© strawberrywaffles 2025
Negligence
C to prove all elements, except defences (to be proven by D).
First determine type of loss:
- Physical harm / personal injury
- Psychiatric harm
- Property damage
- Consequential economic loss (resulting from physical harm / property damage)
- Pure economic loss (usually not recoverable)
Duty of care
Established duties of care:
- School to protect students from bullying
- Doctor to patient (e.g. against misdiagnosis)
- Healthcare provider (hospital) to patient
- Solicitor to client
- Solicitor to intended beneficiary of will
- Employer to employee
- Road user to road user e.g. driver to pedestrian (physical injury, not psychiatric
harm)
- Duty of hospital to break distressing news in a sensitive way to clients
- Sportsmen to each other
- Sportsman to spectator
- Manufacturer of ginger beer, who sold the drink to a café, to a customer in the café
who consumes the drink
- Police force to an elderly woman close to a suspect that the police was trying to
arrest, and where there was a reasonably foreseeable risk of injury to nearby
pedestrians in the course of arrest
- Ambulance service to respond to a 999 call within a reasonable time
NO DUTY OF CARE:
- Fire responders to attend to a fire
o But if they do attend to the fire, they owe a duty not to make it worse
,© strawberrywaffles 2025
- Police to respond to emergency calls
- Police to arrest a specific criminal
- Police to a potential victim, where she was an unidentifiable member of a large class
of potential victims (e.g. “women”)
- Army to soldiers during active combat
*public authorities don’t owe a duty of care to respond to danger, but they have a duty, when
they interfere, not to make the situation worse or prevent others from taking protective steps
If no established duty of care, use Caparo:
- Was the harm reasonably foreseeable?
- Was the relationship between C and D sufficiently proximate?
- Is it fair, just and reasonable to impose a duty? (policy concerns)
o Floodgates, insurance, deterrence, maintenance of high standards, crushing
liability (disproportionate to the tort), adoption of undesirable defensive
practices
o In successful claims against public bodies, usually taxpayers funding claim
No duty of care in relation to omissions, except:
- Statutory duty
- Contractual duty
- Defendant has sufficient control over claimant
o E.g. police failed to prevent claimant from committing suicide when he was in
their custody
- Defendant assumes responsibility
- Defendant creates the risk
No duty to prevent a third party from causing harm, unless:
- Sufficient proximity between D and C, and/or
o C must be an identified member of a small group at risk
o Must also have assumption of responsibility (e.g. police to an informer who
wanted to remain anonymous) or contractual/statutory duty
,© strawberrywaffles 2025
- Sufficient proximity between D and third party, and/or
o E.g. third party was supposed to be under C’s care & supervision at the time
the harm was committed (e.g. criminals who had just escaped)
- D created the danger, and/or
o E.g. D forgot to lock C’s property, allowing a burglary to happen
- Risk is on D’s premises → D has a duty of care to take reasonable steps to
eradicate/diminish the known/reasonably foreseeable danger
Breach
Two stages:
- Establish standard of care: ordinary reasonable person
- Has D fallen below this standard? (question of fact)
Standard of care
Usually the ordinary reasonable person in D’s circumstances (objective test).
- Children: ordinary reasonable child of D’s age
- Illness/disabled: only lowered if the defendant was reasonably unaware that they
were suffering from the particular illness/disability
o E.g. driver suffered from an unexpected hypoglycaemic attack and did not
realise that his ability to drive was impaired → standard of a driver who did
not know he was suffering from a condition that impaired his ability to drive
o E.g. driver suffered from a stroke but was aware that his consciousness was
being impaired → standard of a reasonably competent driver, and should
have stopped driving when he realised his driving was being affected
Professional standard: ordinary, reasonably competent person exercising and professing to
have that special skill e.g. ordinary, reasonably competent surgeon.
It is the act, not the actor, that determines the standard of care.
- A trainee solicitor will be judged against the standard of a qualified solicitor in that
specific practice area
, © strawberrywaffles 2025
o If the solicitor has been recommended by a particular body, this does not form
part of the standard
- A learner driver will be judged against the standard of a qualified driver
- Junior doctor will be judged against the act he was undertaking, not his level of
inexperience or the fact that he was in training
- E.g. if person was carrying out trivial work, they would be judged against the
standard of the reasonably competent amateur carpenter
Has the standard been breached?
Assess likelihood & magnitude of harm, balanced against the practicality of precautions that
D could’ve taken to mitigate harm & benefits of D’s conduct.
- Likelihood & magnitude of harm must be foreseeable for there to be a breach
o E.g. if the risk was not known at all, there would not be a breach
- Assess D’s actions against knowledge at the time of breach (“state of the art”
defence)
o While professionals need not know every new development, doctors must
do what is reasonable to keep up to date with new developments by
going on professional development courses
o Must follow changes recognised in mainstream literature, although they
need not necessarily be aware of content in more obscure journals
1. Likelihood of harm
a. Risk of cricket ball hitting someone was so small (happened 6 times in 30
years; there was a 7ft-high fence around the field) → no breach
b. Reasonable person only takes precautions against risks likely to happen
c. E.g. risk of a blind person falling into a hole dug into the pavement was not so
small that it could be ignored → need to take precautions
2. Magnitude of harm
a. C only had one good eye, which D (employer) knew, but D didn’t provide
protective goggles → high magnitude of harm (loss of sight) → despite the
small risk of harm materialising, D should’ve taken precautions
b. Professional boxing regulatory body breached its duty by failing to provide
suitable ringside resuscitation equipment & doctors, because the potential
harm was serious brain damage
Negligence
C to prove all elements, except defences (to be proven by D).
First determine type of loss:
- Physical harm / personal injury
- Psychiatric harm
- Property damage
- Consequential economic loss (resulting from physical harm / property damage)
- Pure economic loss (usually not recoverable)
Duty of care
Established duties of care:
- School to protect students from bullying
- Doctor to patient (e.g. against misdiagnosis)
- Healthcare provider (hospital) to patient
- Solicitor to client
- Solicitor to intended beneficiary of will
- Employer to employee
- Road user to road user e.g. driver to pedestrian (physical injury, not psychiatric
harm)
- Duty of hospital to break distressing news in a sensitive way to clients
- Sportsmen to each other
- Sportsman to spectator
- Manufacturer of ginger beer, who sold the drink to a café, to a customer in the café
who consumes the drink
- Police force to an elderly woman close to a suspect that the police was trying to
arrest, and where there was a reasonably foreseeable risk of injury to nearby
pedestrians in the course of arrest
- Ambulance service to respond to a 999 call within a reasonable time
NO DUTY OF CARE:
- Fire responders to attend to a fire
o But if they do attend to the fire, they owe a duty not to make it worse
,© strawberrywaffles 2025
- Police to respond to emergency calls
- Police to arrest a specific criminal
- Police to a potential victim, where she was an unidentifiable member of a large class
of potential victims (e.g. “women”)
- Army to soldiers during active combat
*public authorities don’t owe a duty of care to respond to danger, but they have a duty, when
they interfere, not to make the situation worse or prevent others from taking protective steps
If no established duty of care, use Caparo:
- Was the harm reasonably foreseeable?
- Was the relationship between C and D sufficiently proximate?
- Is it fair, just and reasonable to impose a duty? (policy concerns)
o Floodgates, insurance, deterrence, maintenance of high standards, crushing
liability (disproportionate to the tort), adoption of undesirable defensive
practices
o In successful claims against public bodies, usually taxpayers funding claim
No duty of care in relation to omissions, except:
- Statutory duty
- Contractual duty
- Defendant has sufficient control over claimant
o E.g. police failed to prevent claimant from committing suicide when he was in
their custody
- Defendant assumes responsibility
- Defendant creates the risk
No duty to prevent a third party from causing harm, unless:
- Sufficient proximity between D and C, and/or
o C must be an identified member of a small group at risk
o Must also have assumption of responsibility (e.g. police to an informer who
wanted to remain anonymous) or contractual/statutory duty
,© strawberrywaffles 2025
- Sufficient proximity between D and third party, and/or
o E.g. third party was supposed to be under C’s care & supervision at the time
the harm was committed (e.g. criminals who had just escaped)
- D created the danger, and/or
o E.g. D forgot to lock C’s property, allowing a burglary to happen
- Risk is on D’s premises → D has a duty of care to take reasonable steps to
eradicate/diminish the known/reasonably foreseeable danger
Breach
Two stages:
- Establish standard of care: ordinary reasonable person
- Has D fallen below this standard? (question of fact)
Standard of care
Usually the ordinary reasonable person in D’s circumstances (objective test).
- Children: ordinary reasonable child of D’s age
- Illness/disabled: only lowered if the defendant was reasonably unaware that they
were suffering from the particular illness/disability
o E.g. driver suffered from an unexpected hypoglycaemic attack and did not
realise that his ability to drive was impaired → standard of a driver who did
not know he was suffering from a condition that impaired his ability to drive
o E.g. driver suffered from a stroke but was aware that his consciousness was
being impaired → standard of a reasonably competent driver, and should
have stopped driving when he realised his driving was being affected
Professional standard: ordinary, reasonably competent person exercising and professing to
have that special skill e.g. ordinary, reasonably competent surgeon.
It is the act, not the actor, that determines the standard of care.
- A trainee solicitor will be judged against the standard of a qualified solicitor in that
specific practice area
, © strawberrywaffles 2025
o If the solicitor has been recommended by a particular body, this does not form
part of the standard
- A learner driver will be judged against the standard of a qualified driver
- Junior doctor will be judged against the act he was undertaking, not his level of
inexperience or the fact that he was in training
- E.g. if person was carrying out trivial work, they would be judged against the
standard of the reasonably competent amateur carpenter
Has the standard been breached?
Assess likelihood & magnitude of harm, balanced against the practicality of precautions that
D could’ve taken to mitigate harm & benefits of D’s conduct.
- Likelihood & magnitude of harm must be foreseeable for there to be a breach
o E.g. if the risk was not known at all, there would not be a breach
- Assess D’s actions against knowledge at the time of breach (“state of the art”
defence)
o While professionals need not know every new development, doctors must
do what is reasonable to keep up to date with new developments by
going on professional development courses
o Must follow changes recognised in mainstream literature, although they
need not necessarily be aware of content in more obscure journals
1. Likelihood of harm
a. Risk of cricket ball hitting someone was so small (happened 6 times in 30
years; there was a 7ft-high fence around the field) → no breach
b. Reasonable person only takes precautions against risks likely to happen
c. E.g. risk of a blind person falling into a hole dug into the pavement was not so
small that it could be ignored → need to take precautions
2. Magnitude of harm
a. C only had one good eye, which D (employer) knew, but D didn’t provide
protective goggles → high magnitude of harm (loss of sight) → despite the
small risk of harm materialising, D should’ve taken precautions
b. Professional boxing regulatory body breached its duty by failing to provide
suitable ringside resuscitation equipment & doctors, because the potential
harm was serious brain damage
