Caparo Test: + Duty of Care

1) Harm to C was reasonably foreseeable
- objective test
- Easily satisfied (notwithstanding palsgraf and Bourhill)
-reasonable foreseeability of harm, on its own is not sufficient to fix a duty of care (note callous bystander)
- particular types of claimants.

2) A requisite degree of proximity existed between C and D . Following factors may be relevant
- Temporal proximity
- geographic proximity
- relational proximity
- pre existing relationship
- D's control over TP.

3) That it is fair, just and reasonable to impose a duty of care (pub policy)
- Police involved in a criminal investigation
- failed sterilisations performed by doctors
- wrongful births
- barristers
- callous bystanders.

- The incremental test requires that any new Duty of care scenario proceed by way of close analogy to previously decided cases .

Caparo test applies to all scenarios in which a duty of care is found - but in practice a duty can also be established by :
- relying upon existing categorisation ( a distinct scenario which has been recognised - Lord Bridge - Caparo)
- analysing the scenario in accordance with the three part test and incremental test

A duty of care may also occur when D has harmed C and that harm results from:
1) A positive act committed by D - a duty arising out of activities will be more readily inferred
2) An omission although the imposition of a duty of care in respect of a defendant's omissions is exceptional. A duty to act arises in very limited scenarios
- Where D fails to control some TP's actions leading to the TP harming the C below
- where d creates some source of danger
- where D knew that a TP was creating a source of danger on D's land and did not take reasonable steps to abate it before the danger spread to neighbours
3) D's association or connection with TP , D fails to control the TP and by reason of the Tp's acts C is harmed such that D has created the opportunity for the D to harm C.

Duty of Care may be prohibited by statute :
- Wrongful life , child v Doctor (prohibited by statute + common law) - Lee v Taunton & somerset NHS Trust
- Unborn claimant v Mother - Partially prohibited by statute.

Duty of Care may be limited by statute:
- A doctor's duty to warn
- An employer's duty to employees to avoid or minimise psychiatric injury.

	Erstellt von Falaq Lall vor mehr als 12 Jahre

Notiz am Key Points: Tort, erstellt von Falaq Lall am 07/05/2014.