Duty of care

Introduction

In the law of torts there is a legal obligation for individuals to adhere to a standard of reasonable care while performing any acts that could foreseeably harm others.

The 'neighbour principle'

The case of Donoghue v Stevenson (below) was the first to establish that a duty of care may be owed to a person, even where no contractual relationship exists.

Prior to this case, the belief was that to allow an action to be taken where there was no contractual relationship would undermine the principles of contract law. The doctrine of privity states that only parties to a contract can sue or be sued.

Donoghue v Stevenson changed this principle and, as a result, manufacturers of goods owe a duty of care to the ultimate consumer of the product.

Donoghue v Stevenson (1932)

Facts: Mrs Donoghue went to a cafe with a friend. The friend bought her a bottle of ginger beer which she drank. She discovered a decomposed snail at the bottom of the bottle and suffered a physical illness as a result. She sued the manufacturer, claiming they had a duty to ensure outside bodies did not contaminate their products.

Held: there was a duty on behalf of the manufacturer to take reasonable care in the manufacture of their products which they owe to their consumers to prevent injury and, in this case, illness.

Lord Atkin defined those to whom we owe a duty of care in the neighbour principle:

'You must take reasonable care to avoid acts or omissions which you ought reasonably foresee would be likely to injure your neighbour.'

He defined neighbours as '...persons who are so directly affected by my act that I ought reasonably to have them in contemplation'.

Economic or financial loss

The case of Donoghue v Stevenson (1932) established that an action could be taken if physical damage was suffered. However, the law still did not recognise liability in respect of 'pure' economic loss. Pure economic loss is monetary loss which is unconnected to physical injury to a person or damage to other property. Where there is economic loss that is connected to physical injury or damage to property then that is 'consequential' economic loss which is recoverable.

In respect of pure economic loss suffered as a result of professional misstatement the case of Hedley Byrne v Heller modernised the law in this area. The House of Lords refined the neighbour principle by acknowledging that a claim for financial loss suffered could be made if a 'special relationship' existed between the claimant and defendant.

The limits of the duty of care

In the case of The Nicholas H (Marc Rich & Co v Bishops Rock Marine) (1995), four tests were laid down which should be followed in determining whether a duty of care exists.

The issues to be considered are:

• Was the damage reasonably foreseeable by the defendant at the time of the act or omission?
• Is there a neighbourhood principle or sufficient proximity (closeness) between the parties?
• Should the law impose a duty of care between the parties i.e. is it fair and reasonable to do so?
• Is there a matter of public policy which exists or requires that no duty of care should exist?

The Nicholas H case focused on financial loss, but these tests should also be applied when determining the duty of care for physical damage cases.

Breach of duty of care

In order for a claim to be successful, a claimant must not only prove that a duty of care existed, but that:

• the duty was breached by the defendant. Establishing if there has indeed been a breach is a question of fact. Each case must be viewed separately on its own facts.
• the defendant has not shown the required standard of care.

The standard of care

The test for establishing breach of duty is an objective one and was set out in Blyth v Birmingham Waterworks Co (1856) which stated that a breach of duty occurs if the defendant:

'...fails to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or does something which a prudent and reasonable man would not do.'

The reasonable man is not expected to be skilled in any particular trade or profession.

The following principles have been established by case law:

• Probability of injury/vulnerability of claimant: the degree of care required has to be balanced against the degree of risk involved in the event of the duty being breached. This means that the greater the risk of injury the more that should be done in order to prevent the injury.
• Children are owed a higher standard of care and a lower standard can be expected from them. The degree of care to be exercised may be increased if the claimant is more vulnerable i.e. is young, old or less able bodied. This is based on the rule that 'you must take your victim as you find him'.
• Particular skill: as a general rule, the level of skill and care required is that which a reasonable man would possess. However, if the defendant possesses a particular skill, i.e. he is a qualified solicitor or a qualified accountant, the standard of care expected will be that of a reasonable person with that skill.
• Hindsight is irrelevant, the degree of skill is the standard required at the time of the tort.
• Lack of skill: lack of training or the peculiarities of the defendant are not relevant. Therefore, the standard of skill expected from a trainee accountant is the same as that of any reasonable accountant.
• Cost and practicability: where there is a foreseeable risk this must be balanced against the measures necessary to eliminate the potential risk. If the cost of these measures far outweighs the potential risk it will probably be concluded that there is no breach of duty in not eliminating the risk.
• Common practice: where a particular action is in line with common practice or custom that may be considered to be sufficient to meet the expected standard of care. However, this will not apply if the common practice itself is negligent.

Loss caused by the breach

A claimant must demonstrate that he has suffered loss or damage as a direct consequence of the breach. This is sometimes called the 'But For' test - but for the actions of the defendant the claimant would not have suffered the damage.

The claimant must establish a causal link between the defendant's conduct and the damage which occurred:

• If the damage was caused by something or someone else there will be no liability on the defendant's part.
• If the claimant would have suffered the loss regardless of the defendant's conduct then he has not caused the loss.
• If something happened after the defendant's breach that caused or contributed to the damage then the defendant's liability will cease at that point.
• The following losses are normally recoverable:
  • loss as a result of personal injury
  • damage to property
  • financial loss directly connected to personal injury (i.e. loss of wages).

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