Negligence: elements of the tort It is preferable, in my view, that the law should develop novel categories of negligence incrementally

and by analogy with established categories, rather than by a massive extension of a prima facie duty of care, restrained only by indefinable considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.

The law today

Over the years, case law has established that there are a number of factual situations in which a duty of care is known to be owed. For example, drivers owe a duty to take care not to injure pedestrians, and employers owe a duty of care to take reasonable steps to protect their employees from injury. However, there are still situations in which it is not clear whether there is a duty of care, and, following the moves towards. set down a new test in Caparo Industries plc v Dickman (1990). The case is explained in more detail below, but, essentially, it requires the courts, when faced with the question of whether a duty of care should be imposed, to ask: __Was the damage caused reasonably foreseeable? __Was there a relationship of proximity between claimant and defendant? __Is it just and reasonable to impose a duty? case: __where the damage caused is psychiatric, rather than physical, injury; __where the damage caused is purely economic loss; __where the damage was caused by a failure to act (known as liability for omissions); __where the damage was caused by a third party, rather than the defendant; __whether the defendant falls within a range of groups who have become subject to special rules on policy grounds. We will look first at the basic Caparo test, and then afterwards at the special types .of case

Procedural issues
Before we move on to look at the rules surrounding where and when a duty of care will be found, there is one important procedural point which will help you make sense of some of the cases
Case Navigator

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Duties of care: the Caparo test

discussed in this chapter. Where a case raises an issue of law, as opposed to purely issues of fact, the defendant can make what is called a striking out application, which effectively argues that even if the facts of what the claimant says happened are true, this does not give them a legal claim against the defendant. Cases where it is not clear whether there is a duty of care are often the subject of striking out applications, where essentially the defendant is saying that even if they had

caused the harm alleged to the claimant, there was no duty of care between them and so there can be no successful claim for negligence. Where a striking out application is made, the court conducts a preliminary examination of the case, in which it assumes that the facts alleged by the claimant are true, and from there, decides whether they give rise to an arguable case in law so in a case involving duty of care, they would be deciding whether, on the facts before them, the defendant may owe a duty of care to the claimant. If not, the case can be dismissed without a full trial. If the court finds that there is an arguable case, the striking out application will be dismissed, and the case can then proceed to a full trial (unless settled out of court). The claimant will still have to prove that the facts are true, and that the complete case is made out, so a case which is not struck out can still be lost at trial. For an example of this, see Swinney v Chief Constable of the Northumbria Police (p. 60 ). Recent cases brought before the European Court of Human Rights have raised important questions about the use of striking out applications