The Legal Duty of Care in Tort Law, Foreseeability of Injury


Duty of care in Donaghue -v- Stevenson 1932 was defined as exercising such care as is due in such ‘acts or omissions which you can reasonably foresee would be likely to injure persons so directly affected that you ought reasonably to have them in contemplation’ and Caparo Industries -v- Dickman 1990 referred also to situations in which it would be fair, just, and reasonable to impose.

This duty is owed to one in physical proximity: e.g., in Haseldine -v – Daw 1941 to user of a lift negligently repaired, Buckland -v- Guilford Gas Light 1941 to child electrocuted by low cables upon climbing a tree, but not to a mother for shock nor for miscarriage to one who was to be who the driver and the rider could not to have known that were around in King -v- Phillips 1953 and Bourhill -v- Young 1942; or to one in legal proximity: e.g., in Donaghue -v- Stevenson 1932 for illness of consumer from manufacturer’s drink purchased by another, but not if immune as public policy in Hill -v- Chief Constable 1988, or as barristers or judges – Saif -v- Sydney Mitchell 1980; or to one with blood-ties: e.g., in McLoughlin -v- O’Brien 1982 to a mother who by news of accident ‘it was obvious that would be affected’ ~it can be owed for financial loss in special professional relationships -Mutual Life Assurance -v- Evett 1971, for careless words not made clear as being without responsibility -Hadley Byrne -v- Heller & Partners 1964, and for serious nervous shock -Reilly -v- Merseyside RHA 1994.

The harm, additionally, if reasonably foreseeable is -Fardon -v- Harcourt 1932, negligence may entitle to damages, even punitive, Rookes -v- Bernard 1964, although if contemptuously claimed to as little as the smallest coin of the realm, e.g., without costs and nominal in Constantine -v- Imperial London Hotels 1944.

Circumstances in which a duty of care can be breached, except in the case of specific torts such as libel or trespass -or under the Rylands -v- Fletcher rule where lawfully but at one’s own peril is made any unnatural use of land and excluding cases of immunity and circumstances where a statutory duty properly exercised infringes a right -such as the disturbance caused by the noise of aircraft taking of or landing – but not if improperly exercised: Fisher -v- Ruislip-Northwood UDC 1945, such circumstances may be even when a risk is know and not objected to: Smith -v- Charles Baker & Son 1891, indeed where a risk is known and has been consented to: Bowater -v- Rowley Regis Corp. 1944 ~even if there is contributory negligence: Stapley -v- Gypsum Mines Ltd 1953 -indeed even if despite instructions.

The standard is that of the ‘reasonable man’; if injury was risked: Bolton -v- Stone 1951 ~6 times in 30 years meant not and the degree of the risk is proportional to the degree of care required; the seriousness of the injury risked too is proportional the degree of care necessary: Paris -v- Stepney BC 1951 -more so to employee blind in one eye, and not the amount but the type of the injury on the basis of: British Railways Board. -v- Herrington 1972; a social value whether justified the risk: in Fisher failure was not justified in war-time black-out to put up shaded lights to avoid public nuisance to a cyclist, in Watt -v- Hertfordshire CC 1954 getting the wrong vehicle on the scene of accident was justified by the valuable time that would have been lost in getting there help; the cost-benefit consideration: in Latimer -v- AEC 1953 to have done more than reasonable would have made the risk too remote in comparison -except if there is a statutory duty such as under the Health & Safety Acts; that standard in the case of an expert’s negligence is, instead -Latimer, of a ‘reasonable expert’.

The link between the breach of duty and the resultant damage must be shown to exist as a matter of fact or a matter of law. The former is subject to the ‘but for’ rule: in Barnett -v- Chelsea etc. Hospital etc. 1968 breach by the failure of the doctor to call was not the caused of death, McWilliams -v- Sir Arrol 1962 failed because the safety-belt would not have been worn if supplied, in Cutler -v- Vauxhall motors 1971 the operation on a graze had already been ordered for an ulcer on the site of it and was a pre-existing condition; but, is not broken a causative link by a consecutive cause and did not lessen a subsequent injury the original factors in Baker -v- Willoughby 1970, nor necessarily disentitle multiple causes when on a balance of probabilities the link considerably was the reason: McGhee -v- National Coal Board 1973; where the harm or part of it is from a third party’s breach the ‘but for’ rule still applies to whether he type of injury could have been seen: Hogan -v Betinck Colliers 1949.

The latter only applies if the breach is not too remote, and it was not in Wieland -v- Cyril Lord Carpets 1969 that the fall elsewhere and later had resulted from the necessity to discard bi-focal glasses caused by the driver’s negligence; the special sensitivity of the claimant did not matter -‘egg-shell skull’ rule: Robinson -v- Post Office 1974 -‘one must take the victim as he finds him’; in The Wagonmound 1961 at the time of the breach that oil spilled could burn on sea-water could not reasonably, and in Doughty -v- Turner Mfg. 1964 because of the state of knowledge, have been foreseen; but in Bradford -v- Robinson Rentals 1967 the frostbite was because of providing a van without a heater.

The claimant’s proof can move to the defendant: Steer -v- Durable Rubber 1956; at least some evidence is necessary of negligence even if ‘facts speak for themselves’ -they can not if the claimant can not say what happened: Wakelin -v- LSWR 1886, negligence can be inferred from absence of explanation by defendant, for any by claimant by Law Reform (Contributory Negligence) Act 1945 proportionate reduction is made.

Laws are subject to change, always ascertain current law.