DUTY OF CARE
TORT LAW 1.1
,WHAT IS NEGLIGENCE?
● Has four elements:
○ The existence of a duty of care
○ Breach of this duty of care
○ Injury, damage or loss caused by this breach (aka causation)
○ The type of injury, damage or loss was foreseeable (aka remoteness of damage)
■ First two are issues of law whilst the latter two are issues of fact
● Designed to protect interests such as physical, mental and economic ones
○ Public interest plays a role, but can take a policy minimalism (not relevant) or
maximalism (always relevant) or conditionalism (depends) position
,EARLY 19th CENTURY
● Tortious duty imposed when there was a contract between C and D
● No duty owed by manufacturer or supplier to ultimate consumer of goods
● e.g. Winterbottom v Wright
○ D supplied unsafe coach but not liable when C was injured by it because C
contracted with a third party, not D (no privity of contract between them)
, LATE 19th CENTURY
● General duty of care in Heaven v Pender
○ D, who contracted with C’s employer, liable for C being injured by rope D supplied
snapping
○ ‘Actionable negligence consists in the neglect of the use of ordinary care or skill
towards a person to whom the defendant owes the duty of observing ordinary care
and skill….although there is no contract between them with regard to such duty’
■ Uncertain whether this refers to foreseeability, proximity, or both
● Important of physical proximity in Le Lievre v Gould
○ ‘If one man is near to another...a duty lies upon him not to do that which may cause
a personal injury to that other’
TORT LAW 1.1
,WHAT IS NEGLIGENCE?
● Has four elements:
○ The existence of a duty of care
○ Breach of this duty of care
○ Injury, damage or loss caused by this breach (aka causation)
○ The type of injury, damage or loss was foreseeable (aka remoteness of damage)
■ First two are issues of law whilst the latter two are issues of fact
● Designed to protect interests such as physical, mental and economic ones
○ Public interest plays a role, but can take a policy minimalism (not relevant) or
maximalism (always relevant) or conditionalism (depends) position
,EARLY 19th CENTURY
● Tortious duty imposed when there was a contract between C and D
● No duty owed by manufacturer or supplier to ultimate consumer of goods
● e.g. Winterbottom v Wright
○ D supplied unsafe coach but not liable when C was injured by it because C
contracted with a third party, not D (no privity of contract between them)
, LATE 19th CENTURY
● General duty of care in Heaven v Pender
○ D, who contracted with C’s employer, liable for C being injured by rope D supplied
snapping
○ ‘Actionable negligence consists in the neglect of the use of ordinary care or skill
towards a person to whom the defendant owes the duty of observing ordinary care
and skill….although there is no contract between them with regard to such duty’
■ Uncertain whether this refers to foreseeability, proximity, or both
● Important of physical proximity in Le Lievre v Gould
○ ‘If one man is near to another...a duty lies upon him not to do that which may cause
a personal injury to that other’
