First Principles of Business Law
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Liability in tort for wrongful conduct |
12. Negligence
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12 (b) 1.8. Establishing a duty of care: Cases falling outside recognised duty situations
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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
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