Duty of Care

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The law of negligence has the potential to impose wide liability on defendants. The approach of the courts has traditionally been to try control the scope of allowable claims in negligence and to limit their bounds while balancing the rights to compensation of plaintiffs and the rights of defendants not to be disproportionately burdened. Elias CJ’s quote raises an interesting question about the emphasis of the courts in the formula they have developed to test actionable negligence. Similarities between these formulae reflect the fact that above all else, what is important is all relevant factors be considered, as in the view of Cooke P in South Pacific. We must first look to the development of actionable negligence to discuss the merits of Elias CJ’s claim. The courts have established that for negligent conduct to be actionable, there must be a duty to take care resting on the defendant, which must be breached, which must cause damage, where the damage must not be too remote form the breach. These requirements carry significant policy controls : of autonomy, causation, foreseeability and proximity which will be discussed in due course. The courts first recognised such a duty in Hevan v Pender though it was in Donoghue v Stevenson that the law of negligence was set upon a new and expansive path of development. Lord Atkin said that duty is owed to you neighbour who is anyone “So closely and directly affected by my act, I ought to have them in contemplation when turning my mind to the acts or omissions in question”. This position was satisfactory for that case, of a manufacturer’s duty to the final consumer of their goods involving negligent conduct, but the courts saw the need to develop the duty test further. In Anns v London, Lord Wilberforce, citing Donughue, Home Office and Hedley Byrne attempted to formulate a definitive test for a duty of care. He said the first limb should be whether there is a relationship of proximity such that negligence is foreseeably...
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