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.

In some of those situations, the law has developed to the effect that a separate legal action is created. For example, the liability of manufacturers is now largely superseded by product liability under the Consumer Protection Act 1987. However, some protection still remains under the law of negligence.

Further, the duties could be established on contractual relationship or in negligence. For example, in cases of duties of care of employers or professional persons, liability in most situations can be claimed in respect of either contract or negligence. Therefore, those are commonly used in practice as alternative bases for a claim as a safeguard if one action fails.

Notional duty outside the established categories

Those are some examples of established relationships that give raise to a duty of care. However, the categories of negligence are never closed.

Questions sometimes arise as to whether a notional duty of care applies in a specific situation not governed by any established examples. In those cases the courts have to consider three questions. First consideration is whether the damage is foreseeable. Then the court asks whether there is a relationship of proximity between the parties. And if both of the previous questions are affirmatively answered, then the court takes into account whether the imposition of a duty would be fair, just and reasonable. 

In the decision-making process the court needs to take into consideration the policy arguments for both sides. Further, a decision is to be reached by a balancing exercise. In some cases, arguments in support of a duty owed may be outweighed by counter arguments relating to the general class of relationship within which the case falls. 

Generally, the wider the scope of the alleged notional duty, the more difficult it will be to justify on policy reasons liability in all the situations falling within it. On the other hand, the narrower the scope of the duty the more likely it would be for liability to be justified.

Factual duty

If the particular situation is found to fall within those limits of notional duty, then looking closer at particular case, it is important to consider whether the Claimant in question comes within the scope of that duty so as to render the damage actionable. This is referred to as a factual duty and such arises only in respect to those persons who are in the area of objectively foreseeable danger.  

In practice the same act or omission may in some circumstances be the basis of liability although in other circumstances it will not do so.

If it is established that the Claimant does come within the scope of an existing notional duty, then the duty of care requirement is satisfied in respect of that person. Following if the rest of the elements of negligence are established the claimant will be successful.

Article written by...
Lucy Trevelyan LLB
Lucy Trevelyan LLB

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Lucy graduated in law from the University of Greenwich, and is also an NCTJ trained journalist. A legal writer and editor with over 20 years' experience writing about the law.