TORT Essay Example | Topics and Well Written Essays - 2250 words

TORT - Essay Example Nevertheless, in Home Office v Dorset Yacht Co ([1970] AC 1004 (HL) it was suggested that Lord Atkin’s rationale remained applicable unless the specific circumstances merited exclusion of the dictum. As a result, commentators argued that the pendulum had swung too far in favour of claimants, which was reinforced by the decision pertaining to proximity in terms of who the duty of care was owed to in Anns v Merton LBC ([1972 2 All ER 492). The decision in of Anns v Merton London Borough ([1978] A.C. 728) asserted that the proximity test relies on a consideration of the nature of the relationship between the parties and Lord Wilberforce asserted that: â€Å"in order to establish that a duty of care arises in a particular situation... the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity ... such that in the reasonable contemplation of t he former, carelessness on his part may be likely to cause damage to the latter- in which case a prima facie duty of care arises†. However, subsequent decisions have struggled with this and in practice the courts have sought to water down the ramifications of Lord Wilberforce’s dictum in Anns v Merton as highlighted by the decisions in Peabody Donation Fund v Sir Lindsay Parkinson ([1984] 3 All ER 529) and Yuen Kun-yeu v AG of Hong Kong ([1987] 2 All ER 705). Moreover, in Rowling v Takaro Properties ([1988] 1 All ER 163) Lord Keith highlighted the point that a literal application of the judicial rationale in Anns v Merton could risk courts not taking into account all relevant factual considerations when evaluating whether or not to impose a duty of care. This line of thinking was reinforced by Lord Templeman’s dictum in CBS Sons v Amstrad ([1988] 2 All ER 484) which suggested that the decision in Anns undermined the purpose of negligence liability and risked open ing the floodgates of claims. In highlighting the implications of Lord Wilberforce’s test in Anns, Lord Templeman commented that Anns: â€Å"put the floodgates on the jar, a fashionable plaintiff alleges negligence.† Whilst the post Anns decisions clearly tried to avoid the literal implications of the Wilberforce test, the duty of care test was clarified by the decision in the case of Caparo Industries v Dickman ([1990] 1 All ER 568). In Caparo v Dickman ([1990]1 ALL ER 568), the House of Lords confirmed the following three stage test to determine whether a duty of care exists: 1) Whether the consequence of the defendant’s actions were reasonably foreseeable; 2) Whether there was sufficient proximity to impose a duty of care; and 3) Whether it is fair, just and reasonable to impose a duty of care. Moreover, Lord Bridge focused on the interrelationship between foreseeability and proximity elements for the existence of duty of care. To this end, Lord Bridge commen ted that â€Å"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