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The tort of negligence does not impose liability whenever someone fails to take reasonable care. The claimant must show that the the defendant is ‘responsible’ for their loss, primarily by showing that the defendant owed them a ‘duty of care’.

The ‘duty of care’ cases ask two different questions: firstly, whether the context is appropriate for the tort of negligence; and secondly whether in fact there was a duty owed. The former can be called the notional duty. The law defines certain rules which determine as a matter of law whether a ‘duty’ could be owed. In this sense, the duty acts as a control mechanism for the tort of negligence. The second question asks whether a duty is in fact owed and involves an application of the defined rules or tests.

It is easier to understand the duty of care cases by distinguishing when the Court is discussing the notional duty and the factual duty. In some cases, the Judges seek to answer both of these questions during their judgement.

The first set of cases consider the theory of the ‘duty of care’ and attempt to identify a principles test. The following sets of cases each look at how the test or tests are applied in specific, troublesome contexts.

Theory

Historically, the tort of negligence recognised different ‘pockets’ of liability. Each ‘pocket’ concerned a specific duty, which applied in a specific context. There were no underlying principles of liability. The law has moved away from the pockets approach, and now takes a principled approach…

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Pure Economic Loss

Pure economic loss is financial loss, rather than damage to property or another person. In most cases, it is where the thing conferred (goods or services) is not worth as much as you paid for it.

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Defective Products

The manufacturer of a product owes to its consumer a duty to take reasonable care that the product is free from defects.

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Scope of the duty

The Court’s have said that the duty must be linked to and in respect of the kind of loss suffered. This has been applied in the context of the ‘scope of the duty’.

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