Negligence - Duty of Care

Before we begin on what “duty of care” is let’s take a look at the meaning negligence. The Tort of Negligence is a legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would take as a foreseeable risk. In many cases there will be a contractual relationship (express or implied) between the parties involved, such as that of a doctor and patient, employer and employee, bank and customer, and until relatively recently it was necessary for such a contractual relationship to exist in order for a claim for negligence to succeed.
The Oxford dictionary defines negligence as a ‘lack of proper care and attention’ or ‘carelessness’ and carelessness is indeed the foundation of the tort of negligence. But, while carelessness is a necessary condition for the establishment of liability in the tort of negligence, it is not a sufficient condition.
The case often quoted as the foundation for the current law is that of Donoghue v Stevenson (1932) AC 562. It was held that, despite no contract, express or implied, an action for negligence could succeed. The claimant successfully argued that she was entitled to a duty of care even though the deficient goods (a bottle of ginger beer with a snail in it) were bought, not by herself, but by a friend, so that no contract existed between the manufacturer and the person suffering the damage. In order to succeed in an action in negligence a claimant must prove that:
1. the defendant owed them a duty of care;
2. the defendant was in breach of that duty;
3. the breach of duty caused damage and;
4. the damage was not too remote.
The underlying idea in a negligence action is very simple. If the claimant’s injuries result from behavior that falls short of socially acceptable standards, then there should be compensation. If they do not, then the victim should bear the loss without compensation. Since carelessness is not generally criminal, the tort of negligence is the means by which the law attaches consequences to unacceptable behavior. Lord Diplock once described negligence as the ‘application of common sense and common morality to the activities of the common man’. The claimant will in some circumstances be the only person to whom the duty was owed (a surgeon and patient for example); in others the claimant will be a member of a very large and possibly ill-defined class of persons to whom the duty was owed (a driver for instance).
The requirement of a duty of care is always a precondition of liability in negligence. When can you avoid detailed analysis of the duty concept? First there are categories of relationship where it has long been established that a duty of care is owed. These are known as fixed duties.
An employer owes a duty of care toward their employees in respect of three distinct areas: place of work, system of work, plant and machinery. A non-delegable duty of care imposes a primary duty on the defendant. Non-delegable duties are inconsistent with the fault-based principle in negligence because if a non-delegable duty is breached, even in the absence of fault, the defendant is liable. In the case of Woodland Lord Sumption noted that the use of the term ‘non-delegable’ is misleading: a common law duty of care can never be delegated. It is either discharged or it is breached. However, the term is in common usage and is used to mean a duty which cannot be discharged by entrusting its performance to an apparently competent independent contractor.
Lord Sumption set out a five-stage test for determining when a non-delegable duty applies.
The subject of the duty is a child, patient or other vulnerable person, dependent on the defendant’s protection from harm.
There must be a relationship of control between the defendant and the claimant which exists independently of the acts from which the allegations of negligence arise.
The claimant must have no control over how the defendant performs their obligations/functions.
The defendant must have delegated to a third party the functions which the defendant has a legal duty to perform.
The third party is negligent in the performance of the particular function which the defendant has a legal duty to perform.
In cases where the duty relationship is not ‘fixed’, it may yet be easily established. general philosophy underpinning tort law is that losses should lie where they fall. Only exceptionally should someone other than the party injured or suffering the loss in question bear those losses. The duty question (is there a duty of care or not?) is one that proceeds on the basis that one person could cause serious harm to another and yet not be liable in tort because the person allegedly causing the harm had no duty or obligation to avoid causing such harm. In short, the function of the duty of care is to limit liability for careless conduct.
In Caparo, Lord Bridge's three-stage test for imposing a duty of care, known as the Caparo test was laid down: