Duty Of Care – Tort Law
Within the remit of the law of tort, the recognition of a duty of care is a legal obligation placed upon an
individual so that they must look to adhere to what is considered to be a reasonable standard of care so
as to avoid any foreseeable harm to others. Therefore, the plaintiff must articulate a duty of care imposed
by law which the defendant has breached so as to proceed with a claim in negligence because breaching
a duty may subject them to liability.
Such a view was reflected by Lord Aitken, in Donoghue v. Stevenson [1932] AC 562, when he recognised
that “a manufacturer of products, which he sells in such a form as to show that he intends them to reach
the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate
examination, and with the knowledge that the absence of reasonable care in the preparation or putting up
of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer”.
Breach Of Duty
It is to be appreciated that, in tort, it has long been recognised that it is not possible for there to be liability
in negligence without the claimant in any give case first looking to establish that they were owed a duty of
care by the defendant and there had been a consequent breach of that same duty. Therefore, with this in
mind, it is to be appreciated that the defendant in any given case is in breach if their conduct has fallen
short of the standard they were expected to meet either through the recognition of – (a) a general
standard of care; (b) a ‘special standard’; or (c) the conduct expected of a reasonable person.
(i) General Standard of Care
It is to be appreciated that any defendant needs to generally look to meet the standard of what is
considered to be aspirational for a ‘reasonable man’ as was recognised by Baron Alderson in the decision
in Blyth v. Birmingham Waterworks (1856) 11 Exch 781. Therefore, with this in mind, it has been held that
a ‘reasonable person’ has had various definitions given to them, illustrated by decisions including Hall v.
Brooklands Auto-Racing Club (1933) 1 KB 205 and McFarlane v. Tayside Health Board [2000] SC (HL) 1.
Consequently, it is to be appreciated that this principle fundamentally revolves around the idea that the
standard of objectivity that can ever be expected is based on what could be expected of a ‘reasonable
person’ in the circumstances because it is impossible to expect perfection – only reasonable prudence
and care.
(ii) Special Standard
Anyone who holds themselves out as having a certain skill or expertise cannot be held to the same
standard that could be expected of an ordinary man, in keeping with Bolam v. Friern Hospital
Management Committee [1957] 2 All ER 118, so that it becomes that of what can be expected of a similar
‘reasonable professional’ car mechanic or doctor. But novices are not given any ‘special’ dispensation just
because they lack experience, supported by decisions including Nettleship v. Weston [1971] 3 All ER
581, Wilsher v. Essex Area Health Authority [1986] 3 All ER 801, and Wells v. Cooper [1958] 2 All ER
527, so that the standard of care expected is not lowered just because of this. However, it is also to be
appreciated that the same is not true of children in such cases as they arise because some form of
dispensation is expected to allow for their age so that they must only meet what is expected of a
reasonable child of the same age in keeping with decisions including Gough v. Thorne [1966] 3 All ER
398 and Mullin v. Richards [1998] 1 All ER 920.
(iii) The Conduct Expected of a ‘Reasonable Person’
In order to be able to effectively determine what can be expected of a ‘reasonable person’ in a given set
of circumstances, it is to be appreciated that the following factors need to be given due consideration by
the courts in the circumstances –
What did the defendant know?
By way of illustration, in Roe v. Minister of Health [1954] 2 All ER 131 it was reognised that a defendant
will only be liable if a ‘reasonable person’ would have foreseen the loss or damage – although the
‘eggshell skull’ rule recognises the idea that the victim of harm should be taken as they are found so that
if they have a particular unknown defect that makes them more susceptible to injury then the person who
inflicts the injury can still be held liable, on the basis of the decision in Smith v. Leech Brain & Co. (1962)
2 QB 405.
What was the degree of risk?
The greater the risk, the greater the precautions needed according to decisions including Bolton v. Stone
[1951] AC 850 and Miller v. Jackson [1977] QB 966.
How practical were these precautions in the circumstances?
By way of illustration, in Wilson v. Governor of Sacred Heart Roman Catholic Primary School [1997]
EWCA Civ 2644 a primary school was deemed not negligent for not employing someone to supervise the
playground after the close of school hours so that the test, in such cases, is effectively about looking to
strike a balance of reasonableness of precautions against foreseeable injury.
What is the social importance of the defendant’s activity?
When any defendant’s actions are considered to serve a socially useful purpose then they may then have
been considered justified in looking to taking greater risks supported by the decision in Watt v.
Hertfordshire County Council [1954] 2 All ER 368 along with the remit of section 1 of the Compensation
Act 2006.
Is there any common practice in the area under consideration?
Where a defendant in any given circumstances is found to have complied with what is considered to be
common practice in their activity, they will usually be considered to have met a reasonable standard,
unless the court considers the practice negligent, illustrated by the decision in Paris v. Stepney Borough
Council [1951] 1 All ER 42.
Proximity & Remoteness – Tort Law
In the context of tort law, proximity is involved with the consideration of as to whether there is an event
that is considered to be sufficiently related to a legally recognisable injury to be recognised as being its
cause through the consideration of causation in terms of cause-in-fact (the ‘but for test’) and proximate
cause that must both be met in keeping with Yorkshire Dale Steamship Co v. Minister of War Transport
[1942] AC 691. Therefore, with this in mind, it is also generally understood that the loss or injury
sustained must not be too remote so as to ensure any liability is fairly placed on the right defendant
supported by decisions including Lamb v. London Borough of Camden [1981] QB 625 and Jolley v.
Sutton London Borough Council [2000] 1 WLR 1082.
(i) The Factual (‘But for’) Test of Causation
Ostensibly this test revolves around the idea any given defendant will only be liable where the injury to
the claimant would not have occurred ‘but for’ their negligence. But then it must also be recognised the
defendant will not be deemed liable if the damage would, or could, on the balance of probabilities, have
occurred anyway. Therefore, in order to understand such a view it is pertinent to consider Lord
Hoffmann’s example, in South Australia Asset Management Corporation v. York Montague Ltd
(SAAMCO) (1997) AC 191 at p.214, that “A mountaineer … is concerned about the fitness of his knee.
He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The
climber goes on the expedition ... (and) suffers an injury which is an entirely foreseeable consequence of
mountaineering but has nothing to do with his knee”, that was then also more latterly supported by
Christopher Andrews v. Barnett Waddingham LLP and Raj Waddingham [2006] EWCA Civ 93.
(ii) Breaking the Chain of Causation
In looking to effectively determine as to whether the acts of a third party serve to break the chain of
causation is largely dependent upon as to whether the intervention in question was foreseeable, with the
general rule being the original defendant will be held responsible for harm caused by a third party, so long
as it was a highly likely occurrence as a consequence. Therefore, with this in mind, by way of illustration,
where the defendant controls the third party, or where they are faced with a dilemma created by the
defendant, the chain of causation is unlikely to be broken, in keeping with the decisions in Home Office v.
Dorset Yacht Co Ltd [1970] AC 1004 and Lamb v. Camden LBC [1981] QB 625.
Recognised Harm in Fact (Causation)
This idea within the remit of tort law primarily refers to the concept of causation that relates to the ‘causal
relationship between conduct and result’ so as to serve to connect conduct, complete with actus reus,
with the resulting harm, in decisions including R v. Malcherek [1981] 1 WLR 690 and R v. Cheshire [1991]
3 All ER 670, in a concerted effort to produce results that are generally considered to be both just and fair
in their nature which is reflected in the section in negligence with the stages that are necessary to show
such an offence that is further supported by the decision in The Wagon Mound (No 1) [1961] AC 388
(PC).
It is interesting to note, however, that, in some cases, a chain of causation will not be found to be present,
but the court still looks to hold the defendant out to be liable for the plaintiff’s injuries. Such a view is
perhaps most effectively illustrated by the decision in Sindell v. Abbott Laboratories (1980) 607 P 2d 924
where the plaintiff consumed medication that made them ill because of negligence during its manufacture,
but the actual manufacturer could not be ascertained for certain because more than one company made
it. Therefore, with this in mind, the defendant was held liable proportionately to their market share so that
this meant that the defendant was effectively held liable for the amount of risk it contributed to the
occasioning of harm since the party that caused the injury could not be ascertained for certain.