1)Fatima works at the Kempston "Living History" Museum as a part-time assistant.

Her agreement with the museum provides that she is self-employed.

It also states that she is free to either accept or reject work when it is offered to her and that she can decide when to take holidays. She is only paid for the hours she actually works.

She is supplied with a uniform which she has to wear and is required to obey the reasonable orders of the museum's manager.

                       

For the last two years, she always worked on Saturdays and Sundays and has been offered extra hours during school holidays (including half-term holidays).

On 23 October 2013, during half-term, Georgina, a girl in a wheelchair, was visiting the museum with her mother, Harriet. Harriet was pushing Georgina?s wheelchair. There were steps leading from the entrance hall into the museum and a lift for wheelchair users. Fatima helped Georgina and her mother to use the lift. When Fatima shut the gate of the lift, she unfortunately closed it on Georgina's fingers and fractured Georgina's finger

) Explain the legal tests for establishing whether or not a duty of care exists in

 negligence.(8marks)  

?b) Applying these tests, explain whether Fatima owes a duty of care to Georgina

1.  The Caparo test

The court provides the criteria in the case of Caparo Industries plc v Dickman, the criteria are

a. the harm must be reasonably foreseeable.

b. the relationship of proximity must exist between the plaintiff and the defendant.

c. it must be fair and reasonable to impose liability.

Reasonably foreseeable means that a person would be able to predict the ultimate harmful would be the result of their actions. The relationship between the plaintiff and the defendant must be sufficiently close so that it would be easy to judge that action of one would cause loss or damage to the other. And it is fair for one to owe the duty to another. These are criteria used by the courts in determining whether there has been a breach of duty of care under the law of tort. The plaintiff has to prove all three to claim the damages for breach of duty to care against the defendant. Therefore, unless and until the harm could reasonably be foreseen, the duty of care does not exist in negligence.

2. After applying this test, I have found that Fatima did not owe a duty of care to Georgina because Fatima helped Georgina and her mother to use the lift and it is not common that whoever uses the lift, they shut the door on their fingers and fractured themselves. This act was not reasonably foreseeable and it would not be correct to impose liability on the person who was there for the help to the visitors. Therefore, No, Fatima did not owe a duty of care to Georgina.