cases are not directly in point; or it is convinced that reasoning incrementally and by reference to the precedents, an extension of the scope of liability is justified. Thus, it appears that the tripartite test could be ousted in circumstances where an incremental step beyond existing authorities could be taken. However, the courts have developed more detailed and more restrictive rules applying in certain type of cases – • • • • •
Where the damage caused is psychiatric, rather than physical. Where the damage caused is purely economic loss. Where the damage was caused by a failure to act. Where the damage was caused by a third party. Where the defendant falls within a range of groups who have become subject to special rules on policy grounds.
Scope of the duty of care: Even if the defendant owed a duty of care to some people, there remains the question of whether the particular claimant was within the scope of that duty. In order for a duty to exist, it must be reasonably foreseeable that damage or injury would be caused to the particular claimant in the case, or to a class of people to which he or she belongs, rather than just to people in general – (Bourhill v Young, Palsgraf v Long Island). BREACH OF THE DUTY: A person breaches his duty of care if he does something which a reasonable person would not do, or if he does not do something which a reasonable person would do – (Blyth v Birmningham). Accordingly, if the defendant causes loss or injury to the claimant, but is able to show that he acted in a way that a reasonable person would have acted, no liability will arise – (Al-Sam v Atkins). Lord Macmillan in Glasgow v Muir clarified – ‘the standard of foresight of the reasonable man is an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question’. However, Lord Macmillan did consider the test contains a subjective element in it. According to him, the standard of the reasonable man needs to be applied, to the facts of the case and to what the reasonable man in the position of the particular defendant ought to have foreseen. As the test is objective, the particular defendant’s own characteristics are usually ignored. However, there are a limited number of situations in which special characteristics of the defendant will be taken into account. Professionals and special skill: Where someone holds himself out as having special skills or qualification, he is required to show the skill normally possessed by person doing that work – (Bolam v Friern: it was held that, a doctor failing to diagnose a disease cannot excuse himself by showing that he acted to the best of his skill, if a reasonable doctor would have diagnosed it). In Nettleship v Weston, it was irrelevant that the learner driver defendant was doing as well as she could, since a reasonable driver in her position would have done better. It is immaterial if defendant does not in fact have that skill but yet engages himself in conduct usually done by person having that skill, the standard demanded is still that of those who actually do possess that skill – (Adams v Rhymney Valley). However, where someone has not held himself out as having special skill but who does in fact have that skill, he will not be in breach if his conduct falls below the standard of a reasonable person with that skill – (Wooldridge v Sumner).