Duty of care Promixity and Fair, Just reasonable PDF

Preview

Summary

Notes on duty of care...

Description

Duty of care Proximity and Fair, Just reasonable In order to establish Negligence : 1) Duty of care - what is reasonably foreseablity 2) Breach of duty 3) Damage or harm If duty of care is not established there is no liability. DUTY OF CARE USED FOR LIMITING NEGLIGENCE However sometimes this is straightforward so you have to modern case law. Negligence - Donoghue v Stevenson 1932 - Wider important is the development of Neighbour principle - You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. - Who is my neighbour in law? - lord atkin The function of duty of care: -

-

Determined by the courts by the application of non - legal considerations economic, social or ethical considerations all play their part in the judicial decision making process. In D and S Lord Macmillian observed that the catergores of negligence are never closed.

The development of the duty of care: -

Stennet v Hammeock Anns v London - developed two stage test: 1) can neighbour principle be satisfied 2) are there any reasons or policy considerations that this duty should not exist. - if so you open floodgates for compensation.

The modern day duty of care: -

Caparo Insustries v dickman 3 stage test Beyond 3 stage test it must be incrementally and by analogy In addition to forseeability - proximity and must be fair, just and reasonable Caparo moved the goal post further.

DUTY OF CARE: 1) Foreseeability of damage 2) Proximity 3) fair , just and reasonable PROXIMITY OF RELATIONSHIP -

Does not describe simple physical closeness - part of it but not limited D can owe a duty of care to C who is miles away Lord Oliver in Carpio - convenient expression - merely a description of circumstances from which pragmatically the courts conclude that a duty of care exists Proximity is decided on a case by case basis eg relationship or physical closeness. Proximity can be different case to case - it is a fluid term/ flexable. Hillsborough enquiry 1) Physical closeness 2) Closeness of relationship 3) A policy reason

Bourhill v Young 1943: -

-

Pregnant lady went on tram, and there was an accident but she didn't see the accident only heard a sound and saw blood. She was traumatized and had nervous shock and as a result had stillbirth. The question is whether the defendant held liable? No proximity Not reasonable Defendant not help liable because no duty of care established.

FAIR, JUST AND REASONABLE TO IMPOSE A DUTY: -

If a claimant established foreseeability and proximity a court may still find that in all circumstances it is still not “fait, just or reasonable” to impose a duty. This requirement gives the courts flexibility to deny a duty to exist, if on balance it seems reasonable to do so. Must be fair,reasonable to impose duty - otherwise it can open the floodgates to compensation claims, The Nicholoas H - HL denied duty of care because it was not fair, just and reasonable = gives courts judicial discretion XA V YA - court held it would not be fair just and reasonable to impose a duty of care on a mother who had failed to prevent her son from being assaulted.

The limits of duty of care: -...