Summary The Duty of Care & Omissions: Law of Tort (LAWD10011)
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Course
Law of Tort (LAWD10011)
Institution
University Of Bristol (UOB)
An in-depth summarised and collated notes regarding the duty of care and omissions in negligence also touching upon the duty of care for emergency service providers. This includes case summaries and flow-charts.
1. Actionable Damage
2. A Duty of Care
3. A Breach of that Duty
4. Causation
5. Remoteness (Legal Causation)
Key question that you need to be able to answer by the end of this learning cycle is - When
does negligence law recognise a duty of care between one person and another?
The concept of duty of care operates as a control mechanism or limiting device to put some
boundaries around the Tort of Negligence. (Remoteness also does this).
So – when is a duty owed?
You would all remember from the Paisley Snail video that the first attempt to articulate a
general principle of duty of care was made by Lord Aitken in Donoghue v Stevenson. You
remember that the reason this case was so novel at the time was that there was no contractual
relationship between Mrs Donoghue and the manufacturer at all. In those times the only way
you could end up “owing duty” to someone was if you voluntarily entered into a contract or a
similar sort of relationship with them.
Remember the classic statement of Lord Aitken:
Who then is my neighbour? The answer seems to be – persons who are so closely and
directly affected by my act 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…
Who is my neighbour? – people I should have been thinking about when I went about
doing your business.
Everything goes back to this neighbour concept that he drew on from the parable of the good
Samaritan to bring into the law.
This case created the possibility of recognising a Duty of Care in a whole range of cases
where it had not been recognised before.
Some that were recognised:
Car driver and passenger/road user
Doctor and patient
Solicitor and client
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, Occupier (of property) and visitor
Employer and Employee
Teacher and Student
These categories weren’t controversial but lots of other relationships also came before the
Courts. If you go through the history of the action, you will see that the issue of the test of
‘who is my neighbour & to whom do I owe a duty of care’ was ‘too wide’- it was catching
too many categories and was too broad. This became a problem and various slightly different
tests were proposed and, for a time, applied by the courts.
This is a story of the courts grappling with a good idea that ended up being too broad and
then attempting to reign it back in. Somehow, it was generally agreed, we needed a more
constrained approach.
The issue that happens in Duty of Care
Everyone agreed that where a duty of care has previously been recognised by the Court there
is no issue. It’s an easy one.
What to do if a ‘new situation’ came up was the focus of judicial consideration where we
have previously not considered the ‘duty of care’ being employed. Caparo is a very important
case here.
What you will quite often see referred to is a ‘three stage test’ from Caparo:
In order to find that a duty of care is owed in a new situation, the following must be
established:
(1) it was reasonably foreseeable that the defendant’s failure to take care could cause
damage to the claimant; and
(2) there was a relationship of proximity between the claimant and the defendant; and
(3) it is fair, just and reasonable that the law should recognise a duty on the defendant
to take reasonable care not to cause that damage to the claimant.
(the controversial aspect of the test)
As H&R state in the textbook though – the Court clearly did not intend, in Caparo, to set out
a rigid ‘test’ and were actually just talking about the types of factors which a court needs to
think about in a novel duty situation. Long story short, it was all quite hard to apply.
Luckily the Caparo test gets clarified in Robinson and probably more importantly in Caparo it
was said-
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