Person got injured in car accident,
changed his personality, he became a
sex offender
Cannot be compensated for his crimes
against women, nor can the women sue
the person who caused the accident
Physical (place) /
personal connection
factor
Dorset Yacht v Home Office
Factors affecting judicial
imposition of DOC
Foreseeability
No presumptions exist for/against
Judicial reasoning,
law of precedent
Economic loss may make
court less willing to impose
DOC (wider scope)
Special relationship =
more inclined to impose
DOC (essential in negligent misstatement)
Legislative background that
en/discourages imposition of DOC?
Contractual background
Breach of duty
Standard of care (SOC)
Reasonable person
Skill and expertise
Greater standard of care required if
def. hold out to be experts
Professionals and trades people
Risk allocation
Probability of harm
Preventative measures may be
unnecessary to avoid rare/
improbable risks
Bolton v Stone
Pl. hit by cricket ball over fence
No negligence since risk of injury to anyone in such
a place was so remote that a reasonable person
would not have anticipated it
Circumstances, e.g.
vulnerability
If def. knows the pl. is particularly vulnerable
then the SOC will be higher
Social value of the activity
even if DOC is found, if def.
activity is of high social benefit,
SOC may be held to be lower
Gravity of risk
(more danger =
more care required)
How practical/expensive is
it to take precautions?
Cheaper = more likely to be required,
expense may be justified if activity is so
dangerous
Duty caused harm
But/for test
Negligent misstatement
Pure economic
Reliance
pl. must have relied on the statement
Boyd Knight v Purdue
Auditor's report in company prospectus. (Unlike Caparo)
court said a relationship existed between auditor as
professional advisor and potential investors
Duty of care
Special Relationship
Plaintiff in contract with def.
Liability in contract and
negligent misstatement
Pl. and def. have
communicated directly or
indirectly
Liability likely
Dimond Manufacturing v Hamilton
No direct contact but def. knows pl.
will rely and act on his/her advice
for an immediate purpose
Liability likely
Smith v Eric S Bush Ltd
Valuation for mortgage said no repairs
necessary, but bought house and chimney
collapsed. Court said valuer was liable
Def. has special knowledge and may
reasonably pl. will use the statement
liability possible but unlikely
Caparo v Dickman
Auditor owes DOC to company being
audited, not to individual shareholders
Def. knows statements likely to be
relied on but knows nothing about pl.
liability unlikely
Proximity and assumed
responsibility
Hedley Byrne v Heller
Breach
Remoteness
Disclaimers (to avoid liability)
Must be communicated to the client,
well written, easy to find, concise
Defences
Contributory negligence
Voluntary
assumption of risk
Def must prove (1) Pl knew of the risk (2)
freely decided to assume responsibility in
event of harm
Cases
Donoghue v Stevenson
Gastro-enteritis after
drinking ginger beer with snail
Held: reasonably foreseeable that ultimate consumer
could be affected by lack of "quality control". Thus there is
a DOC to ultimate consumers
Established 'neighbour test'
Neighbour = someone so closely and directly affected by your
actions that you should think about the affect your
actions/omissions have on them
Hedley Byrne v Heller
Bankers gave info about
creditworthiness of a customer to a
third party (the plaintiffs)
Held: def. weren't liable
because they had issued
a disclaimer of
responsibility
(negligent misstatement)
10 key points
Common law
Obligations
Neighbour
Donoghue v Stevenson
Elements to succeed
Duty of care
Breach
Harm/damage
Defences
Negligence
Duty of care =
foreseeability & proximity
Breach of standard of care
Factual causation
Remoteness of harm
physical/economic loss
Negligent misstatement
Duty of care = proximity and
assumed responsibility
("special relationship")