Lecture notes
UOB law of Tort ; Duty of Care Notes
- Module
- Law Of Tort
- Institution
- The University Of Birmingham (UBir)
This is a comprehensive and detailed note on duty of care for law of torts. Essential!! To your success in Birmingham!!
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Duty of care:Duty of care:
} Donoghue v Stevenson (1932) AC 562
Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice
cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue
poured half the contents of the bottle over her ice cream and also drank some from the bottle. After
eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and
a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She
commenced a claim against the manufacturer of the ginger beer.
The foundation of her case is that the respondent, as the manufacturer of an article intended for
consumption and contained in a receptacle which prevented inspection, owed a duty to her as consumer
of the article to take care that there was no noxious element in the goods, and that he neglected such
duty and is consequently liable for any damage caused by such neglect.
Lord Buckmaster (minority)
Held:
Her claim was successful. This case established the modern law of negligence and established the
neighbour test.
Lord Atkin:
"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.
Who then in law 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."
Duty of care historical context:
‘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. Who, then, in law, 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.’
,Lord Atkin in Donoghue v Stevenson (1932)
- Remember this is just principles to consider – don’t use this as a test
- Who in law is my neighbour? - people who are closely and directly affect by my act.
What is it about relationships where there should be obligation of mindfulness
‘The categories of negligence are never closed. The cardinal principle of liability is that the
party complained of should owe to the party complaining a duty to take care…where there is
room for diversity of view, it is in determining what circumstances will establish such a
relationship between the parties as to give rise, on the one side, to a duty to take care, and
on the other side to a right have care taken.’
Lord Macmillan in Donoghue
Who is my neigbor:
Who is proximate to us
Can be see in different ways:
- Geographical
- Time?
- Relational
You have to ask if you are proximate enough
Caparo v Dickman: The test emerges…
- Claimants wanted to take over a company
- They wanted to stage a take over of another manufacturer company
- They wanted to buy shres in this manufacturing company
- The manufacturing company for the purposes of its stake holders had engaged the
defendant to produce and audit of their company.
- Defending party is the auditing company
- Defenders have no idea of our claimnts
- They were only brought on to take an daudit
- So the relationship exists between them
- Before they did there final takeover
, - They got hold of the audit report
- Saw that the company was doing really well
- They went on to do that and found out that the audit had been negligently put together
and the company was actually losing money
- They sue the auditors
From this came a generalised test for the duty of care:
‘What emerges is that, in addition to the foreseeability of damage, necessary ingredients in
any situation giving rise to a duty of care are that there should exist between the party
owing the duty and the party to whom it is owed a relationship characterised by the law as
one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court
considers it fair, just, and reasonable that the law should impose a duty of a given scope
upon the one party for the benefit of the other.’
- Lord Bridge
Three-stage ‘test’ in Caparo
There needs to be foreseeability, proximity and is it fair to impose a duty.
1. Reasonable Foreseeability
2. Proximity
3. Fair, Just and Reasonable to Impose the Duty
*Applies only in particular circumstances!*
Now we only really apply this in novel circumstances where it hasn’t been dealt with by
other case law. – when you come across a problem question with a novel relationship.
Reasonable Foreseeability
Was the claimant at foreseeable risk of harm by the defendant?
} What (or who) has to be reasonably foreseeable?
} At the duty of care stage, we ask whether the claimant was – either as an
individual or class of individuals – at foreseeable risk of harm by the D’s
action(s)
} Consider the scope of the risk created by the D – does or would the C
‘fit’ within that scope?
} Specific duty - a duty to the world at large
* Cf: foreseeability throughout the negligence enquiry.
, What are the elemets of the risk, how did they create the risk- means that we can formulate
the obligations they had to prevent the risk.
Is It a case of duty of reasonableness to everybody is enough or is It more than that or?
Does each duty of care have different contents and obligations?
Fair, Just and Reasonable
} In operation: Policy reasons that would militate against the imposition of a duty
} Examples:
} Indeterminate liability/ Floodgates
} Conflicting duties
} Defensive practice…
The Caparo test: Limitations to its Application
But it is implicit in the passages referred to that the concepts of proximity and fairness
embodied in these additional ingredients are not susceptible of any such precise definition as
would be necessary to give them utility as practical tests, but amount in effect to little more
than convenient labels to attach to the features of different specific situations which, on a
detailed examination of all the circumstances, the law recognises pragmatically as giving rise
to a duty of care of a given scope. Whilst recognising, of course, the importance of the
underlying general principles common to the whole field of negligence, I think the law has
now moved in the direction of attaching greater significance to the more traditional
categorisation of distinct and recognisable situations as guides to the existence, the scope
and the limits of the varied duties of care which the law imposes.
- Lord Bridge in Caparo (1990)
- Work along concepts of precedent
- Look at the relationship of the claimant and defendant – if its been used before use
precedent
- If not use the Caparo test
Caparo: recall Incrementalism
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