Negligence Duty Of Care Notes

McBride & Bagshaw (4^th ed), ch 4

• 4 things C must show in case of negligence:

  • Owed duty of care

  • Breached duty of care

  • Breach caused loss

  • At least one of the losses is actionable

• Negligence breach can be intentional (I negligently refrain from replacing a rotten floorboard deliberately hoping that my mother-in-law would injure herself on it)

• Negligence v. other torts

  • Battery: actionable per se – no need to show loss (but if careless and caused V to suffer loss, then both battery and negligence are available, usually negligence is preferred)

  • False imprisonment: negligent false-imprisonment can only be negligence (Al-Kandari v Brown: solicitors (D) under court order to keep husband’s passport safe but D carelessly allowed husband to obtain the passport and he kidnapped children)

  • Negligence: overlap created in Spring v Guardian Assurance where old firm gave unfair and horrible reference for C to new potential employer and suit of defamation would have failed, so invoked negligence instead

  • Breach of statutory duty: may give rise to action in tort in itself but if Parliament does not so intend, seems that C is unable to sue in negligence because (per Lord Hoffmann) a simple breach of statutory duty does not give rise to a common law duty of care

  • Private nuisance (protects owner’s rights not to have his neighbours create/be aware of a risk to his land): overlap eliminated by HL insistence that private nuisance does not apply to physical injury (eg. inhaling neighbor’s smoke) so only negligence applies

  • Breach of contract: Henderson v Merrett Syndicaes Ltd created overlap by holding that if A breaches a contract with B to do something carefully, B would have an action in contract and tort

• Remedies

  • Kralj v McGrath: aggravated damages (‘revenge’ damages to assuage C’s anger) are never available

    • Negligence = only tort where this is the case

  • In principle exemplary damages should be available if wrong is culpable enough and no criminal punishment

  • No precedent where injunction not to breach the duty of care has been issued

McBride & Bagshaw (4^th ed), ch 5

• In negligence claim, first thing that needs to be established = duty of care

  • Types of duty

    • According to what they require another to do

      • Positive duty

        • Take reasonable steps to ensure an outcome

        • Take reasonable care in an action

      • Negative duty (requires D not to act in a certain way)

    • According to what interests they protect (eg. a careless driver who crashes into bus shelter)

      • Mental (for potential rescuers – mental scars)

      • Physical (for people waiting at the shelter)

      • Economic (for bus company)

    • According to how they arise

      • Foreseeable that action will cause harm (driving dangerously)

      • Assumption of responsibility (not giving another bad advice)

  • Duty-harm relationship

    • Duty must be geared towards the particular kind of harm suffered

      • Eg. Train driver carelessly de-rails so C forgets to sell her shares and they plummet. C cannot sue D because duty not to drive carelessly is geared towards physical harm, not economic loss

    • In cases where C sues for two independent harms, two duties of care must be shown

      • Spartan Steel: D cut through power lines causing C to suffer property damage and loss to business because they couldn’t work – first harm recoverable but not second because of foreseeability leading to no duty of care

  • Duty of care and public policy

    • Policy minimalists: duty of care should be determined without public policy in mind

      • McLoughlin v O’Brian: Lord Scarman – courts judge according to principle; Parliament judges policy

    • Policy maximalists: policy is always relevant to duty

      • Hill v Chief Constable of West Yorkshire (whether police owed duty to murder victim)

    • Intermediate position: if everything else indicates no duty, policy doesn’t justify imposing a duty; if everything else indicates duty, it would still be wrong to impose that duty if contrary to policy

• Duty of care tests

  • Heaven v Pender: If A is placed in a situation with regards to B where any reasonable person would recognize that failure to use ordinary care and skill would endanger B, then a duty of care arises to use ordinary care and skill

  • Lord Atkin’s ‘neighbor principle’: Must take reasonable care to avoid acts/omissions reasonably foreseen to cause danger to a neighbour (a person so closely and directly affected by my act that I should contemplate them while acting)

  • Anns: 1) sufficient proximity gives rise to prima facie duty and 2) any negating/mitigating factors

  • Incremental test: Law should develop duty incrementally and by analogy to established categories rather than create new ones

  • Caparo: 1) foreseeability, 2) proximity and 3) “fair, just and reasonable” that law should impose a duty

• Lower courts come across fewer and fewer novel cases so don’t usually have to apply tests; SC not bound by own decisions, so tests are necessary

• Fate of tests

  • Heaven v Pender and proximity test didn’t serve much use after donogue

  • Anns test rejected by Caparo and incremental test

  • Caparo now serves as authority

• Duty of care factors

  • Reasonable foreseeability of harm

  • Reasonableness of D’s action (court will not hold that A owed B a duty to do x if it would be unreasonable for him to do it)

  • Act or omission (court far more willing to find duty in acts than omissions

  • Seriousness of harm (court more likely to find duty in cases of physical/property damage than pure economic loss)

  • Fairness (if finding a duty means A will be liable disproportionately for more than harm caused/degree of fault court will often not find duty)

  • Individual responsibility (court likely won’t find duty if doing so would undermine individual’s sense of responsibility by allowing A to blame B for A’s own carelessness)

  • Parliamentary intentions

  • Divided loyalties (court likely not to find duty if doing so would...