2. Likely to injure persons in the CLASS of which plaintiff was a member: again, no need for defendant to foresee injury to the plaintiff specifically Chapman v Hearse – Salient Features Is P a of D such as to give rise to duty? – ‘neighbour’ Factors against liability’ ‘Mitigating Indeterminate Liability – Whether the imposition of a duty of care exposes the defendant to an indeterminate liability knows or ought to know an ascertainable class is ‘D affected by its conduct, and the nature of the liability is not indeterminate’ Perre – Unreasonable Interference with Autonomy – Whether the imposition of a duty of care would unreasonably interfere with defendants autonomy. i.e. duty of care should not conflict with what would otherwise be a legitimate pursuit of its own personal or social interests (Perre v Arpand) Consistency with other obligations Whether the imposition of a duty of care is consistent with some pre-existing obligation on the defendant. i.e. Hill v Van Erp solicitor already owed the – testator duty of care in having will correctly executed. Vulnerability – Whether the plaintiff is in a position of vulnerability – was there no way they could take steps to protect themselves against loss. Perre v Apand no way P could have known D – was planting experimental seed exposing D’s crop. the plaintiff, has or could have, taken ‘If reasonable steps to protect themselves
2. Likely to injure persons in the CLASS of which plaintiff was a member: again, no need for defendant to foresee injury to the plaintiff specifically – Chapman v Hearse Salient Features – Is P a ‘neighbour’ of D such as to give rise to duty? ‘Mitigating Factors against liability’ Indeterminate Liability – Whether the imposition of a duty of care exposes the defendant to an indeterminate liability ‘D knows or ought to know an ascertainable class is affected by its conduct, and the nature of the liability is not indeterminate’ – Perre Unreasonable Interference with Autonomy – Whether the imposition of a duty of care would unreasonably interfere with defendants autonomy. i.e. duty of care should not conflict with what would otherwise be a legitimate pursuit of its own personal or social interests (Perre v Arpand) Consistency with other obligations Whether the imposition of a duty of care is consistent with some pre-existing obligation on the defendant. i.e. Hill v Van Erp – solicitor already owed the testator duty of care in having will correctly executed. Vulnerability – Whether the plaintiff is in a position of vulnerability – was there no way they could take steps to protect themselves against loss. Perre v Apand – no way P could have known D was planting experimental seed exposing D’s crop. ‘If the plaintiff, has or could have, taken reasonable steps to protect themselves