Tort 3: Negligence: duty of care and breach of duty Questions With Complete Solutions The neighbor principle two-stage test in Anns v Merton London BC† [1978
The current test: foresight, proximity and fairness
alternative test: assumption of responsibility - Correct
Answers ✅4 attempts to establish framework for duty of care
- HL recognised a new relationship as giving rise to a duty of
care, that between manufacturers and the ultimate consumers of manufactured products (in this particular case a bottle of ginger beer). This is sometimes called the narrow
rule in Donoghue v Stevenson: it still survives but has in
practice been superseded by a new kind of liability established in the Consumer Protection Act 1987
2. Lord Atkin: broad principle of liability. A duty was owed to
'persons who are so closely 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'. - Correct Answers ✅neighbour principle
Donoghue v Stevenson [1932]: importance on 2 points
first question was whether there was a sufficient relationship of proximity or neighbourhood such that in the reasonable 1 / 4
Tort 3: Negligence: duty of care and breach of duty Questions With Complete Solutions contemplation of the D carelessness on his part may be likely to cause damage to the C. If so, a prima facie duty of care arose.The second 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 case was itself overruled in 1991 ( - Correct Answers ✅redefinition of the neighbour principle.two-stage test in Anns v Merton London BC[1978] It was reasonably foreseeable that a person in the C's position would be injured.There was sufficient proximity between the parties.It is fair, just and reasonable to impose liability.
NOTES:
Tests are general Policy considerations are explicit in the second and third tests, but are implicit in Lord Atkin's test as well. Notice his use of 'ought' and 'reasonably'. There is a large moral 2 / 4
Tort 3: Negligence: duty of care and breach of duty Questions With Complete Solutions component to his test. It is not just about what can be foreseen, but about what 'ought' to be foreseen.of most use when the law is uncertain.Once a duty situation is recognised, the test in a sense 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 HL in respect to the liability of lawyers; - Correct
Answers ✅current test: foresight, proximity and fairness
C has to show three things if there is to be a duty of care:
Caparo Industries v Dickman [1990] decision of the CA was overruled by the HL whether there had been a voluntary assumption of responsibility by the D for the C. This test is particularly used in cases of liability for omissions, for mis-statements and for
economic loss - Correct Answers ✅alternative test:
assumption of responsibility 3 / 4
Tort 3: Negligence: duty of care and breach of duty Questions With Complete Solutions 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
users? Or do barristers owe a duty of care to their clients?Is the particular C within the scope of the duty of care (duty
in fact or the problem of the unforeseeable C): e.g. was this
particular road user owed a duty by this particular motorist?
NOTE: duty in fact can be also looked at either as a matter of
breach of duty or as a matter of remoteness of damage. - Correct Answers ✅duty concept has been seen as serving
two separate functions:
Should a school (or a parent) owe a duty of care to passing motorists to see that a child does not run out of the school and cause an accident?Should a host at a party owe a duty of care to prevent a guest driving home drunk and injuring a pedestrian?Should a car owner owe a duty of care to keep it locked up to prevent a thief stealing it and knocking down a pedestrian? - Correct Answers ✅An important problem is how far the D owes a duty to stop or prevent another person (X) injuring the C examples affecting 3P
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