Chapter 3 Negligence: duty of care and breach of duty
Contents
Introduction 17
3.1 Duty of care 17
3.2 Functions of the duty concept 19
3.3 Breach of duty 23
Introduction
This chapter introduces the first two elements in establishing an
action in the tort of negligence. Did the defendant owe the claimant
a duty to take care? Was the defendant in breach of that duty?
Learning outcomes
By the end of this chapter and associated readings, you should be able to:
explain the concept of duty of care and its purpos
identify the various tests that have been suggested for the existence of a
duty of care
discuss the duty concept in the context of some particular situations, namely,
controlling others, duty of lawyers and duty to unborn children
describe the standard of care required of defendants both in general and in
respect of particular skills
Esntial reading
Markesinis and Deakin, pp.85–95, 167–184
Murphy, pp.171–181, 231–263
Winfield and Jolowicz, pp.103–134, 190–208
Lunney and Oliphant, pp.90–100, 107–129, 139–187.
3.1 Duty of care
The duty of care concept has at least two purpos. The first is to
provide an overall framework for the huge variety of situations in
which liability may ari. For centuries the law has recognid
relationships in which one person owes a duty to another. What
was lacking was a general principle of which the various cas
Law of tort
were illustrations. The cond purpo is one of limitation,
tting the boundaries within which one person could be liable to
another for the conquences of careless behaviour.
3.1.1 Finding a general test
A number of attempts have been made to expound such a general
test. We will look at four of the most influential.
a. The neighbour principle
Donoghue v Stevenson [1932] AC 562 was important in two
respects.
First, by a majority, the Hou of Lords recognid a new
relationship as giving ri to a duty of care, that between
manufacturers and the ultimate consumers of manufactured
products (in this particular ca a bottle of ginger beer). This is
sometimes called the narrow rule in Donoghue v Stevenson: it
still survives but has in practice been superded by a new kind
of liability established in the Consumer Protection Act 1987
(e Chapter 8).
Secondly, Lord Atkin enunciated a broad principle of liability. A
duty was owed to ‘persons who are so cloly and directly
affected by my act that I ought reasonably to have them in
contemplation as being so affected…’ He described such people
as ‘my neighbours’: so his definition of the duty is called the
‘neighbour principle’.
b. A revid test
There were many developments in the law of negligence in the
years following that decision. The led Lord Wilberforce to
redefine the neighbour principle. He turned it into a two-stage test
北大退档
in Anns v Merton London BC [1978] AC 728 at 751.
The first question was whether there was a sufficient relationship of
proximity or neighbourhood such that in the reasonable
contemplation of the defendant carelessness on his part may be
likely to cau damage to the claimant. If so, a prima facie duty of
care aro. The cond question was whether there were any
considerations which ought to negative or reduce or limit the scope
of the duty of care or the class of persons to whom it was owed.
This test came under criticism in the following years as being too
expansive and indeed the Anns ca was itlf overruled in 1991
(e Chapter 5).
畚箕c. The current test: foresight, proximity and fairness
The test is now stated in this form. The claimant has to show three
things if there is to be a duty of care:
It was reasonably foreeable that a person in the claimant’s
position would be injured.
There was sufficient proximity between the parties.
It is fair, just and reasonable to impo liability.
There is no single ca identified with this test, but one of its best
expositions is in Caparo Industries v Dickman [1990] 2 AC 605.
党员示范岗There is a particularly helpful discussion of the test by Bingham LJ
in the Court of Appeal in the same ca: Caparo Industries v
Dickman [1989] QB 653 at 678-680. Notice that the decision of the Four tests:
•The neighbour principle
•A revid test (Lord Wilberforce) •The current test: foresight, proximity and fairness
• An alternative test: assumption of responsibility
‘BC’ = Borough Council, an administrative division, particularly in London.
学会计的基本条件Chapter 3 Negligence: duty of care and breach of duty Court of Appeal in that ca was overruled by the Hou of Lords.
For details, e Chapter 5.
The three tests are very similar. In particular, notice that:
They are very general. It is possible to understand what they
mean in practice only after studying a number of illustrative
cas.
Policy considerations are explicit in the cond and third tests,
but are implicit in Lord Atkin’s test as well. Notice his u of
‘ought’ and ‘reasonably’. There is a large moral component
to his test. It is not just about what can be foreen, but about
what ‘ought’ to be foreen.
The tests are of most u when the law is uncertain.
The are concepts that judges u when deciding whether or
not a duty of care ought to be recognid in new situations.
苏州少年宫Once a duty situation is recognid, the test in a n drops
out of the picture. So, in an examination context, there is no
need to go through the Caparo test unless either the situation is
a novel one, where there are no clear precedents, or you are
trying to argue that the law ought to be changed (as was done
by the Hou of Lords in respect to the liability of lawyers; e
below at page 21). If the question you are answering is about a
motorist knocking down a pedestrian, the duty of care is
established by many previous cas and there is no need to go
through the tests for establishing a duty afresh.
d. An alternative test: assumption of responsibility
For some purpos, an alternative test has been developed, namely
whether there had been a voluntary assumption of responsibility by
the defendant for the claimant. This test is particularly ud in
cas of liability for omissions, for mis-statements and for economic
loss as discusd in Chapter 5.
3.2 Functions of the duty concept
Traditionally the duty concept has been en as rving two
parate functions:
Is there a duty at the abstract level (the notional duty or duty
in law): e.g. does a motorist owe a duty of care to other road
urs? Or do barristers owe a duty of care to their clients?
Is the particular claimant within the scope of the duty of care
(duty in fact or the problem of the unforeeable claimant):
< was this particular road ur owed a duty by this particular
motorist?
数字成语Notice that many commentators prefer to treat the cond question
– duty in fact – either as a matter of breach of duty or as a matter of
remoteness of damage.
Some cas then are clear. Urs of machinery, etc., on the roads,
on building sites, in workplaces owe a duty of care to tho likely to
be affected. So do doctors, nurs, dentists, hairdresrs, etc.,
providing rvices to the public. Below there is a ries of
illustrations of the application of the concept of duty of care, in
situations where there has been doubt. More complex and
developing examples are discusd in Chapter 5.
Law of tort
3.2.1 Duty at the abstract level
Is there a duty to prevent X injuring C?
An important problem is how far the defendant owes a duty to stop
or prevent another person (X) injuring the claimant. This can be
illustrated thus:
Examples of this problem would include the following:
a. Should a school (or a parent) owe a duty of care to passing motorists to e that a child does not run out of the school and cau an accident?
b. Should a host at a
party owe a duty of
care to prevent a
guest driving home
drunk and injuring a
pedestrian?
c. Should a car
owner owe a duty of
care to keep it
locked up to prevent
名人事例作文素材
a thief stealing it and
knocking down a
pedestrian?
In the diagram above X is the child, the guest and the thief.
As a general rule English law does not impo a duty, reasoning that the fault is that of X and not that of D. But exceptionally a duty may ari. In deciding whether a duty of care aris, it is relevant to ask:
What is the relationship between X and D? Does D have some responsibility over X?
What is the relationship between C and D? Does it involve
some obligation on D’s part to protect C against harm?
See Home Office v Dort Yacht Co [1970] AC 1104; Carmarthenshire County Council v Lewis [1955] AC 549; Topp v London Country Bus (South West) Ltd [1993] 1 WLR 976; Attorney-General of British Virgin Islands v Hartwell [2004] UKPC 12: [2004] 1 WLR 1273.
The issues discusd in this paragraph are similar to, and overlap with, issues discusd later in this guide: (a) whether the act of X
Chapter 3 Negligence: duty of care and breach of duty amounts to a new and intervening cau breaking the link between
C and
D (e Chapter 4); (b) whether D can be liable for an
omission to act where he fails to take steps that would prevent X
from causing harm (e Chapter 5).
The issues discusd in this paragraph must be distinguished from
the question of vicarious liability (e Chapter 13). This
paragraph concerns the primary liability of defendants for their
own tort in failing to control others. In vicarious liability the
defendant is liable for a tort committed by someone el. In the
Dort Yacht ca both ideas are prent. The Home Office were
vicariously liable for the torts of the borstal officers. But the
borstal officers were not vicariously liable for the torts of the boys:
they were primarily liable for their own torts in allowing the boys
to escape and cau harm. In the Hartwell ca both vicarious
liability and primary liability were considered as alternative caus
of action.
A very similar problem aris where in effect C and X are the same
person. In the examples given on page 20 would the school, host or
car owner owe a duty of care to the child, guest or thief? How far
should defendants have to protect claimants against their own
folly? Of cour there are many cas where the defendant has
specifically accepted responsibility for the safety of others, but the
principle may extend further than that. See: Jebson v Ministry of
Defence [2000] 1 WLR 2055.
Duties of lawyers
Lawyers of cour owe a duty of care to their clients, but until
recently it was thought that no duty was owed by barristers (and
later solicitors also) in respect of work cloly connected with the
prentation of their ca in court. Putting it in terms of the Caparo
test, it would be said that, while there was foresight and proximity,
it was not fair, just and reasonable to impo liability.
赴宴者The Hou of Lords has now decided that in contemporary
conditions there are no policy reasons sufficient to justify this
immunity and it should be abolished: Arthur J. S. Hall v Simons
[2002] 1 AC 615.
The circumstances in which a duty is owed and the scope of the
duty are considered by the Hou of Lords in Moy v Pettman Smith
(a firm) [2005] UKHL 7: [2005] 1 WLR 581.
Activity 3.1
Examine the reasoning of the Hou of Lords in Hall v Simons. What policy
reasons previously were thought to justify the immunity? Why are tho policy
reasons no longer thought enough to justify it?
Feedback: e page 29.
Duty of care to unborn children
A doubt as to whether the common law recognid a duty of care to
unborn children in respect of damage done before birth was
resolved by statute: the Congenital Disabilities (Civil Liability) Act
1976. The Act originally envisaged a child being born with
