How is a duty of care established in negligence?

• A. Through the Caparo test and established case law; the defendant must owe a duty to the claimant and breach accordingly.
• B. By the defendant's wealth and status.
• C. By pure chance.
• D. By legislation only.

Answer: (A)

In negligence, a duty of care isn’t automatic—you work it out by asking whether the law recognizes a duty in the particular situation. For new or contentious claims, courts use the Caparo framework: it asks three things—was the harm reasonably foreseeable, is there a sufficiently proximate relationship between claimant and defendant, and is it fair, just and reasonable to impose a duty in those circumstances? If yes to all three, a duty of care exists. In many well-established situations, duties are already defined by precedent, so the court relies on those established rules instead of applying Caparo from scratch. Once a duty is found, the next step is to determine whether it was breached, which is a separate assessment.

Choices based on wealth and status, pure chance, or legislation alone don’t capture how duties arise in negligence; duties come from either established case law or the Caparo test (for new situations), with statutory duties existing alongside but not excluding common-law duties.