In cases where there is not a recognised duty situation of the kinds so far discussed, the courts may nevertheless weigh up various factors which point to a relationship giving rise to a duty of care. These factors include:

• considerations of policy and fairness
• the potential number of similar cases that might arise, and the possible extent of liability
• the likelihood of interfering with another existing area of law
• the likelihood of conflicting with a defendant's existing statutory duty
• the likelihood of creating an unreasonable commercial burden by recognising a duty of care
• important features of the relationship between the plaintiff and defendant, such as whether the defendant was in a position of control and the plaintiff in a position of vulnerability