E’ department, managed by the defendant NHS Trust.
3. The receptionist told the claimant that he would have to go and sit down and wait up to 4-5 hours before he was examined.
4. He decided to leave after 19 mins as he felt unwell and went home.
5. He was subsequently taken back by ambulance to the A & E department, where a CT scan identified a large extra extra-dural haematoma.
6. He was transferred to neurosurgeons in another hospital and underwent an operation for evacuation of the haematoma.
7. He suffered permanent brain damage and hemiplegia (paralysis of one side).

27

What was the finding in the Darnley Case and how does this recognise the aforementioned 'established categories' reasoning?

The Supreme Court held that the case did not concern the imposition of duty of care in a novel situation as it fell within the established category of a duty of care owed by those who provide and run casualty to take reasonable care not to cause physical injury to a patient. This duty to take reasonable care extends to a duty to take reasonable care not to provide misleading information that may foreseeably cause physical injury.

28

What is the relationship between the Caparo test and the established categories approach?

It was said that the Caparo test ‘does not require a re-evaluation of whether these criteria are satisfied on every occasion on which an established category of duty is applied’.

29

How did Lord Reed, in the Robinson Case, reinforce the position regarding the relationship between Caparo and the established categories?

Lord Reed said in the case of Robinson - 'Where the existence of a duty of care has been established, justice and reasonableness has already been taken account in arriving at the relevant principles'.

30

What did Lord's Reed and Mance say, in the case of Robinson, regarding the applicability of the Caparo test?

Lord Reed said, in Robison, that - outside any established category (i.e. novel cases) the law will proceed incrementally and by analogy with established authorities. Lord Mance, in Robinson, said that -(in novel cases) all 3 stages of Caparo test will be material.