Duty of Care | Digestible Notes (2022)

Duty of Care

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Duty of Care | Digestible Notes (2)


Duty is a pre-requisite in negligence

  • But this is not necessary in other torts e.g. battery and assault

Duty signifies a legally-recognised relationship between the defendant and the claimant, such that care must be taken

The parties need not be linked by contract for a duty to arise; tort is concerned with obligations outside or in addition to contract

Duty provides the basis for suits as between strangers: e.g. motorists

Donoghue v Stevenson

Mrs Donoghue and her friend went to a café to have a float. Her friend bought the float for her. The café owner poured half the Ginger Beer (from an opaque bottle) into her glass of ice-cream. The friend later poured out the second half onto Mrs Donoghue's float and out came a decomposed snail. Mrs Donoghue claimed to have suffered shock, a physical ailment (gastroentiritis) and a psychiatric illness as a result.

Mrs Donoghue's had an issue because she did not buy the drink nor did she pour it onto her ice-cream, so it was questionable whether or not she could sue. At the time of the case, product liability was contract based: as the friend was the only one with the contract it would appear that Mrs Donoghue could not do anything. Mrs Donoghue nevertheless sued the manufacturer because the bottle was opaque meaning she could not see the snail → the supplier, retailer and her friend could not see in the bottle anymore than she could

Lord Buckmaster (who dissented): he was concercerned about the preservation of contractual relations, and felt that 'the only safe rule is to confine the right to recover to those who enter into a contract'

Lord Macmillan (who was in the majority): he said that legal action can arise in tort, even if there is no contract between the parties involved.

  • He said it is appropriate to impose a duty of care upon manufacturers in certain circumstances. He said that one example where this would be so, as happened in this case, is where there is no opportunity for intermediate inspection of the goods. As the bottle here was opaque there could be no intermediate inspection, so the manufacturer retained control and could, therefore, be liable in tort

Lord Atkin: he was looking for a general principal to apply in similar cases, and came up with the 'neighbour principle'

  • The neighbour prinicpal: Lord Atkin said that there is this idea running through the 'duty of care' cases that you must not injure your neighbour (i.e. a person who is closely and directly affected through your actions).
(Video) Duty of Care - What Does it Mean For You

Existing authority

Since Donoghue v Stephenson there’s been big increase in cases where duty of care is imposed

It should be noted that the test for need only be invoked in exceptional cases. Ordinarily, the courts will look to the existing authority on duty to determine whether or not there is a duty in the case before them

Uncontentious duty categories include (i.e. cases where duty already exists, so there is no need to go through the test for duty):

  • A doctor owes a duty of care to his patient (Pippin v Sheppard (1822))
  • A solicitor owes a duty of care to his client (Groom v Crocker (1939))
  • Manufacturer to consumer (Donoghue v Stevenson (1932))
  • Banker to client (Woods v Martins Bank Ltd (1959))

In some cases, it is clear that no duty is owed:

  • The ship classification society owes no duty to cargo owners for financial loss (Marc Rich v Bishop Rock (1996))
  • Company auditors to outside investors for financial losses (Caparo Industries v Dickman (1990))

In other cases, it is unclear whether or not duty is owed:

  • E.g. Whether or not a self-inflicted accident victim owes a duty to rescuers (Greatorex v Greatorex (2000))

Development of duty framework

Where there is no previous authority that binds the court, the case is a 'novel' one. It will, therefore, then be important to apply the test for duty to determine whether a duty of care exists

In Donoghue v Stevenson (1932), it was said that the test for duty was reasonable contemplation + closeness and directness

Lord Wilberforce determined a two stage test for duty in Anns v Merton LBC

In Caparo Industries plc v Dickman (1990) it was said there is a three-stage test for duty (which remains the authority in most cases): foreseeability + proximity + policy → these elements are explained in greater detail below

Also see Home Office v Dorset Yacht Co

1) Forseeability

The first element in determining whether or not the defendant owes a duty of care in any particular case is forseeability → this requires that a reasonable person in the position of the defendant must have reasonably foreseen injury to a class of persons that includes the claimant (or the claimant individually)

  • This is a fact-based evaluation: it must be determined what is reasonably foreseeable on the facts of the particular case
  • There must be foreseeability of a real risk of injury; not just a far-fetched or fanciful risk of injury
  • Usually foreseeability or injury to a person in the class comprising the claimant is sufficient e.g. if a reasonable person in the position of the defendant could forsee a real risk of injury to motorists (a class of persons that would include the claimant), the defendant's later injury he causes to Fred (driving his car) would be enough
  • However, in some cases, it may suffice for the court to focus upon the foreseeability of injury to the claimant him/herself, especially where the facts of the particular case are not liely to recur

Forseeability of harm is not always straight forward e.g. is it foreseeable that a psychiatric illness might be caused to another driver after an accident?

  • See the case of Bourhill v Young and Haley v London Electricity Board
(Video) Duty of Care | Law of Tort

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Duty of Care | Digestible Notes (3)

2) Proximity

There is a long deabte about this element → it is often though that proximity and reasonable foreseeability are a similar concept and an informant of the other

Proximity is concerned with how the claimant and the defendant are situated with reagrd to each other prior to the defendant's failure to take care i.e. proximity is concerned with the factual relations between the parties which signified the potential for the defendant to cause harm to the claimant (and persons similarly placed)

So, the court must determine whether there existed substantial pathways to harm between parties i.e. means by which the defendant's failure could harm the claimant

Kinds of proximity:

  • Physical closeness: in Home Office v Dorset Yacht Co, for example, the yachts were in close proximity to each other
  • Contractual or other pre-existing relations: in other words, where one party is in a contract with another party, and fails to take care, that is a pathway to harm (Henderson v Merrett Syndicates)
  • Power or control by the defendant over the claimant
  • Note: the courts also look at other ‘proximity’ factors, such as knowledge by the defendant of the likelihood of harm to the claimant or the class of persons the claimant is in. Or whether or not the claimant is vulnerable

3) Policy: ‘fair, just and reasonable’

The court has a discretion/choice about whether a duty will be imposed, regardless of a finding of proximity and foreseeability, on the basis of whether it is fair, just and reasonable. If the court ultimately decides the imposition of a duty would not be fair, just and reasonable there will be no duty owed.

  • This involves consideration of ‘policy’

Policy arguments derive from:

(Video) Duty of Care

  • Policies evident in statutes, including the Human Rights Act 1998: Campbell v MGN Ltd
  • Policy inherent in surrounding case law
  • Legal ‘values’, including autonomy of the individual: Tomlinson v Congleton BC
  • Preference for protection of physical interests over the mind and financial assets
  • Preference for protecting the ‘vulnerable’: Haley v London Electricity Board
  • Need to avoid conflicts between branches of the law: Spring v Guardian Assurance plc
  • Idea that persons should take responsibility for themselves: Tomlinson v Congleton BC
  • Idea that persons covered by insurance do not need the protection of the courts: Patrick Atiyah

Note: these policies are not consistently applied

The case of Marc Rich v Bishop Rock Marine demonstrates the importance of the policy limb

Duty of Care: Psychiatric Illness

Liability for consequential losses

The case of Donoghue v Stevenson (above) featured a claim for physical injury (gastroenteritis) with ‘consequential’ psychiatric injury

Where a defendant is found liable for the physical injury of a claimant, he/she will alos be liable for all consequential psychiatric injuries (and financial losses) so long as they are foreseeable in nature

If the consequential psychiatric illness or financial loss is not foreseeable and the claimant still wants to claim in respect to those losses then he/she will have to plead a separate duty of care (i.e. prove that the defendant owed him/her a duty of care in respect of their mental/financial wellbeing)

The following notes are concerned with cases where the initial injury is psychiatric – where all injury (including physical manifestations of it) emanates from the workings of the mind

Psychiatric Illness

A duty can arise only where the injury actually suffered is a psychiatric illness → there is no duty with respect to temporary emotional states, such as grief, anxiety or fear: Page v Smith; White v Chief Constable

Psychiatric illness includes:

  • Hysteria – wild, uncontrolled emotion
  • Neurosis – irrational or depressive thought
  • Depression
  • Psychosomatic (bodily) effects of above illnesses, such as paralysis

Early law refused to recognise a duty of care owed with respect to psychiatric illnes: see, for example, Victorian Railway Commissioners v Coultas

  • However, developments began with the so-called 'primary victim' cases...

Primary Victim

The law divides the negligent infliction of psychiatric illness cases up (generally speaking) into cases of primary victims and secondary victims

Primary victim cases involve the claimant and the defendant only e.g. where the defendant creates a risk of physical injury, so that the claimant is actually, or reasonably believes him/herself to be, imperilled (i.e. at risk of physical injury) → in other words, no physical injury ensues, but the claimant claims for psychiatric illness

  • See the cases of Dulieu v White and Page v Smith

In terms of foreseeability, foreseeability of any form of personal injury (physical or psychiatric) is sufficient to ground a duty of care

Secondary Victims

In this category, the claimant is not threatened directly and personally by the risk of physical injury. These cases involve three parties:

  • The defendant fails to take care and kills/injures someone else (X)
  • The claimant witnesses the injury to X and suffers a psychiatric illness
  • The claimant claims compensation from the defendant

Such 'secondary victim' claims were first recognised in Hambrook v Stokes

The case of McLoughlin v O’Brian shows an extension of who can be a secondary victim → the case dictated that a defendant owed a claimant a duty of care despite the psychiatric illness occuring over two hours after the initial injury by the defendant

Lord Wilberforce set out the appropriate proximity limits in 'secondary victim' cases (i.e. what proximity is required between the defendant and the claimant to demonstrate there is a duty of care owed):

  • Class of persons: there must be a tie of love and addection between the person the defendant injured (X) and the claimant → so a mere bystander will not be able to claim
  • Proximity to accident: the claimant must be close, in time and space, to the accident. In McLoughlin v O’Brian it was held that a 2 hour drive to the hospital (i.e. the aftermath) was sufficient proximity
  • Means of perception: the claimant must perceive the injury to X through sight and/or hearing. So, the claimant cannot demonstrate there is a duty of care where he/she saw the injuries to X through TV coverage, through the radio, or through what he/she is told. In other words, you must perceive the injury yourself with your own unaided senses

The three proximity limits were re-affirmed in the case of Alcock v Chief Constable of South Yorkshire

(Video) Negligence - Duty of Care

The 'unwitting agent'

A claim by the ‘unwitting agent’ of a death has been rejected: Hunter v British Coal

In other words, the unwitting cannot have recovery - see the case facts below

  • The claimant was driving a vehicle in a mine but should not have been doing so because of the lack of overhead clearance. He damages a water hydrant and needs to turn off the water supply. The fire hydrant explodes and kills a colleague of his. The claimant, therefore, sues his employer for negligence. The claimant had suffered a psychiatric illness because he believes he had been the unwitting agent of the injury. The court said the employer would not owe a duty of care in these circumstances

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Say Hello


Can you tell me what duty of care means? ›

The "duty of care" refers to the obligations placed on people to act towards others in a certain way, in accordance with certain standards. The term can have a different meaning depending on the legal context in which it is being used.

What are the 3 elements needed to establish a duty of care? ›

The criteria are as follows: Harm must be a "reasonably foreseeable" result of the defendant's conduct; A relationship of "proximity" must exist between the defendant and the claimant; It must be "fair, just and reasonable" to impose liability.

How do you prove breach of duty of care? ›

Establishing a breach of the duty of care—the four factors
  1. probability of harm occurring.
  2. seriousness of the harm should it occur.
  3. utility of the defendant's activity.
  4. cost of precautions.

What is the reasonable man test? ›

This is a common law idea, which asks the question of how a reasonable person would have behaved in circumstances similar to those with which the defendant was presented at the time of the alleged negligence. In order to qualify this judgement, the court will seek the opinion of experts.

What is an example of duty of care? ›

Examples in Duty of Care

Dignified and courteous treatment. Your culture, diversity and identity are valued as well as supported. Living a life free of abuse and neglect. Your independence.

What are the 7 duties of care? ›

  • Examples of how you exercise the duty of care in your work:
  • Risk Management – Ensuring that. ...
  • Health and Safety – Ensuring that: ...
  • Safeguarding – Ensuring that: ...
  • The Workplace – ensuring that: ...
  • Clients – In addition to safeguarding them from abuse.

What are the 5 duties of care? ›

Duty to Care is actually an umbrella term that encompasses the following areas: Inclusion, Diversity, Mental Health, Well-being and Safeguarding.

What is the importance of duty of care? ›

A duty of care is a legal duty to provide a reasonable standard of care to your patients and to act in ways that protect their safety. A duty of care exists when it could reasonably be expected that a person‟s actions, or failure to act, might cause injury to another person.

What 4 things must be present to prove negligence? ›

A Guide to the 4 Elements of Negligence
  • A Duty of Care. A duty of care is essentially an obligation that one party has toward another party to exercise a reasonable level of care given the circumstances. ...
  • A Breach of Duty. ...
  • Causation. ...
  • Damages.
12 Nov 2020

What two tests determine if a duty of care is breached? ›

⇒ The test is as follows: 'What would the reasonable person have done in the Defendant's circumstances? ' ⇒ The standard of the reasonable person: It is objective (Glasgow Corp v Muir [1943])

What is an example of a breach of duty of care? ›

Some common examples are: Injuries in parks or other public places (e.g. slips, trips and falls) Injuries in rental premises (e.g. the landlord's responsibility to their tenant) Injuries caused by animals (e.g. dog attacks, horse-riding accidents)

What is the thin skull rule in law? ›

The principle that dictates that a defendant is liable for the full extent of the harm or loss to the claimant even where it is of a more significant extent than would have been expected, due to a pre-existing condition or circumstance of the claimant.

What is considered a reasonable person when it comes to negligence? ›

The reasonable person standard applies when the defendant could reasonably foresee how his conduct could cause harm or injury. If a reasonable person could not have foreseen that his conduct could injure someone, the defendant is not guilty of negligence.

What is the reasonable rule? ›

Was the Rule Reasonable? The rule or policy must be reasonable in light of an employer's interest—i.e., there must be a clear relationship between the rule or policy and the employer's stake in it, and it must be one that could be expected to be adhered to in the normal course of events.

What is duty of care explain with 3 examples? ›

In a legal sense, a duty of care is a fiduciary responsibility that applies in areas where other people rely on you. A doctor has the duty of care to give you proper medical attention, and a factory owner has the duty of care to maintain a safe working environment, providing safety goggles and earplugs, for example.

What is your duty of care while at work? ›

Everyone has a duty of care, a responsibility, to make sure that they and other people are safe in the workplace. If you are an employer, or PCBU, you have the main responsibility for the health and safety of everyone in your workplace, including visitors. This is your 'primary duty of care'.

How do you show you follow a duty of care at all times? ›

Addressing any concerns, such as those of abuse or neglect. Following your workplace's policies and agreed ways of working when responding to these concerns is a crucial part of your duty. You must also address any comments or complaints, and respond appropriately to conflicts, as part of your duty of care.

What are the 4 types of care? ›

In general, there are four common care environments: Home Health Care, Assisted Living Facilities, Nursing Homes, and Adult Daycare Centers.

What are the 10 patient responsibilities? ›

Patient's Responsibilities
  • Providing information. ...
  • Asking questions. ...
  • Following instructions. ...
  • Accepting results. ...
  • Following facility rules and regulations. ...
  • Showing respect and thoughtfulness. ...
  • Meeting financial commitments.

Can you name 5 key duties of a care assistant? ›

Care Assistants frequently check up on patients to monitor their vital signs, help them move from place to place, deliver meals, feed patients, help them use the toilet and bathe. They communicate with patients about their symptoms and needs, reporting changes or concerns to other members of the patient's care team.

What are 5 different types of care? ›

Types of Care
  • Residential Care.
  • Nursing Care.
  • Dementia Care.
  • Respite Care.
  • Convalescent /Post-Operative Care.
  • Continuing Care.
  • End of Life Care/Palliative Care.

What is moral duty of care? ›

Duty of Care is defined simply as a legal and moral obligation to act in the best interest and safety or well-being of individuals and others, whilst at the same time respecting their needs and choices. This means that you should not go beyond your own level of competence and not do anything you aren't confident doing.

What is the most difficult element of negligence to prove? ›

Many articles discuss what negligence is and how to prove it, but the least understood element among these four is causation. Additionally, out of these four elements, causation is typically the most difficult to prove, especially in medical malpractice cases.

What are the 4 examples of negligence? ›

While seemingly straightforward, the concept of negligence itself can also be broken down into four types of negligence: gross negligence, comparative negligence, contributory negligence, and vicarious negligence or vicarious liability.

What's a better word for negligence? ›

Some common synonyms of negligent are lax, neglectful, remiss, and slack. While all these words mean "culpably careless or indicative of such carelessness," negligent implies inattention to one's duty or business.

What three tests are needed to prove negligence? ›

Negligence—what are the key ingredients to establish a claim in negligence?
  • duty of care.
  • breach of that duty.
  • damage (which is caused by the breach)
  • foreseeability of such damage.

What are the 3 steps to prove negligence? ›

Proving Negligence. Most civil lawsuits for injuries allege the wrongdoer was negligent. To win in a negligence lawsuit, the victim must establish 4 elements: (1) the wrongdoer owed a duty to the victim, (2) the wrongdoer breached the duty, (3) the breach caused the injury (4) the victim suffered damages.

What are the three basic tests in negligence? ›

For any legal action arising from negligence, it must be proven that: The medical practitioner owed a duty of care to the patient, and; That duty of care was breached, and; The patient suffered harm as a result of the breach.

What is an example of duty of care in healthcare? ›

Examples of duty of care

Symptoms include shooting pains in the hands, wrists and forearms. An example of duty of care is providing that worker with a specialist keyboard that allows them to complete tasks at work. Your duty of care also extends to disabled staff members.

Is duty of care part of negligence? ›

What is a duty of care? The law says we all have a duty of care to take reasonable care not to cause foreseeable harm to other people or their property. This is also known as the law of negligence.

What is the common law duty of care? ›

At common law, an employer is under a duty to take reasonable care of the health and safety of its employees in all the circumstances of the case so as not to expose them to an unnecessary risk. This duty of care extends to the employee's physical and mental health.

What is eggshell rule in law? ›

There is an old rule in Law known as the “Eggshell Skull Rule” which basically states that a Defendant in proceedings for Personal Injury must take the Claimant as he finds him.

What is a novus actus? ›

Novus actus interveniens is Latin for a "new intervening act". In the Law of Delict 6th Edition, Neethling states that a novus actus interveniens is "an independent event which, after the wrongdoer's act has been concluded either caused or contributed to the consequence concerned".

What is an eggshell victim? ›

The Eggshell Skull Doctrine states that the person who caused the accident will be financially responsible (liable) for the actual damages caused in spite of the fact that the average plaintiff would not have suffered the same injury severity as the man with the eggshell-thin skull.

What 5 things must be proven during a negligence case? ›

Do you want to hold another party accountable for their negligent behavior? Doing so means you and your lawyer must prove the five elements of negligence: duty, breach of duty, cause, in fact, proximate cause, and harm.

How do you prove what a reasonable person would have done in particular circumstances? ›

To prove the reasonably prudent person standard, you must do two things: First, you must prove what the actions of the other party were. You must present evidence to show what the other party did. Second, you must argue to the jury that those actions fall below the standard of a reasonable person.

What is the failure to act as a reasonable person acts? ›

Negligence is typically described as a failure to act with the prudence of a reasonable person.

What is the reasonableness test? ›

The reasonableness standard is a test that asks whether the decisions made were legitimate and designed to remedy a certain issue under the circumstances at the time. Courts using this standard look at both the ultimate decision, and the process by which a party went about making that decision.

What is fair just and reasonable? ›

Fairness means that it is 'fair, just and reasonable' for one party to owe the duty to another.

What is an example of reasonable person standard? ›

The concept is often used in civil cases that involve negligence. Consider, for example, a case involving a driver running a red light and causing an accident. A reasonable person doesn't drive through red lights, so if the driver did so, the jury would hold them responsible for any harm caused.

What are the 4 responsibilities associated with duty of care? ›

Duty of Care is about individual wellbeing , welfare, compliance and good practice.

Why is duty of care important? ›

A duty of care is a legal duty to provide a reasonable standard of care to your patients and to act in ways that protect their safety. A duty of care exists when it could reasonably be expected that a person‟s actions, or failure to act, might cause injury to another person.

What duty of care does a care worker have? ›

Primarily, a care worker's responsibilities involve physical care and support for the resident's emotional wellbeing. Daily responsibilities can include: Helping a care home resident get dressed, wash and eat.

What is negligence under duty of care? ›

What is negligence? In situations where one person owes another a duty of care, negligence is doing, or failing to do something that a reasonable person would, or would not, do and which causes another person damage, injury or loss as a result.

What is negligence in care? ›

5. Negligence Negligence, in law, is an act or failure to act (omission), that doesn't meet the level of appropriate care expected, which results in injury or loss. If a doctor or health professional is negligent when giving you medical treatment, this is called 'clinical negligence'.

What is the standard for duty of care? ›

The duty of care is a standard in the law of negligence. It is a duty owed to use reasonable care; in other words, one must act as a reasonable person. It is a duty to act the way a responsible person should act in a given set of circumstances, and a deviation from this could result in negligence.

What are two duty of care responsibilities of a worker? ›

Duties of a worker

While at work, the worker must: take reasonable care for his or her own health and safety. take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons.


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