The complexities and the confusing of determining a duty of care have too often been resolved in favour of the claimant

This essay will look to discuss whether the law has actually reached a position where the complexities and the confusing of determining a duty of care have too often been resolved in favour of the claimant.
Categories of negligence are never closed so when considering whether a duty of care applies courts considers three criteria concerning whether damage is foreseeable; if there is a relationship of proximity between the parties; and also whether the imposition of a duty would be fair, just and reasonable. The courts apply these criteria incrementally paying particular attention to the similarity of any proposed duty to those already recognised. Therefore, according to Lord Bridge of Harwich in Caparo v. Dickman, “what emerges is that, in addition to the foresee ability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.”
The criteria of foresee ability and proximity were put forward by Lord Atkin in M’Alister (or Donoghue) v. Stevenson as “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.” Furthermore, proximity is not merely physical but also close and direct relations between the parties and in M’Alister (or Donoghue) v. Stevenson the scope of the duty owed by a manufacturer to a consumer was defined by the requirement that injury to the consumer be foreseeable and proximity was only in the sense the product was intended to reach the consumer in the form it left the manufacturer.
Reasonable foresee ability focuses on the knowledge someone in the defendant’s position would be expected to possess, whilst proximity focuses on the broader relationship between parties. Therefore, according to Neill LJ, “The question ‘Who is my neighbour?’ prompts the response, ‘Consider first those who would consider you to be their neighbour'” and this relationship may consist of various forms of closeness: physical, circumstantial, causal or assumed as a matter of public policy.
In addition to public policy considerations, it is a requirement for the court to be satisfied a duty of care is owed. At its narrowest, this duty focuses on the relationship between the parties and the proportionality of the burden of liability relating to the nature of the conduct so, according to Lord Wilberforce, “[I]t may be claimed that an extension of liability would be unfair to defendants, as imposing damages out of proportion to the negligent conduct complained of. In so far as such defendants are insured, a large additional burden will be placed on insurers and ultimately on the class of persons insured …” Furthermore, where a duty of care is not imposed by law, as with the crime of defamation, the burden on the defendant may have to be compared with that of the plaintiff.
When assessing the burden of the duty owed, the relative exposure to risk of the particular class of plaintiff is key, as in M’Alister (or Donoghue) v. Stevenson where, but for negligence liability, the non-purchasing consumer would be left with no remedy. The class of the defendant concerned and the availability of protection through insurance or contractual arrangements are also important factors. However, at a broader level, this may involve consideration of the ‘floodgates argument’ where it is deemed impossible to include one plaintiff’s case without encompassing others. This may involve considering the overall framework to the legal system, because it would not be just and reasonable to impose negligence liability if rights and duties have already been clearly defined by equity. This is because “The House of Lords has warned against the danger of extending the ambit of negligence so as to supplant or supplement other torts, contractual obligations, statutory duties or equitable rules in relation to every kind of damage … If the defined equitable duties attaching to [inter alia] mortgagees … are replaced or supplemented by a liability in negligence the result will be confusion and injustice”
Wider concerns about the evidentiary difficulties and length of litigation following the imposition of a duty of care must also be considered here, according to the decision in McLoughlin v. O’Brian. However, perceptions of community attitudes and goals, contemporary commercial practices and the general public good may also be relevant when making such decisions. Nevertheless, judges are still reluctant to consider broader consequential arguments when they have neither the information nor the basis to evaluate the information that is presented to them.
Generally, courts are unwilling to find liable for failure to act or an omission, so it is not enough that harm is a foreseeable consequence of that omission so this means a bystander is not liable for carelessly allowing a blind man to walk over a cliff without warning him of the danger. This is because the law is said to impose no duty to go to the aid of a stranger however grave the emergency is and however easy it would be to help. Furthermore, it was stated by Stuart Smith LJ in Capital Counties plc v. Hampshire County Council that physical proximity between a doctor and a patient created no duty to treat the patient. However, a duty to act may be still imposed where the defendant has undertaken a responsibility for the plaintiff themselves, for property or even for third parties causing damage to the plaintiff.
Responsibility for the plaintiff is based on the general nature of the relationship according to Surtees v. Kingston-upon-Thames Borough Council. However, it has been argued accident victims should be entitled to an emergency service capable of responding to those who depend upon it, but a health authority is actually under no duty to provide treatment when resources do not permit it and the courts will not “question the judgment of those who are responsible for the allocation of resources” according to Sir John Donaldson MR in R v. Central Birmingham Health Authority, Ex parte Walker. Responsibility can also be affected by the specific conduct of the defendant either by exposing the plaintiff to danger, or by creating an expectation that they will act to protect the plaintiff. Any ineffective intervention may also lead to liability if it can be shown it leaves the plaintiff in a worse condition than before.
The duty owed by an occupier of land may require positive action to control natural conditions that endanger visitors or their neighbours, but a bare landlord still owes no duty of care to take positive action to ensure the habitability of the property; although an owner of personal property apparently owes no duty to anyone else to safeguard their interests. However, where a defendant negligently creates a situation endangering life or property, they may be liable to a plaintiff who suffers injury as a direct result of attempting a rescue. The duty to a rescuer is independent of any duty to the party rescued, although a rescuer may also have a claim against another rescuer who unsuccessfully attempts a rescue if it increases the danger. The rescuer can only recover where the rescue attempt is reasonably foreseeable, but a rescue by someone with professional responsibility to assist the public, for example a policeman, fireman or doctor, will still be readily foreseeable. However the nature of the emergency may render it foreseeable that the public will intervene. Nevertheless, it may still be foreseeable that an individual will attempt to rescue their own, or their employer’s, property endangered by the defendant’s negligence. It has been held that if the particular manner in which the rescuer was injured was unforeseeable, there is no liability even if the rescue was foreseeable, although this is doubtful and it may actually be more appropriate in such a case to look to reduce damages for contributory negligence instead.
Generally, a public body will not normally be liable for failing to exercise its statutory power. However, a duty might exist where the failure concerned an operational rather than a policy matter, but this is doubtful on the basis of Anns v. Merton London Borough Council. The minimum pre-conditions for such a duty of care are now set out as being that it would have been irrational not to have exercised the statutory power, so that there was in effect a public law duty to act; and there are exceptional grounds for holding the policy of the statute requires compensation to be paid to people who suffer loss because the statutory power was not exercised. Failure to exercise a statutory power will be irrational where it has previously been exercised to provide a service as a matter of routine. However, it could be arbitrarily withheld because the routine exercise may have created a general expectation in a community that the statutory power would continue to be exercised, and a realisation by the authority that there was a general reliance on it being exercised. Exceptional grounds for holding the particular policy of a statute requires compensation may include situations where the power of the statute was intended to protect members of the public from risks against which they could not guard themselves, or they might be found in the patterns of socio-economic behaviour within that community .
In conclusion, it may be argued that we have reached a position where the complexities of determining a duty of care has too often been resolved in favour of the claimant, because this is a broad concept that applies to all kinds of negligence. Therefore, whilst the test in Caparo v. Dickman states that any situation that gives rise to a duty of care should be one where the court considers it “fair, just and reasonable” for the law to impose a duty on one party for the benefit of another. However, problems arise because the law takes into account the position of the defendant and the claimant when considering whether a duty of care exists. They may even find a way to decide in favour of the claimant even where there is no other perceived remedy available, without including the problems that arise from the ‘floodgates argument’ and the problems with the concept of responsibility as it applies to rescues and the emergency services. Therefore, whilst the House of Lords has warned warned “against the danger of extending the ambit of negligence so as to supplant or supplement other torts, contractual obligations, statutory duties or equitable rules in relation to every kind of damage” the concept of the duty of care can still be argued to have been resolved too often in favour of the claimant.