2.1.2 Duty of Care Lecture

What is a ‘Duty of Care’?

Duty of care can roughly be thought of a responsibility of an individual to not harm others through carelessness.

The Development of the Duty of Care

The legal basis for finding a duty of care has its roots in Donoghue v Stevenson [1932] AC 562. Key to the decision is the reasoning of Lord Atkin (who led the majority of the court). Atkin held that a general duty of care could be said to exist between two parties under the ‘neighbour principle’.

However, Lord Atkin’s description of the neighbour principle is relatively broad in scope, and is thus inclusive of a wide range of situations. As a result of this, a number of cases subsequently sought to limit the application of the neighbour principle, such as limiting it to cases involving physical harm or damage to property (Old Gate Estates Ltd v Toplis & Harding & Russell[1939] 3 All ER 209).

The Current Law: The Caparo Industries v Dickman[1990] 2 AC 605 test

The Caparo test is made up of three stages: foreseeability, proximity and fairness.

  • This first stage revolves around whether it is foreseeable that the defendant’s carelessness could cause damage to the claimant. A prime example of foreseeability can be seen in the US-based case of Palsgraf v Long Island Railroad Co [1928] 248 N.Y. 339.
  • The third and final stage of Caparo involves establishing whether it would be fair, just and reasonable for the courts to find that the defendant owed a duty of care to the claimant. This stage provides the courts with discretion.

Exceptions and Special Situations

There exists a significant variety of situations in which establishing a duty of care becomes more complicated than simply applying the Caparo test such as with Liability for Omissions; Controlsituations; Assumption of Responsibilitysituations; Creation or Adoption of a Risk situations.

Duty of Care and Third-Party Actors

For the vast majority of cases, the actions of third parties will not impart liability on claimants, and will usually be held as a novus actus interveniens, as per Home Office v Dorset Yacht Co Ltd[1970].

Duty of Care and Public Service Immunity

There also exists a significant exception to the duty of care principle, when it comes to various public services. Overall, the stance of the courts is that public services do not have a duty of care towards individuals

Special Claimants

Finally, there are certain set situations in which a duty of care will be imposed, even if it would traditionally be legally unfeasible such as with Pre-natal Injuries (Burton v Islington Health Authority[1993] QB 204) and Rescuers (Ogwo v Taylor [1988] AC 431); Crossley v Rawlinson[1982] 1 WLR 369.

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