Policy Limits on the Duty of Care

Overview

Recall questions on the floodgates argument, the fear of defensive practice, alternative remedies and the reluctance over pure economic loss.

What you need to know

Answer each one before you reveal it.

Questions from this subtopic

Each one with the model answer underneath.

1. 1

   What is the floodgates argument in tort law?

   Model answer

   A public policy argument against imposing a duty of care, based on the concern that allowing claims would open the courts to an indeterminate number of claimants.

2. 2

   Why might courts refuse to impose a duty of care based on concerns about defensive practices?

   Model answer

   Because imposing a duty could lead to harmful defensive practices in society, such as doctors practising defensive medicine to avoid liability rather than focusing on optimal patient care.

3. 3

   How does the availability of alternative remedies affect whether courts impose a duty of care?

   Model answer

   Courts consider whether the claimant has other means of obtaining a remedy; if alternative remedies exist, this may weigh against imposing a duty of care in tort.

4. 4

   Why are courts reluctant to impose liability for pure economic loss?

   Model answer

   Because pure economic loss is not consequential on physical damage and risks creating indeterminate liability to an unlimited class of potential claimants.

5. 5

   What must be established for liability in negligent misstatement causing pure economic loss?

   Model answer

   A special relationship of trust and reliance between the parties, as established in Hedley Byrne v Heller.

6. 6

   What type of harm must a claimant prove to succeed in a psychiatric injury claim?

   Model answer

   A recognised psychiatric illness, not mere grief, distress or emotional upset.

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