Week 2 Summary:

Negligence has three main elements:

 a duty of care;
 breach of the duty;
 damage caused by the breach.
Duty of care
Duty of care is a legal concept which dictates whether one party can be liable to another in
negligence. The test for a duty of care has varied over the years, but the current main test
comes from Caparo v Dickman (1990):
 Is the damage reasonably foreseeable?
 Was there a relationship of proximity between claimant and defendant?
 Is it just and reasonable to impose a duty of care?
The test has been modified for cases which involve:
 economic loss;
 psychiatric injury;
 omissions;
 acts of third parties;
 special groups.
Duties of care: omissions
Negligence generally imposes liability for things people do, not things they fail to do, but
there are some situations where a defendant may be liable for an omission to act:
 where the defendant has a high degree of control over the claimant;
 where the defendant has assumed responsibility for the claimant in some way;
where the defendant creates a dangerous situation, and fails to deal with it.
Duties of care: acts of third parties
Negligence usually imposes liability only on the person who causes damage, but there are
five situations where someone may be liable for damage done by another:
 vicarious liability;
 where there is a relationship of proximity between claimant and defendant;
 where there is a relationship of proximity between the defendant and the party
causing damage;
 where the defendant negligently creates a source of danger;
 where the defendant knew/had reason to know a third party was creating a risk
on their property.
Breach of a duty of care
A defendant will be in breach of their duty of care if their behaviour falls below the standard
of behaviour reasonably to be expected in someone doing what they are doing.
The test is objective, and is known as the standard of reasonableness; it requires the defendant
to take reasonable precautions, not to eliminate every possible risk.
In deciding on the standard to be expected, the courts weigh up a number of factors:
 special characteristics of the defendant;
 special characteristics of the claimant;
 the size of the risk;
 how far it was practical to prevent the risk;
 common practice in the relevant field;
 any potential benefits to society from the activity that caused the risk.
Damage
The defendant will only be liable if the negligence causes damage.
The usual types of damage are:
 personal injury;
 damage to property;
 economic loss.
In a series of cases, the courts have decided that the birth of a baby, even if unwanted, is not
damage.