Existence Of A Duty Of Care

4.2- outline how the principle of ‘duty of care’ can be maintained whilst supporting individuals to take risks

At the first stage of the Anns test, two questions arise: “The first question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish prima facie duty of care. The first inquiry at this stage is whether the case falls within or is analogous to a category of cases in which a duty of care has previously been recognized. The next question is whether this is situation in which a new duty of care should be recognized. At the second stage of the Anns test, the question still remains whether there are residual policy consideration outside the relationship of the parties that may negative the imposition of a duty of care. It is useful to expressly ask, before imposing a new duty of care, whether despite foreseeability and proximity of relationship, there are other policy reasons why the duty should not be imposed. This part of test only arises in cases where the duty of care asserted does not fall within a recognized category. The trial judge concluded that the pleadings disclosed a cause of action in negligence and that the plaintiffs should be permitted to bring a class action”.

There are three elements that must be present for an act or omission to be negligent; (1) The defendant owed a duty of care towards the plaintiff; (2) The defendant breached the duty of care by an act or omission; (3) The plaintiff must suffer damage as a result - be it physical, emotional or financial. The court might decide that Freddy (the plaintiff) was owed a duty of care by Elvis (the defendant) if they find that what happened to Freddy was in the realm of reasonable forseeability - any harm that could be caused to a 'neighbour' by Elvis' actions that he could reasonably have expected to happen. The 'neighbour principle' was established in the case of Donoghue v. Stevenson (1932).

In Rebecca & ‘Zorba’s’ Restaurant case, the main issue is whether negligence exists of the defendant? There are three prerequisites must be present before the tort of negligence can arise: a duty of care must be owed by one person to another; there must be a breach of that duty of care; and damage must have been suffered as a result of the breach of duty. (FoBL, 2005, p70) In addition, another element must be satisfied to prove negligence is the causation. This essay will analysis Rebecca v. ‘Zorba’s’ with these four issues.

This Defendant now seeks summary judgment against the Plaintiff’s negligence claims because (1) this Defendant owed the Plaintiff no duty with regard to the incident made the basis of this suit; and (2) no act or omission on the part of this Defendant was a proximate cause of the subject incident or of the Plaintiff’s resulting injuries.

Plaintiff further asserts that the Defendant breached its duty of care to her by: (1) “failing to fix a hazardous condition within a reasonable time;” (2) “failing to adequately warn plaintiff of a hazardous condition;” and (3) “otherwise failing to exercise reasonable and due care under the circumstances.” The Plaintiff is seeking compensatory damages in the amount of two hundred thousand dollars, plus interest and costs.

In conclusion the decision I thought to be right, in the Bank of Queensland vs McCann Advertising case is that the defendant should owe a duty of care has they had not disclaimed responsibility therefore giving the plaintiff negligent advice. Which Mr. Wesling had stated in his court that if a person seeks information or advice from another, and the person relies on the advice then a duty of care ought to be owed if that another person does not disclaim responsibility, which in this case they hadn’t which resulted in the plaintiff losing $30

Another Negligence mistake encountered by individuals is prematurely including Breach analysis in the Duty analysis. In this case, an individual will identify the issue for discussion as Duty but then proceed to explain how the Duty was breached without first explaining whether a duty is owed or identifying the standard of care. Essentially, this mistake leads an individual to omit the analysis of Duty altogether. To avoid this same mistake, reserve the analysis for

The liquor store owes a duty of care to all customers who come in to prevent any damage or harm to individuals, including Simon. This is evident in the ‘neighbour’ principle, introduced in Donoghue V Stevenson (1932) in which Lord Atkin described that the duty of care owed to is: “… persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation”. Accordingly, the liquor store’s inaction has resulted in permanent physical damage to Simon.

Nolan demonstrates the dangers of adopting policy considerations when the area of negligence is unclear using Everett v Comojo (UK) Ltd as a case in point. The case deals with third party conducts from the decisions of Mitchell v Glasgow CC. However, Nolan states that it is unfortunate that the judges fail to identify the relevant legal principle, and resorted to the Caparo test to establish a duty of care. This generalised test lead to the wrongful establishment of the duty of care owed by the defendant. The so called “policy considerations”, which Lord Bridge criticises as ‘indefinable’, were not able to identify the relevant legal principle to correctly determine the existence of the duty of care in Everett. Therefore, the significance of

Note that a duty of care may not be owed to a particular claimant, if the claimant was unforeseeable. See:

“In the majority of cases that come before the courts, whether the defendant owes the plaintiff a duty of care can be determined from precedent created by earlier cases; for example manufacturers of goods owe a duty of care to consumers, motorist owe a duty of care to other road users, boat captains owe a duty of care to their passengers, teacher owe a duty of care to their students, occupier owe a duty of care to persons who come on to their property. . (Andy Gibson, Douglas Fraser, Business Law 5th edition, Pearson 2011 page No.165, 166 and 169).”

It has long been established that a tort occurs “where there is breach of a general duty fixed by civil law”. The branch of law we know as negligence has been in development since the establishment of a duty of care for one’s neighbour in Donoghue v Stevenson . In that case, Lord Atkin laid down general principles whereby a person would owe another a duty of care, the most important being “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” . This principle has been refined on a number of occasions and the current approach for establishing a duty of care is typified in Caparo Industries plc v Dickman .

The common law duty of care was established in Donoghue v Stevenson [1932] AC 562 (HL) and refined in Caparo Industries plc v Dickman [1990] 2 AC 605 (HL). Any party including public authorities may owe a duty of care to another if particular conditions are fulfilled. The Caparo conditions apply to public bodies in respect of whether it is fair, just and reasonable to impose a duty of care on their actions.

The principle of uberrima fides in the insurance contract has been traced back to Lord Mansfield in Carter v Boehm, with the first judicial attempt to set out the duty. He based the duty of disclosure on the fact that ‘insurance is a contract upon speculation’, highlighting the imbalance of information between the insurer and the assured. The contingency is calculated on facts which are generally only known to the assured. This was regarded by Lord