Law of Tort: Negligence (Duty of Care)

Duty of Care

Duty of care is the first step to a negligence claim; If somebody does not owe you a duty of care then they will be unable to breach it, and therefore your claim would be over before it even begins.

There a two main ways to establish a Duty of Care:

  • Established Duty Situations
  • Case Law

Established Duty Situations – These are situations where there is already an established duty of care between the claimant and defendant. In reality what this means it that there is no burden to prove there was a Duty of Care because a duty has already been established .  Examples of these situations include:

  • Road User to Road User
  • Employer to Employee
  • Doctor to patient
  • Solicitor to Client
  • Manufacturer to Consumer

Case Law – The first significant case in the world of Negligence is Donoghue v Stevenson, this case outlines the requirements for a duty of care and the neighbour principle.

Donoghue v Stevenson [1932] AC 562 (HL) – The facts of this case are very simple Mrs Donoghue and her friend visited a café, and Mrs Donoghue’s friend purchased a bottle of Ginger beer for Mrs Donoghue. A partially decomposed Snail had found its way into the bottom of the Ginger Beer, which led to Mrs Donoghue developing Gastroenteritis.

This case could not be solved in the realm of contract law because there was Privity of contract. Privity of Contract means a third-party to a contract cannot enforce a contract that they are not party to. If A and B contract and C benefits under the contract C cannot sue to enforce the contract despite it conferring a benefit upon her.

The House of Lords (Highest court in the land at the time) held in their judgment that a manufacturer owes a duty that of care to the end consumer. This is referred to as the Narrow Rule in Donoghue v Stevenson.

The next important legal principle that this case affords is the Neighbour Principle. This principle is a guide to determine whether a defendant will owe a duty of care in any situation. Lord Atkin summarised what the Neighbour Principle encompasses:

  • You Must take reasonable care to avoid acts or omissions, which you can reasonably foresee would be likely to injure your neighbour
  • Your Neighbour is a person who is so closely and directly affected by an act that they ought to have reasonably been in contemplation that they would be affected, when directing your mind to the acts or omissions in question.

In simple terms this case provided a two-step test for whether a duty of Care is owed:

  • Does the Defendant owe a duty to this claimant in this situation generally?
  • Does this Defendant owe a duty to this claimant in this situation?

Donoghue v Stevenson has since been taken further by the courts and improved the test as to whether a duty of care is owed.

Caparo Industries Plc v Dickman [1990] 2 AC 605 (HL) – This case set out the three factors a court must consider to establish a duty of care:

  • Reasonable Foresight of Harm
  • Proximity of Relationship
  • Fair, Just and Reasonable to impose a duty.




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