Where does this leave the debate? Whereas Donoghue and Anns attempted to discover a single unifying test for a duty of care, Caparo indicates that this is neither possible nor desirable. Given the ease of passing the first test, most of the work was therefore reserved for the second part of the test.
Who then, in law, is my neighbour? As advocated by Steele such an approach meant that negligence law would burrow into unpredictable areas as the number of situations in which harm is foreseeable is broad.
This is only another way of saying that when assessing the requirements of fairness and reasonableness regard must be had to the relationship of the parties. This approach Negligence and duty of care essay criticised by Kidner who opines that Anns wrongly ignores proximity by insisting that foreseeability is the dominant criterion which obscures the need to apply historical and policy questions to the question of proximity.
Proximity is not legal shorthand for a concept with its own, objectively identifiable characteristics. A test based on reasonable foreseeability alone, such as that in Anns, is capable of generalisation and promotes simplicity, coherence and fairness. However, it remains fair to say that Caparo advances the approach in Donoghue and Anns by altering the starting point.
Such proximity was not related to physical proximity but extended to such close and direct relations such as a manufacturer for the sale of goods to consumers. Nevertheless as has been argued, when that test is employed, some concerns remain.
This formulation has been approved by various courts subsequently including the House of Lords. At one stage it was thought that a duty of care was owed by party A to party B where harm is reasonably foreseeable and no policy reasons militate against such a finding.
When asking whether any policy reasons militated against finding a duty of care, however, the issue was secondary given that foreseeability was shown. The answer seems to be persons who are so closely and directed affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
In addition, the courts were enthusiastic to reconsider duty situations were a duty had previously not been found under the Anns test. While Donoghue and Anns indicated that only reasonable foreseeability was needed between the parties, Caparo can be criticised in that it does not inform us what is needed to show proximity between the parties.
The first test of reasonable foreseeability accords with the same requirement in Anns. However, in some cases the courts have alluded to the possibility that policy may be something over and above the requirements of the three-stage Caparo test.
Viewed through this lens, Caparo may be simply a recalibration of the language and expression used to justify the outcome of a case, as opposed to the wholesale rejection of approaches and criteria that have gone before.
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 class of persons to whom it is owed or the damages to which a breach of it may give rise.
However, for some commentators reference to proximity in Donoghue is merely part and parcel of the reasonable foreseeability question - a relationship of proximity will be found where it is reasonably foreseeable that harm will be caused. This formulation tends to suggest that proximity is a separate ingredient, distinct from fairness and reasonableness, and capable of being identified by some other criteria.
If no such precedent can be found then the courts will apply a test to ascertain whether such a duty exists in the circumstances. The Anns test followed the lead of Donoghue by attempting to look for a single test to ascertain duty situations. The Caparo Test In Caparo Industries plc v Dickman the House of Lords was committed to moving away from attempts to establish any general duty principle.
The second point of interest from Donoghue is its insistence of locating a single unifying test to ascertain whether a duty of care exists. Anns Despite the criticism of the neighbour principle it proved to be remarkably resilient over the years.
However, it is not surprising that we have arrived at a situation where clarity gives way to pragmatism.The Concept Of Duty Of Care Law General Essay. Introduction. The concept of duty of care in negligence has developed in a manner that ensures both the claimant and defendants are fairly treated.
Duty of Care Essay In any claim for negligence the claimant must show, inter alia, that the defendant owed him/her a duty of care.
The starting point is to look for an existing precedent to see if such a duty exists. Tort of Negligence Damage and Injury | Free Tort Law Essay. the House of Lords overruled their previous decision in Anns anddecided the law should develop novel categories of negligence.
For duty of care claims involving damage as If you are the original writer of this essay and no longer wish to have the essay published on the Law. Free Essay: EXISTENCE OF A DUTY Before there was no generalised duty of care in negligence. The tort did exist and was applied in particular situations.
Duty of Care Essay. The role of a teacher is complex, requiring professionalism and a strong ethical fibre, with an overarching responsibility for student wellbeing. Free Essay: Business Law Unit 2: Negligence and Duty of Care Kaplan University 7/13/13 Negligence and Duty of Care Gloria Rodriguez Business Law AugustDownload