Home > Flashcards > Print Preview
The flashcards below were created by user
on FreezingBlue Flashcards. What would you like to do?
Negligence as a tort is a breach of a legal duty to take care which results in damage to the claimant.
"Negligernce is an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do" - Alderson B in Blyth v Birmingham Waterworks
- In order to succeed in an action for negligence a plaintiff must show
- 1. a duty of care was owed
- 2. negligence - the standard od care was insufficient
- 3. causation - the defendant must have caused the act or the injury
The first major development in the 'Duty of Care Test' is Donoghue v Stevenson 
- The plaintiff suffered shock and a bout of gastro-enteritis after she discovered the remnants of a decomposed snail in the bottom of a bottle of ginger beer.
- The question arose as to whether she could persue a claim against the manufacturers of the ginger beer. At the time it was the view that a contractual relationship needed to have existed in order to make a claim. The contractual relationship existed between the plaintiff and the vendor of the drink rather than the manufacturer.
This neighbour principle - a person owes a duty to
anyone they can reasonably foresee that they could injure either by their acts or their omission
A two tiered test was developed in Anns v Merton Urban District County Council 
- Ist - along with the test for reasonable foreseeability was the test for proximity between the plaintiff and the defendant.
- 2nd - if this test was satisfied the court must consider whether there are any reasons not to recognise a duty of care
The leading case in signaling the rejection of the two tier approach in Anns and a move to a more incremental approach was in Caparo Industries Ltd v Dickman 
- In this case the claimants sought to recover for losses sustained after relying on an incorrect evaluation of a company they subsequently invested in.
- In rejecting earlier tests the HOL laid down their own 3 step test which required
- whether the imoposition of a duty of care would be 'just and reasonable'
The English Approach
- Donoghue v Stevenson : the neighbour principle established
- Anns v Merton Urban District County Council : developed the two tier test
- Caparo Industries v Dickman : the test of just fair and reasonable was added to the two tier test
- Under Caparo: Once proximity of relationship and foreseeability of damage is established then is it fair and reasonable to impose a duty of care
The Irish Approach: Anns was interpreted differently in Ireland than in English courts. In Irish courts Anns was a confirmation of the principles in Donoghue v Stevenson
Proximity was seperate from foreseeability where English courts equated proximity with foreseeability
English courts favoured the incremental approach (rule based)
Irish courts followed a broader more principal based approach
- Ward v MacMAster [1988}:
- 1. Foreseeability of damage
- 2. Proximity of relationship
- 3. Public policy considerations i.e. before a duty is held to exist it must first be shown that the case is one which was analogous to a case previously decided
The English courts in Caparo have adopted a very conservative approach towards establishing a duty of care. It must first be proven that:
- 1 the damage was reasonably foreseeable
- 2. there was a proximate relationship
- 3. no policy factors exist which lead to a finding against the existence of a duty of care
- 4. the imposition of a duty of care is just fair and reasonable
What would you like to do?
Home > Flashcards > Print Preview