Law Express: Tort Law ePub Electronic Book

Emily Finch, Stefan Fafinski

• Publisher: Pearson
• Year: 2018
• ISBN:
  9781292210568
• Edition: 7

Revise with the help of the UK’s bestselling law revision series. · Review essential cases, statutes, and legal terms before exams.
· Assess and approach the subject by using expert advice.
· Gain higher marks with tips for advanced thinking and further discussions.
· Avoid common pitfalls with Don’t be tempted to.
· Practice answering sample questions and discover additional resources on the Companion website.

Chapter 1

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Negligence: The duty of care

Revision checklist

Essential points you should know:

• The composite elements required to establish the tort of negligence
• The general definition of the legal duty of care
• Liability for omissions and the acts of third parties
• The principles of negligent misstatement
• The definition of economic loss and the limited circumstances under which it may be recoverable
• The changes to the extent of economic loss introduced by Anns, Junior Books and Murphy
• The definition of psychiatric injury and how it applies to primary and secondary victims
• The duty of care in relation to special claimants and defendants

Topic map

A printable version of this topic map is available from www.pearsoned.co.uk/lawexpress

Introduction

Negligence has grown to become the largest area of tort law.

In everyday terms, negligence means failure to pay attention to what ought to be done or to take the required level of care. Its everyday usage implies a state of mind (carelessness), whereas the tort of negligence is concerned with the link between the defendant’s behaviour and the risk that ought to have been foreseen. When revising negligence, be careful not to let the everyday meaning of the word distract you from the legal meaning of negligence.

As negligence is such an immense topic, it has been broken down into three chapters in this book. It may help to think of this chapter as dealing with the question of whether or not the defendant has a legally recognised duty to take care, while the following two chapters deal with whether the defendant has been careless (breach of that duty) and whether that carelessness caused the harm suffered by the claimant and that the harm gives rise to a legal claim (causation and remoteness).

ASSESSMENT ADVICE

Essay questions

Essay questions on the duty of care in negligence could concentrate on one particular duty situation in particular or cover several of them in a much broader evaluation of the role of the duty of care in negligence. Broad questions tend to be unpopular with students as many of the situations which limit the duty can be overlooked in selective revision. This means that, equipped with a good understanding of all the duty of care situations covered in this chapter, you would be well placed for your answer to stand out among those of your more ill-prepared colleagues. Remember that unpopular questions tend to be done either very well, or very badly.

Problem questions

Problem questions on negligence are very common. They can often include non-standard duty of care situations. For example, in a negligence scenario involving three parties, one might suffer physical loss or damage, one might suffer economic loss and another psychiatric harm. If you had just focused your revision on the ‘standard’ duty of care in negligence, you could lose out on many of the marks available for such a question. In all duty of care problems, remember to be methodical when applying the case law relating to the special duty situations to the facts given and work through each of the elements of the duty in turn.

Sample question

Could you answer this question? Below is a typical essay question that could arise on this topic. Guidelines on addressing the question are included at the end of the chapter, whilst a sample problem question and guidance on tackling it can be found on the companion website.

ESSAY QUESTION

The scope of the duty of care in negligence depends ultimately on the courts’ assessment of the need to protect society from the carelessness of others.

Discuss.

The elements of negligence

KEY DEFINITION: Negligence

A breach of legal duty to take care which results in damage to the claimant. (Rogers, W.V.H. (2002) Winfield and Jolowicz on Tort, 16th edn, London: Sweet & Maxwell, p. 103.)

This definition of negligence can be broken down into the four component parts that a claimant must prove to establish negligence. The legal burden of proving each of these elements falls upon the claimant. See Figure 1.1.

Figure 1.1

Duty of care

This chapter concerns the first element of negligence which is the legal duty of care. This concerns the relationship between the defendant and claimant, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the claimant in all the circumstances of the case.

There are two ways in which a duty of care may be established:

• the defendant and claimant are within one of the ‘established duty situations’; or
• outside of these situations, according to the principles developed by case law.

Established duty situations

There are a number of situations in which the courts recognise the existence of a duty of care. These usually arise as a result of some sort of special relationship between the parties.

The neighbour principle

Examples include:

• one road user to another;
• employer to employee;
• manufacturer to consumer (see Donoghue v Stevenson in the next section and also in Chapter 11);
• doctor to patient;
• solicitor to client.

Outside of these categories of established duty, a duty of care will be determined on the basis of individual circumstances. The ‘neighbour principle’ formulated by Lord Atkin in Donoghue v Stevenson [1932] AC 562 (HL) was initially used to determine whether a duty of care existed between defendant and claimant:

KEY CASE

Donoghue v Stevenson [1932] AC 562 (HL)

Concerning: duty of care; neighbour principle

Facts

Mrs Donoghue and a friend visited a café. Mrs Donoghue’s friend bought her a bottle of ginger beer. The bottle was made of opaque glass. When filling Mrs Donoghue’s glass, the remains of a decomposed snail – which had somehow found its way into the bottle at the factory – floated out. Mrs Donoghue developed gastroenteritis as a result.

Legal principle

Since Mrs Donoghue had not bought the bottle of ginger beer herself she could not make a claim in contract upon breach of warranty. She therefore brought an action against the manufacturer of the ginger beer. The House of Lords had to decide whether a duty of care existed as a matter of law.

The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain foreign bodies which could cause her personal harm. This is known as the narrow rule in Donoghue v Stevenson – that a manufacturer of goods owes a duty of care to their ultimate consumer.

More importantly, the case establishes the neighbour principle which determines whether the defendant owes a duty of care in any situation. Lord Atkin stated:

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, t...