duty of care evaluation

Question 1

duty of care

Answer 1

for many years after the decision in Caparo v Dickman, it was thought that it was necessary to apply the three stage test in every case to establish a duty of care. there were criticisms of the point

Question 2

first criticism

Answer 2

• the three-stage test lacked clarity,
• made it difficult for lawyers to advise their clients as to whether to take a claim and for the judges making decisions on cases in court,

Question 3

second criticism

Answer 3

• proximity test has never been fully established to show how falls within the proximity of a relationship,
• by not strictly defining such relationships this meant that new situations can always be developed and that the categories of negligence can never be closed. there is always room for more negligence cases, possibly resulting in floodgate claims,

Question 4

third criticism

Answer 4

• there is an overlap between the tests of reasonable foreseeability required for the existence of a duty of care and for remoteness of damage,
• remoteness of damage required a level of foreseeability when deciding whether the damage is a likely occurrence as a result of the defendant’s breach of duty,

Question 5

well developed

Answer 5

• the decision in Robinson v Chief constable of West Yorkshire has clarified when the elements of the old test should be used, and according to this case it will not apply to every claim just in Novel situations,
• where it has been decided previously (an established duty) then according to Robinson the precedent case can be applied,
• this has taken out the guesswork and objective tests that may have been used to determine if a duty of care was owed or not,

Question 6

AO1

Answer 6

• establishing duty of care: there is no definitive test (stated in Robinson v CC of West Yorkshire Police Commission) instead we apply the following:
  1. if there is an established duty, the courts ill use the previous precedents to assume a duty exists,
  2. if there is not an established relationship but the courts can draw a duty through similarities then they can use that case,
  3. if there is no established analogous duty the situation is novel and the principles of foreseeability and fairness can be applied,
• an established duty can also exist where an act of parliament is involved,
• road traffic act 1957 states : ‘every road user has a duty of care to take reasonable steps to avoid accidents and reduce injuries’,
• occupiers liability act 1957 establishes a duty of care between the occupier and a visitor,
• if there is no existing precedent the law can be developed incrementally and by analogy with existing precedent,