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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."

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.

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