Negligence—when does a duty of care arise?
Produced in partnership with Professor Richard A Buckley M.A, D.Phil, DCL, Oxford of University of Reading

The following Dispute Resolution practice note produced in partnership with Professor Richard A Buckley M.A, D.Phil, DCL, Oxford of University of Reading provides comprehensive and up to date legal information covering:

  • Negligence—when does a duty of care arise?
  • Duty of care—what are the requirements to establish a duty of care?
  • Duty of care—foreseeability
  • Duty of care—proximity
  • Duty of care—'fair, just and reasonable' to impose the duty
  • Duty of care in novel situations—incremental development
  • Duty of care—parent company liability for subsidiaries
  • Administrators
  • Directors and common law duty of skill and care
  • Banks and the Quincecare duty of care
  • More...

Negligence—when does a duty of care arise?

This Practice Note considers one of the first questions to ask when faced with a prospective claim in negligence—whether or not a duty of care exists between the claimant and the defendant such that, if the defendant has breached that duty, liability may arise.

For consideration of what may then amount to a breach of that duty, see Practice Note: Negligence—when is the duty of care breached?

For specific guidance on banks and the duty of care, see Practice Note: Negligence—banks and the duty of care.

For specific guidance on breach of statutory duty, see Practice Note: Negligence—breach of statutory duty.

For specific guidance in professional negligence claims, see: Professional negligence claims—overview, including Practice Note: Bringing a professional negligence claim based on the duty in contract, tort and equity.

Duty of care—what are the requirements to establish a duty of care?

The tort of negligence imposes liability for loss or injury caused by carelessness.

Two central questions arise:

  1. what constitutes carelessness?

  2. when is liability not imposed even though the defendant was careless?

The courts use the concept of 'duty of care' to answer both questions. The concept has three parts (The Nicholas H, per Lord Steyn):

  1. foreseeability

  2. 'proximity'

  3. liability should be 'fair, just and reasonable'

In Multiplex Construction v Bathgate Realisations, a construction case where the claimant sought to establish a claim against the defendant with whom

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