Duty of Care: Matrix

Question 1

Act >Physical >Andrews (Palsgraf)

Answer 1

Duty can be assumed.

Question 2

Act >Physical >Cordozo (Palsgraf)

Answer 2

Proximity of Relationship (MacPherson v Buick)

Question 3

Act >Physical >Cordozo (Palsgraf)*

Answer 3

Proximity of TIME and SPACE

Question 4

Act >Economic Loss >Consequential

Answer 4

Test for duty is the same as the test for Duty relating to the Physical Harm which caused the Economic Loss.

Question 5

Act >Economic Loss >Pure

Answer 5

No Duty is normally owed

Question 6

Act >Emotional >Primary/Consequential

Answer 6

Test for Duty is the same as the test for duty relating to the Physical Harm which caused the Emotional Distress.

Note: if the plaintiff suffers physical symptoms of emotional distress (eg heart attack or stroke), the case is treated as one of physical harm with consequential emotional distress.

Question 7

Act >Emotional >Primary/Pure

Answer 7

Proximity of TIME and SPACE between plaintiff and defendant to the extent either that there was actual impact without physical harm, or that plaintiff feared for own safety

Question 8

Act > Emotional >Secondary

Answer 8

Defendant must have owed duty to the primary victim
AND
Plaintiff must have proximate relationship (household or loving) with primary victim
AND
Plaintiff must have been proximate in TIME and (visual) SPACE to the primary
AND
Plaintiff must have suffered “serious emotional harm”

Question 9

Statement >Physical

Answer 9

Proximity of RELATIONSHIP (like a contract) between plaintiff and defendant: (eg doctor prescribing medicine)

Question 10

Statement >Economic Loss >Consequential

Answer 10

Test for Duty is the same as the test relating to the Physical Harm which caused Economic Loss

Question 11

Statement >Economic Loss >Pure

Answer 11

Proximity of RELATIONSHIP (like a contract) between plaintiff and defendant: Ultramares v Touche

Question 12

Statement >Emotional Distress >Primary/Consequential

Answer 12

Test for Duty is the same as the test for Duty relating to the Physical Harm which caused Emotional Distress

Question 13

Statement >Emotional Distress >Primary/Pure

Answer 13

Proximity of RELATIONSHIP between plaintiff and defendant

Question 14

Statement >Emotional Distress >Secondary

Answer 14

???

Question 15

Omission >Physical Harm

Answer 15

Defendant EITHER has proximity of RELATIONSHIP with plaintiff: Strauss v. Belle Realty
OR
proximity of RELATIONSHIP with third party which creates Duty to plaintiff: Tarasoff v. Regents
AND EITHER
if Duty to act, proximity of TIME & SPACE between plaintiff and defendant: Strauss v. Belle Realty;
OR
if Duty to make statement, proximity of TIME between plaintiff and defendant: Tarasoff v. Regents

Question 16

Omission >Economic Loss >Consequential

Answer 16

Test for Duty is the same as the test for Duty relating to the Physical Harm which caused the Economic Loss

Question 17

Omission >Economic Loss >Pure

Answer 17

Proximity of RELATIONSHIP between plaintiff and defendant: J’Aire Corp. v. Gregory

Question 18

Omission >Emotional Distress >Primary/Consequential

Answer 18

Test for Duty is the same as the test for Duty relating to the Physical Harm which caused Emotional Distress: Beul v. ASSE

Question 19

Omission >Emotional Distress >Primary/Pure

Answer 19

???

Question 20

Omission >Emotional Distress >Secondary

Answer 20

???