Chapter 5
Duty of care- introduction
5.1 The basics:
A. Different types of duty:
- According to what they require someone to do
- According to what sort of interest they are designed to protect
- According to how they arise
- Negative duties and positive duties
- Negative= to take care not to act in a certain way
- Positive= D to act in a certain way
- Protect interests: physical, mental and economic
- Some duties arise merely because it is foreseeable that acting in a particular way will
result in someone else suffering harm of some kind
B. The duty-harm relationship:
- Have to show that D owed her a duty from a particular kind of harm-> have to be
corresponding
- Caparto Industries plc v Dickman [1990]
- Forgetful investor problem
C. Duties of care and public policy
- Policy minimalists-> question of whether A owed B a duty of care should be decided
without any reference to public policy
- Policy maximalists-> public interest is always relevant to the question of whether A
owed B a duty of care. Hill v Chief Constable of West Yorkshire [1989]
- Our position (McBride + Bagshaw) -> if everything else indicates that it would be wrong
for the law to impose a particular duty of care on a class of people, the public interest
cannot make it okay for the law to impose that duty of care on that class of people. But,
if everything else indicates that the law should impose a particular duty of care on a class
of people, it would still be wrong for the law to impose that duty of care on that class of
people if doing so would be contrary to the public interest.
- Criminal catching duty of care.
5.2 Duty of care tests:
a. Duty of care tests:
- Heaven v Pender test [1883] -> objective test.
- Neighbour principle [1932] Lord Atkin-> you must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbour.
Neighbour= anyone closely and directly affected by your act.
- Anns test [1978]
- Incremental test [1985]
- Caparo test [1990]
- C:\Users\Intis\OneDrive\Documents\Law\Year I\Law of Obligations\Lectures\Tort\
Lecture 3- Duty of Care II.pptx
b. Need for tests:
- Novel cases-> no previous precedent established
c. The fate of the tests:
- Tests as reintroducing stability into this area of the law
- Guidance?
Duty of care- introduction
5.1 The basics:
A. Different types of duty:
- According to what they require someone to do
- According to what sort of interest they are designed to protect
- According to how they arise
- Negative duties and positive duties
- Negative= to take care not to act in a certain way
- Positive= D to act in a certain way
- Protect interests: physical, mental and economic
- Some duties arise merely because it is foreseeable that acting in a particular way will
result in someone else suffering harm of some kind
B. The duty-harm relationship:
- Have to show that D owed her a duty from a particular kind of harm-> have to be
corresponding
- Caparto Industries plc v Dickman [1990]
- Forgetful investor problem
C. Duties of care and public policy
- Policy minimalists-> question of whether A owed B a duty of care should be decided
without any reference to public policy
- Policy maximalists-> public interest is always relevant to the question of whether A
owed B a duty of care. Hill v Chief Constable of West Yorkshire [1989]
- Our position (McBride + Bagshaw) -> if everything else indicates that it would be wrong
for the law to impose a particular duty of care on a class of people, the public interest
cannot make it okay for the law to impose that duty of care on that class of people. But,
if everything else indicates that the law should impose a particular duty of care on a class
of people, it would still be wrong for the law to impose that duty of care on that class of
people if doing so would be contrary to the public interest.
- Criminal catching duty of care.
5.2 Duty of care tests:
a. Duty of care tests:
- Heaven v Pender test [1883] -> objective test.
- Neighbour principle [1932] Lord Atkin-> you must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbour.
Neighbour= anyone closely and directly affected by your act.
- Anns test [1978]
- Incremental test [1985]
- Caparo test [1990]
- C:\Users\Intis\OneDrive\Documents\Law\Year I\Law of Obligations\Lectures\Tort\
Lecture 3- Duty of Care II.pptx
b. Need for tests:
- Novel cases-> no previous precedent established
c. The fate of the tests:
- Tests as reintroducing stability into this area of the law
- Guidance?
