8.
9. The issue of whether a duty of care is owed by the defendant is determined by using the ‘neighbour test’ from Donoghue v Stevenson where Lord Atkin held that ‘one must take reasonable care to avoid acts or omissions which can reasonably foresee would be likely to injure your neighbour’. After this there is the Caparo test set out in Caparo Industries plc v Dickman, it laid down these questions: * Was damage or harm foreseeable? * Is there sufficient proximity between the Defendant and the Claimant? * Is it justifiable and reasonable to impose a duty of care?
To see if Susan owed Tim a duty of care it would first be seen if the reasonable person would have foreseen some harm being caused to Tim if Susan did not take reasonable care, after the reasonable man the harm to Tim is reasonably foreseeable as the paint was labelled Toxic (Kent v Griffiths). Then we look if Susan had sufficient proximity with Tim, this means the claimant and the defendant have to be close to each other at the time of the negligence, and this can either be in relationship, time or space. In Susan’s case she was in sufficient proximity as she was there in time and space and she also had proximity due to her relationship as Tim’s carer (Bourhill v Young). The final question is, is it reasonable to impose a duty of care on Susan, this relates to issues of policy. This test is used to prevent the ‘floodgates opening’ (Hill v CC or West Yorkshire), as Sarah doesn’t work for an emergency service she would not lead to a floodgate issue. As Sarah passes all of the questions, then Susan would’ve owed Tim a duty of care.
11. Under the Civil Procedure Rules judges are expected to manage a case. Case management by judges includes Identifying the issues at an early stage, Deciding which issues need investigation and trial, Encouraging the parties to use alternative dispute resolution if