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I. A DUTY RECOGNISED BY LAW, REQUIRING CONFORMITY TO A CERTAIN
STANDARD OF CONDUCT FOR THE PROTECTION OF OTHERS
Duty of Care
Negligence is no source of liability unless the law acts a
"duty" in the circumstances to observe care. A man is entitled
to be as negligent us he pleases towards the whole world if he
owes no duty to them: [LE LIEVRE V. GOULD [1893] 1 QB 491, 497
per Lord Esher, MR]. Duty is an obligation, recognised by law,
to conform to a particular standard of conduct, for the
protection of others against unreasonable risks.
The Duty concept did not attain prominence until the middle of
the 19th century. Duty was irrevocably established as a
constituent element of tortious negligence by Brett, MR [Lord
Esher] in 1882 in the case of HEAVEN Vs PENDER II QBD 503:
"... the questions which we have to solve in the case are: What
is the proper definition of the relation but two persons other
than the relation established by contract, or fraud, which
imposes on one of them a duty toward the other to observe, with
regard to the person or properly of such other, such ordinary
care or skill as may be necessary to prevent injury to his
person or property; and whether that present case falls within
such definition.
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When two drivers or two ships are approaching each other, such
relation arises between them when they are approaching each
other in such LORD ESHER, in LE LIEVRE V. GOULD [1893] 1 QB 491,
497 had this to say about Duty in tort of Negligence:
"The question of liability for negligence cannot arise at all
until it is established that the man who has been negligent OWED
SOME DUTY TO THE PERSON who seeks to make him liable for his
negligence ... A man is entitled to be as negligent as he
pleases towards the whole world if he owes no duty to them".
We have alluded that the basic problem in the tort of negligence
is that of limitation of liability. Courts have evolved a
number of artificial techniques to prevent the incidence of
liability from getting out of hand. Duty of care is one such
technique.
A duty of care issue is an issue of law.
A duty must arise out of some "relation" (You are alone in
forest) between the parties, but what that relation is no one
has ever succeeded in subsuming under any sort of formula. In
general, a duty of care will be owed wherever in circumstances
it is foreseeable that if the Defendant does not exercise due
care, the Plaintiff will be harmed. This foreseeable test was
laid down by Lord Atkin in the case of DONOGHUE Vs STEVENSON and
it is known as "neighbour principle".
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Determination of DUTY OF CARE must have regard to both to the
nature of the INTERESTS infringed and the type of conduct
complained of. Many factors interplay to influence determination
of DUTY OF CARE: History; Socio-economic change; personal
morality of judges, etc. All these affect where the loss should
fall. Therefore the incidence and extent of DUTIES are liable to
adjustment in the light of the constant shifts and changes in
society's attitude.
The concept of duty of CARE is used in fact to limit the range
of liability to Plaintiffs who are FORESEEABLE. (Plaintiff,
your "neighbour" must be contemplated!!) This is important to
ensure that Defendants are not crushed by the burden of
excessive liability for quite some trivial fault. In Donoghue v.
Stevenson the "neighbour" foreseeable was the friend who was
offered a drink. In Grant Vs. Australian Knitting Mills [1936]
AC 85 foreseeable "neighbour" was the wearer of woollen under
wear. Always bear in mind that Law of tort is as much about
liability as is about non-liability.
The question of SCOPE or RANGE OF FORESEEABILITY to give rise to
a duty of care was discussed in PALSGRAPH Vs LONG ISLAND R.R.
(1928) 162 N.E. 99, 59 A.L.R. 1253, where: two train guards, in
assisting a passenger, carelessly knocked a small parcel from
the arms of the passenger. The parcel, despite its innocent
appearance, contained fireworks. An explosion occurred when the
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parcel fell beneath a moving train, causing scales some distance
away to topple on the Plaintiff. The jury decided in favour of
Plaintiff but it was set aside on the ground that, though they
[Guards] may have been in breach of duty to the embarking
passenger because of foreseeable damage at least to his parcel,
this was of no avail to Mrs. Palsgraf who was beyond the range
of foreseeable peril.
Plaintiff is obliged to show that there was a duty owed to him
in particular. Therefore a pedestrian who suddenly crosses the
road and is knocked down can not argue that the driver ought to
have slowed because of presence of toddlers in the area. This
limitation of liability to "foreseeable Plaintiff is nowadays
matched by a similar limitation to "foreseeable damage".
Today, foreseeable plaintiff is always expressed in terms of
DUTY and foreseeable damage in terms of REMOTENESS OF DAMAGE.
In the tort of NEGLIGENCE breach of "Duty" is the Chief
ingredient of the tort. If the Plaintiff is to succeed it must
be shown first that the circumstances in which his damage was
caused were capable of giving rise to a duty of care. Secondly
Plaintiff must show that Defendant actually owed him a duty on
the particular facts of the case. The duty of care imposed for
purposes of proving Negligence is essentially LEGAL - ie. it has
to be seen as a duty in the eyes of law. The duty of care
envisaged in Negligence is to be distinguished from a
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"religious" or "moral duty" - both of which cannot be enforced:
eg. You are sunbathing on the beach and a child is about to
drown, you look away and continue reading your newspaper. Here
the law would not hold you responsible. You will have no duty of
care in law. Matters would be different if the child were under
you care and charge.
Tort of Negligence has always expanded to cover new horizons.
Lord Atkin's proposition covered squarely manufacturers of food
articles especially in the cases where the manufacturer:
"puts up an article of food in a container [sealed tin, or
sealed bottle] which he knows will be opened by the consumer in
circumstances where there can be no inspection by any purchaser
... the manufacturer had a duty of care towards the consumer.
It should also be noted that even though DONOGHUE V. STEVENSON
was regarded a landmark case in propounding the principle of the
duty of care - controversy still persisted on whether the duty
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