The following PI & Clinical Negligence practice note provides comprehensive and up to date legal information covering:
For a claimant to succeed in proving their claim in common law negligence they must first prove that the defendant owed them a duty of care.
When assessing whether a duty of care exists, the court will consider whether there is an established precedent for the relationship between the parties and follow the precedents unless it is necessary to consider whether they should be departed from.
Common examples of situations where it is established that a duty of care is owed include:
road users to other road users (see Practice Note: Duties of the road user)
employers to employees (see Practice Note: The employer's duty of care)
occupiers of premises to visitors (see Practice Note: Occupiers' liability claims—lawful visitors)
manufacturers to consumers (see Practice Note: Product liability—claims in negligence)
professionals to their clients
parents/teachers/guardians to children (see Practice Note: Claims against schools)
The courts should normally apply established principles of law, rather than imposing a universal test for the existence of a duty of care and basing their decisions solely on public policy.
The Supreme Court has confirmed the approach that should be taken when determining whether a duty of care is owed in a novel case where established principles do not provide an answer:
the approach of the common law in such a situation is to develop
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