Duty of Care and Breach of Duty

TORT LAW

Legal wrong = infringement of C’s right OR breach of D’s legal duty.

Tort law gives people rights free of charge and without having to make special arrangements for them (whereas in contract law rights exist only once voluntarily arranged between parties).

Such rights usually take this form: A has the right that B do X. Only the victim of a tort is entitled to seek a remedy (the person whose right was breached) – that is the person who has the right.

• Private wrong = breach of a legal duty imposed on someone for the benefit of a specific individual.

• Public wrong = breach of a legal duty imposed on someone for the benefit of society as a whole.

Loss-compensation model of tort law = A causes B a loss B is entitled to sue A for compensation for that loss. We reject this model as it

1. ignores non-compensatory remedies,

2. ignores actionable torts where no loss is caused and

3. implies that where loss is caused there is a tort (implying a wrong has been committed, yet some losses can be caused without a wrong occurring).

Residual wrongs model of tort law = tort law comprises all the civil wrongs which fall outside other areas of law. If this is true, tort law has no ‘function’ or underlying feature. However, the underlying feature of tort law is that torts are wrong to a consensus – they require each of us to look out for others’ interests.

Tort law is very willing to give us rights that others do not make us worse off, but is reluctant to give us rights that someone do something to make us better off – this is the realm of contract law, except where D “assumes a responsibility” for C.

Parliament can also create statutory torts, and legislation may specify how breaches of such torts should be remedied, e.g. HRA says a “just and appropriate” remedy, whereas CL is usually purely compensatory. Statutes can also modify or extend tort rights and remedies, as well as prevent the ‘contracting out’ of tort law (e.g. s65 Consumer Rights Act 2015).

A tortfeasor may have liability insurance, where the insurer will cover the cost of damages if the tortfeasor is found liable. It is mainly employers and insurers who pay the damages in tort claims, but really the general public pays the cost through higher prices for goods and services, and more expensive insurance premiums cost of tort claims is ‘spread’ throughout the population. Tort law may give people more protection and control over their own lives, but people will often go overboard in ensuring they will not be sued (resulting in decreased efficiency) and the need for liability insurance gives insurers a lot of power over their clients, dictating what they can and cannot do.

THE TORT OF NEGLIGENCE

A claim in negligence requires C to show that:

1. D owed C a duty of care

2. D breached that duty of care

3. The breach caused C to suffer some kind of loss

4. That loss is actionable.

Most authorities and textbooks break down point (c) into causation and remoteness, stating that a claim in negligence requires C to show that:

1. D owed C a duty of care

2. D breached that duty of care

3. The breach caused C to suffer…

4. Non-remote…

5. Actionable damage.

A. DUTY OF CARE

A duty of care (DoC) may be a positive or negative duty (requiring D to act or not act in a particular way, respectively). There is debate over whether policy concerns should affect whether a DoC exists. McBride and Bagshaw say a DoC should only exist where there are non-policy reasons indicating that a duty should exist AND it is not contrary to the public interest.

There have been multiple tests for DoC over the years:

• Heaven v Pender (1883) – Brett MR

  • Reasonable foreseeability of harm gives rise to a DoC

• Donoghue v Stevenson (1932) – Lord Atkin = SEMINAL CASE

  • Lord Atkin’s ‘neighbour principle’ = reasonable foreseeability of harm to persons who are “so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected [by my conduct]”.

    • Lord Thankerton agreed entirely with Lord Atkin’s judgment.

  • CONTRAST with Lord Macmillan:

    • Said that a DoC existed because the manufacturer “had directly in contemplation” that his ginger beer would be consumed by members of the public, meaning this possibility of injury was not too remote so as to excuse him from foreseeing it.

    • Lord Macmillan seemed to spend a long time focusing on ‘remoteness’. “It must always be a question of circumstances whether the carelessness amounts to negligence, and whether the injury is not too remote from the carelessness. … It may be a good general rule to regard responsibility as ceasing when control ceases. … [In the present case] I regard his control as remaining effective until the article reaches the consumer and the container is opened by him”, given the sealed nature of the ginger beer bottle.

      • Interesting that Lord Macmillan seems to bring remoteness into the analysis of whether there was “responsibility”, i.e. a duty of care. This is opposed to the idea that there is a duty of care but the resultant harm is too remote for liability to ensue.

  • Note that Lords Buckmaster and Tomlin dissented.

• Anns v Merton LBC (1978) – Lord Wilberforce

  • Two-stage test:

    • Is there a sufficient relationship of proximity between D and C such that D would reasonably foresee that his negligence would cause damage to C?

    • Are there any considerations which ought to reduce the scope of the duty or the class of persons to whom it was owed or the damages to which is may give rise?

  • Too easy to find a DoC.

• Sutherland Shire Council v Heyman (1985) – Brennan J

  • The ‘incremental test’ states that DoCs should be imposed by analogy with established categories in which DoCs already exist.

• Caparo Industries Plc v Dickman (1990) – Lord Bridge of Harwich

  • Three-stage test:

    • it was reasonably foreseeable that C would suffer harm as a result of D’s actions or inaction

    • there was a relationship of proximity between D and C

    • it would be ‘fair, just and reasonable’ to...

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