The categories of negligence are never closed1. When considering whether a notional duty of care applies in a particular situation, the courts will consider three questions:
(1) whether the damage is foreseeable;
(2) whether there is a relationship of proximity between the parties; and
(3) whether the imposition of a duty would be fair, just and reasonable2.
The criteria of foreseeability and proximity are derived from the seminal speech of Lord Atkin in Donoghue v Stevenson3. Reasonable foreseeability focuses on the knowledge that someone in the defendant's position would be expected to possess4, whilst proximity focuses on the broader relationship
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