In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care to avoid careless acts that could foreseeably harm others, and lead to claim in negligence. 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 that 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 who have 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 established and implicit responsibilities held by individuals/entities towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law.
Development of the general duty of care At common law, duties were formerly limited to those with whom one was in privity one way or another, as exemplified by cases like Winterbottom v. Wright (1842). In the early 20th century, judges began to recognize that the cold realities of the Second Industrial Revolution (in which end users were frequently several parties removed from the original manufacturer) implied that enforcing the privity requirement against hapless consumers had harsh results in many product liability cases. The idea of a general duty of care that runs to all who could be foreseeably affected by one's conduct (accompanied by the demolishing of the privity barrier) first appeared in the judgment of William Brett (later Lord Esher), Master of the Rolls, in Heaven v Pender (1883). Although Brett's formulation was rejected by the rest of the court, similar formulations later appeared in the landmark U.S. case of MacPherson v. Buick Motor Co. (1916) and, in the UK, in Donoghue v Stevenson (1932). Both MacPherson and Donoghue were product liability cases, and both expressly acknowledged and cited Brett's analysis as their inspiration.
Scope Although the duty of care is easiest to understand in contexts like simple blunt trauma, it is important to understand that the duty can be still found in situations where plaintiffs and defendants may be separated by vast distances of space and time.
For instance, an engineer or construction company involved in erecting a building may be reasonably responsible to tenants inhabiting the building many years in the future. This point is illustrated by the decision of the South Carolina Supreme Court in Terlinde v. Neely 275 S.C. 395, 271 S.E.2d 768 (1980), later cited by the Supreme Court of Canada in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. 1 S.C.R. 85:
Responsibility Although the idea of a general duty of care is now widely accepted, there are significant differences among the common law jurisdictions concerning the specific circumstances under which that duty of care exists. Obviously, courts cannot impose unlimited liability and hold everyone liable for everyone else's problems; as Justice Cardozo put it, to rule otherwise would be to expose defendants "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class."Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931). There must be some reasonable limit to the duty of care; the problem is where to set that limit.
England
Whether a duty of care exists depends firstly on whether there is an analogous case in which the Courts have previously held there to exist (or not exist) a duty of care. Situations in which a duty of care have previously been held to exist include doctor and patient, manufacturer and consumer,Donoghue, infra and surveyor and mortgagor.Smith v Eric S Bush 1 AC 831 Accordingly, if there is an analogous case on duty of care, the court will simply apply that case to the facts of the new case without asking itself any normative questions.Robinson v Chief Constable of West Yorkshire Police UKSC 4
If there is no similar case that the court will determine whether there is a duty of care by applying the three normative criteria the House of Lords set out in Caparo Industries plc v Dickman.Caparo Industries plc v Dickman 2 AC 605 The criteria are as follows:
Harm must be a "reasonably foreseeable" result of the defendant's conduct;.... A relationship of "proximity" must exist between the defendant and the claimant; It must be "fair, just and reasonable" to impose liability.
Australia The High Court of Australia has deviated from the English approach, which still recognises a proximity element. Rather, Australian law first determines whether the case at hand fits within an established category of case where a duty of care has been found.. For example, occupiers of a premises automatically owe a duty of care to any person on their premises..
If this is not the case, then the plaintiff must prove that it was reasonably foreseeable that harm could result from the defendant's actions. If so, the Court then applies a "salient features" test to determine whether the plaintiff is owed a duty of care. Some of the salient features which the Court considers in making this inquiry include: Whether imposition of a duty of care would lead to "indeterminate liability" – that is, it would interfere with the legitimate protection or pursuit of an individual's social or business interests. Whether imposition of a duty would constitute an unreasonable burden on individual autonomy. The degree of vulnerability of the plaintiff to the defendant's actions – their ability to guard against the harm. The degree of knowledge which the defendant had about the probability and likely magnitude of harm to the plaintiff. Special rules exist for the establishment of duty of care where the plaintiff suffered mental harm, or where the defendant is a public authority. sections 27–33; 41–45.
To establish a duty of care, the plaintiff has to satisfy the requirement of CLA Act ss 27–33. In light of this, a large number of individuals cannot claim injuries as well. Meanwhile, compared to the "No-Fault Compensation" system in New Zealand, the cost to claim injuries is much higher. In light of this, individuals especially the victims who lack knowledge or capability may choose not claim private nuisance after balancing the burden and outcomes. This view was affirmed in 1993 by Professor Regina Graycar, who commented that courts in Australia are reluctant to award damages for personal injuries.
In New South Wales, a plaintiff is able to recover for non-economic loss, including pain and suffering, loss of amenities/expectation of life and disfigurement, upon the severity of the loss being at least 15% of 'most extreme case'.(1). As of October 2016, NSW Attorney General, Gabrielle Upton, has updated the maximum amount of damages for non-economic loss from $594,000 to $605,000.
France On 27 March 2017, the French National Assembly adopted a law entitled "Devoir de vigilance des entreprises donneuses d'ordre",Entreprises : devoir de vigilance des entreprises donneuses d'ordre, published 28 March 2017 whose title has been translated into English as a "duty of vigilance" or "duty of care".Ethical Trading Initiative, France adopts new corporate "duty of care" law, 1 March 2017, accessed 7 April 2017
The law will oblige large French companies (companies with at least 5,000 staff in France or 10,000 staff within their combined French and foreign offices over two consecutive years)Norton Rose Fulbright, A new duty of care for the most significant companies in France, accessed 7 April 2017 to
Switzerland
In Switzerland, a federal popular initiative named 'For responsible businesses – protecting human rights and the environment' was launched by a coalition of non-governmental organizations. It proposed a mechanism of public liability when activities of Swiss multinationals, or their subsidiaries, violate internationally recognised human rights and environmental standards.Popular Initiative 'For responsible businesses – protecting human rights and the environment', official website of the Swiss government, 2020 (page visited on 30 November 2020).
On 29 November 2020, the responsible business initiative was accepted by 51% of voters, but rejected by a majority of cantons. The failure of the initiative leads to the entry into force of the legislative counter-project. The latter also introduces new due diligence obligations. Criminal fines can be imposed for failure to report (but nor for breaches of international law).
United States Because each of the 50 U.S. states is a separate sovereign free to develop its own tort law under the Tenth Amendment, there are several tests for finding a duty of care in United States tort law.
Foreseeability test In several states, like Florida and Massachusetts, the sole test is whether the harm to the plaintiff from the defendant's actions was foreseeable.McCain v. Florida Power Corp., 593 So. 2d 500, 503 (Fla. 1992).Jupin v. Kask, 849 N.E.2d 829, 835 (Mass. 2006).
Multi-factor test The Supreme Court of California, in a majority opinion by Justice David Eagleson, criticized the idea that foreseeability, standing alone, constitutes an adequate basis on which to rest the duty of care: "Experience has shown that . . . there are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages."Thing v. La Chusa, 48 Cal. 3d 644, 667 (1989).
Drawing upon the work of scholars such as Fowler V. Harper, Fleming James Jr., and William Prosser, California has developed a complicated balancing test consisting of multiple factors which must be carefully weighed against one another to determine whether a duty of care exists in a negligence action.
California Civil Code section 1714 imposes a general duty of ordinary care, which by default requires all persons to take reasonable measures to prevent harm to others.Cabral v. Ralphs 51 Cal.4th 764 (2011) In the 1968 case of Rowland v. Christian, the court held that judicial exceptions to this general duty of care should only be created if clearly justified based on the following public-policy factors:
the foreseeability of harm to the injured party; the degree of certainty he or she suffered injury; the closeness of the connection between the defendant's conduct and the injury suffered; the moral blame attached to the defendant's conduct; the policy of preventing future harm; the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach; and the availability, cost, and prevalence of insurance for the risk involved.Rowland v. Christian, 69 Cal. 2d 108 (1968). A 1997 case added to this:
the social utility of the defendant's conduct from which the injury arose.Parsons v. Crown Disposal Co., 15 Cal. 4th 456 (1997).
Contemporary California appellate decisions treat the Rowland decision as the "gold standard" for determining the existence of a legal duty of care, and generally refer to the criteria for determining the existence of a legal duty of care as the Rowland factors.Romero v. Superior Court, 89 Cal.App.4th 1068 (2001), quoting, "Juarez v. Boy Scouts of America, Inc." 81 Cal. App. 4th 377 (2000)
In California, the duty inquiry focuses on the general category of conduct at issue and the range of foreseeable harm it creates, rather than the specific actions or injuries in each case.Ballard v. Aribe, 41 Cal. 3d 564, 572 n.6 (1986).