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Negligence and the duty of care

Previous: Tort and other areas of law

Negligence is perhaps the most well known tort, or civil wrong. The Oxford dictionary of law starts their extensive definition by saying that negligence means, ”Carelessness amounting to the culpable breach of a duty”.

Requirements

There are three requirements for any negligence claim:

  • A legal duty to take care
  • A breach of this duty
  • Damage caused by the breach which is not too remote

In this section, we will almost exclusively focus on establishing a duty of care. However, in the vast majority of tort claims, the question is as to whether there has been a breach; precedent usually shows whether there is a duty or not.

A legal duty to take care

Here lies the main examination – is there a legal duty to take care in the present case. If so, the law may consider whether there is a claim or not.

Donoghue v Stevenson [1932]

The concept of a duty of care was first established in the case of Donoghue v Stevenson [1932] with Lord Atkin’s legendary judgment. The test went as follows:

  • You owe a duty to anyone who is your neighbour for any of your acts or omissions
  • Your neighbour is anyone who could reasonably be foreseen as being affected by your acts or omissions

Anns v Merton London Borough Council [1978]

Lord Wilberforce attempted to refine Lord Atkin’s test of establishment of a duty of care in the case of Anns v Merton London Borough Council [1978]. The Anns test as it is known has now been overruled in the UK, though it is still applied in Canada. The test was another 2 stage test:

  1. Is there a sufficient relationship of proximity and foreseeability? If so, a prima facie duty of care exists
  2. Are there any considerations which could negative, reduce or limit the scope of liability

However, this test has been subject to significant criticism, mainly that it requires court to explicitly divulge policy considerations. Lord Keith argued that forseeability of harm was not the only ingredient and some have said that the test places too much burden on defendants. The test was removed from English Law by Murphy v Brentwood District Council [1991].

Caparo v Dickman [1990]

The ‘Caparo test’, as established by Lord Bridge in Caparo v Dickman [1990], is the test most commonly used today when establishing whether there is a legal duty to take care. However, it should be noted that it is still not the ‘magic’ solution. It is still often a good idea to start by considering a Donoghue v Stevenson test first when answering an exam question. The Caparo test is a 3 stage test:

  1. Is the harm reasonably foreseeable, as in Donoghue v Stevenson?
  2. Are the parties in a relationship of proximity and neighbourhood?
  3. Is the situation fair, just and reasonable?

It is my opinion that this test is more successful than the Anns test was because judges can mask policy concerns under the broad heading of ‘fair, just and reasonable’ and therefore their discretion is significantly extended. As the foreseeability test can be found in Donoghue v Stevenson [1932], proximity and ‘fair, just and reasonable’ must be examined.

Proximity

A duty cannot be owed to the world at large, therefore the claimant must prove proximity to the defendant. Good examples of relationships which are not proximate enough to justify liability can be found in  Palsgraf v Long Island Railroad Co [1928, America] and Bourghill v Young [1943]. As was said in the case of Dorset Yacht co Ltd v Home Office [1970], for a duty to be found, there must be a closeness of relationship based on risk and geography. An even more remote relationship, which incurred no liability, can be found in the case of Sutradhar v Natural Environment Research Council [2006].

Fair, just and reasonable

For a duty to be found, a claim must follow the purposes principles of tort law generally. Tort law must promote autonomy; liability must be proportionate and the vulnerable must be protected, such as in White v Jones [1995]. Finally, there must be no policy considerations which should reduce liability; a point made explicit in the Anns test, ironically, as can be seen in Mulcahy v MoD [1996].

A breach of this duty

Please see the page on breach of duty for an expansion of this principle.

Damage caused by the breach which is not too remote

Any damage resulting in a negligence claim must arise as a result of the breach of the defendant’s legal duty to take care. You may not recover from the same damage twice, hence the reason you cannot have concurrent criminal proceeding and punitive civil claims. You may also only recover from one defendant, a useful advantage if one of them is more likely to pay. It is then the responsibility of that defendant to claim off the other potential defendants for their share of responsibility. These claims of course may not succeed. There is no issue if you have more than one cause of damage, though any damage must not be too remote, or else you cannot recover. This idea of ‘remoteness’ crosses over the concept of a legal duty too; damage will be too remote if there is no legal duty to take care – there can be no breach, so damage cannot result from the breach.

Defences to negligence claims

There are a number of defences or mitigating factors which can assist defendants dealing with claims, here are a few:

  • Contributory negligence – where the claimant was partly responsible to themselves for the damage caused
  • Necessity – for example where a doctor treats a patient without their consent
  • Consent – where the claimant consented to the damage, such as in a boxing match
  • Illegality – policy may prevent tort claims if a crime has (allegedly) been committed – such as in Magill v Magill [2006, Australia]

Guiding principles for ‘the duty of care’

While respecting the above ‘fair, just and reasonable’ principles outlined above, the primary purpose of a judge when establishing a duty of care must be to maintain consistency in the legal system as a whole. Does the decision conflict with past cases unacceptably, or will there be future conflict if a new duty is recognised? Are there any policy considerations?

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