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Duty of care basics - Coggle Diagram
Duty of care basics
"Factors" approach
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Acts and omissions
More likely to find DoC in cases involving acts rather than omissions (negative duties easier to establish)E.g. Hill v W Yorks Police
Seriousness of harm
Physical injury, property damage reasonably foreseeable: v likely to find a DoC
Pure economic loss: mere foreseeability usually not sufficient to establish DoC. Special relationship usually required.
E.g. CBS Songs v Amstrad, Siamaan General Contracting Co v Pilkington Glass, WBA v El-Safty
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Separation of powers: policy issues highly unlikely to be justiciable. Operational failures might well be.
Smith v MOD (2014): UKSC held there might (subject to the facts) be a DoC on MoD re procurement of equipment for soldiers (e.g. landrovers) - DoC would exist at operational level, not high level strategic policy
Novelty: courts reticent to create new law in novel cases. And risk of unintended consequences. More likely to find DoC if case is close to another in facts.
Remedying wrongs: "the rule of public policy that has first claim on the loyalty of the law: that wrongs should be remedied" (A v Essex CC)
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Basic concepts
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Duty-harm relationship
C must show D owed a duty of care aimed at protecting C from the specific harm in question: Caparo v Dickman (Lord Bridge dicta)
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"Test" approach
Caparo (FPF):
Foreseeability: was it reasonably foreseeable that C would suffer harm as a result of D's (in)action?
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Fair, just and reasonable: is it fair, just and reasonable to find D owed C a DoC?
Problems: really just a one-limb "fairness" test? Limbs of the test are "convenient labels" summarising state of the law, not actual tests (Lord Bridge in Caparo)
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Old tests
Heaven v Pender, neighbour principle in Donoghue v Stevenson: don't work where D failed to save C from harm, or positive acts causing pure economic loss
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