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Tort, negligence, duty of care - introduction

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Duty

A duty of care is sometimes imposed by statute, and does not arise from a relationship between the claimant (the person injured) and the defendant

Although statute creates a statutory duty of care it does mean that a shadow will be cast creating a common law duty.

Common Law Duty of Care

Lord Atkin’s speech in Donoghue v Stevenson (1932), is the starting point for understanding modern common law tort.

 

It established negligence as a separate tort. 

 

The leading speech was given by Lord Atkin and although much of what he said was obiter, it has taken on the standing of binding precedent.

 

Lord Atkin’s ‘Neighbour Principle’

 

Probably the most important 104 words ever spoken by a judge in the world. Its impact cannot be overstated.

 “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. (Foreseeability) Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act (Proximity) that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

(Actual ratio decidendi of Donoghue)

(‘A manufacturer owes a duty to consumers and users of his products not to cause them harm.’)

 

"...a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care."

Lord Wilberforce in Anns

Lord Wilberforce developed the principle espoused by Lord Atkin to mean just two things, this became known as the two part test.

 

The two part test in Anns v London Borough of Merton (1977) HL

  1. Is there sufficient proximity between defendant and claimant to impose a prima facie duty?

  2. If so, does the judge consider that there are any policy grounds which would prevent such a duty being imposed?

The Anns test not satisfactory; too broad.

The test in Anns was considered too broad and 'caught' too many actions and defendants, there had to be a limit; the Anns test was finally overruled in Murphy v Brentwood DC (1990).

 

The two part test was subsequently replaced by the three-part test in Caparo Industries PLC v Dickman [1990] which reflects the current law.

 

Case law identifies duty situations which are not subject to much question

Rather than questing again and again whether a duty of care is owed in certain circumstances the courts follow precedent that declares there is general duty of care between:

  • Employers and their employees.

  • Teachers and their pupils.

  • Motorists and other road user.

  • Doctors and their Patients.

  • Manufacturers and consumers.

  • Occupier and their visitors

Nevertheless, even when a general duty of care is owed a defendant will still not be liable unless the type of harm sustained was also foreseen.

Legal duty

A duty of care is a legal duty, not a one of fact.

 

This is established by looking back at previous cases of similar fact; if there is no case of similar fact then the general test is resorted to.

 

Essential three ingredients needed to establish a duty of care

How to find a duty situation?

The current law is based on Lord Bridge's speech in Caparo v Dickman (1990) HL.

 

The law of negligence has three  elements (tripartite) that must be satisfied, these are found in Caparo.
 

The tripartite  test to establish a duty Lord Bridge in Caparo.

These three elements are derived from Lord Bridge's speech in Caparo v Dickman (1990) HL

 

  1. The claimant must be reasonably foreseeability (bearing in mind the type of harm)

  2. There must be a relationship of proximity between the claimant and the defendant

  3. It must be fair, just and reasonable in the circumstances for a duty of care to be imposed. (some judges use "Fair and Reasonable" others include "justice")

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