Duty to take care:

Liability and Defenses

 Introduction

Tort is a branch of civil law that deals with wrongful

acts resulting in harm or injury to another person. The
purpose of tort law is to provide compensation for the
injured party and to deter others from committing
similar acts.
Torts can be intentional, such as assault or battery, or
they can be unintentional, such as negligence.
Negligence is the most common type of tort and is the
focus of this presentation.
 Negligence

Negligence is a type of tort that involves a failure to exercise reasonable care, resulting in harm or
injury to another person. The tort of negligence gives rights to persons who have suffered damage or
to their property, against the party who has failed to take reasonable care for those persons’ safety.
Examples include: car accidents, medical malpractice, slip and fall accidents.

In order to prove negligence, the claimant (the person who was injured) must prove that:
 that the defendant (the person who allegedly caused the injury) had a duty of care to the claimant,
 that the defendant breached that duty of care,
 that the breach caused the claimant’s injury,
 and that the injury resulted in damages (such as medical expenses, lost wages, or pain and
suffering).
 Elements of Negligence: Duty of Care

This refers to the legal obligation that one person has to take reasonable
care to avoid causing harm to another person. The House of Lords also
determined that when deciding whether a duty of care exists in any
negligence action, the court must take into account whether the following
criteria are satisfied:
1. Reasonable foreseeability
2. Proximity
3. Public interest into account fairness, justice and reasonableness.
Duty of Care: Example

Reasonable It is reasonably foreseeable that someone could be injured if a

foreseeability driver acts negligently while driving.

The driver's actions on the road can directly impact the safety of
Proximity
others in close proximity,
Takes into account the public interest in promoting safe driving
Public interest practices and preventing harm to others on the road by driving
safely and obeying traffic laws.
 Elements of Negligence: Breach of Duty

A breach of duty occurs when someone fails to meet their duty of care,
either by doing something they shouldn't have done, or by failing to do
something they should have done. To establish a breach of duty, the
plaintiff must show that the defendant's conduct fell below the standard of
care that a reasonable person would have exercised in the same
circumstances.
However, there are certain criteria that exist to guide the court
1. Seriousness of the risk arising from the defendant’s conduct
2. The extent of the reasonably foreseeable damage to the claimant
3. Any relevant skill of the claimant; and
4. The skill/qualifications of the defendant
 Breach of Duty: Example
Seriousness of the risk arising
from the defendant’s conduct
The extent of the reasonably
foreseeable damage to the
claimant
Any relevant skill of the
claimant; and
The skill/qualifications of the
defendant
If the condition is serious and requires urgent treatment, a delayed or incorrect diagnosis
could result in significant harm to the patient.
The extent of the damage is the harm that the patient suffers as a result of the delayed or
incorrect diagnosis; physical pain, suffering emotional distress and even death.
Not relevant in this case. But in the case where a customer could have avoided the unsafe
area in a shop even though it was a breach by the shop owner to have an unsafe area
If the doctor's level of skill and expertise falls below the standard of care expected of a
reasonable and competent doctor in their field, they may be found to have breached their
duty of care to the patient.
 Elements of Negligence: Causation

This refers to the connection between the defendant's breach of duty and the claimant’s injury. To
establish causation, the claimant must show that the defendant's conduct was:
 the cause-in-fact, result of the breach, and
 the proximate cause of the claimant’s injuries, must not be too remote from the breach of duty.

In terms of causation-in-fact, the defendant's Similarly, in terms of remoteness of

conduct must be the actual cause of the
harm suffered by the claimant. In some
cases there may be multiple causes, where
the claimant may be unable to prove on the
balance of probability.
damage, the damage from defendant’s
negligence or nuisance must be of a
reasonably foreseeable type. Its cause or
severity may not necessary be
foreseeable.
 Elements of Negligence: Damages

Damages refer to the harm or injury that the plaintiff has suffered as a result of the defendant's
breach of duty. Damages can include physical injuries, emotional distress, financial losses, and
other types of harm. Examples include:
 A person who is injured in a car accident may suffer physical injuries such as broken bones,
whiplash, or cuts and bruises.
 A patient who receives inadequate medical treatment may suffer additional pain,
complications, or the need for additional medical procedures.
 A person who slips and falls on a property owner's premises may suffer physical injuries as
well as financial losses such as medical bills, lost wages, and other expenses.
 Capro Case

The case of Caparo Industries plc v. Dickman,

decided by the House of Lords in 1990, had a
significant impact on the legal test for
establishing duty of care in negligence cases.
In this case, Caparo Industries purchased
shares in a company based on the financial
statements prepared by the company's
auditors, Dickman & Co. When the company's
financial position was found to be worse than
stated, Caparo brought a negligence claim
against Dickman & Co.
Capro Case: Held

The House of Lords ultimately held that the auditors did not owe Caparo a duty of care because
there was no "proximity" between the parties. The court established a three-part test for
determining whether a duty of care exists in negligence cases, known as the "Caparo test." The
test requires that:
 The harm suffered by the claimant must be reasonably foreseeable;
 There must be a relationship of proximity between the claimant and the defendant; and
 It must be fair, just and reasonable to impose a duty of care on the defendant.
The Caparo test has since become a key part of the legal analysis in negligence cases, and it
has been applied in numerous cases to determine whether a duty of care exists in a particular
situation.
 The Elements of Negligence in the Capro Case

Element of Negligence In the Capro case

Duty of care The court held that there was a duty of care owed by the auditor to the shareholders of
the company in question, since the auditor was aware that the financial statements
would be used by shareholders to make investment decisions.

Breach of duty The court found that the auditor had breached their duty of care by failing to identify
and disclose the inaccuracies in the financial statements.
Causation The court determined that the auditor's breach of duty was the cause-in-fact of the
shareholders' losses, as the shareholders would not have invested in the company had
they known about the inaccuracies.
Damages The court awarded damages to the shareholders based on the losses they suffered as a
result of their investment in the company.
Remedies
Defences
Professional negligence