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Duty of Care - Coggle Diagram
Duty of Care
Neighbour principle
Lord atkins judgement in Donoghue v Stevenson:
persons who are closely and directly affected by my act that i ought reasonably have them in contemplation as being so affected that when I am directing my mind to the acts and omissions which are callled in question
a person must take reasonable care to avoid injuring those who are likely to be harmed if they do not take care
there are 2 elements to the neighbour test:
- reasonable foreseeability of the harm: duty of care will be owed where the defendant ought reasonably to foresee that failure to take care may cause injury
- neighbourhood: refers to relationship between claimant and defendant; claimant must show that there is a degree of proximity between the parties
a defendent will only be liable for their carelessness if they owe the claimant a duty to take reasonable care - if there is not duty of care it doesnt matter how much harm has been done or how careless the behaviour was the claimant will have no claim
as tort developed, lord atkins principles were supplemented by vague rules with the aim of developing the tort within acceptable limits to prevent the floodgates from opening - floodgates argument is a policy issue where the courts are reluctant to extend law because of potential increase in number of claimants - in turn this would place pressure on court system and also on insurance companies as ultimately it would be these companies who would pay compensation to a successful claimant
rules for imposition of a duty of care were initially contained in lord wilberforces two part test in Anns v Merton London Borough Council where the courts had to consider two questions when deciding when or if a duty of care was owed to claimant
- is there sufficient proximity between the claimant and defendant to impose a duty of care
- if yes, does the judge consider that there are any policy grounds that prevent the duty from being imposed
over a period of time it became clear that this test was inadequate as judges didnt like to apply policy considerations when primary function is to apply law
when case of caparo industries v dickman was heard by HofL the judiciary took the opportunity to overrule Anns and a 3 part test was created
Robinson v Chief Constable of West Yorkshire
3-part test
Caparo Industries plc v Dickman concerned a claim for a financial loss that occured when an investigator relied on contents of audited accounts an company report that had been negligently prepared by the company's auditor
claimant lost the claim but HofL took oppurtunity to consider the factors to be taken into account when deciding if the defendant should owe a duty of care to the claimant
HofL wanted to move away from Donoghue v Stevenson where foreseeability of damage was sufficient to establish a duty - court decided that in future
- claimant must point to existing precedent or similar precedent where duty has been imposed
- if there was no relevant precedent as the case presented in a novel situation the court should apply these criteria to decide if there is a duty of care
- Was it reasonably foreseeable that the defendants failure to take care could cause damage to the claimant?
claimant must be a class of people who are put at foreseeable risk by the defendants action that is the defendant must have foreseen some damage to the claimant at the time of careless act - damage must be of a kind that is foreseeable
- Was there a relationship of proximity between claimant and defendant?
proximity will be established if there is an existing relationship between the parties. this could be a legal relationship or a relationship based on physical proximity
in cases involving physchiatric harm and pure economic loss, courts will require a very close relationship between the parties but in claims involving personal injury, proximity is much easier to prove
there may be some degree of proximity between the parties - however the facts may indicate that the defendant has not take responsibility for protecting claimant against their loss
- Was it fair, just and reasonable that the law should recognize a duty on the defendant to take reasonable care not to cause damage to claimant?
when applying this, the court will take into account wide issues such as policy considerations. this allows the court to have discretion when deciding whether to impose a duty on the defendant.
judges have been reluctant to consider policy issues but there is a more of a trend where they are more willing to discuss the fairness of imposing a duty on the defendant - allows law to be developed in a fair manner
3 part test has had criticism as it doesnt state when a duty of care is owed - it was not the HofL to create rigid test for judges to use as this would be impractical - when deciding to impose a duty the HofL thought the courts would take a more pragmatic approach
this approach has been confirmed in Robinson where supreme court reviewed developement of law relating to duty of care
supreme court justices were clear that caparo is to be used in novel situations
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to be successful in negligence, 3 elements needs to be met:
- duty of care must be owed by defendant to claimant
- there must be a breach of duty
- the damage to claimant must be caused by breach of duty