Chapter 11 The Tort of Negligence - OED-update - Oxford University ...

Figure 11.2 Test for establishing whether a duty of care exists
Yes:
A duty of care exists
Has a duty of care
been clearly established
in previous case law?
Was the harm or loss caused reasonably foreseeable?
Chapter 11 The Tort of Negligence 345
In order for a duty of care to exist, the loss or harm caused to the claimant must have been
reasonably foreseen at the time the defendant was negligent.
Home Office v Dorset Yacht Co (1970)
No:
Must follow the three-stage test
1. The harm of loss must
be reasonably foreseeable
2. There must be proximity
between the claimant and
the defendant
3. It must be ‘fair, just and
reasonable’ to impose a
duty of care
Facts: ‘Borstal boys’, who had been taken on a trip to Brownsea Island by officers from the
borstal (who worked for the Home Office—a borstal was a type of youth custody centre),
escaped one night and damaged the claimants’ yacht.
Decision: The Home Office owed a duty of care to the claimants. Although usually one man
is under no duty of controlling another to prevent injury to a third, in this case there was a special
relationship between the boys and the officers. The damage caused to the claimants’ property
was reasonably foreseeable.
Was there a sufficient relationship of proximity between the claimant
and the defendant?
Proximity does not necessarily mean physically nearby, but means legal closeness between
the claimant and the defendant at the time of the cause of complaint. Legal closeness