For between the parties. A duty of care

For a successful claim in negligence certain elements must be satisfied. The first is that there must be a duty of care between the parties. A duty of care can arise in a wide variety of situations, generally for a duty of care to arise the circumstances must satisfy the three-stage test set out in Caparo. Next, this duty must have been breached, this occurs when a person falls below the expected standard of that of a reasonable person in that situation. Causation must also be proved both in fact and in law. To establish causation in fact it must be shown that the damage would not have arisen but for the acts of the Defendant as in Barnett v Chelsea. To establish causation in law the extent of the damages must be reasonably foreseeable as in the case of the Wagon Mound (No 1). For negligence to be proven the claimant must prove on the balance of probabilities that the defendant has caused the harm suffered with medical evidence. After negligence has been proven, potential defences could arise which either remove liability from the defendant or reduce it. In this scenario the clients are Bob and Jim and the defendants are Jim and the Doctor’s.  Claimant must have suffered damage cause by the breach of Defendant which was not too remote. The First client is Bob. The first potential defendant, Bob can claim against is Jim. On the facts Jim lost control of the car and collides into Bob. The first requirement for an action in negligence is the claimant must be able to show the defendant owed them a duty of care. This is illustrated in the case of Donoghue v Stevenson where a snail found in a bottle of ginger ale by the customer made her ill. The client brought an action in negligence against the manufacturers, under the privity fallacy the manufacturers would not have been liable, however, this case destroyed the privity fallacy. Instead, the courts imposed a duty on manufacturers to take care in respect of their products that have not been inspected before consumption or use. Significantly, Lord Atkin established the neighbour principle which stated that a person owed a duty of care to anyone who was in close proximity to them and who they could foresee might be affected by their actions. A more elaborate test established in Anns v Merton, Lord Walker created a two stage test (751-2 Lord Wilberforce). First stage was to see if parties satisfied the neighbourhood test. If this was done then unless the court found policy to say there should be no duty there would be a duty of care. This was further developed by the case of Caparo v Dickman where the Lord Bridge put forward a practical three stage test to determine if  a duty of care exists. These are (1) Foreseeablity; (2) Proximity and (3) Fairness, justice and reasonableness of recognising such a duty. In this scenario the three stage test is satisfied as Jim is able to foresee the risk of harm to other road users, there is obvious proximity as cars and cyclists are driving alongside each other at the same time. It is clearly fair, just and reasonable for one road user to be liable to another road user in negligence as car accidents occur often and for this victims would need a remedy. Therefore Jim owed a duty of care to Bob.Next, it must be proved that Jim has breached this duty. The standard of care required for a road user was set out in Nettleship v Weston. This case held a learner driver is expected to meet the same standard as a reasonable qualified competent driver. For Jim to be held to have fallen below this standard it must be shown that he satisfied the reasonable man test set out in Blyth v Birmingham Waterworks Co per alderson B which states a person must have  failed to do what a reasonable man would have done or has done what a reasonable man would not have done. Jim was suffering from a stroke so this test has to be in the context of someone who is having a stroke, and in this case he has not satisfied the test as any reasonable person would have lost control of the car if they suddenly had a stroke. Causation can be proven if it can be shown the damage would have arisen “but for” the actions of the Defendant as set out in the case of Barnett v Chelsea. Here, had Jim not collided into Bob, he would not have gotten hurt.


I'm Harold!

Would you like to get a custom essay? How about receiving a customized one?

Check it out