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Describe briefly the development of the Courts' approach to the idea of the duty of care from early case to

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Introduction

1) Describe briefly the development of the Courts' approach to the idea of the duty of care from early case to "Caparo"; and 2) To what extent, if at all, have the Courts been willing to extend liability to fresh situations in cases since "Caparo" to the present (discuss briefly? The concept of duty of care serves to define the interests that are protected by the tort of negligence1. Negligence is the breach by the defendant of a legal duty to care, which results in damage to the claimant2. Prior to 1932 there was no general principle of duty of care, there were merely a few clearly defined circumstances where the courts held a duty of care was owed. E.g. Parent and child, Doctors and patients, and Motorists and other road users owe a duty to one another. An attempt was made to create a rationale for all the discrete duty situations by Brett MR in Heaven v. Pender (1883)3. The majority of the court of Appeal refused to establish a general principle to test when a duty of care arises and decided to maintain the traditional case by case approach. The development of the doctrine of duty of care really began with the case of Donoghue v. Stevenson (1932)4 and the establishment of the 'neighbour' principle by Lord Atkin; "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". ...read more.

Middle

In Yeun Kun Yei v. Attorney General of Hong Kong (1988)13 Lord Keith said; "...the two stage test in Anns is not to be regarded as in all circumstances a suitable guide to the existence of a duty of care". Lord Keith was of the opinion that the second stage of Lord Wilberforce's test should only apply in true public policy matters when it would not be in the public interest to find liability, E.g. Hill v. Chief Constable of West Yorkshire (1988)14. The age of the two stage test was ended in Murphy v. Brentwood District Council (1990)15 after the House of Lords invoked the 1966 practice statement allowing them to overrule their previous decision in Anns v. London Borough of Merton (1978)16. In Murphy the court approved Sutherland Shire Council v. Heyman(1985)17, in which Brennan J. rejected the broad two stage approach, and made his famous quote (which appears in the assignment question, above). In Murphy Lord Keith recommended that an 'incremental' approach should be adopted. A new three stage test was borne from the case of Caparo Industries v. Dickman (1990)18. The three questions to be asked are; * Were the consequences of the defendant's act reasonably foreseeable? * Was there a relationship of proximity between the parties? ...read more.

Conclusion

Guardian Assurance (1994)27. For the purposes of this essay it is worthwhile to note that these two cases mark a distinct reversal of the trend to restrict the development of negligence, because they are actually extending the doctrine of duty of care. Loss allocation is a policy issue in which the court will often look to the parties and see which can afford to bear the loss best. This will normally come down to whichever party is insured. This policy is commonly used in road traffic accidents. However, the case of Philcox v. Civil Aviation Authority (1995)28 is worth noting in this area. To prevent a flood of claims, the courts often don't find a duty of care due in fear that it will open the 'floodgates' for numerous similar claims. This would be a negative development, as it would help push forward our already increasingly litigious society. To conclude, the doctrine of duty of care has gone through some large developments in its time, from its rapid expansion in the 1970's - 1980's to its gradual reduction in the late 1980's - 1990's. It now seems to be developing slowly with the courts putting the impact on society, politics and economics high on its list of priorities before reaching decisions. It will be interesting in the future to watch the development of this area of law after the enactment of the Human Rights Act 1998, particularly surrounding the liability of public authorities with regard to S.6 HRA 199829. ...read more.

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