Tort law appears to discriminate between different types of defendant’s such as public entities, rescuers, children, manufacturers, etc. when establishing a duty of care and to whom. This is because the law of torts is a specialized area of the law that seeks to account for damages in a civil setting that may occur because of a breach of that duty. Further, much of tort law has been developed randomly, many times to fill in gaps that exist in the law, and at other times, it is influenced by public policy. Therefore, depending upon various factors, the duty of care can be high or non-existent depending upon the type of claimant and what type of duty of care a defendant breached. When a duty of care is involved, and that duty is breached, this usually results in negligence. Tort liability in negligence is when a party has a duty of due care with regard to others, breaches the duty and as a result foreseeable harm occurs and is proximately caused by the breach. Damages and/or injury must also exist for negligence to have occurred . The foreseeability of harm alone, however, does not establish a duty of care or a duty to act as held in Perl v. Camden LBC (1983) . The first defining case for duty of care was Donaghue v. Stephenson (1932) , in which the Lord Atkin held that one owes due consideration to a neighbour, thereby holding that reasonable care and attention is due to those who are closely affected by one’s actions. Decades later in Home Office v. Dorset Yacht Co. (1970) , Lord Reid stated that Lord Atkin’s statement in Donoghue v. Stevenson should not be considered a statutory rule, yet agreed this rule should be applied unless some explanation or justification warrants its exclusion. Just eight years later, Lord Wilberforce in Anns v. Merton London Borough Council (1978) further defined the concept of duty of care by stating: ...the question has to be asked in two stages....as between the alleged wrongdoer and the person who has suffered damage, is there a sufficient relationship of proximity or neighbourhood such that, in reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise
Therefore, Lord Wilberforce determined that some sort of proximity of relationship must be present for a duty of care to arise. Nevertheless, in the case of Smith v. Littlewoods (1987) the judiciary held that a defendant may have a duty of care to a claimant by being liable for a third party’s actions under special circumstances as articulated by Lord Goff. He indicated that such a duty existed if there existed a special relationship between the parties; if there was a special relationship between the defendant and the third party; if the defendant created the danger; and/or if the defendant knew or should have known a third party was creating a danger. Several more court decisions and tests emerged over the years regarding a duty of care in tort law, however, the most salient is the rule defined in Caparo Industries v. Dickman (1990) in which the “Neighbour Principle” was established. In this case, the judiciary created a three-pronged test to determine if a duty exists, asking: 1.
Was the damage to the claimant reasonably foreseeable?
Was the relationship between the defendant and the claimant sufficiently proximate? 3.
Is a duty of care reasonable and just to impose?
This rule appears to be the most relevant and applicable to nearly all circumstances of negligence, however, whether a duty of care exists also depends on the type of defendant accused of breaching an established duty of care. Obviously, there exists a special duty of care owed by...
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