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Formulations Of Duty Of Care Notes

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This is an extract of our Formulations Of Duty Of Care document, which we sell as part of our Tort Law Notes collection written by the top tier of Oxford students.

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What are the requirements of the tort of negligence?
Negligence

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Rogers: "breach of legal duty to take care with results in damage to the claimant" o Generally not concerned with intention
? Only accidental damage owing to want of care

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Five things to prove o C suffers actionable damage o D owes C duty of care o D has acted in breach of the duty of care o D's breach of duty has caused C damage o C has suffered damage which is not remote from D's actions.

What constitutes a duty of care?
Donoghue v Stevenson Formulation

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What it is: o Lord Atkin: Two elements
? "Reasonable Foreseeability of Harm"
? "Proximity" of relationship between D and P

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i.e. "Neighbourhood" principle: o D would be liable to anyone closely affected by D's actions, if they caused harm.

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Problems: o Principle is far too wide o Lord Diplock in Home Office v Dorset Yaught Co [1970]
? If retain this principle as "universal" rather than specific to defective products that can't be inspected by consumer beforehand

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Law would hold you responsible for every act and omission you did which had the effect of damaging your neighbour (e.g. withdrawing service from Tradesman despite goods being perfectly adequate) o Thus, it interferes with freedom of choice and action o Does not take into account political, social and economic considerations Anns v Merton LBC Formulation:

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What it is: o Lord Wilberforce:
? Two questions to ask:

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Is there a sufficient relationship between C and D so that it is reasonably foreseeable harm may occur and C will be damaged by D's actions?

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Is there any good reason to restrict the scope of the tort in this case?

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Problems: o Giliker: Confusion problem - test is flawed
? Confuses foreseeability and proximity, which Lord Atkin formulated as separate concepts

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Means Judge would have to come up with policy decision to justify the fact he thought the relationship was not close enough. o Stapleton: "pockets of liability"
? Policy question asks whether duty of care should arise in the first place

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Not whether it is there beforehand but should then be excluded. o Giliker: rather generous in scope
? Presumes duty of care exists on foreseeability alone, so somewhat generous
? Lord Denning in Lamb v Camden LBC [1981]:

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Foreseeability often not a useful guide o Amount of damage that can arise from a foreseeable act of negligence

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