By Alastair Mullis, Ken Oliphant (auth.)
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Extra resources for Torts
Example text
It is an error to regard it as having an immutable core meaning such as to give it utility as a practical test of whether a duty arises; rather it is the generic name for all the more specific - and practically useful - tests for the existence of the duty which have been established in different types of case. Different 'proximity principles' will apply in different duty situations. In what we have been calling the 'typical' or 'core' cases of negligence - cases of personal injury caused by the positive act of a private individual - the proximity rules generally add nothing to the requirement of foreseeability (albeit that the question of proximity remains theoretically distinct: see Marc Rich and Co AG v.
He continued: '[I]n English law there must be and is some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence ... is no doubt based upon a general public sentiment of moral wrongdoing 10 The Tort of Negligence for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief.
Although it appears that Lord Bridge intended in this passage to rule out any simple recourse to a universal formula for determining the existence of a duty of care, subsequent decisions have seen him as laying down a three-stage test for recognition of the duty under which the questions of 'foreseeability', 'proximity' and 'fairness, justice and reasonableness' replace the two stages of the discredited Anns inquiry. This trend is probably too well-established to buck at the present time, but it should be remembered that the so-called 'Caparo principles' represent no more than useful shorthand in indicating the types of factors which determine whether a duty of care will arise.