is the overall fairness and reasonableness of imposing a duty of care. From the time it becomes foreseeable that a company's activities and products present a serious risk of harm to others, there will be a strong argument that the company assumes a duty of care towards those others. Although a public law action, relevant in this context is the conclusion of the Dutch Court in the Urgenda case, regarding the Dutch Government's duty of care (at 4.65): The court also takes account of the fact that the State has known since 1992, and certainly since 2007, about global warming and the associated risks. These factors lead the court to the opinion that, given the high risk of hazardous climate change, the State has a serious duty of care to take measures to prevent it. Breach of duty Breach occurs where a person who owes a duty of care, fails to exercise the standard of care that might be expected of a reasonable person in that situation. In determining what steps are reasonable the court will consider factors such as: • the defendant's knowledge regarding the risks; • the degree of risk (the greater the risk of substantial harm, the greater the precautions the defendant will be expected to have taken); • the practicality of proposed precautions; • the social utility of the activity in question; and • common practice. The Honourable Commission may note the similarity with the tests for breach of the positive obligation to protect the right to life. Both are founded in the idea of a failure to take reasonable steps to prevent foreseeable harm. 6.3 Accountable on the basis of the principle of ‘the polluter pays’ Legal responsibility for harm caused to others is one of the mainstays of public and commercial life. The potential for legal liability instills a measure of confidence that the medicines we take will not harm us and that the transport we use complies with appropriate safety procedures etc, etc. Making businesses accountable for the social costs of the products they profit from, steers the market towards socially beneficial activity. The ‘polluter pays’ is therefore an economic principle as much as a legal one. Fossil fuels companies should not be exempt from this principle and should not be allowed to displace the social and environmental costs of their products onto the poor and the vulnerable. 
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