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NEGLIGENCE: DUTY OF CARE (ALLOCATION OF RISK AND LOSS (In each case the…
NEGLIGENCE: DUTY OF CARE
CAPARO INDUSTRIES PLC v DICKMAN [1990]
TWO TESTS
Incremental Test
which requires courts to decide questions of duty by drawing appropriate analogies from established cases
Three Stage Test
- which applies in novel situations only where there is no relevant case law
ELEMENTS OF THE THREE STAGE TEST
Proximity of relationship
- must be established. Damage to C is foreseeable does not always mean there will be proximity between D and C. Fewer problems establishing the necessary proximity where foreseeable physical harm is caused
SUTRADHAR v NATURAL ENVIRONMENTAL RESEARCH COUNCIL [2006]
Whether it is fair, just and reasonable to impose a duty on D
- even if the damage is foreseeable and the parties are proximate a claim of negligence will fail if the courts think it is not 'fair, just and reasonable' to impose a liability on D
Floodgates
- argument is frequently used
Foreseeability of harm to C
- some damage to C must be foreseeable by D at the time of his act. Foresight of a reasonable person that the court takes into account and not the foresight of a particular defendant
BOURHILL v YOUNG [1943]
DONOGHUE v STEVENSON [1932]
THE NEIGHBOUR PRINCIPLE
- manufacturer of a product owed a duty of care to the consumer of that product
(2) Which can be foreseen as likely to cause damage
(3) To a person who is so closely and directly affected by D's act or omission
(1) Reasonable care must be taken to avoid acts or omissions in the course of D's conduct
(4) That D should have had that person in mind as likely to be affected by the act or omission under consideration. Such a person is D's 'neighbour in law'
Negligence is based upon the central theme that D has taken less than reasonable care for C's interests, particularly his bodily safety and that of his property
NEGLIGENCE CLAIM
(2) D was in breach of that duty
(3) the breach of duty was both the factual and legal cause of the damage suffered by C
(1) D owed the C a duty of care
OMISSIONS TO ACT
INFLUENCE OF THE HUMAN RIGHTS ACT 1998
ALLOCATION OF RISK AND LOSS
In each case the cost of protective measures for the D and C must be weighed up
SPARTAN STEEL AND ALLOYS LTD v MARTIN & CO [1973]