【正确答案】An individual is not automatically liable for every negligent act that he or she commits and in order to sustain an action in negligence, it must be shown that the party at fault owed a duty of care to the person injured as a result of their actions. Consequently, the onus is on the claimant to establish that the respondent owed them a duty of care. The test for establishing whether a duty of care exists was initially set out in Donoghue v Stevenson (1932), the snail in the ginger beer bottle case. In putting forward the test to establish a duty of care, Lord Atkin stated that: ‘You must take reasonable care to avoid acts and omissions which you could reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? ... any person so closely and directly 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 and omissions which are called in question.’ It can be seen that this neighbour test for deciding the existence of a duty of care is an objective, rather than a subjective, one. It is not a matter of what the respondent actually considered, but what they ought to have considered. Nor does the test require the contemplation of the resultant effect on the specific individual injured, but merely requires that identity of a class of individuals who might be injured as a consequence of the respondent’s lack of care. The idea of the neighbour, or proximity, test was extended in Hedley Byrne v Heller (1964), which established the possibility of liability for negligent misrepresentation causing economic loss, where a party gave inaccurate advice or information to another party, within a special relationship, and that party subsequently and reasonably relied on it. In Caparo Industries plc v Dickman (1990), a three stage test for establishing a duty of care was recommended. This requires consideration of the following questions: – Was the harm caused reasonably foreseeable? – Was there a relationship of proximity between the defendant and the claimant? – In all the circumstances, is it just, fair and reasonable to impose a duty of care? The present position appears to be that in establishing the existence of a duty of care in negligence, an incremental approach must be taken. The claimant must show that the defendant foresaw that damage would occur to the claimant, that is, that there was sufficient proximity in time, space and relationship between the claimant and the defendant. In practical terms, foreseeability of damage will determine proximity in the majority of personal injury cases. The courts will then, where appropriate, consider whether it is just and reasonable to impose a duty and whether there are any policy reasons for denying or limiting the existence of a duty, for example, under the floodgates argument.

【正确答案】The law does not require unreasonable steps to be taken to avoid breaching a duty of care. In legal terms, a breach of duty of care occurs if the defendant fails: ‘... to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do.’ (Blyth v Birmingham Waterworks Co (1856)) Thus the fact that the defendant has acted less skilfully than the reasonable person would expect will usually result in a breach being established. This is the case even where the defendant is inexperienced in his particular trade or activity. For example, a learner driver must drive in the manner of a driver of skill, experience and care (Nettleship v Weston (1971)). However, the standard of care expected from a child may be lower than that of an adult (Mullin v Richards (1998)). Clearly the degree, or standard, of care to be exercised by such a reasonable person will vary depending on the circumstances, but the following factors will be taken into consideration in determining the issue: (i) The seriousness of the risk The degree of care must be balanced against the degree of risk involved if the defendant fails in his duty. It follows, therefore, that the greater the risk of injury or the more likely it is to occur, the more the defendant will have to do to fulfil his duty. The degree of care to be exercised by the defendant may be increased if the claimant is very young, old or less able bodied in some way. The rule is that ‘you must take your victim as you find him’ (this is known as the egg-shell skull rule). In Haley v London Electricity Board (1965), the defendants, in order to carry out repairs, had made a hole in the pavement. The precautions taken by the Electricity Board were sufficient to safeguard a sighted person, but Haley, who was blind, fell into the hole, striking his head on the pavement, and became deaf as a consequence. It was held that the Electricity Board was in breach of its duty of care to pedestrians. It had failed to ensure that the excavation was safe for all pedestrians, not just sighted persons. It was clearly not reasonably safe for blind persons, yet it was foreseeable that they might use the pavement. The degree of risk has to be balanced against the social utility and importance of the defendant’s activity. For example, in Watt v Hertfordshire CC (1954), injury sustained by the plaintiff, a fireman, whilst getting to an emergency situation, was not accepted as being the result of a breach of duty of care as, in the circumstances, time was not available to take the measures which would have removed the risk. (ii) Cost and practicability Any foreseeable risk has to be balanced against the measures necessary to eliminate it. If the cost of these measures far outweighs the risk, the defendant will probably not be in breach of duty for failing to carry out those measures (Latimer v AEC Ltd (1952)). (iii) Skilled persons Individuals who hold themselves out as having particular skills are not judged against the standard of the reasonable person, but the reasonable person possessing the same professional skill as they purport to have (Bolam v Friern Hospital Management Committee (1957)).