chapter  3
10 Pages


The first consideration in any negligence claim is whether the claimant was owed a duty of care by the defendant. The duty concept has been used from time to time as a means of extending or restricting the development of the law of negligence. The defendant may admit that there has been a breach of duty that caused the damage complained of, but may deny that there is legal liability on the grounds that he did not owe a duty of care to the claimant. The question as to whether a duty of care exists is frequently argued as a preliminary issue before the court, as a point of law before the evidence is produced and the facts of the case are determined. When this happens the arguments are based on assumptions of fact, and this can be confusing for those who are new to the law of tort. It is, however, a useful means of filtering out hopeless cases, as there would be little point in wasting time and money dealing with breach of duty and causation if the case could be struck out at an early stage as disclosing no reasonable cause of action. There has also been conceptual confusion between the concepts of duty of care and remoteness of damage, both of which use the test of foresight.