Negligence - Duty of Care Essay

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EXISTENCE OF A DUTY

Before 1932 there was no generalised duty of care in negligence. The tort did exist and was applied in particular situations where the courts had decided that a duty should be owed, eg, road accidents, bailments or dangerous goods. In Donoghue v Stevenson [1932] AC 562, Lord Atkin attempted to lay down a general principle which would cover all the circumstances where the courts had already held that there could be liability for negligence. He said:

"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee
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Foreseeability and proximity

'Foreseeability' means whether a hypothetical 'reasonable person' would have foreseen damage in the circumstances.

'Proximity' is shorthand for Lord Atkin's neighbour principle. It means that there must be legal proximity, i.e. a legal relationship between the parties from which the law will attribute a duty of care.

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

Bourhill v Young [1942] 2 All ER 396.

The role of policy

Policy is shorthand for 'public policy considerations'. Policy considerations were recognised in the Wilberforce test and the test in Caparo v Dickman.

Arguments that an extension of liability for negligence would lead to a flood of litigation or to fraudulent claims were once granted greater credence than they are today. But other arguments, such as the possible commercial or financial consequences, the prospect of indeterminate liability, the possibility of risk-spreading (e.g., through insurance)
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