The Concept Of Duty Of Care Law General Essay

Published Date: 02 Nov 2017

Introduction

The concept of duty of care in negligence has developed in a manner that ensures both the claimant and defendants are fairly treated. To achieve this objective, the essay is organised into three parts. The introduction lays down the paper's general outline. Then the tort negligence is followed, and then the element of the duty of care respectively. Furthermore, the development of the law of negligence is explored to ensure the element of duty of care treats both parties fairly, then a conclusion.

In Blyth v Birmingham Waterworks CO negligence was argued as the omission by a defendant to do sometime in which a reasonable person, who is guided by those considerations which ordinarily regulate the conduct of human affairs in the doing sometime which a prudent and reasonable man wouldn’t do if they are in similar circumstances. From this judicial viewpoint it is apparent that the tortuous liability for negligence could either be positive or negative liability

The concept of the duty of care is the cornerstone of the tort of negligence. It emerged in the 20th centuries through judge-made laws [1] and has evolved to accommodate different aspects of human behaviour and rights. The rigorous steps and measures taken by the court in the course of its development to determine what legal right we might have against other persons, created a perfect illustration of analogy with regards to the process of case law. However, the foundation of duty of care in negligence originated in the case of Donoghue v Stevenson [2] ; Mrs Donoghue in a café was served with ginger beer that contained decomposing snail which made her ill. She argued to claim damages against the manufacturer stating that he was careless as to allowing a snail in the bottle. At this point it was left for the court to decide whether or not her claim could succeed, thus leading to Lord Atkin’s famous quote ‘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 which are called in question.’’ [3] 

Furthermore, the tort of negligence tends to cover any situation where a defendant has breached a duty of care owned to a claimant [4] and owing to a successful claim, the claimant must prove that i) the defendant owed them a duty of care, ii) the defendant was in breach of that duty, iii) the breach of the duty caused damage and iv) the damage was not too remote [5] ; this test was established in the case of Donoghue [6] . Also the core elements of duty of care which includes proximity and reasonable foresee ability are also taken into consideration.

But then in Hedley Byrne & Co v Heller & Partners Ltd [7] , the House of Lords allowed, in principle a duty of care not to cause economic loss thereby rejecting the neighbour test as giving rise to potentially too wide a liability, stating that there had to be an existence of special relationship between the parties [8] . By the virtue of this, a more elaborate test was established in the case of Anns v. Merton London Borough Council [9] where Lord Wilberforce attempted to rationalised the development of duty of care in negligence by putting forward the two stage test in establishing negligence which states that i) is there such a proximity that the defendant should reasonably foresee that carelessness is likely to cause the plaintiff damage and ii) is there a consideration which negates, reduce or limit the scope of the duty?

This test was scientifically analysed and evaluated; its result being that it involves policy value judgements at every stage and this posed as a threat to adequate and clear judicial process. Therefore in Murphy v Brentwood District Council [10] , the House of Lords overruled Anns [11] . In an attempt to provide a legal framework for judges, a broader view of the test was established and adopted in the case of Caparo Industries v. Dickman [12] .

In this case, the House of Lords refined the test as i) there must be sufficient proximity, ii) the harm must have been reasonable foreseeable iii) the imposition of duty must be fair, just and reasonable in the circumstances, and iv) policy [13] . This approach could be said to be nearly identical to the two-stage test but the difference is that foresee ability and proximity are parted out.

Gradually, with passage of time, significant changes emerged within this segment of law most especially circumstances in which duties of care were recognised having moved further and further from the specific factual context of the leading case [14] . Consequently, having noted that existence of a duty of care is prerequisite to having a successful claim, for the lack of existence of a duty gives rise to no liability, while breach of duty on the other hand i.e. actual carelessness by the defendant simply requires the plaintiff to prove that breach occurred due to negligence on the part of the defendant [15] . In addition, the elements of causation tends to firstly, establish a causal link between the claimant’s injury and the defendant’s breach of duty of care but then it must be established the defendant’s negligent conduct was the factual conduct of the claimant’s loss [16] 

In the case Evans v Triplex Safety Glass Co ltd [17] , the claim failed owing to the fact the defendants negligence couldn’t be substantiated as to explicitly and strictly causing the loss which the plaintiff incurred. The second element of causation termed to be the requirement of legal causation requires the court to have a proper consideration with regards to the acts or omission intervening in point of time between the defendant’s breach of duty and the claimant’s injury broke the chain of causation so as to negate the defendant’s responsibility for the injury [18] .

More importantly, the question of remoteness comes into play to alienate the defendant of being liable for loss which were not reasonably foreseeable and most often the defence could be that the claimant has voluntarily assumed the risk of harm and in that circumstance the court relies on the legal maxim of ‘volenti non fit injuria’ (to one who volunteers, no harm is done). [19] This has gone a long way to mitigate the process of adjudication thereby enabling both claimant and defendant a fair outcome. In addition the main reason for the refusal of ‘duty of care’ is floodgate; this is a situation where the defendant might be exposed to liability for an indeterminate amount to an indeterminate class but then again the use of proximity plays a vital role in limiting the potential number of claimants [20] .

Nevertheless, the Incremental Approach propounded in the case of Sutherland Shire Council v Heyman [21] as a result of resolving a means by which the court ought to approach a case in determining whether a duty of care is owned was pragmatically decided following the dictum of Brennan J ‘it is preferable, in my view that the law should develop novel categories of negligence incrementally and by analogy with established categories’ [22] . The implication of this, amounts to the rejection of the general rule and states that appreciation of identical situation or analogous to those where the court have recognised a duty of care previously [23] . This simply creates a situation for the denial of duty of care in circumstances where its recognition isn’t enshrined in the judicial precedent. Perhaps, it might not be out of place to suggest that this method to some extent provides a clear and just means in deciding cases of similar facts but on the other hand the rigidity that comes with it need to be adjusted.

This approach has left the courts in a situation whereby to either determine new categories of claim under the duty of care or extend the already existing ones which unequivocally calls for the general test as propounded in Donoghue, Anns and Caparo. But then, given these hurdles, it is clear that not every act of carelessness results in legal liability. It is also true, legally speaking, that not every loss carries the right to compensation. As Baroness Hale put it ‘some things are nobody’s fault’ [24] . In fact, liability for negligence had existed before the 1932, though limited to contractual situations but up until early 1960s, the duty of care situations were, broadly limited to those where a person’s actions might give rise to physical injuries or damage to property. More also, the duty of care situations started to increase after this, giving rise range of potential liability, claimants and defendants. It also incorporated financial loss and liability for statements. By the end of 1970s, the extension to recover financial loss in duty situation was achieved. Increasingly, the courts became concerned that they were creating what, in the United States, what Justice Cardozo had described as ‘liability in an indeterminate amount for an indeterminate time to an indeterminate class [25] .

Policy, in a way is the life-force of the common law. It is an expression of all objectives, including economic, social, constitutional and ethical- that judges believe the law should pursue. They are the fundamental value judgements informing judicial law-making. So, on policy grounds, the courts will not hold the police liable to the victims where the perpetrators have been at large solely because of police negligence [26] .

In conclusion; important question is, ‘where does this leave us’? Simply put, in the case of Customs and Excise Commissioners v Barclays Bank plc. [27] Lord Walker said that there is an ‘increasingly clear recognition that the three-fold test…does not provide an easy answer to all our problems, but only a set of fairly blunt tools’. [28] In most instances, particular types of circumstances have their own approaches to duty. Omissions are much likely to be the basis of liability than any positive act and most importantly claimant has to show that he or show was owned a duty of care because for the mere fact that a situation can be of one where a duty of care has been recognized doesn’t necessarily mean that every claimant will automatically be successful in court. This has created an avenue for fair treatment for both claimant and defendant.