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Duty of care: physical injury (positive acts) - Coggle Diagram
Duty of care: physical injury (positive acts)
Basic rule: D will
normally
owe C a duty to
take care
not to do
positive act
X, if it is
reasonably foreseeable
that X will result in
someone like
C suffering some kind of
physical injury
Exceptions
Volenti non fit injuria
NOT a defence in this context - it's a factor in determining whether a DoC existed in the first place and thus whether a tort was committed at all.
Acting reasonably
Flying cricket balls: risk infinitesimally small in
Bolton v Stone
; in
Miller v Jackson
, property adjoined the ground and risks were more substantial. Need to weigh benefits and risks to determine what is reasonable.
Public policy
E.g. combat immunity
Reasonable foreseeability
From perspective of someone the
same age
:
Miller v Richards
, 15 y/o's could not reasonably foresee that play fighting with rulers could blind one of them
Mental age, stupidity etc irrelevant:
Vaughan v Menlove
What was reasonably foreseeable
at the time
of the relevant act:
Roe v Minister of Health
(no one knew at the time that an anaesthetic vial might have tiny cracks which led to it being contaminated, at the time of the injection). Or product used in a way not reasonably foreseeable at the time it was marketed:
Abouzaid v Mothercare
"Someone like" C
Not the specific person, but persons sharing C's feature (e.g. consumers of a product, a blind person, someone with an allergy)
Positive act
Not a failure to act to save C from harm
Harm caused by third parties?
"Innocent agents"
If B was not responsible for the harm she did to herself or to C, A will be held to have had a DoC to B (if she harmed herself) or to C.
Dixon v Bell
(young maidservant carrying a gun, shot claimant - D owed DoC to C, maid had no DoC)
B harmed himself as a result of A's actions
E v Souls Garages
(child, DoC owed);
Barrett v MOD
(adult, no DoC owed)
"Enabling tort" cases
A's unreasonable act contributes to B's harming C, and B is responsible for what happened to C
Foreseeability test for establishing A's DoC higher: "very likely" or "probable", not "real risk":
Topp v London Country Bus (South West), Smith v Littlewoods
A may be an accessory to B's tort. Assisting or enabling NOT sufficient, and unlikely to be so in negligence either
Overall: A likely to owe a DoC to C only where B's responsibility for the harm done to C is attenuated in some way - e.g. a child, drunk. E.g.
West v East Tennessee Oil Co
(US case)