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DUTY TO WARN OF THE RISK OF HIV/AIDS
existence of a duty of care in negligence.
IV. DUTY OF CARE
As a conceptual framework, “duty of care” in negligence aims to limit
the liability of a wrongdoer based on the existence of a legally specified
relationship with a claimant; otherwise, a wrongdoer would be liable to
everybody injured by his or her tortious act.64 Thus, the duty concept is
relational in nature.65 Prosser and Keeton famously declared “duty of care”
is “not sacrosanct in itself, but is only an expression of the sum total of
those considerations of policy which lead the law to say that the plaintiff is
entitled to protection.”66 Therefore, a determination as to whether a duty
exists in any situation is mainly a policy decision with full legal coloration.
This view accords with the opinion of scholars and the jurisprudence in
most common law countries.67 In Vu v. Singer Co., for instance, the court
opined that a duty of care is determined by balancing certain policy factors
including the foreseeability of harm to claimant, the degree of certainty that
clamant suffered injury, the closeness of connection between defendant’s
conduct and injury suffered, the moral blame attached to defendant’s
conduct, the policy of preventing future harm, the extent of burden to
defendant and the consequences to the community of imposing a duty to
exercise care with resulting liability and the availability, cost, and
prevalence of insurance for the risk involved.68
In contrast to the U.S., Canada and England adopt a more methodical and
layered approach to finding a duty of care in negligence. In Cooper v
Hobart, the Supreme Court of Canada set out a tripartite framework for
evaluating the duty of care.69 Under this framework, a claimant must first
establish the defendant’s foreseeability of harm and proximity of
relationship. Successful discharge of this burden means that a prima facie
duty of care has been established. Consequently, the burden shifts to the
defendant to establish any policy factor that ought to limit or negate the
duty established by the claimant. This last stage of duty analysis is laden
with policy considerations and invites the evaluation of policy factors
64. See Generally Percy H. Winfield, The History of Negligence in the Law of Torts, 42
L.Q.R. 184 (1926).
65. W. PAGE ET AL. (EDS.) PROSSER AND KEETON ON THE LAW OF TORTS § 53, at 356-58
(West 5th ed. 1984).
66. Id. at 358.
67. See Lewis N. Klar, Judicial Activism in Private Law, 80 CAN. B. REV. 215, 221
(2001); W.H.V. ROGERS, WINFIELD AND JOLOWICZ ON TORT 128 (2002).
68. Vu v. Singer Co., 538 F. Supp. 26, 29 (N.D. Cal. 1981) (citing Tarasoff, 551 P.2d at