NEGLIGENCE; DUTY OF CARE
R.Mulheron, Principles of Tort Law, Cambridge, Cambridge UP, 2016, pp. 37-72; 99-106;
113-124; 131-146; 152-169
The Tort of Negligence
1. D owed C a duty of care to avoid causing C the type of injury of which he complains
2. D breached the duty of care, by falling below the standard of reasonable care which the law
demands
3. (a) D’s breach caused the damage complained of by C
3. (b) the damage complained of by C was not too remote (unforeseeable) at law to be recoverable
CAPARO TEST
Reasonable Foreseeability of harm:
At different stages the strictness of the test varies a lot.
Duty of care – at its widest, ‘was some type of harm reasonably foreseeable?’
Breach stage – narrower, ‘was the type of accident or incident reasonably foreseeable,
against which D should have taken precautionary steps?’
Remoteness Stage – narrowest ‘was the kind/type of harm suffered by C reasonably
foreseeable?’
D must have actually foreseen, or reasonably foreseen the risk that his failure to exercise reasonable
care and/or skill might cause harm to C. a risk is reasonably foreseeable if it is ‘real task’
o Some general type of harm:
Caparo- the test by Lord Bridge was ‘the foreseeability of damage’ as an
ingredient to the DoC.
Van Colle v CC of Hertfordshire Police, Lord Bingham, it must be
shown that harm to C was reasonably foreseeable consequence of
what D did/failed to do.
It must be a real risk, not a mere possibility i.e. one which a reasonable
person would not judge far-fetched overseas Tankship (UK) v Miller
Steamship
Follow that, merely possible risks may be foreseeable.
Does not matter about ‘likelihood’ or balance of probabilities.
Whenever the word probable is used it does not entail proof on a
balance of probabilities Smith v Littlewoods Organisation Ltd
Mitchell v Glasgow; the concept of reasonable foreseeability
embraces a wide degree of possibility, from highly probable to the
possible but highly improbable.
D does not need to have foreseen harm to C specifically, where D has never
had a past relationship/knowledge of C. where D knows C personally then C
may be an actually foreseen victim (Nettleship v Weston)
o The test of foreseeability is an objective test, whilst an objective tst, is not applied
completely hypothetical D. It should be a reasonable person in that particular D’s
shoes.
This makes the strictness of the test vary e.g. Islington LBC v UCL Hosp NHS
trust; surgeon’s secretary informed patient, C, that her operation was
R.Mulheron, Principles of Tort Law, Cambridge, Cambridge UP, 2016, pp. 37-72; 99-106;
113-124; 131-146; 152-169
The Tort of Negligence
1. D owed C a duty of care to avoid causing C the type of injury of which he complains
2. D breached the duty of care, by falling below the standard of reasonable care which the law
demands
3. (a) D’s breach caused the damage complained of by C
3. (b) the damage complained of by C was not too remote (unforeseeable) at law to be recoverable
CAPARO TEST
Reasonable Foreseeability of harm:
At different stages the strictness of the test varies a lot.
Duty of care – at its widest, ‘was some type of harm reasonably foreseeable?’
Breach stage – narrower, ‘was the type of accident or incident reasonably foreseeable,
against which D should have taken precautionary steps?’
Remoteness Stage – narrowest ‘was the kind/type of harm suffered by C reasonably
foreseeable?’
D must have actually foreseen, or reasonably foreseen the risk that his failure to exercise reasonable
care and/or skill might cause harm to C. a risk is reasonably foreseeable if it is ‘real task’
o Some general type of harm:
Caparo- the test by Lord Bridge was ‘the foreseeability of damage’ as an
ingredient to the DoC.
Van Colle v CC of Hertfordshire Police, Lord Bingham, it must be
shown that harm to C was reasonably foreseeable consequence of
what D did/failed to do.
It must be a real risk, not a mere possibility i.e. one which a reasonable
person would not judge far-fetched overseas Tankship (UK) v Miller
Steamship
Follow that, merely possible risks may be foreseeable.
Does not matter about ‘likelihood’ or balance of probabilities.
Whenever the word probable is used it does not entail proof on a
balance of probabilities Smith v Littlewoods Organisation Ltd
Mitchell v Glasgow; the concept of reasonable foreseeability
embraces a wide degree of possibility, from highly probable to the
possible but highly improbable.
D does not need to have foreseen harm to C specifically, where D has never
had a past relationship/knowledge of C. where D knows C personally then C
may be an actually foreseen victim (Nettleship v Weston)
o The test of foreseeability is an objective test, whilst an objective tst, is not applied
completely hypothetical D. It should be a reasonable person in that particular D’s
shoes.
This makes the strictness of the test vary e.g. Islington LBC v UCL Hosp NHS
trust; surgeon’s secretary informed patient, C, that her operation was
