Law Express: Tort Law

Emily Finch, Stefan Fafinski

• Editorial: Pearson
• Año: 2021
• ISBN:
  9781292295480
• Edición: 8
• Categoría: Law
• Categoría: Legal Education

Revise with the help of the UK's bestselling law revision series.

Designed for students, this book will help you:

• Understand how to review essential cases, statutes, and legal terms
  
  

• Learn how to assess and approach the subject by using expert advice
  
  

• Learn how to lead further discussions
  
  

Find additional support on our Law Express companion website, which contains a host of extra resources to provide you with pre-exam guidance.

Visit go.pearson.com/uk/lawexpress

Emily Finch and Stefan Fafinski are authors of a number of bestselling and student-friendly resources.

1

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

Long Description

The illustration starts with the title, negligence duty of care. It branches into the elements of negligence and the legal duty of care. The elements of negligence branches into duty of care, breach of duty, causation, and remoteness. The legal duty of care branches into the following. Established duty situations, the neighbour principle, Omissions, Acts of third parties, negligent misstatement, Economic loss, Psychiatric injury, and Special claimants and defendants. Negligent misstatement is further divided into Hedley Byrne versus Heller and Liability to third parties. Economic loss is further divided into Damage to property and Acquisition of defective goods or property. Psychiatric injury is further branched into definition, duty of care, and proximity. The duty of care is further branched into primary victims and secondary victims. Special claimants and defendants is further branched into unborn children and Police, rescuers and public authorities.

A printable version of this topic map is available from go.pearson.com/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.

The elements of negligence

Negligence can be defined as a breach of legal duty to take care which results in damage to the claimant.

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

Figure 1.1 Long Description

The flow diagram shows four component parts of the elements of negligence. The following are the four component parts.

1. The claimant was owed a duty of care.

2. There was a breach of that duty of care

3. The claimant suffered damage as a result of that breach, causation.

4. The damage suffered was not too remote.

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:

Donoghue v Stevenson [1932] AC 562 (HL)

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 bre...