Chapter 3 Answers to end-of-chapter questions

1. What purpose does the concept of duty of care serve? Why shouldn't everyone who falls below the standard of care of the reasonable person be liable if they injure someone?

This question requires you to consider what Nicolas McBride terms the 'idealist' and 'cynical' views of the tort of negligence (discussed in the pause for reflection box in section 3.1). On the cynical view – adopted by, for example, Peter Cane – the main function of the duty of care element in the tort of negligence is to ‘define the boundaries of liability for damage caused by negligent conduct by reference to what are commonly called “policy considerations”’. The only significance in finding a duty of care is that it says that the defendant will have to compensate the claimant for any losses they have carelessly caused them. On the idealist view – adopted by McBride and others – we should take the notion of a duty of care seriously. It requires a defendant to actually take care and hence not harm the claimant in the first place. You should think about which view you prefer. Why? Can you think of examples from the cases you have read to support your view?

Your answer to the second question will depend on which view you adopt (although in any exam question you should usually address both views before making an argument as to which one you prefer). On the cynical view, restricting situations in which a duty of care is owed enables it to act as a control mechanism seeking to limit claims in order to prevent too heavy liability on defendants – so-called “crushing liability” or a “flood” of claims – whether the line is drawn in the correct place will depend on whether you think a particular defendant ought to be liable in a given case. However, if we take the idealist view, which views tort law as primarily concerned with telling people how they may and may not act, then we should be asking whether (and if so where) there are situations in which we shouldn't be required to take care not to harm others. Floodgate factors and the like should be relevant, if at all, to secondary question of whether the defendant should be under a duty to compensate the claimant for losses caused by their failure to take care.

2. In what situations is the issue of whether or not there is a duty of care unproblematic and when is it problematic? Why is this?

The situations at the beginning of Chapter 3 are examples of where establishing a duty is straightforward.

• A lorry driver crashes into a queue of traffic while talking on his mobile phone, killing the occupants of the car in front.
• A nurse misreads a doctor’s handwriting and, as a result, gives a patient the wrong drug, causing them to suffer a serious allergic reaction.
• A university law lecturer fails to check departmental files properly before writ­ing a reference to accompany a student’s application to join an Inn of Court— unfortunately this means that a strong candidate ends up with a weak reference and their application is refused.
• A school caretaker injures their back falling off a stepladder while putting up decorations for the end of term play— the stepladder had not been properly main­tained by his employer.

These can be compared with the situations discussed in Chapters 4-7 which explore particularly problematic duty areas – these relate to particular types of harm (such as where the defendant's actions cause psychiatric injury or economic loss), how the harm is suffered (for example, where the claimant's loss or injury has been caused by the acts of a third party or through an omission rather than a positive act) and who the defendant is (such as where defendant is a public body – for example, a local authority, the police or other emergency services).

Why is this? Well, the answer here relates back to the points raised in Q1 – there are certain circumstances in which the courts wish to limit liability so as to avoid, for example, a ‘flood’ of claims or they do not want to find a particular defendant liable.

3. In each of the following situations consider both whether there is a legal duty of care and whether there should be:

(i) Iris, a 2-year old child, falls into two feet of water. Ben, an adult, walks by and offers no assistance. Iris drowns.

There is no legal duty here. There is no legal duty to rescue strangers, that is to come to another's aid (see further Chapter 4). As for whether there should be a duty – this is up to you! Either way you need to be able to justify you think there should/shouldn’t be a duty.

(ii) In (i), what if Ben is Iris’s father?

If this is the case, then Ben will owe Iris a legal duty to take care – except in circumstances where Ben does not know Iris is his daughter, as biology alone is not enough to establish a relationship. Do you think the fact that Ben and Iris are related should make a difference to Ben’s legal responsibilities?

(iii) Doreen, an elderly woman, lives alone in an isolated farmhouse. Recently there have been a number of burglaries in the neighbourhood so she decides to protect herself by digging a hole beneath her front window, which she then covers with leaves. Unfortunately, Charlie, a postman, falls down this hole while looking through her window to see if Doreen is in to collect a parcel.

There is a legal duty here. Doreen owes Charlie a duty of care (see further the Occupiers' Liability Act 1957 discussed in Chapter 11). More contentiously, perhaps, she may also owe any would-be burglar a duty of care too. Do you think this should be the case? So have a look at the Occupiers' Liability Act 1984 (discussed in Chapter 11) and also the case of Revill v Newberry to see how the courts deal with such cases.

(iv) Dr Smith is a well know magician. One night while performing his signature trick which involves 'cutting' his assistant, Pip, in half he accidently slices into her side causing her to bleed heavily. On seeing this, Pip's new boyfriend, Dan, who is in the audience faints and falls and hits his head – he suffers severe concussion.

Dr Smith clearly owes Pip, his assistant, a duty to take reasonable care while sawing her in half. However, the fact that he has ‘sliced into her’ this does not automatically mean he has been negligent. Pip would have to show that Dr Smith has breached his duty of care by falling below the standard of care expected (see further Chapter 8), as well as causation – though this is likely to be straightforward (Chapter 9). Dr Smith may try and raise the defence of consent (volenti non fit injuria) – though this is unlikely to succeed (see further Chapter 10). Dr Smith is also likely to owe Dan a duty of care, although issues relating to breach, cause and defences would have to be considered before it could be established that Dr Smith has been negligent.

(v) While out shopping, Kate’s 7-year-old daughter slips out of her hand and runs into the road causing a serious accident.

This is fairly straightforward. While Kate will owe a duty of care to other road users, it is unlikely (so long as she was keeping an eye on her daughter) that she will be in breach of her duty of care. Do you think she should owe a duty in this case? Is the accident really her fault? There are similarities here with Carmarthenshire County Council v Lewis [1955] discussed in Chapter 4.

(vi) Helen negligently leaves the door of her fireworks factory unlocked one night, some boys enter the factory and steal a large quantity of fireworks, which they light in thenearby park. This causes an explosion that seriously injures Ben who is walking his dog in the park.

This is more complicated. Here Helen has omitted to do something – i.e. lock the factory duty. As discussed in chapter 4, the courts have been reluctant to impose a duty of care in cases of pure omissions – see discussion of Smith v Littlewoods [1987] in section 4.5.4.While on the basis of Smith it may be that Helen would owe a duty of care in relation to any property or physical damage caused had the boys set off the fireworks inside the factory (if the court consider that this was a specific danger that she ought to have known about), it is less clear that this will extend to Ben, walking in a near by park. He is unlikely to be a foreseeable victim. See further Topp v London Country Bus [1993] discussed in section 4.5.3.

4.  '[T]he postulate of a simple duty to avoid any harm, that is, with hindsight, reasonably capable of being foreseen becomes untenable without the imposition of some intelligible limits to keep the law of negligence within the bounds of common sense and practicability’ (Caparo, Lord Oliver at 633).

How have the courts sought to place limits upon the duty of care owed in negligence and to what extent do you consider that such limits are 'intelligible'?

This is the type of essay question you are likely to get on this topic. In order to answer this question you need to outline the criteria used by the courts to determine whether there is a duty of care – that is the three-stage 'test' and incremental approach. It is important to note that these tests only become important in relation to problematic duty areas. You might also want to touch on why the courts seek to impose limits – however you should not become distracted by this.

You then need to consider the extent to which these limits are 'intelligible'. You should give examples of how these approaches work in practice – the economic loss cases would be good examples (see Chapter 7). For example is the distinction between acts and statements causing economic loss ‘intelligible’?