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Negligence And The Test For A Duty Of Care Notes

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NEGLIGENCE AND THE TEST FOR DUTY OF CARE Winfield - 'the breach of a legal duty to take care which results in damage, undesired by the defendant, to the claimant' Elements required for negligence:

1. The existence of a duty of care owed by the defendant to the claimant

2. Breach of that duty by the defendant

3. That the claimant suffers some damage Must also ask:

1. Whether the breach caused the damage (causation)

2. Whether the damage suffered was reasonably foreseeable (Remoteness) The existence of a duty of careCannot be liable unless the law requires them to be careful in the first place

The Search for a Universal Test:

1. The Neighbour Test Not until 1932 that an acceptable general statement of principle was formulated Donoghue v Stevenson:Sued the manufacturer - before this manufacturers only liable to consumers in limitedsituations Lord Atkin's speech - developed the 'neighbour' principle:

'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour'Who counts as neighbour - 'persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I amdirecting my mind to the acts or omissions which are called in question' Test of foreseeability = OBJECTIVE - not whether the defendant actually foresaw o Ginger beer manufacturers didn't have to foresee Mrs D would have drunk their o

product, just that anyone might Sowed seeds for general test for establishing a duty of care - became widely accepted and appliedHome Office v Dorset Yacht Co: Home Office's liability for the carelessness of prison officers who allowed juvenile delinquents to escape and cause damage to boats and property in Poole Harbour - found that the Home Office did owe a duty of care - Lord

1 NEGLIGENCE AND THE TEST FOR DUTY OF CARE Reid said that Lord Atkin's well-known speech 'should be regarded as a statement of principle'

2. Expansion and the two-stage test
- in Anns v London Borough of Merton: local authority's liability for the negligentinspection of building works Lord Wilberforce: o asked firstly if the parties satisfied requirements of the neighbour test, and if yes, if there were any policy considerations which dictated no duty existed (ifsociety benefited as a whole) Led to period of massive expansion of liability - test generally favoured claimants because could establish first that a duty arose, and only then consider whether policyshould limit it Peak of expansion - Junior Books v Veitchi

3. A period of contraction
- Reservation with Anns approach voiced by Australian judge Brennan J in Sutherland Shire Council v Heyman - 'it is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with establishedcategories' Picked up in other cases: o Governors of the Peabody Donation Fund v Sir Linday Parkinson & Co and others

4. The incremental Approach or the Three Stage Test
- 2 cases - Caparo Industries plc v Dickman (1990) and Murphy v Brentwood (1991) o Recent authority - Sutradhar v Natural Environment Research Council In Caparo:Acknowledgement that the Anns test was obsolete - criticised expansion of liability Need for cautious, incremental approach based on existing authority: need to examine the facts on an incremental approach rather than using a 'set test'

But now known as the three stage test to establish duty of care: 1) Foreseeability 2) Proximity 3) Whether it is fair, just and reasonable to recognise a duty in the circumstances Murphy v Brentwood - decision in Anns finally overruledWatson v British Boxing Board of Control:boxer's claim that immediate medical attention should have been available at the ringside was upheld - injury was 2

NEGLIGENCE AND THE TEST FOR DUTY OF CARE foreseeable, the boxing licensing system meant there was close proximity, and itwas fair, just and reasonable to impose a duty Law Society v KPMG Peat Marwick: CA stated that a firm of authors did owe a duty of care to the Law Society to prepare accurate reports for a solicitors practice asrequired under the professional code of conduct Whilst appearing to present a more -pre-Anns approach - next 2 cases have found scope for further development: o Spring v Guardian Assurance plc & Others :illustrated difficulties in formulating a common approach to determining existence of DOC - identified o

DOC to give careful job references about the plaintiff White v Jones - did a solicitor owe DOC to the proposed beneficiary of a will - it WAS found to exist - claimed they had used the incremental approach but also stressed need to find practical justice

Restricted Duty Situations

? LawyersPreviously had immunity - Rondel v Worsely But landmark decision - Hall v Simmons: o Unanimously decided that immunity no longer stood for civil case OR criminal cases

? The PoliceLiable for operational but NOT policy:Rigby v Chief Constable of Northhamptonshire: police had negligently fired a canister of CS gas into the plaintiff's shop which was under siege - didn't take precautions - negligent operational actBut in Hill v Chief Constable of West Yorkshire - mother of the last victim of Sutcliffe - sued police for negligently failing to capture the Yorkshire Ripper - HofL refused to impose a DOC: policy issue o Confirmed recently in appeal concerning the friend of the murdered Stephen Lawrence - Duwayne Brooks v Commissioner of Police for the MetropolisAlexandrou v Oxford - plaintiff's actions failed - local police owed no DOC to checkhis property or respond to message from burglar alarm Leach v Chief Constable of Gloucester - plaintiff was lay witness and suffered posttraumatic stress - no DOC - would impose too onerous burden on police to psychologically test every potential person for position



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