Notional And Factual Duty In The Case Of Maitland V Raisbeck

To prove there was a duty of care, first we need to show there was a notional and factual duty. The notional duty determines whether the defendant had a general duty of care while the factual answers the question whether the claimant is in the category of people the defendant owes that duty of care. The case of Maitland v Raisbeck is an appropriate one to cite- in it it was held a driver owes a duty of care to the other people on the road not to drive dangerously. This clearly means that not only Arthur, as a driver, owed a general duty of care, but also that Collin, as another user of the road, was owed that duty.

Next, we need to apply the Caparo test. First, it needs to be established a reasonable man in Arthur’s position would have foreseen going over the speed limit would cause damage, which is clearly the case. Second, was there proximity of time and space or a causal proximity? As they are both crossing the same bridge, the

However, in order to prove vicarious liability, we have to show that his negligence was done in the course of his employment and not as a “frolic of his own” .

As per the Salmond test, the wrongful act Arthur has done should be “closely connected” to the one his employer has authorised. To put this into perspective, let us consider the facts of the Poland case. The defendant was employed to guard bags of sugar and, mistakenly hit a school boy when he thought the boy was stealing. He was not authorised to use unreasonable force to protect the property, nonetheless, he was there to guard it. In other words, he had done what he was employed to do, yet in a wrong way. It was held this would be sufficient to prove vicarious liability.

The facts of this case are similar to those of Arthur’s. The driver, too, has presumably been employed to transport some goods. While doing so he had gone over the speed limit, essentially doing what he had been ordered