THE STANDARD OF DUTY OF CARE IN NEGLIGENCE: AN ANALYSIS

Law of Torts and Motor Vehicles Act.

Submitted by
Yasharth Tripathi
SM0118063
1st year, 1st semester

Faculty in Charge
Ms .Monmi Gohain

National Law University, Assam

TABLE OF CONTENTS
CONTENTS PAGE NO.

1. Introduction 1
1.1 Overview
1.2 Literature Review
1.3 Research Question
1.4 Scope and Objective
1.5 Research Methodology

2. Negligence 5

3. Duty Of Care 8

4. Evolution of Duty of Care. 10

5. Conclusion 12

6. Bibliography

2
INTRODUCTION
1.1 Overview
Negligence is one of the most elusive concepts of Tort law nevertheless it has also been
the basic building block of many forms of tortuous liabilities such as Strict Liability,
Absolute Liability and many more. Negligence in itself is a quintessential form of
tortuous liability according to many renowned jurists. It inherently becomes important
because of the elements used to conclude the fault of negligence. Importantly there are
four elements associated to it, they are Duty of care to the plaintiff, Breach of duty,
Reasonable foreseeability of the omission or commission of the act and Damages. This
analysis mainly puts ‘the standard of care’ at the pinnacle of the paper without being
ignorant towards other elements of negligence.

If the plaintiff has to prove that there has been a commission or omission of negligence
then he must first prove that, there exists a ‘duty of care’ towards him by the defendant.
Speaking in layman terms duty of care can be understood as the responsibility of an
individual to not harm others through carelessness.
During the period between 18th century - 19th century there never exist the doctrine to
constitute the fault of negligence. There were only precedents and illustration as a
pathway to conclude the fault. It was only after the case of Donoghue v. Stevenson that
Lord Atkin provided the world of law with the principle of ‘Neighbour’ to establish the
liability. After aforementioned case there were many judgments that revolutionized and
brought the concept into a pellucid environment.
As stated before that ‘duty of care’ forms the nexus between other elements of
negligence and the defences for the aforementioned tort. Thus, touching every circle of
the tort in concern. This project work also goes through the development of general
exceptions of negligence through standard of duty care. Therefore, giving a complete
analysis of ‘standard of care in negligence’.

3
 1.2 Literature Review
1. Ratan Lal and Dhiraj Lal; The Law Of Torts; Lexis Nexis (2016):

This book tells us about the latest development in the Law of Torts. It also tells us about
different tortuous liabilities such as Negligence, Defamation, Trespass, Nuisance etc. It also
talks about liabilities of various parties in torts and also the general exceptions to Law of Torts.
It also gives philosophy for development of ‘duty of care’ and general exceptions can be drawn
out of standard of in various torts

2. Law of Torts: Including Compensation Under The Motor Vehicles Act and
Consumer Protection Laws by Bangia, R. K., Allahabad Law Agency:

This books talks about the various liabilities and the defence of Consent. This book has also
given the concept of where plaintiff is wrongdoer. It gives an insight of the basic liabilities and
the specification of the liabilities of parties in tort. It gives proper insight in understanding the
‘duty of care’ with examples and interpretations of cases.

3. James Plunkett; The Duty Of Care In Negligence ; Hart Publishing (2018):

This book aims to provide a detailed analysis and overview of the duty of care enquiry,
drawing on both academic analyses and judicial experience in leading common law
systems. A new structure through which duty problems can be analysed is also proposed.
It is hoped that the book provides some fresh insights and clarity of the concept to the
reader.

4
1.3 Research Questions
1. What is negligence?
2. What is Duty of Care in the trot of negligence?
3. When does the Duty of Care breaches?
4. How did Duty of Care evolved?

1.4 Scope and Objective

 Scope
The scope of the project is to analyze in detail the standard of care in the
Torts of negligence.
 Objective
1. To study and understand the tort of negligence and duty of acre with respect
to it.
2. To study the evolution of the standard of duty care in negligence.

1.5 Research Methodology:

 Approach to Research: In this project doctrinal research was involved.
Doctrinal Research is a research in which secondary sources are used and
materials are collected from libraries, archives, etc. Books, journals, articles
were used while making this project.
 Types of Research: Explanatory type of research was used in this project,
because the project topic was not relatively new and unheard of and also because
various concepts were needed to be explained.
 Sources of Data collection: Secondary source of data collection was used which
involves in collection of data from books, articles, websites, etc. No urveys or
case studies were conducted.

5
 CHAPTER-2
NEGLIGENCE

Negligence as per Winfield is defined as, “Negligence as a tort is the breach of legal duty to
care by, which results in damage, undesired by the defendant to the plaintiff.” In other words,
it is a breach of duty caused by the omission to do something which a reasonable man with
ordinary prudence would have taken care of, and the resultant damage. E.g. X is told by Y to
take care of his garden. X agrees to do the same, later, X goes away thinking that nothing will
happen. In a while some children came and pluck the rare flowers from the garden. In this
scenario, he will be liable for negligence.
Negligence can be of both civil and criminal wrong. To be a criminal wrong mens rea must
exist. The breach of duty should cause death (not amounting to culpable homicide) to amount
to criminal negligence. Also, the proof should be beyond reasonable doubt. From beyond a
reasonable doubt the next question that comes to our mind is that who has to prove it i.e. who
has the burden of proof. The burden of proof is on the plaintiff. In other words, the plaintiff has
to prove that the defendant has caused the negligence. To prove the act as negligent the
evidence provided by the plaintiff against the tort-feasor should be of cogent and not vague.
To commit the tort of negligence, there are primarily 3 main essentials or rather conditions that
are a perquisite to commit a negligent act which are namely, Existing duty of care, Breach of
that duty and the causation (i.e. resulting damage). An act will be categorised as negligence if
and only if, all the 3 conditions are satisfied. This can be further explained with the help of the
above example. In that example when, X was assigned to take care of the garden a duty was
established.
Further, when he went away from that garden, it consequentially resulted in breach of duty.
Lastly, children plucking the rare flower caused the damage to Y. Thus, all the conditions were
satisfied and thus it can be taken as the case of negligence. Further, no act can be done if any
element is missing. Now, if the above example if we say that the children never came. Then X
will not be liable for negligence as no damage was caused to Y. (Phillips, 2017)1

1
Phillips, A., 2017. Essential of Negligence(Law of Torts) with Respect to India. Imperial Journal of
Interdisciplinary Research (IJIR), 3(10), p. 677.

6
Elements of negligence
There are five elements of torts of negligence, they are as follows:2

Duty

The outcome of some negligence cases depends on whether the defendant owed a duty to the
plaintiff. A duty arises when the law recognizes a relationship between the defendant and the
plaintiff requiring the defendant to act in a certain manner toward the plaintiff. A judge, rather
than a jury, ordinarily determines whether a defendant owed a duty of care to a plaintiff, and
will usually find that a duty exists if a reasonable person would find that a duty exists under a
particular set of circumstances.

For example, if a defendant was loading bags of grain onto a truck and struck a child with one
of the bags, the first question that must be resolved is whether the defendant owed a duty to the
child. If the loading dock was near a public place, such a public sidewalk, and the child was
merely passing by, then the court may be more likely to find that the defendant owed a duty to
the child. On the other hand, if the child were trespassing on private property and the defendant
didn't know that the child was present at the time of the accident, then the court would be less
likely to find that the defendant owed a duty.

Breach of Duty

It's not enough for a plaintiff to prove that the defendant owed him or her or a duty; the plaintiff
must also prove that the defendant breached his or duty to the plaintiff. A defendant breaches
such a duty by failing to exercise reasonable care in fulfilling the duty. Unlike the question of
whether a duty exists, the issue of whether a defendant breached a duty of care is decided by a
jury as a question of fact. Thus, in the example above, a jury would decide whether the
defendant exercised reasonable care in handling the bags of grain near the child.

Cause in Fact

Under the traditional rules in negligence cases, a plaintiff must prove that the defendant's
actions were the actual cause of the plaintiff's injury. This is often referred to as "but-for"

2
Ratanlal&Dhirajlal,The law of torts,Lexis Nexis, 27thed, 2016.

7
causation, meaning that, but for the defendant's actions, the plaintiff's injury would not have
occurred. The child in the example above could prove this element by showing that but for the
defendant's negligent act of tossing the grain, the child would not have suffered harm.

Proximate Cause

Proximate cause relates to the scope of a defendant's responsibility in a negligence case. A

defendant in a negligence case is only responsible for those harms that the defendant could
have foreseen through his or her actions. If a defendant has caused damages that are outside of
the scope of the risks that the defendant could have foreseen, then the plaintiff cannot prove
that the defendant's actions were the proximate cause of the plaintiff's damages.

In the example described above, the child would prove proximate cause by showing that the
defendant could have foreseen the harm that would have resulted from the bag striking the
child. On the contrary, if the harm is something more remote to the defendant's act, then the
plaintiff will be less likely to prove this element. Assume that when the child is struck with the
bag of grain, the child's bicycle on which he was riding is damaged.

Three days later, the child and his father drive to a shop to have the bicycle fixed. On their way
to the shop, the father and son are struck by another car. Although the harm to the child and
the damage to the bicycle may be within the scope of the harm that the defendant risked by his
actions, the defendant probably could not have foreseen that the father and son would be injured
on their way to having the bicycle repaired three days later. Hence, the father and son wouldn't
be able to satisfy the element of proximate causation.

Damages

A plaintiff in a negligence case must prove a legally recognized harm, usually in the form of
physical injury to a person or to property. It's not enough that the defendant failed to exercise
reasonable care. The failure to exercise reasonable care must result in actual damages to a
person to whom the defendant owed a duty of care.

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 CHAPTER-3

DUTY OF CARE
The term ‘duty of care’ can seem a little alien at first, it can roughly be thought of as the
responsibility of an individual to not harm others through carelessness. The existence of a duty
situation or a duty to take care is thus essential before a person can be held liable in negligence3.
Duty of care is a legal obligation which is imposed on an individual requiring adherence to
a standard of reasonable care while performing any acts that could foreseeably harm others. It
is the first element that must be established to proceed with an action in negligence. The
claimant must be able to show a duty of care imposed by law which the defendant has breached.
In turn, breaching a duty may subject an individual to liability. The duty of care may be
imposed by operation of law between individuals with no current direct relationship (familial
or contractual or otherwise), but eventually become related in some manner, as defined
by common law (meaning case law).

Duty of care may be considered a formalisation of the social contract, the implicit
responsibilities held by individuals towards others within society. It is not essential that a duty
of care be defined by law though it will often develop through the jurisprudence of common
law. In most negligence actions, where there are established precedents, the duty of care is not
generally considered; it is assumed. The challenge arises when the Court is presented with
novel circumstances. By the passage of time the scrutiny method has evolved nevertheless it
was not this elaborative and justified. Let us take a look into the journey of development of
‘Standard of Care’. The inherent forces that drove the path were for such a revolution are
precedents.4

A duty of care is the responsibility that a person or business has when doing business with, or
otherwise interacting with, other people and businesses. Under tort law, duty of care is defined
as the responsibility of a person or business to act as a reasonable person would act in a similar
situation. A person who violates his duty of care by acting in a negligent or reckless matter is

3
Jeet Kumari Poddar v. Chittagang Engineering and Electrical Supply Co. Ltd.,(1946) ILR 2 Cal
4
Dr.R.K.Bangia, Law of Torts, Allahabad Law Agency24th ed.,2017.

9
then liable for any harm that another person suffers as a result of his behaviour. Examples of
duty of care relationships include:5

 Manufacturers

Those who manufacture products owe a duty of care to those who buy them. This means that
the products must be reasonably safe for others to use. Products should also carry warnings
about any potential dangers that can result from using the product.

For instance, while a chain saw is not exactly “safe” to use, it should be reasonably safe enough
that it is not impossible to use. It should also have an obvious warning label informing the
customer of how he can become injured and the steps he can take to prevent this.

 Property Owners

Those who own businesses and homes both have a duty of care to anyone who comes onto
their property, to ensure there are no reasonably foreseen dangers. For instance, a clothing store
has a duty of care to ensure a tear in the carpet does not remain to trip customers, who might
then be injured.

Most states have different rules insofar as what kinds of protections property owners must offer
to their visitors. Typically, and understandably, customers receive the highest level of care,
while trespassers receive little to none.

 Businesses

Managers and other top-level representatives of businesses are expected to make reasonable
decisions that are in the best interests of their business. This duty of care is one that they owe
to their own businesses, and it is referred to as the “business judgment rule.”

There are also specialized tort situations that require a specialized duty of care. For example,
duty of care in a medical malpractice case requires that a doctor act in a way that is comparable
to another reasonable doctor in his field. This is different from comparing his actions to a
reasonable everyman in a similar situation. The same goes for legal malpractice cases. Here,
an attorney’s duty of care is to act as another reasonable attorney would in a similar situation.
Some situations, however, are so dangerous that no matter how much care a person takes in his
actions, it is impossible to make the situation “reasonably safe” in the eyes of the law. The

5
https://legaldictionary.net/duty-of-care/

10
person is therefore held responsible for injuries and/or damages no matter what. These
situations are referred to as “strict liability”cases. Examples of this include the manufacturing
of explosives, or the possession of dangerous animals.

 Medical Duty of Care

Medical duty of care refers to a doctor’s duty of care to his patient. According to the law, there
must be a “special” relationship between the doctor and his patient for the doctor to be liable
for any injuries that can result from his conduct.

For instance, if a doctor is eating dinner at a restaurant, and one of the customers there begins
to choke, he is under no obligation to help that person. The customer cannot sue the doctor for
malpractice for failing to help him because he does not have a relationship with that doctor.

However, if the doctor decides to take it upon himself and help the customer, the doctor then
opens himself up to a malpractice or negligence lawsuit if anything goes wrong. Once the
doctor initiates a relationship with that person, he owes a medical duty of care to act in a manner
that another doctor would act in similar circumstances.

If a patient decides to sue a doctor for negligence, the doctor may not be the only one at fault.
The hospital that has hired the doctor may also be held to the same medical duty of care
standard because, in hiring the doctor, the hospital agrees to supervise his actions. The hospital
can then be held liable for the negligence of its employees.

 Medical Malpractice and Negligence

For a patient to be successful in a medical malpractice case, he must be able to first show that
the doctor owed him a duty of care. This is done by proving that the doctor and patient had a
special relationship with one another at the time of the incident. Typically, all that is needed as
proof of this relationship is the patient’s medical records and, occasionally, testimony that is
given in court showing that the patient chose that doctor voluntarily and was then examined by
that doctor.

The patient must then be able to show the level of care that would have been appropriate in his
situation. This is to establish that the doctor may have been negligent in meeting the appropriate

11
level of care for that patient. Should the court determine that the doctor was, in fact, negligent,
the patient can be awarded damages based on his claim of malpractice6

 Legal Duty of Care

A legal duty of care is very similar to a medical duty of care. The only difference is that this
situation involves attorneys instead of doctors. Here, there must also exist a “special”
relationship between an attorney and his client before a client can successfully sue the attorney
for malpractice. An attorney who has not yet been retained on a case does not owe a legal duty
of care to the person he has met with because that person is not yet his client.

Once the person retains the attorney for his case, he becomes a client. The attorney is then held
to the same legal duty of care that other attorneys in similar situations and fields of law would
be held to. This means that the attorney is responsible for acting in the client’s best interests,
and to take all steps possible to prevent the client from incurring additional damages as the
result of his claim.

 Legal Malpractice and Negligence

Legal malpractice is similar to medical malpractice in that the malpractice occurs when an
attorney is negligent in his duty of care to his client. Here, negligence amounts to an attorney
not exercising “reasonable care,” meaning that he does not practice with the same level of skill
that another attorney in a similar situation would. In order for a client to win a malpractice case,
he must be able to prove that he would have won his case had it not been for his attorney’s
negligence in handling the matter.

6
Supra.5

12
 CHAPTER-3

Evolution of Duty of Care.

The law of negligence did not appear in the records as founding a cause of action, in itself, until
the late 18th century. Where such cases were reported, there was no underlying principle
governing recovery; merely a series of particular instances in which an action on the case for
negligence was permitted. Initially, these cases were confined to the common callings cases-
e.g. common carrier, surgeons, attorneys, and innkeepers.
While there were many cases, there was scant evidence of a common trend regarding the
principle underlying the entitlement to recover damages in negligence until the decision in
Donoghue v Stevenson. During the course of the 19th century "the categories of negligence
are never closed"7 was the cry of Heaven v Pender. In the latter part of the nineteenth century,
the law of negligence took shape as an independent tort, with the emergence of the constituent
concepts of its modern defined form, being duty of care, breach of that duty and damage. In
the latter part of the nineteenth century, the law of negligence took shape as an independent
tort, with the emergence of the constituent concepts of its modern defined form, being duty of
care, breach of that duty and damage. The case that brought significant changes to the idea of
tortuous liability of negligence is Donoghue v Stevenson.8 As it gave the ‘Neighbour
Principle’. Lord Atkin defined the circumstances in which a duty of care would be held to exist
on what might be considered to be broad comprehensive lines divorced from what had been
closed category thinking which pervaded judicial decisions in the nineteenth and early
twentieth century. Thus, negligence would not exist as a cause of action unless the duty
requirement was satisfied; and the duty requirement would not generally be satisfied unless
Lord Atkin's test was complied with. Hence the neighbourhood principle dictated that “You
must take reasonable care to avoid acts or omissions which you can reasonably foresee would
be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to
be-persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question"9

7
Heaven v Pender (1883) 11 QBD 503
8
Donoghue v Stevenson (1932) A.C. 562
9
Ibid., at 580

13
The decision in Hedley Byrne v Heller10 was the most striking decision in the field of
negligence since Donoghue v Stevenson. It was a decision which marked a watershed in the
development of law of negligent misrepresentation and economic loss. Insofar as negligent
misrepresentations were concerned, a duty of care existed where there was a special
relationship between the parties. Quite irrespective of contract, if someone possessed of the
special skill undertook to apply that skill for the assistance or benefit of others, who might
reasonably be expected to rely on the exercise of such skill, a duty of care would arise. The
special relationship was thought to be premised upon the voluntary assumption of
responsibility, the exercise of skill by a person professed of such skill; and reliance.
In Ministry of Housing and Local Government v Sharp11 the Court of Appeal in England
stated that the duty to use care in statement arose not from the voluntary assumption of
responsibility but from the fact that the person making it knew, or ought to have known, that
others, being his neighbours in that regard, would have faith in the statement being accurate.

The modern refined approach to the assessment of the duty of care may however, be traced
back to the more recent decision of Anns v London Borough of Merton12. There, the House
of Lords, having considered the combined effect of what it described as the trilogy of cases
(Donoghue v Stevenson, Hedley Byrne v Heller and Dorset Yacht Club v Home Office)
adopted a two tier test. The first limb of this test was to invite a consideration of whether there
was sufficient proximity to give rise to a prima facie duty of care. If this question was answered
in the affirmative, the second question had to be addressed was whether there were any
circumstances which might negative the existence of the duty of care.

Thus, Lord Wilberforce observed that “In order to establish that the duty of care arises in a
particular situation, it is not necessary to bring the facts of that situation within those of
previous situations in which a duty of care has been held to exist. Rather the question has to be
approached in two stages. First one has to ask whether, as between the alleged wrongdoer and
the person who has suffered damage there is a sufficient relationship of proximity or
neighbourhood such that, in the reasonable contemplation of the former, carelessness on his
part may be likely to cause damage to the latter-in which case a prima facie duty of care arises.
Secondly, if the question is answered affirmatively, it is necessary to consider whether there

10
Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465 (HL)
11
Ministry of Housing and Local Government v Sharp [1970] 2 QB 223
12
Anns v Merton London Borough Council [1978] AC 728

14
are any considerations which ought to negative, or to reduce or limit the scope of the duty or
the class a person to whom it was owed or the damages to which a breach of it may give rise.”13

The next development of note was in England in Caparo Industries v Dickman14 1990 where
Lord Bridge posited that, in addition to foreseeability of damage, “Necessary ingredients in
any situation giving rise to a duty of care are that there should exist between the party owing
the duty and the party to whom it is owed a relationship characterised by the law as one of
proximity or neighbourhood and that the situation should be one in which the court consider it
fair, just and reasonable that the law should impose a duty of a given scope upon the one-party
for the benefit of the other.” 15
The Caparo test is made up of three stages: foreseeability, proximity and fairness. This first
stage revolves around whether it is foreseeable that the defendant’s carelessness could cause
damage to the claimant. A prime example of foreseeability can be seen in the US-based case
of Palsgraf v Long Island Railroad Co16. In the case, although it was possible to trace the
claimant’s injuries to the defendant’s negligence, in applying a test of foreseeability, the courts
found that it was not foreseeable that the claimant would be injured.

The second stage is based on whether there is a relationship of proximity between the defendant
and the claimant. This does not dictate that there must be physical proximity, rather that there
must be a connection between the two. An example of proximity (or, rather, a lack of
proximity) can be seen in Alcock v Chief Constable of South Yorkshire Police[1991] UKHL
5 – members of the general public coming across the aftermath of the Hillsborough disaster
and suffering nervous shock as a result were held to not be owed a duty of care, because the
link between the defendants and claimants was held to be too distant.

The third and final stage of Caparo involves establishing whether it would be fair, just and
reasonable for the courts to find that the defendant owed a duty of care to the claimant. Owing
to the vague nature of this criteria, this stage can be thought of as somewhat of a ‘safety valve’,
allowing judicial discretion in cases where public policy might dictate that it would be
unreasonable for a duty of care to be held to exist- Marc Rich & Co v Bishop Rock Marine
Co Ltd[1995] UKHL.

13
Ibid., at 473
14
Caparo Industries PLC v Dickman [1990] UKHL 2
15
Ibid., 728
16
Palsgraf v Long Island Railroad Co [1928] 248 N.Y. 339

15
So, if all three of these stages are passed, the case can be said to have satisfied the Caparo test,
and thus a duty of care can be said to exist.

Exceptions and Special Situations17

Liability for Omissions

Whilst a driver has a duty to not cause an accident through carelessness, they do not have a
duty to help those involved in an accident they happen to come across. The principle of non-
liability for omissions can be seen at work in Stovin v Wise18. Non-liability also extends to
warning – there is no general duty to warn someone of a harm.

There are some exceptions to the rule. The law provides three general groups of scenarios
where an individual has a duty to act – where the defendant has control of a situation, where
the defendant has assumed responsibility, and where the defendant has created or adopted a
risk.

Control situations arise where a defendant has a high degree of control over an individual (and
thus is held as owing a duty to exercise that control responsibly. For example, in Reeves v
Commissioner of Police for the Metropolis[2000] 1 AC 360 the police were held responsible
after an inmate on suicide-watch was able to kill himself.

Assumption of Responsibility situations involve, as might be expected, scenarios where one

individual implicitly takes on a duty of care by merit of a contract or employment. For example,
in Costello v Chief Constable of Northumbria Police19 it was held that by merit of their joint
employment, one had a duty of care to the other to act to prevent foreseeable harm from
occurring.

17
LawTeacher. November 2013. Duty of Care Lecture.
https://www.lawteacher.net/modules/tort-law/negligence/duty-of-care/lecture.php
18
Stovin v Wise[1996] UKHL 15
19
Costello v Chief Constable of Northumbria Police [1998] EWCA Civ 1898

16
Creation or Adoption of a Risk situations arise where a defendant creates a dangerous situation
(including accidentally.)- Capital & Counties plc v Hampshire County Council.20

Duty of Care and Third-Party Actors

For the vast majority of cases, the actions of third parties will not impart liability on claimants,
and will usually be held as a novus actus interveniens, as per Home Office v Dorset Yacht
Co21. Thus, the general rule is that there is no duty of care to prevent a third party’s actions.
However, there are exceptions to this rule, laid down in Smith v Littlewoods22. These
exceptions include where there is a special relationship between claimant and defendant, where
there is a special relationship between defendant and third party, where the defendant creates a
source of danger and where the defendant fails to take steps to deal with a known danger created
by a third party.

Duty of Care and Public Service Immunity

Overall, the stance of the courts is that public services do not have a duty of care towards
individuals. This can be thought of in terms of the ‘fair, just and reasonable’ part of Caparo –
essentially the courts are remiss to find that public services (e.g. police) have a duty to do a
particular thing because this would have a negative effect on those services overall.
Furthermore, allowing public services to be sued would cause significant resources to be put
into defending the case, reducing the ability of that service to serve the general public.
Compensation would be paid out of public service coffers, essentially allowing individual
claimants to acquire tax payers’ money.
After going through the aforementioned cases and their outcomes one can say that a duty of
care is the legal responsibility of a person or organization to avoid any behaviours or omissions
that could reasonably be foreseen to cause harm to others.

20
Capital & Counties plc v Hampshire County Council[1997] 3 WLR 331.
21
Home Office v Dorset Yacht Co Ltd[1970].
22
Smith v Littlewoods[1987] UKHL 18.

17
Conclusion

Prior to the emergence of negligence as an independent wrong, there was little need for a duty
of care; the discrete nature of the wrongs in which negligence was required performed
essentially the same function, limiting liability for negligence to a set of defined situations. As
negligence developed into a wrong in its own right, however, its potential reach was practically
limitless, yet few chose to make use of the emerging action, and so there was no immediate
need to impose restrictions on its scope. On the contrary, duty was first employed as a way of
expanding the scope of negligence, by reformulating breaches of contractual duties, which
arose by reason of agreement, as breaches of tortious duties, which arose by reason of law.
Over time, this terminology spread from relationship negligence to no relationship negligence,
and, eventually, negligence was no longer actionable without a duty. As the action for
negligence expanded, however, the focus of duty changed from inclusionary to exclusionary.
Yet this was not because duty was the only way to limit liability for negligence, but, as a result
of the division of functions between judge and jury, because it was the most convenient.

By the last quarter of the 19th century, although duty was firmly established into the analysis
of liability for negligence, the courts were yet to offer an adequate explanation for why a duty
existed in one situation but not another. Brett MR was the first to make such an attempt and his
explanation was that duties were of uniform content (duty to take care), and that their scope
depended on the idea of foreseeability. Although Brett MR’s explanation was eventually
rejected, the idea that duty depended on some notion of foreseeability was not easily forgotten.
The climax of this development was in 1932, when Lord Atkin pronounced his neighbour
dictum: the duty, as Brett MR had suggested, was a duty to take care, and its existence depended
on a modified version of Brett MR’s foreseeability formula. Although judicial development of
the duty test has continued over the last 80 years, the general position remains relatively
unchanged: the question of when damage caused by another’s careless conduct becomes
actionable is determined by reference to the duty of care.

The modern duty of care is therefore not the inevitable result of the search for analytical
cohesion in liability for negligence, but, rather, a primarily unarticulated judicial device
motivated by notions of convenience and attempts to increase judicial authority. Of course,
none of this is to say that the duty of care does not perform a valuable function in the modern

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law, but simply to help us get rid of the vagueness in the view that legal history tells us that
this function must be performed by a duty of care.

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 BIBLIOGRAPHY
BOOKS USED
1. Ratan Lal and Dhiraj Lal; The Law Of Torts; Lexis Nexis (2016)
2. Law of Torts: Including Compensation Under The Motor Vehicles Act and Consumer
Protection Laws by Bangia, R. K., Allahabad Law Agency
3. James Plunkett; The Duty Of Care In Negligence; Hart Publishing(2018)
JOURNALS USED
1. Phillips, A., 2017. Essential of Negligence (Law of Torts) with Respect to India.
Imperial Journal of Interdisciplinary Research (IJIR), 3(10).
WEBSITES USED
1. https://legaldictionary.net/duty-of-care/
2. https://www.lawteacher.net/modules/tort-law/negligence/duty-of-care/lecture.php

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