In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability.
The duty of care may be imposed by operation of law between individuals with no current direct relationship (familial or contractual or otherwise), but eventually become related in some manner, as defined by common law (meaning case law). Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law. The first element of negligence is the legal duty of care.
This concerns the relationship between the defendant and the claimant, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the plaintiff in all the circumstances of the case. There are two ways in which a duty of care may be established: the defendant and claimant are within one of the ‘special relationship’; or outside these relationships, according to the principles developed by case law. The principles delineated in Caparo V Dickman specify a tripartite test: Was the harm reasonably foreseeable?
Was there a requisite degree of proximity between the claimant and the defendant Is it fair, just and reasonable to impose a duty of care; are there precluding public policy concerns? There are a number of distinct and recognisable situations in which the courts recognise the existence of a duty of care. Examples include one road-user to another employer to employee manufacturer to consumer doctor to patient solicitor to client The neighbour principle[edit] See also: Donoghue v Stevenson The common law position regarding negiligence recognised strict categories of negligence.
This position was significantly changed in the case of Donoghue v Stevenson, in 1932, which established that a duty of care applied despite no prior relationship or interaction and was not constrained by privity of contract. [2] Here, a duty of care was found to be owed by a manufacturer to an end consumer, for negligence in the production of his goods. Mrs Donoghue’s claim for damages for gastroenteritis and nervous shock were allowed, where a ginger beer manufacturer had negligently allowed a snail into a bottle, which she had consumed.
Lord Atkin established liability on the basis that a neighbour principle existed between the two parties, to ensure reasonable care was taken in the production of the ginger beer, so as not to cause Mrs Donoghue any unreasonable harm: “There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. … The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question: Who is my neighbour? receives a restricted reply.
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question. [3]” Lord Atkin’s speech established a neighbour principle,[4] or a general duty that individuals must take reasonable care in their actions or omissions, so as not to cause harm to others proximate to them.
It did not matter that Mrs Donoghue was unidentified or unknown to the manufacturer; as the type of harm which occurred was foreseeable through the negligence of the ginger beer manufacturer. [4] The Anns test[edit] See also: Anns v Merton London Borough Council Following the firm establishment of the neighbour principle in negligence, it became clear in subsequent years that it did not represent an easily applicable approach to new forms of duty, or to unprecedented situations of negligence.
[5] As such, new categories of negligence evolved, as in Hedley Byrne & Co Ltd v Heller & Partners Ltd,[6] to cover different types of negligent acts, rather than a coherent doctrine or ratio being taken from Donoghue v Stevenson. [7] Some thirty years after Donoghue was decided, in Home Office v Dorset Yacht Co Ltd,[8] Lord Reid stated judicially that: “the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.
“[9] It was not until the case of Anns v Merton London Borough Council[10] however, that the neighbour principle was adopted in a formal test for negligence. The case involved the negligent construction of a block of maisonettes, commissioned by the Merton London Borough Council. The flats, finished in 1972, had poorly constructed foundations, resulting in sloping of floors, and cracks in the walls. The lessees of the maisonettes sued the council in negligence, alleging a duty of care existed for the building to be properly constructed and in a usable state.
In rejecting the previous evolution of duty of care, a categorical approach where a claim would have to fit under previous situations a duty had been found, the House of Lords unanimously found a duty to exist. The test established by Lord Wilberforce – known as the Anns test – imposed a prima facie duty of care where: A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage, such that carelessness on the part of the former is likely to cause damage to the latter;[11] There are no considerations relevant which may reduce or limit the scope of any imposed duty.
[12] The three stage test[edit] Following the establishment of the two stage test for a duty of care, there was a marked judicial retreat from the test, which was widely seen as being too inclusive, and being too easily applicable to cases which might be contrary to public policy. [13] The test was formally overruled in Murphy v Brentwood District Council,[14] where the House of Lords invoked the Practice Statement to depart from the Anns test. The resultant test for a duty of care – which remains good law today – can be found in the judgments of Caparo Industries plc v Dickman.
[15] A large criticism of the Anns test had been that it combined the test for proximity of relationship with foreseeability of harm. [16] Whereas Lord Atkin’s neighbour principle emphasised a need for both a proximate relationship, as well as a foreseeability of harm, the Anns test did not make such a clear distinction. Richard Kidner has stated that this led the courts to sometimes ignore relevant policy considerations,[17] and to encourage “lazy thinking and woolly analysis.
“[18] The resounding test attempts to reconcile the need for a control device, proximity of relationship, with foreseeability of harm. Lord Oliver’s speech in Caparo Industries plc v Dickman surmises the test for a duty of care:[19] The harm which occurred must be a reasonable foreseeable result of the defendant’s conduct; A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who has suffered damage; It is fair, just and reasonable to impose liability.
In reintroducing the need for proximity as a central control device, it has been stated that these three stages are ‘ingredients’ of liability, rather than tests in their own right. [20] For example, liability can arise between complete strangers, where positive acts involving foreseeable physical harm occur; where negligent omissions and misstatements occur however, it is necessary to show a proximate relationship, as well as a foreseeability of harm. [21].