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Formulations Of Duty Of Care Notes

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A more recent version of these Formulations Of Duty Of Care notes – written by Oxford students – is available here.

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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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