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GDL Law Notes GDL Tort Law Notes

Negligence And The Test For A Duty Of Care Notes

Updated Negligence And The Test For A Duty Of Care Notes

GDL Tort Law Notes

GDL Tort Law

Approximately 591 pages

A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from top students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of GDL notes available in the UK this year. This collection of GDL notes is fully updated for recent exams, also making them the most up-to-date GDL study materials ...

The following is a more accessible plain text extract of the PDF sample above, taken from our GDL Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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 care

  • Cannot 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 limited situations

  • 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 am directing my mind to the acts or omissions which are called in question’

  • Test of foreseeability = OBJECTIVE – not whether the defendant actually foresaw

    • Ginger beer manufacturers didn’t have to foresee Mrs D would have drunk their product, just that anyone might

    • Sowed seeds for general test for establishing a duty of care – became widely accepted and applied

  • Home 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 Reid said that Lord Atkin’s well-known speech ‘should be regarded as a statement of principle’

  1. Expansion and the two-stage test

  • in Anns v London Borough of Merton: local authority’s liability for the negligent inspection of building works

  • Lord Wilberforce:

    • 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 (if society 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 policy should limit it

  • Peak of expansion – Junior Books v Veitchi

  1. 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 established categories’

  • Picked up in other cases:

    • Governors of the Peabody Donation Fund v Sir Linday Parkinson & Co and others

  1. The incremental Approach or the Three Stage Test

  • 2 cases - Caparo Industries plc v Dickman (1990) and Murphy v Brentwood (1991)

    • 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 overruled

  • Watson v British Boxing Board of Control:boxer’s claim that immediate medical attention should have been available at the ringside was upheld – injury was foreseeable, the boxing licensing system meant there was close proximity, and it was 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 as required under the professional code of conduct

  • Whilst appearing to present a more –pre-Anns approach – next 2 cases have found scope for further development:

    • Spring v Guardian Assurance plc & Others :illustrated difficulties in formulating a common approach to determining existence of DOC – identified 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

  • Lawyers

  • Previously had immunity Rondel v Worsely

  • But landmark decision – Hall v Simmons:

    • Unanimously decided that immunity no longer stood for civil case OR criminal cases

  • The Police

  • Liable 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 act

  • But 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

    • Confirmed recently in appeal concerning the friend of the murdered Stephen Lawrence – Duwayne Brooks v Commissioner of Police for the Metropolis

  • Alexandrou v Oxford – plaintiff’s actions failed – local police owed no DOC to check his property or respond to message from burglar alarm

  • Leach v Chief Constable of Gloucester – plaintiff was lay witness and suffered post-traumatic stress – no DOC – would impose too onerous burden on police to psychologically test every potential person for position


  • Swinney v Chief Constable of Northumbria (no. 2):pub landlady had provided info on the basis that she has anonymity, but police file was left unattended and stolen – she then suffered psychological illness when...

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