Duty of Care

• Robinson :

  1. Is there a duty of care that has been established through existing precedent?
  2. Can a duty of care be reasoned by analogy to existing precedents?
  3. If it is a novel situation, then the courts should decide if it is fair, just and reasonable to impose a duty of care
• For Novel Situations : Caparo v Dickman stated -

  LP: the courts must weigh up the reasons for and against imposing liability and decide if it is fair, just and reasonable to impose a duty of care.
• Evaluation point 1) Judicial Creativity:

  The test is found in common law meaning it has been developed by the judiciary over a number of years.

  
  

  The original test for establishing a new duty was found in Donoghue v Stevenson and was technical and hard to apply. Which was particularly hard to explain to a lay person. However, it has now been clarified in the case of Caparo v Dickman which is easier to understand and apply.
• Evaluation point 2) The rules are fair to the claimant :

  The law regarding duty of care has developed over a long period of time, meaning the courts have expanded the number of duty situations.

  
  

  This is beneficial to claimants as it is highly likely the claimant who has suffered loss will achieve justice. However, this has arguably caused the flood gates to open - meaning that lots of people are putting in claims in the hopes of receiving compensation.
• Evaluation point 3) The law is applied inconsistently :

  Courts are reluctant to place a duty of care on public authorities, meaning there is unfairness for claimants as they may not receive justice.

  
  

  In comparison, if a 'normal' citizen or business did the same thing as the public authority there may be a duty of care - inconsistency. Therefore, the courts are basing their decisions on public policy and not overall fairness in a case e.g. Hill v CC of West Yorkshire Police, where it was counter productive to impose a duty of care.
• Evaluation point 4) The Cost :

  Proving fault by the claimant can be very difficult and costly.

  
  

  This is because evidence is required to show exactly how injuries occurred and that they were caused by the D- this may need to be paid for. Expert witnesses may be needed and are particularly expensive to pay for.