Lecture notes
Duty of Care
- Module
- Law of Tort
- Institution
- University Of Sussex (UoS)
Lecture notes of 6 pages for the course Law of Tort at UoS (Duty of Care)
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Negligence – Duty of CareTort of Negligence
‘The breach of a legal duty to take care by an… act or omission that injures another’.- Percy
H Winfield ‘The History of Negligence in the Law of Torts’ (1926) 43 LQR 184.
The existence of duty of care.
The breach of a duty of care.
Omission is failure to do something.
There has to be damage, harm or loss.
Breach has to cause the injury.
‘The defendant has fallen below the required standard of care’.
Personal injury litigation (road traffic accidents).
Medical negligence.
Police liability.
Essential Elements for a Successful Claim in Negligence
The defendant owed the claimant a legal duty to exercise reasonable care.
There was a breach of that duty by the defendant.
The claimant suffered some harm/loss/damage which the duty of care protected
against.
The damage was caused by the breach and was not too remote.
There are no defences that the defendant can establish (such as consent, illegality or
contributory negligence).
Result of a Successful Claim in Negligence
If the claimant is able to demonstrate that they suffered some harm and can
successfully prove duty of care, breach, causation/remoteness and the defendant
cannot prove any defences, the usual remedy would be damages, which seek to
compensate the claimant financially for the loss suffered.
Different Types of Harms
Psychiatric harm.
Physical injury.
Economic loss.
Consequent (upon something, such as physical injury leading to not being able to
work).
Pure (such as betting or losing out in stocks and shares).
Why have a Tort of Negligence?
, The Law of Negligence properly started to develop in the 1930s, in response to
changing social conditions.
Mass manufacturing.
Increasing use of cars.
Progress in medical technology.
Diagnosis of complex medical conditions.
Lord Sumption, ‘Abolishing Personal Injuries Law- A Project’ (2018) 34(3) PN 113.
A lecture to the Personal Injury Bar (barristers in that field).
‘Our current system of Tort Law (based on fault, having to identify a particular
defendant and demonstrate that they were at fault, in order to sue them and
compensate for the harm) is a costly and unnecessary complex system for
compensating harms in society’.
He wants a ‘no fault, tax-payer funded, state system of compensation, rather than
suing people’. This is an alternative approach, which is done in New Zealand.
J Morgan, ‘Abolishing Personal Injuries Law? A Response to Lord Sumption’ (2018)
34(3) PN 122 (28 page).
There are other functions of Tort Law, such as deterrence.
Coherence, Legal Principle and Policy: A Word of Warning
‘It seems to me that it is a question of policy which we, as judges, have to decide…
what is the best policy for the law to adopt?... (This question) has been concealed
behind such questions as: Was the defendant under any duty to the plaintiff? Was
the relationship between them sufficiently proximate? Was the injury direct or
indirect? Was it foreseeable, or not? Was it too remote? And so forth. – Dutton v
Bognor Regis Urban District Council (1972) 1 QB 373, 397 per Lord Denning.
Function of Duty of Care
‘Negligence in the air will not do; negligence, in order to give a cause of action, must
be the neglect of some duty owed to the person who makes the claim’. - Haynes v
Harwood (1935) per Greer LJ at 152.
‘There is no negligence unless there is in the particular case a legal duty to take
care… this duty of carefulness is not universal: it doesn’t extent to all occasions, and
all persons, and all modes of activity… a consideration of the rules which determine
the existence or absence of a duty of care in particular cases pertains to the detailed
exposition of the law’. – J Salmond, The Law of Torts (6th edn, Sweet & Maxwell
1924) 24-25.
‘A young man whose fiancée deserts him for his best friend may become clinically
depressed as a result, but in the circumstances the fiancée owes him no duty of care
to avoid causing this suffering’. – D v East Berkshire Community NHS Trust (2005)
UKHL 23. Lord Rodger.
‘The more I think about these cases, the more difficult I find it to put each into its
proper pigeon-hole. Sometimes I say: ‘There was no duty’. In others, I say: ‘The
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