Negligence and duty of care

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Duty of care. Duty of care is the first element of negligence and therefore, in order to discuss further on duty of care, one would have to first define the tort of negligence. In Blyth v Birmingham Waterworks Co,[1] the courts defined negligence as an omission of something which a reasonable man would do and the doing of an act which a reasonable man would not do.

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In Heaven v Pender,[2] the courts held that the presumption of duty of care arises when one person is placed in a position with regard to another person or property, it is in ordinary sense that if he does not use reasonable ordinary care in his conducts, he would cause danger or injury towards the other person or property. Therefore, ordinary care is required to prevent the occurrence of such danger. In Stovin v Wise,[3] the courts explained that generally there is no duty to rescue a stranger from danger. The duty mentioned above is regarding duty that is imposed by law or in other words, it is a legal duty. Test to determine the standard of duty of care. There are a few test that is used in determining the existence of duty of care. The primary test is the neighbour principle established in the well-known case of Donoghue v Stevenson.[4] In this case, Lord Atkin laid down that the rule that you are required to love your neighbours becomes a law by itself and it requires one to take a reasonable care to prevent any acts or omissions that can be reasonably foreseen to be likely to cause injury to your neighbour. The question posed to this principle is regarding who is one’s neighbour in law. The courts held that neighbour in law is someone who is directly affected by one’s act or omission. It is a reasonable man’s test whereby the courts would have to determine whether a reasonable man would foresee that his conduct would affect the plaintiff adversely. If the answer to this hypothetical question is yes, then the plaintiff is considered to be his neighbour and he owes a duty of care to the neighbour.[5] It is essential to note here that the neighbour principle requires the defendant to be a foreseeable victim and thus, in order for the defendant to be a foreseeable victim, there has to be a close proximity. Therefore, the neighbour principle requires the plaintiff to be of a close proximity with the defendant. The plaintiff would not be a foreseeable victim if there is no proximity between the plaintiff and defendant. In the case of Home Office v Dorset Yacht Co Ltd,[6] the courts held that the principle laid down in Donoghue v Stevenson should be regarded as a milestone in determining whether there exist a duty of care.

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