The present situation would appear to be as follows. Firstly, the judge should consider whether there are any existing authorities which have already established a duty of care in the situation being considered. If no such precedent exists, the judge should only impose a duty of care if the following three-stage test is satisfied:
1. Was the damage to the claimant reasonably foreseeable?
2. Was there a relationship of sufficient proximity between the claimant and the defendant?
3. Is it ‘fair, just and reasonable’ for the law to impose a duty of care in the situation?