Duty of Care: Analysis of Legal Principles and Case Laws

This report delves into the legal concept of the duty of care within tort law, focusing on the obligations individuals and entities have to act with reasonable care to avoid foreseeable harm to others. It establishes that duty of care is the first element which is supposed to be established in the claim of negligence and occupiers liability. The analysis covers the scope and criteria for determining the duty of care, including the application of various case laws. The report examines the concept of reasonable care, the significance of the magnitude of risk, cost of precaution, and social value of activity. It highlights the criticisms and exceptions to the general rule of reasonable care, such as medical conditions. The report aims to provide a comprehensive understanding of the duty of care, its implications, and its relevance in legal contexts, supported by case law examples and scholarly insights.

Running Head: DUTY OF CARE
DUTY OF CARE
Name Of the Student
Name Of the University
Author’s Note

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DUTY OF CARE
Table of Contents
INTRODUCTION:..........................................................................................................................1
SCOPE ANJD CRITERIA TO EXERCISE DUTY OF CARE:.....................................................2
REASONABILITY OF STANDARD OF CARE:..........................................................................4
CRITICISMS AND EXCEPTIONS TO THE GENERAL RULE OF EXERCISE OF DUTY OF
REASONABLE CARE:..................................................................................................................7
CONCLUSION:..............................................................................................................................8
BIBLIOGRAPHY:........................................................................................................................10
Case Laws:.................................................................................................................................10
Journals and Scholars:...............................................................................................................11

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INTRODUCTION:
In tort law the duty of care is the obligation as per the law which is imposed upon the
person with respect to standard and reasonable care while performing or omitting any act which
would result in any foreseeable harm to other people1. The duty of care of the first element which
is supposed to be established in the claim of negligence2 and the occupiers liability3 in which the
former states that the person performing or omitting any act should exercise reasonable care
against any foreseeable harm which may be injurious to others while the other explains that the
owner or the occupier of the property owes duty of care to fellow visitors and trespassers against
any foreseeable harm that may arise due to the nature of the property or the activities carried on
or omitted in the property so that the visitors or the trespassers are not prone to any foreseeable
harm4. Duty of care has been recognized as a social contract which imposes responsibility to the
person towards other people within the society. The duty of care as the legal obligation is not
expressly mentioned or laid down in any provision of law but is a development of the doctrines
of jurisprudence and the common law doctrines.
The thesis aims to critically analyse the criteria for the determination of the duty of care
in any scenario as established by the courts. The thesis would form the basis for the analysis of
various case laws which lays down various criteria for the determination of the duty of care in
any scenario and failure to prove such criteria would amount to the breach of such duty of care.
1 Gudmundsson, Arvid. "Human Rights Due Diligence and the Duty of Care in Tort Law." (2018).
2 Plunkett, James. The Duty of Care in Negligence. Bloomsbury Publishing, 2018.
3 Carpenter, Logan. "Negligence-Standards of Care: Premises Liability Claims Alleging Dangerous
Activities against a Landowner Barred under Most Circumstances." NDL Rev. 94 (2019): 181.
4 Goldberg, John CP. "History, Theory, and Tort: Four Theses." Journal of Tort Law 11.1 (2018): 17-37.

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SCOPE ANJD CRITERIA TO EXERCISE DUTY OF CARE:
The scope of exercise of duty of care can be explained by the application of various case
laws. The first theory explains that the duty of care is an obligation which binds the party
irrespective of the distance created by time and space between the parties. It can be explained
that in cases where the duty of care shall be exercisable by the constructors of the building
irrespective of their target customers5. It must be an essential duty and a legal obligation to carry
on the duty with legal compliances as per the industrial standards so that the buyers would not
suffer any harm with respect to the negligence of the constructor to comply with the industrial
standards6. However, the second theory of the test for determination of duty of care involves the
scenario with different plaintiffs and defendants. It can be explained that the seller of the product
owes equal care as the manufacturer of the product to ensure the quality of product being served
to the consumers. Further, in case the product was purchased by one party and the same was
consumed by the other, the other party who consumes the product shall also be brought within
the understanding of the consumer and hence, the seller and the manufacturer shall owe duty of
care to the consumer of the product even though the seller has not been in direct contract of sale
with such consumer as in the case of Donoghue vs. Stevenson. Thus it can be explained that the
duty of care is a vast theory which binds all the parties and persons leaving no scope for evasion
of duty. The third theory for the determination of the duty of care lies with the court to assess
whether the party had taken reasonable standard of care against the foreseeable harm7. The term
reasonable refers to standard of care as would have been taken by any reasonable man of sound
mind. Thus, the reasonability of the standard of care is a broad subject and the same shall only be
determined with the applicability of the soundness of any other person in similar situation. A
5 Terline vs. Neely [1980] 275 SC 395
6 Winnipeg Condominium Corporation No. 36 vs. Bird Construction Co [1995] 1 SCR 85
7 Blyth vs. Birmingham Waterworks [1856] 11 Ex 781

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reasonable man is generally referred to as the man in the street or the man on the Clapham
Omnibus who cannot be considered to be acting as per perfection, mere or average conduct8. The
reasonability of the person is referred to as the reasonable competency of the person who has
undertaken the activity9. Thus, a person who is negligent shall maintain standard of care below
the reasonability of any other sound man in similar situation. The fourth and the basic test for the
determination of the duty of care in any scenario is established as the proximity of harm caused10.
This means that the harm caused to the plaintiff should be the proximate outcome of the failure
of the defendant to exercise duty of care. Any remoteness with respect to the harm caused and
the failure to exercise the duty of care would result in the court deciding in favour of the
defendant. Thus, the proximity or the immediate effect of the breach of duty of care should be
the harm caused which would not have been caused if the defendant would have exercised
reasonable standard of care towards his act or any omission of an act leading to such harm. The
fifth theory for the determination of the duty of care to be exercised by the plaintiff is that the
care can only be exercised against a foreseeable harm. This means that the harm which cannot be
predicted or foreseen by the defendant, reasonable care cannot be taken against such harm
resulting in injury to other people. However, there is a line of difference between the
understanding of “fantastic possibility” and “foreseeability”11. This means that the harm which
can be the potential possibility as an outcome of any act or omission of any act as conducted by
the defendant does not comprise the ground for foreseeability of harm. Thus it can be explained
that the determination of the duty of care can be established based on following criteria12:
8 Hall vs. Brooksland Auto-Racing Club [1933] 1 KB 205
9 Nettleship vs. Watson [1971] 2 QB 691
10 Caparo Industries Plc vs. Dickman [1992] 2
11 Fardon vs. Harcourt-Rivington [1932] All ER Rep 81
12 Luntz, Harold, et al. Torts: cases and commentary. LexisNexis Butterworths, 2017.

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 Act of the person causing the person to enter into a social contract with the other people
who may be affected due to the act or omission of act by the person.
 The reasonability of the standard of care taken should be at par with the reasonable
competency of any other sound man as he or she would have taken in that particular
scenario and situation.
 The harm against which the reasonable standard of care is ought to be exercised should
be predictable or foreseeable by the defendant.
 The harm caused to the plaintiff should be an outcome of the proximate cause of the duty
of standard care being breached by the defendant13.
REASONABILITY OF STANDARD OF CARE:
It can be explained that the reasonability of the standard of care which should be undertaken
by the person is the determining factor as to what extent of care shall be termed as the reasonable
care14 and hence, it can be explained in three determining factors depending both on the character
of the defendant and the nature of the activity being undertaken by the defendant:
 Magnitude of Risk: it is the most important factor which determines the nature, character
and the extent of the risk which was accompanied by the activity undertaken by the
defendant. Depending on the nature of the task, the extent and character of risk can be
assessed, depending on which reasonability of the standard of care can be assessed15. In
other words, it can be explained that the standard of care shall be calculated
13 Zhang, Xinbao. "On the causative potency theory in tort law." Legislation of Tort Liability Law in China.
Springer, Singapore, 2018. 233-253.
14 Chan, Gary Kok Yew. "Finding common law duty of care from statutory duties: All within the Anns
framework." Tort Law Review 24.1 (2016): 14.
15 Bolton vs. Stone [1951] AC 850

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proportionately with the nature and extent of risk involved in any task16. Thus, it can be
explained that if the extent of risk is higher, then the standard of care to be taken shall
also be higher and the reasonable limits of the standard of care shall be capped at higher
level than other scenario17.
 Cost of Precaution: this is another determining factor which establishes the concerns for
the reasonability of the standard of care. It means that the lower the cost for establishing
precautions against the harm, more reasonable it shall be with respect to the standard of
reasonable care expected to be taken by the defendant against such activity18. Thus, the
cost of precautions is directly proportional to the reasonability of the standard of care to
be taken in any scenario. However, the criteria may be argued on the basis of lack of
money as the defence, the approach of the courts are more towards the assurance of
safety concerns than the financial viability of businesses and organizational concerns.
 Social Value of Activity: it is an important and concerning criteria where the persons
performing activities in social interest shall be prone to applicability of lesser standard of
care like that of a fireman being injured and claiming for compensation on the ground of
utility of the dangerous nature of his job being outweighed by the need for proper
precautions to discharge such duty19. However, the idea has been contradicted and has
been explained and recognised that the activities involving high social values would
require to be acted upon with standard diligence so that the duty of care is exercised even
in cases of extremity of the nature of activity and the dangers imposed by such activity
and such dangers are foreseeable20. Recently, it has been held by the court that the social
16 Miller vs. Jackson [1977] QB 966
17 Paris vs. Stepney Borough Council [1951] AC 367
18 Latimer vs. AEC Ltd [1953] AC 643
19 Watt vs. Hertfordshire County Council [1954] 1 WLR 835
20 Ward vs. London County Council []1932 2 All ER 341

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value of any activity is dependent upon the nature of the activity and the diligence taken
for such activity shall depend upon the extremity of the activity and dangers imposed by
it21.
Thus, it can be explained that the factors determining the reasonability of the care shall
further be contrasted with the actual care being exercised by the defendant and whether the care
exercised by the defendant is at par with that of the reasonable care that ought to be taken in such
scenario. however, the duty of care in itself does not establish the claim of the plaintiff. It is the
breach of duty which establishes the concern. It can be explained by the maxim “res ipsa
loquitor” which means that the facts speak for themselves wherein it is explained that the parties
need not prove whether the duty has been breached or not. It is the facts which would express the
faults (if any). In other words, once the above discussed assessments are done, it is the duty of
the court to assess the standard of care undertaken and standard of care ought to have been taken
by the defendant22. If the standard of duty assessed and undertaken are at par, then the claim shall
be dismissed. However, if the standard of care undertaken and assessed are not at par then it shall
amount to the breach of duty of care as the defendant was supposed to undertake against the
foreseeable harm towards fellow people.
CRITICISMS AND EXCEPTIONS TO THE GENERAL RULE OF
EXERCISE OF DUTY OF REASONABLE CARE:
On the contrary, the critics of the theory of reasonable care establish certain exceptions to the
general rule that every person owes the duty of care to the other people against the foreseeable
harm that may arise from their act or omission of an act.
21 Scout Association vs. Barnes [2010] EWCA Civ 1476
22 Scott vs. London & St. Katherine Docks Co [1865] 3 H & C 596

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 Medical Conditions: this means that the strict liability arising from the breach of duty of
care in social contracts may be evaded by the establishment of medical facts that may
relax the ability of the defendant to exercise standard care against the act or omission of
an act as committed by the defendant23. In other words, it can be explained that the person
suffering from medical conditions may be relaxed from the imposition of strict liability
due to the fact that they may not have the ability to exercise reasonable care towards the
foreseeable harm or the impairment may not allow the person to foresee the harm against
the act committed by the person.
 Children: it is important to observe that the reasonability of the person to determine the
reasonable standard of care shall be assessed on the basis of the age or the reasonability
of the defendant24. In other words, if the defendant is of 13 years, then the court shall
assume the standard of care expected from the defendant shall be in accordance to the
reasonability of care ought to be taken by any sound and reasonable child of similar age25.
 Sporting Events: the standard of care exercised by the defendant shall be in accordance to
the time and nature of the event which led to such incident. In other words, in case of any
sporting event, it is reasonable for the sportsmen to run faster or violently often involving
moves in the spur of sportsmanship which may establish the reasonability of the standard
of care at a distinct level26. The reasonability of care expected from a sportsman at a
sporting event shall be different from the reasonability of care expected from a sportsman
at a normal time or from a normal person at a sportsman27. For instance, it is not expected
from the audience to come on the ground and run along with the sportsman in the event.
23 Mansfield vs. Weetabix [1998] EWCA Civ 1352
24 Orchard vs. Lee [2009] EWCA 295
25 Mullin vs. Richards [1998] 1 WLR 1304
26 Woolridge vs. Sumner [1963] 2 QB 43
27 Caldwell vs. Maguire [2001] EWCA Civ 1054

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 Those acting as professionals: the professionals in due course of discharge of their
professional duties or obligations are expected to exercise duty of care and the
reasonability of care at par with the profession and its professionalism including the
ethics and ethical standards28. This is largely based on the Bolam Test29 which explains
that the reasonability of the standard of care to be exercised by the professional shall be
in accordance with the standard of care as established by the competent body authorized
to govern such profession and its professionals30. Thus, the logical analysis with respect
to the standard of care as demanded from the professional discharging their duty shall be
protected by the Bolam Test31.
CONCLUSION:
It can be concluded that the duty of care is the invisible imposition of the legal obligation that
arises with respect to the act of the person involving the commission or the omission of any act
that may involve any foreseeable harm to others. This also includes the duty of care to be
exercised by the occupier or the owner of any property towards the visitors and the trespassers.
The idea of inclusion of trespassers is that the application of human rights and due diligence
confers the duty upon the owner and the occupier of the property with the duty to ensure safety
of all entering the premises including the trespassers. In the name of trespassers or the
foreseeability of trespassers entering the property, no person should be harmed and no occupier
or the owner of the property shall evade their liability. Duty of care has been recognized as a
social contract which imposes responsibility to the person towards other people within the
28 Luxmoore-May vs. Messenger May Baverstock [1990] 1 WLR 1009
29 Buttigieg, George G. "Re-visiting Bolam and Bolitho in the light of Montgomery v Lanarkshire Health
Board." Medico-Legal Journal 86.1 (2018): 42-44.
30 Adams vs. Rhymney Valley DC [2000] Lloyd’s Rep PN 777
31 Bolitho vs. City and Hackney Health Authority [1998] AC 232

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society. The duty of care as the legal obligation is not expressly mentioned or laid down in any
provision of law but is a development of the doctrines of jurisprudence and the common law
doctrines.

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BIBLIOGRAPHY:
Case Laws:
Adams vs. Rhymney Valley DC [2000] Lloyd’s Rep PN 777
Blyth vs. Birmingham Waterworks [1856] 11 Ex 781
Bolitho vs. City and Hackney Health Authority [1998] AC 232
Bolton vs. Stone [1951] AC 850
Caldwell vs. Maguire [2001] EWCA Civ 1054
Caparo Industries Plc vs. Dickman [1992] 2
Fardon vs. Harcourt-Rivington [1932] All ER Rep 81
Hall vs. Brooksland Auto-Racing Club [1933] 1 KB 205
Latimer vs. AEC Ltd [1953] AC 643
Luxmoore-May vs. Messenger May Baverstock [1990] 1 WLR 1009
Mansfield vs. Weetabix [1998] EWCA Civ 1352
Miller vs. Jackson [1977] QB 966
Mullin vs. Richards [1998] 1 WLR 1304
Nettleship vs. Watson [1971] 2 QB 691
Orchard vs. Lee [2009] EWCA 295