The duty of care in negligence as a concept

The elements of negligence

One of the essential parts of tort law is the law of negligence. There are a number of elements which all need to be established for negligence to be actionable.  Firstly, a duty of care needs to exist and be specifically owed to the claimant. Then through action or omission breach of that duty needs to be present. As a result damage, which is not too remote, would be caused by that negligent act.

Duty of care owed

The concept of duty of care provides that it is not simply a duty not to act carelessly but goes further to protect the claimant and ensure damage is not inflicted carelessly.

For the damage to be actionable it has to be shown that the duty extends to the careless infliction of the kind of damage of which the claimant complains, on the class of persons to which he belongs, and by the type of person to which the defendant belongs.

The elements of the duty

The first matter the courts take into account is whether a notional duty exists. This requirement is considered in very broad terms and applies to a general class of relationship and damage. The Claimant must fall within that class and the type of damage that has arisen also needs to be corresponding to that category.

Notional duty in established categories

There are a number of established situations that have been recognised as giving rise to a duty of care. Examples of some of the most common duties of care situations in practice are:

  • Duty owed by users of the highway to all other users and further to those beside the highway;

  • Duty owed by manufacturers of products to people who subsequently become users or consumers of those products;

  • Duties owed by professional persons to their clients;

  • Duty owed by builders (and others responsible for safety in buildings) to occupiers and owners of buildings;

  • Duties owed by employers to their employees.

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For more information on:

  • Notional duty outside the established categories
  • Factual duty