Background This area of law has shifted through several phases over the last decade. Duty of care Whether a duty of care exists is a question of law for the judge to determine. In some circumstances, where the relationship between two parties is not covered by precedent, it is often not easy to discern the factors considered by a court to be relevant in deciding whether a duty of care exists (Gardiner & McGlone, 1998). The court then looks to the relationship between the parties, whether the defendant could reasonably foresee the plaintiff as being a class of person who might be affected by the defendant’s conduct, as well as policy considerations, in order to establish a ‘duty of care’ (Davies, 1999).