3. Duty Of Care And Breach Of Duty

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3. Duty of Care and Breach of Duty/What are the purpose of the duty of care?

Back 1

1. To provide a general principle for the variety of situations in which liability may arise.

2. To limit the extent of situations in which a person will be liable to another.

3. These purposes may be construed either as duties in law (i.e., the general or abstract case) or duties in fact (the specific case of an actual claimant)

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3. Duty of Care and Breach of Duty/What tests have been suggested for the duty of care?

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1. The neighbour principle (Donoghue v Stevenson [1932] AC 562) -- a duty is owed to those who are "so closely and directly affected by my act..."

2. The Anns test: i) proximity or forseeability; and ii) whether this is negatived by any policy considerations (Anns v Merton London BC [1978] AC 728).

3. The Caparo test: i) reasonable forseeablity, ii) proximity; and iii) it is fair, just and reasonable to impose liability (Caparo Industries v Dickman [1990] 2 AC 605)

Front 3

3. Duty of Care and Breach of Duty/Particular situations/controlling others

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1. General rule is that no duty is owed by D due to policy concerns (Lord Goff in Smith v Littlewoods (1987) AC 241)

Except when:

2. D is in a relationship of control over a thrid party (Home Office v Dorset Yacht (1970))

3. D has assumed responsibility for C through a special relationship (Stansbie v Troman (1948))

4. D has created a danger and it is reasonably foreseeable that a third party will trigger that danger (Haynes v Harwood (1935) contrasted with Topp v London Bus (1993)

5. D is an occupier and knew or ought to know of danger created by third party (Goldman v Hargrave (1966).

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3. Duty of Care and Breach of Duty/Particular situations/Is there a duty to protect C from C's own actions?

Back 4

See Calvert v William Hill (2009)

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3. Duty of Care and Breach of Duty/Particular situations/Lawyers

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1. Lawyers are special defendants and owe a duty to their own clients even for advocacy work (Hall v Simons (2002))

2. Lawyers do not usually owe a duty to non-clients except in exceptional circumstances (Al Kandari v Brown (1988)

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3. Duty of Care and Breach of Duty/Particular situations/unborn child

Back 6

1. Unborn children are "special claimants" under the Congenital Disabilities (Civil Liability) Act 1976 -- C can sue if born alive and d breached duty to mother or father causing harm to C.

2. No duty to child to prevent its birth (wrongful life) McKay v Essex Area Health (1982)

3. No duty to parents for costs of bringing up child beyond token award for wrong (McFarlane v Tayside)

Front 7

3. Duty of Care and Breach of Duty/Standard of Care (general)

Back 7

The reasonable prudent man standard (Boyth v Birmingham Waterworks (1856)

Front 8

3. Duty of Care and Breach of Duty/Standard of Care (special tasks)

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1. The standard is that of the reasonable prudent person who usually does the type of task in question (Phillips v Whitely (1938)

2. Do not lower the standard because the actual defendant has lower skill than is expected (Nettleship v Weston (1971).

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3. Duty of Care and Breach of Duty

Back 9

1. Duty of Care
2. Breach of Duty

Front 10

3. Duty of Care and Breach of Duty/Duty of Care

Back 10

1. General
2. Controlling others
3. Protection from one's own actions
4. Lawyers
5. Unborn children

Front 11

3. Duty of Care and Breach of Duty/Breach of Duty

Back 11

1. General
2. Special tasks