Negligence - duty of care

What happens if the defendant does not owe a duty of care to the claimant?

If the defendant does not owe a duty of care to the claimant, then the defendant will not be liable regardless of how carelessly they acted and how much loss they caused to the claimant.

There will be no need to address the other elements of negligence if there is no duty of care.

What is the starting point when considering whether a duty of care is owed?

The starting point to consider if a duty of care is owed is by looking at existing precedent

Is there a universal day to take care not to harm or injure others?

No. There is no universal duty to take care not to harm or injure each other.

Going from Donoghue to Anns, how was the reformulation of the test?

The defendant would owe the claimant a duty to take reasonable care (provided that it was reasonably foreseeable that a failure to take reasonable care by the defendant would cause damage to the claimant) unless there is some policy reason why.

Going to Caparo Industries v Dickman, what is the three-part test?

1. Was it reasonably foreseeable that the defendant’s failure to take care could cause damage to the claimant?

2. Was there a relationship of proximity between the claimant and the defendant?

3. Is it fair, just and reasonable that the law should recognise a duty on the defendant to take reasonable care not to cause that damage to the claimant?

YES to all three means there is a duty of care

Going to Robinson and the incremental approach, what is the incremental approach about?

The court should identify duties of care not by seeking a high-level, universal test of the kind the House of Lords attempted to in Donoghue and Anns.

Where do all of these approaches leave us?

When determining if a duty of care is owed, the first place to look is to the decided cases. If they establish that a duty of care is, or is not, owed, then we have our answer, and the question of whether recognising such a duty would be fair, just and reasonable does not need to be asked and answered again.

Only where precedent does not provide an answer does the court need to consider the fairness and reasonableness of recognising a duty of care.

Examples of established duty of care situations:

Road users to other road users = Nettleship v Weston [1971], Billington v Maguire [2001]

Employers to employees = Williams v University of Birmingham [2011]

Doctors to patients = Roe v Minister of Health [1954]

Highway Authority to road users = Gorringe v Calderdale [2004]

Teachers to students = Carmarthenshire County Council v Lewis [1955]

Prison officers to charges = Reeves v Commissioner of Police for the Metropolis [2000]

Others are also recognised!