Study guide
How to establish a duty of care
- Module
- Tort Law
- Institution
- University Of Leeds (UoL)
A step by step guide on how to establish a duty of care that can be applied to a set of facts in a problem question - first class standard.
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This is for psychical and PELNegligence Flow Chart (1): Duty of Care
Establishing a duty of care is essential for establishing liability. If you are not owed a duty of
care, you cannot succeed no matter how negligent the act may have been (Donoghue v
Stevenson).
1. Are there any precedential situations where a duty of care arises?
A duty of care is considered a question of law, rather than fact, so if a DoC arises previously,
then this will hold precedential value for all subsequent case law. (Barrett v Enfield).
Common precedents include:
- Road users to road users
- Doctor and Patient
- Manufacturer and consumer
2. If there is no recognisable precedent, then to establish a duty of care it must fulfil
the test
There are three tests that apply in novel situations:
(1) The Caparo Threefold Test
1. Foreseeability of damage: You will not owe a duty of care if you could not foresee
that you may injury the claimant – Bourhill v Young 1942.
As an employer you would not be reasonably responsible for a family member of an
employee – Maguire v Harland & Wolff
A duty of care is established if it is foreseeable the work you would do would be
relied upon despite the work not being aimed at that person (Smith v Bush),
however, it depends on the context, if buying a house is for investment purposes,
and the buyer is more commercially acute, then there will be no duty (Scullion v
Bank of Scotland).
2. Relationship of proximity: The relevant principle is that for a duty to exist there must
be sufficient closeness in the relationship between the parties in physical,
circumstantial or casual terms. This is unclear – if there is physical harm, then there
would be proximity.
If the test was for one element, but applied to something that was not its primary
purpose there would not be proximity (Sutradhar v Natural Environment Research
Council). Further, if there is a time lapse between given the advice and the action,
then proximity will not occur - Goodwill v British Pregnancy Advisory.
If D is performing a statutory duty on behalf of a third party, and C relies on it to
their detriment there will not be proximity – Caparo v Dickman
3. Is it fair, just and reasonable that duty should be imposed on D: this gives the court
the opportunity to apply broad policy factors in deciding whether a claim can be
made against D. The courts will not impose a duty of care if it is not fair, just and
reasonable. as a matter of legal policy is it right that a duty of care should be
imposed on this type of defendant in this type of situation for this type of loss?
If there is a conflict of interest between the parties, then it would not be fair to
impose a duty: D v East Berkshire Community Health NHS.
In relation to patient confidentiality, if the risks out weight staying confidential then
the doctors have an obligation to breach confidentiality – ABC v St Georges
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