Duty of Care and Its Various Approaches

Running head: DUTY OF CARE
Duty of care and its various approaches
Name of the student:
Name of the university:
Author note

1DUTY OF CARE
Table of Contents
Introduction:...............................................................................................................................2
Discussion..................................................................................................................................2
What is negligence?...............................................................................................................2
What is duty of care?..............................................................................................................3
Case brief: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540:.........................6
Facts:..................................................................................................................................6
Issues:.................................................................................................................................6
Observation:.......................................................................................................................7
Conclusion:................................................................................................................................7
Reference....................................................................................................................................9

2DUTY OF CARE
Introduction:
The present case is based on the duty of care, which is a part of the negligence law. Duty of
care is a legal duty that has been imposed on the people to take reasonable care against
others. According to the basic principle of law, if any person has failed to act reasonably and
failed to take proper care and by this, the other person has faced any harm, the accused or the
wrongdoer will be liable to compensate the victim. However, there are different approaches
to understand various aspects of duty of care. Before a person has held liable for breaching
the duty of care, certain elements like reasonable foresee-ability, knowledge of the risk and
vulnerability of the accused are required to be analysed. According to the principle of law, if
those elements are not proved, no one will be held liable for breaching duty of care. In
Australia, duty of care is treated as a part of the Tort Law.
Discussion:
What is negligence?
Negligence is an act that shows the failure to implement ethical care in certain circumstances.
Negligence is a part of Tort Law and it is based on the principle of reasonable care1. The
concepts and elements of negligence have been established in the case of Donoghue v
Stevenson [1932] AC 562. According to this case, there are four elements required to be
proved in case of negligence which are as follows:
 Every person has a duty of care against others;
 The wrongdoer has breached the duty;
 Such breach has caused harm to the others;
1 Stickley, A. P. (2016). Australian torts law. 5th ed. LexisNexis Butterworths.

3DUTY OF CARE
 The nature of the damage is not remote.
Duty of care is an important fact to establish the negligent act by the wrongdoer. In Vaughan
v Menlove (1837) 3 Bing N.C. 467, it has been observed that the defendant should have the
knowledge of risk and he should have failed to take necessary steps to prevent the risk and
thus committed breach of duty. Further, it has been held that the risk should be foreseeable
and all the damages have been caused due to the wrongful acts of the defendant. The
causation in case of negligence could be factual or legal in nature. But for test is an important
source in this case; however the High Court of Australia has excluded the test from the
exclusive test of causation.
What is duty of care?
It is the duty of every individual to act as a prudent person. It means he should have to do an
act with reasonable care. He is restricted to perform any duty that could be harmful for any
person. This mentality has given birth to the principle of duty of care. It can be imposed
either by legal operation or by common law. In the case of Donoghue v Stevenson [1932] AC
562, it has been held that if any person has failed to observe the reasonable foresight of harm
and certain personal injury and property damages have been caused due to his unreasonable
act, the person will be held liable under the breach of duty of care2. In this case, Lord Atkin
has conducted “neighbour test” that could measure the effect of duty of care. Certain
relationship of proximity has also been established in this case. Further, it has been observed
in the case of Home Office v Dorset Yacht Co Ltd [1970] AC 1004 that if any allegation has
been made against any person on the grounds of breaching duty of care, his failure to
foresight the reasonable care is required to be established. In case of Perre v Apand [1999]
2 Chan, G. K. Y. (2016). Finding common law duty of care from statutory duties: All
within the Anns framework. Tort Law Review, 24(1), 14.