Negligence - Duty of Care

• Negligence can apply in a wide variety of situations where a person is injured or their property is damaged as a result of someone being careless.
• Blyth v Birmingham Waterworks Co. 1856:

  • Baron Alderson defined negligence as: "Failing to do something which the reasonable person would do, or doing something which the reasonable person would not do"
  • So negligence can be done either through an act or an omission.
• Three things need to be proven to establish a successful claim in negligence:

  1. Duty of Care
  2. Breach of Duty
  3. Causation of Damage
• Duty of Care:

  • first requirement asks whether there is a legal relationship between the parties.
  • A duty of care is a responsibility to look after someone's wellbeing.
  • The focus here is on the relationship., not the events of the specific scenario.
• Duty of Care:

  • First requirement asks whether there is a legal relationship between the parties.
  • A duty of care is a responsibility to look after someone's wellbeing.
  • Donoghue v Stevenson 1932:
  • Mrs Donoghue had not bought the drink herself, she did not have a contract with the manufacturer.
  • It was thought this was needed in order to sue for compensation.
  • However, the "neighbour principle" was created.
• Duty of Care:

  • The starting point to establish if there is a Duty of Care comes from Robinson v Chief Constable of West Yorkshire (2018):
  • In Robinson the court decided that judges can first ask the following:
  • "Is this a novel type of case?"
• "Is this a novel type of case?"

  • If No - the courts should use the precedent of other similar cases (or a statute) to decide if there is a Duty of Care (and you will need to identify this is your answer)
  • If Yes - the courts can use a number of factors to make their decision.
• Duty of Care:

  • Some commonly used "not novel" situations and their authority:
  • Doctors and patients - taking of the Hippocratic Oath - Bolam v Friern/ Barnett v Chelsea
  • Drivers and Pedestrians - road traffic act/ Highway Code - Nettleship v Weston
  • Employers and employees - Paris v Stepney Borough Council
• Duty of Care:

  • If a situation is novel - this means there is no precedent to help decide the outcome.
  • Therefore judges will need to make a decision based on a number of principles:
  • Reasoning by Analogy
  • Are there similar situations where comparisons could be drawn to come to a logical conclusion.
  • Any of the three questions from Caparo v Dickman
• Duty of Care:

  • Prior to Robinson, the neighbour principle from Donoghue V Stevenson was used by judges until it was replaced by a three part test in the case of Caparo v Dickman 1990:

  1. Was damage or harm reasonably foreseeable? (Kent v Griffiths 2000)
  2. Is there sufficient proximity (closeness) in the relationship between Claimant and Defendant? (Bourhill v Young 1943)
  3. If it fair, just and reasonable to impose a duty of care? (Hill v Chief Constable of West Yorkshire 1988)
• Duty of Care:

  • Before Caparo Test restricted the Duty of Care, there had been a steady increase in the law due to the following cases:
  • Anns v Merton LBC 1977
  • Junior Books v Veitchi 1983
  • Caparo V Dickman 1990