Fair, Just and Reasonable CASES
In English negligence law, the phrase fair, just and reasonable describes the third stage of the modern duty-of-care inquiry. After foreseeability of harm and proximity have been considered, the court asks whether it is fair, just and reasonable to impose a duty in the particular context. This stage is not a free-floating discretion: it is rooted in legal principle, precedent, and coherent policy.
Definition and principles
Where the question concerns a novel situation (rather than a well-established duty category), courts weigh whether recognising a duty would fit with existing authority and with the wider legal system. Relevant considerations may include: whether the law would duplicate or cut across carefully calibrated statutory schemes; whether a duty would risk indeterminate liability (sometimes called “floodgates”); whether it would encourage defensive practices harmful to the public interest; and whether private law is the right tool where the real complaint is about public law decision-making. In established categories, the analysis is largely governed by precedent and the court does not re-open policy each time.
Common examples
- Public authorities: claims framed in negligence are assessed by ordinary principles, but the court will ask whether a private-law duty sits coherently with statutory powers and duties. Duties are more readily recognised where an authority has created a danger or assumed responsibility to an identifiable person or class; they are harder to establish where the complaint is a broad policy or resource allocation choice.
- Pure economic loss: outside recognised categories (such as negligent misstatement with assumption of responsibility), courts are slow to impose duties because of the risk of wide and indeterminate liability to strangers.
- Omissions and third-party acts: the law is generally cautious about imposing duties to prevent harm caused by others, absent control, creation of a danger, or a specific undertaking to protect the claimant.
- Psychiatric injury (secondary victims): stricter control mechanisms reflect policy judgments about the scope of liability for shock-induced harm witnessed by bystanders.
Legal implications
- The “fair, just and reasonable” stage operates with, not instead of, foreseeability and proximity. It often functions as a final check in novel-duty cases.
- Precedent matters. If a duty is well established (for example, employer to employee, road user to road user), courts apply that duty without re-running broad policy debates.
- For public bodies, there is no general immunity. However, the court will avoid duties that undermine statutory frameworks or convert public-law complaints into private-law negligence.
- The inquiry should promote coherence: duties in one field should not contradict neighbouring areas such as contract, statutes, or specialist compensation regimes.
Practical importance
When pleading a novel duty, articulate why recognising it would be consistent with existing case law and with the structure of neighbouring legal rules. Identify concrete features showing this is a controlled, limited category (for example, an assumption of responsibility to a defined class, a specific risk created by the defendant, or the ability to draw principled boundaries). When resisting, explain how the proposed duty would cut across statutes, generate indeterminate liability, or chill beneficial activity, and suggest alternative legal routes (such as judicial review or contractual allocation of risk) where appropriate.
See also: Duty of care; Caparo test; Proximity; Assumption of responsibility; Omissions; Public authorities; Pure economic loss; Psychiatric injury; Policy.
