`the approach of english law towards duty of care for non-physical damage has been inconsistent, illogical and unfair on the claimant` discuss

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The approach of English law towards duty of care for non-physical damage has been inconsistent , illogical and unfair on the claimant` discuss

SEQ CHAPTER \h \r 1 The perception of duty is sometimes used in a separate and more explicit sense , explicitly that for there to be a duty of care in a particular case the harm in a query must have been foreseeable to the individual claimant . In Bourhill v . Young Lord Wright explained that foresee ability 'is always virtual to the individual

br pretentious . This raises a staid additional complexity in the cases where it has to be determined not simply whether the act itself is negligently against somebody but whether it is negligent in comparison with the plaintiff ' In this case the House of Lords held that a motorist who was killed in a conflict brought concerning by his own carelessness owed no duty of care to an ambler in the surroundings of the accident who suffered nervous shock and a terminated pregnancy as a consequence of hearing the sound of the crash and witnessing its aftermath (BARTLETT , A . V . B , 1991 . To a certain extent than say that the particular plaintiff was an 'unforeseeable plaintiff ' to whom , as an individual , no duty was billed , this case may now be more precisely explained by saying that she was not within the general class of plaintiffs who were capable to recover for damage of this kind specifically nervous shock . So as to keep conceptual confusion to a minimum , it is usually better to regard duty as giving rise to a common or 'notional ' question of this kind , and to leave the issue of whether a particular plaintiff can recuperate against a particular defendant to the question of causation or isolation of damage

This does not mean that the individual association between plaintiff and defendant does not matter while it comes to determining whether a duty of care arose between them . In several circumstances the nature of their pre-tort association that is to say , the nature of undertakings or assumptions of accountability made by one party to the other prior to the damage occurred of which , the plaintiff is belligerent may be important . This is often the case , for example , with regard to revival for financial losses and with regard to liability for pure omissions two areas in which a duty of care hardly ever arises between strangers in the similar way that it does , for instance , in respect of physical damage wreaked by one user of the highway on another

However , it is significant to stress that even where the particular individual circumstances of plaintiff and defendant are momentous for establishing the existence and scope of a duty of care , the test is barely ever concerned with foreseeing ability as such . Foresee ability alone is , actually , entirely inadequate as a test for setting up a duty of care

As Lord Goff pointed out 'It is very alluring to try to resolve all problems...