England
Main article: Duty of care in English law
The question whether a duty of care exists depends firstly on whether there is an analogous case in which the Courts have previously held there to exist (or not exist) a duty of care; and, if there is no analogous case, what the particular court deciding the case at issue itself thinks about whether a duty of care exists. Situations in which a duty of care have previously been held to exist include doctor and patient, manufacturer and consumer [2], and surveyor and mortgagor [3].
Accordingly, if there is an analogous case on duty of care, the court will simply apply that case to the facts of the new case without asking itself any normative question [4] . It is only if there is no similar case that the court will then go onto apply the normative criteria which Lord Bridge of Harwich sets out in Caparo Industries plc v Dickman,[5] in which the House of Lords set out the following three-part test:
Harm must be a "reasonably foreseeable" result of the defendant's conduct;[6][7][8][9][10]
A relationship of "proximity" must exist between the defendant and the claimant;
It must be "fair, just and reasonable" to impose liability.
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24-Aug-2019 20:06:24