Proving negligence or breach of statutory duty

Who owes a duty of care?

For a claimant to succeed in proving their personal injury claim in common law negligence, they must first prove that a duty of care was owed by the defendant. When assessing whether a duty of care exists the court will consider whether there is an established precedent for the relationship between the parties, eg as between motorists and other road users. The court will then follow these precedents unless it is necessary to consider whether they should be departed from.

If a practitioner is faced with a relationship that is not governed by precedent, in deciding whether the defendant owes a duty of care, the court normally adopts a three stage test:

•
is there a relationship of proximity between the parties?
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was the injury to the claimant foreseeable?
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is it fair, just and reasonable to impose a duty?

However, the Supreme Court case of Robinson has signalled a retreat from the application of a rigid ‘Caparo test’ when determining whether a duty of care should be recognised. The Supreme Court set out the approach

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