Duty of Care in the Tort of Negligence

Duty of Care in the Tort of Negligence

Task 1:

Negligence is a large and amorphous subject, and all parts of the law on it are interlocking. It is often difficult to understand one part without having studied the whole, and therefore in arranging the material I have decided to set out the basic principles first, leaving the more sophisticated developments until later. Duty is but one element in the tort of negligence, for it must be shown that not only was the defendant under a duty towards the claimant to be careful, but also that he failed to achieve the required standard of care and that that failure caused the damage, and finally that the damage was not too remote a consequence of the act.

Duty is about relationships, and it must be shown that the particular defendant stood in the required relationship to the claimant such that he came under an obligation to use care towards him. This relationship is sometimes referred to as 'proximity'. In cases of personal injury or damage to property the necessary relationship is established if the defendant ought to have foreseen damage to the claimant whereas in other cases a closer relationship may be required. Thus, duty means 'proximity' in the legal sense (this has nothing to do with geographical proximity), and proximity means the level of closeness of relationship required for the particular kind of damage (Deakin, 2003). Thus, a closer relationship than mere foresight will be required for some kinds of damage, such as damage caused by statements (this will be dealt with later) (Alan 2006). Foresight of damage is a necessary ingredient in all cases of negligence and finally there is a policy element which is expressed by the view that it must be just and reasonable to impose a duty in that class of case. Accordingly, in order to establish a duty of care it must be shown that:

some damage was foreseeable to a foreseeable claimant;

there is a sufficiently close relationship between the parties to establish a duty in that class of case (proximity); and

that it is just and reasonable to impose a duty.

Duty of care is one of the ways in which risks can be allocated in society, i.e. should potential claimants or potential defendants bear the risk of injury occurring? This will have both social and economic implications, and hence the technical criteria of duty or the other concepts in negligence should not be taken too literally. They are merely mechanical devices for performing and expressing something deeper that is a decision or an understanding about how risks should be allocated.

Hence a duty of care can be defined as a legal obligation imposed on an individual requiring that they adhere 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 plaintiff must be able to articulate ...