4. The test for determining notional duty of care.

4.     The test for determining notional duty of care.

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.  

    (1)     whether the damage is foreseeable;

  2.  

    (2)     whether there is a relationship of proximity between the parties; and

  3.  

    (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