Is there a Duty of Care?

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How do the Courts in England and Wales decide when a duty is owed by the defendant to the claimant? How should they decide these issues? To what extents should a decision be purely a matter of principle, as opposed to policy?

           The aim of the essay is to evaluate the current law on how a duty of care should be decided. The assignment will discuss what constitutes a duty of care within the tort of negligence. First, i will discuss why previous attempts, such as those demonstrated in Anns v Merton of establishing a duty failed, following a critical analysis of the current law in Caparo v Dickman. The essay will subsequently discuss possible modifications in the law using academic writers, such as Christian Witting. This will be followed reasons as to why the law should focus largely on policy rather than principle when establishing a duty of care, using iconic cases such as Weller & Co v Foot and Mouth Disease Research Institute.

A tort is a civil wrong which is committed against an individual rather than the state. The individual’s interests can be protected through compensation for the infringement of a certain protected interest. Although there are many torts in which a duty of care is an element required in order to make a successful claim, such as Occupier’s Liability, for the purposes of the essay, the duty of care in the categories of negligence will be of primary focus.  The elements of negligence under Tort Law are the existence of a legal duty of care, a breach of that duty, whether the breach directly caused the damage and finally, whether the damage was foreseeable. The first element must be satisfied in order to maintain a successful claim. A duty of care is, essentially, the relationship between the defendant and the claimant by which there is an obligation upon the defendant to take proper care to avoid causing injury to the claimant.  One of the leading cases in this area of law is undoubtedly Donoghue v Stevenson. In this case there was no binding contract between the two parties, however liability was found due the fact that the product sold caused material physical damage to the claimant due to the negligence of the defendant. Here, the already established manufacturer, consumer relationship applies. Though, Lord Aitkin then formulated the “neighbour principle”, which states that one should adopt a reasonable care to avoid acts or omissions that could be reasonably foreseen to harm your ‘neighbour’. This principle limits the scope of future claims on the grounds of what the courts regard as acceptable. Only when this principle could be applied, could there be a duty of care.

In the renowned case of Anns v Merton, Lord Wilberforce suggested the two stage test by which to establish whether a duty of care existed.  It must be reasonably foreseeable that the claimant would suffer some kind of harm if the defendant did not take reasonable steps to see that he did not come to any harm.  If it was forseeable, then there must not be any reasons of public policy to reject a duty of care.  Anns v Merton initially proved popular with the courts, but has now been disowned, largely thanks to the efforts of Lord Keith of Kinkel. This was due to the fact that the two stage test made the law on when one person will owe a duty of care to another too uncertain. Furthermore, the Courts were too prepared to find that the second stage of the two-stage test was satisfied in a given case. Consequently,  the danger arose that the courts would find that one person owed another a duty of care in a given situation using the test even though it was in conflict with the public interest. In response, the courts suggested a number of modifications that could be made to the test for determining whether a duty of care was owed.

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As a consequence, the existence of a duty of care is now established  in the Courts of England and Wales using the Caparo v Dickman test,  by which Lord Bridge formulated three stages which must be satisfied in order for a duty of care to exist. These are; the damage to claimant is foreseeable, there must be a relationship of proximity or neighbourhood between the claimant and the defendant and the court considers it fair, just and reasonable that the law should impose a duty. The first two stages of the test are relatively straightforward, and follow almost identically to the ...

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