Documentation:Torts/Duty of care

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Duty of care

That the defendant owed the plaintiff a duty of care is the first of five elements of the tort of negligence. Duty of care is a term of relation that signifies a close and direct relationship between the plaintiff and the defendant. Previous precedents have established a number of categories of negligence where a duty of care arises. In novel cases, courts will sometimes extend precedent to recognise a new relationship of duty of care subject to two "crucial limiting principles"—foreseeability and proximity.[1]

Development of the duty of care in negligence

Common law foundations

The basics of duty of care
In this episode of the Australian podcast Just Torts, host Brent Liang discusses the key elements of the duty of care in common law with Jessica Ottavi and Dr. Belinda Reeve.[2]

Common law liability for "carelessly caused damage" can be traced back to 14th century cases involving careless actions of service providers, such as innkeepers, apothecaries, veterinary surgeons, smiths and barbers.[3] The legal concept of a duty of care began to emerge in the 19th century to specify the circumstances in which negligently inflicted damage is actionable.[4] Courts construed it narrowly. In the 1842 case of Winterbottom v. Wright,[5] the Exchequer of Pleas declined to recognise a duty of care owing between parties outside of a relationship of contractual privity. There was a concern that to hold otherwise:

[M]ight be the means of letting in upon us an infinity of actions … [and] [u]nless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.[6]

Winterbottom v. Wright illustrates the reluctance of 19th century courts to recognise legally enforceable conduct duties between individuals outside of contractual contexts.[7] Yet the courts did recognise certain categories of relationship where extra-contractual duties arose. In the 19th century cases of Heaven v. Pender and Le Lievre v. Gould, the principle was stated that:[8]

[U]nder certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.

In the landmark 1932 House of Lords decision in Donoghue v. Stevenson, Lord Atkin built upon this reasoning to elucidate the foundation for the concept of duty of care grounded in a principle of relationships between neighbours.[8]

Lord Atkin's neighbour principle (foreseeability and proximity)

In Donoghue v. Stevenson, the House of Lords considered whether a manufacturer that sold consumer products (bottled ginger beer) could owe a legal duty to the end consumer when there was no direct relationship of privity of contract between the two parties. In delivering his judgment upholding the plaintiff's claim, Lord Atkin distilled from the case law the neighbour principle, saying:

Proof podcast: "The case of the snail in the ginger beer"
For years, Donoghue v. Stevenson has become a topic of animating conversation and build a framework for modern day product liability cases which pervade the courts. This Proof podcast episode discusses the implications of the snail in the bottle.[9]

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 into question.[10]

Lord Atkin's neighbour principle centred the question of duty on relationships where one party is "closely and directly effected by" the actions of another.[10] The duty is to the person or persons who have been impacted by the plaintiff's conduct. There is no private law duty to the world at large. As Justice Cardozo famously stated, "proof of negligence in the air ... will not do".[11]

The neighbour principle has become a "cornerstone of the law of negligence," given effect in the law through the "crucial limiting principles" of foreseeability and proximity.[1]

Public policy and the Anns test

The neighbour principle became a milestone in establishing the conceptual foundation for determining whether there was a duty of care in subsequent cases.[1] In the decades that followed, courts grappled with how the neighbour principle was to apply in novel cases. Around 50 years later in Home Office v. Dorset Yacht Co, the House of Lords affirmed that the neighbour principle "ought to apply unless there is some justification ... for its exclusion."[12] Following Home Office v. Dorset Yacht Co, courts began to endorse the idea of public policy as a limiting factor to the principle. Anns v. Merton London Bororough Council[13] emerged as a high-watermark. Lord Wilberforce propounded a (controverisal) two-step test: he suggested that, rather than grounding novel duties of care in the extension of prior precedent, a duty of care could be said to arise whenever there was a relationship of proximity/neighbourhood (step one) and such a duty was not negated by public policy concerns (step 2). Lord Wilberforce's Anns test was controversial because of its expansive tendency.[14]

From Winterbottom v. Wright, to Donoghue v. Stevenson, to Anns v. Merton London Bororough Council and beyond, the notion of duty of care has evolved incrementally. These shifts allow courts to apply slowly developed principles to a variety of contexts. Today, the duty stage affords the opportunity to "tame human activity" by imposing liability on those who hold significant capacities for harm, such as manufacturers, governments, doctors, and police.[15] However, while some may favour expanding the duty of care "into every nook and cranny of negligence law," there are important reasons to "restrict the scope" of the duty analysis to safeguard personal autonomy and economic freedom, and to moderate the role of courts in regulating human activity.[16]

Establishing a duty of care

Cooper v. Hobart
This video from the Peter A. Allard School of Law summarizes the case of Cooper v. Hobart, which was instrumental in developing the Anns/Cooper test for novel duties of care.[17]

The duty of care is an "important screening mechanism for excluding types of cases that are inappropriate for negligence adjudication."[18] Justice Cardozo memorably suggested that courts should not recognise duties that would impose "liability in an indeterminate amount for an indeterminate time to an indeterminate class."[19] A duty of care must be framed in the context of the facts of the case before the court and the alleged relationship arising from it, having regard to policy rationales and additional reasons for or against recognising a duty of care.[20]

The Supreme Court of Canada laid down framework for recognising duties of care in Canadian common law in Cooper v. Hobart.[21] A duty of care will arise when either (a) it has already been recognised in pre-existing case law; or (b) when in a novel case the relationship between the parties warrants recognising a novel duty of care.

Pre-existing duties of care

In order to determine whether a person owes another a duty of care, the starting point is always to consider whether there is precedent that already establishes an analogous duty of care.[22]

Judge-made common law has established a variety of pre-existing categories of duty of care in negligence. An example of a well-established category is the duty a manufacturer owes to take care that their products do not injure consumers. This is the very duty of care that was recognised in Donoghue v. Stevenson, which remains good law today.[8] Other pre-existing duties of care include the professional duties that doctors owe to their patients[23] and that solicitors owe to their clients.[24]

Novel duties of care

Lord Macmillan in Donoghue famously declared that "the categories of negligence are never closed." In novel cases, previously unarticulated duties may be established through a novel duty of care analysis.[25] In Canada, the framework for a novel duty of care analysis was laid down in Cooper v. Hobart,[21] which built upon Lord Wilberforce's judgment in Anns[13] to develop what is known today as the Anns/Cooper test.[26] It is not so much a "test" as a framework for structuring one's analysis. The framework has been interpreted by the British Columbia Court of Appeal as follows:

Anns/Cooper framework for novel duties of care[27]
1)   Does a sufficiently analogous precedent exist that definitively found the existence or non-existence of a duty of care in these circumstances;
If not;

2)   Was the harm suffered by the plaintiff reasonably foreseeable;

If yes;

3)   Was there a relationship of sufficient proximity between the plaintiff and the defendant such that it would be just to impose a duty of care in these circumstances;

If yes, a prima facie duty arises;

4)   Are there any residual policy reasons for negating the prima facie duty of care established in question/step 3, aside from any policy considerations that arise naturally out of a consideration of proximity.

If not, then a novel duty of care is found to exist.

Regarding who bears the burden of proof at each stage, the Supreme Court has said that "[t]he plaintiff bears the legal burden of establishing ... the existence of a prima facie duty of care", but, once this is established, "the evidentiary burden then shifts to the defendant to establish that there are residual policy reasons why this duty should not be recognized".[28]

The law has developed significantly since the articulation of the tort of negligence in Donoghue v. Stevenson, opening up an abundance of opportunities for the common law to establish and reject the existence of novel duties in a variety of situations.[29]

Misfeasance versus nonfeasance

Relevant to the duty of care analysis is a basic conceptual distinction in the common law between negligent acts (misfeasance) and negligent omissions (nonfeasance). In general, the common proscribes a plaintiff's harmful acts towards another but not harmful omissions, unless the plaintiff was under a special duty to avoid omitting to take care of someone else.[30] Stated differently, as a general starting point the common law does not compel an individual to take positive steps to protect a plaintiff from harm that the defendant has not caused.[31]

The reason lies in the fundamental principle of autonomy that is embedded in the common law. As McLachlin CJ stated in Childs v. Desormeaux, "[a]lthough there is no doubt that an omission may be negligent, as a general principle, the common law is a jealous guardian of individual autonomy."[31]

In Childs, McLachlin CJ affirmed there is no "free-standing" duty to act in situations of danger. Only in special circumstances will an affirmative duty to avoid careless omissions arise, such as:

  1. Where a defendant intentionally attracts and invites people to an inherent and obvious risk he or she created or controls;
  2. Paternalistic relationships of supervision and control, such as parent-child or teacher-student, because of the vulnerability of the plaintiffs and the position of power of the defendants; and
  3. Where there is an exercise of a public function or commercial enterprise that includes implied responsibilities to the public.[32]

Discussion questions

  • According to Lord Atkin, what principle unifies cases of negligence? What is the limit of the principle?
  • Is it appropriate for courts to forever continue innovating and developing tort law based on the neighbour principle?
  • The court in Childs v. Desormeaux, Courrier & Zimmerman notes that autonomy is the primary rationale for reluctance to impose positive duties to act;[33] however, many cases illuminate the vague differences between acts and omissions. How can we delineate between acts and omissions?

Quiz



  1. ↑ 1.0 1.1 1.2 Rankin’s Garage & Sales v. JJ, 2018 SCC 19 (§13.4.2.3) at para 21.
  2. ↑ Liang, Brent (2 November 2017). "Duty of Care: Generally". Just Torts – via SoundCloud.
  3. ↑ Walton, CT, ed. (2014). Charlesworth & Percy on Negligence. London: Sweet & Maxwell. p. 21.
  4. ↑ Plunkett, James (2018). The Duty of Care in Negligence. London: Hart Publishing. p. 7.
  5. ↑ Winterbottom v. Wright (1852),152 ER 402.
  6. ↑ Winterbottom v. Wright (1842),152 ER 402 at 404–405.
  7. ↑ Plunkett, James (2018). The Duty of Care in Negligence. London: Hart Publishing. p. 33.
  8. ↑ 8.0 8.1 8.2 Donoghue v. Stevenson, [1932] UKHL 100 (BAILII) (§13.1.1).
  9. ↑ Proof. "The Case of the Snail in the Ginger Beer". America's Test Kitchen.
  10. ↑ 10.0 10.1 Donoghue v. Stevenson, [1932] UKHL 100 (BAILII) (§13.1.1) at para 32.
  11. ↑ Palsgraf v. Long Island Railroad Co, 248 NY 339 (1928) (§13.1.3) at para 2.
  12. ↑ Home Office v. Dorset Yacht Co. Ltd, [1970] UKHL 2 (BAILII) (§13.2.3) at 1027.
  13. ↑ 13.0 13.1 Anns v. Merton London Borough Council, [1977] UKHL 4 (BAILII) (§13.4.1.1).
  14. ↑ Walton, CT, ed. (2014). Charlesworth & Percy on Negligence. London: Sweet & Maxwell. pp. 22–24.
  15. ↑ Linden, A.M. (1983). "The Good Neighbour on Trial: A Fountain of Sparkling Wisdom". UBC Law Review. 17 (1): 88. (§13.1.2).
  16. ↑ Linden, A.M. (1983). "The Good Neighbour on Trial: A Fountain of Sparkling Wisdom". UBC Law Review. 17 (1): 86. (§13.1.2).
  17. ↑ Peter A. Allard School of Law (5 January 2017). "ED1260 Tort Law animation 02 v01 1080p h264". Youtube.
  18. ↑ Owen, David G (2006). "The Five Elements of Negligence". Hofstra Law Review. 35: 1675.
  19. ↑ Ultramares Corporation v. Touche, (1931) 255 NY 170 (NY CA) (§19.3.1.1) at para 13.
  20. ↑ See e.g. Deloitte & Touche v. Livent Inc, 2017 SCC 63 (§19.3.1.3).
  21. ↑ 21.0 21.1 Cooper v. Hobart, 2001 SCC 79 (§13.4.1.2).
  22. ↑ Rankin’s Garage & Sales v. JJ, 2018 SCC 19 (§13.4.2.3) at paras 18.
  23. ↑ Armstrong v. Ward, 2019 ONCA 963, rev’d 2021 SCC 1 (§19.4.3.3).
  24. ↑ Gartside v. Sheffield, [1983] NZCA 37.
  25. ↑ Donoghue v. Stevenson, [1932] AC 562 (§13.1.1) at para 80.
  26. ↑ Rankin’s Garage & Sales v. JJ, 2018 SCC 19 (§13.4.2.3) at para 9.
  27. ↑ Carhoun & Sons Enterprises Ltd v. Canada (AG), 2015 BCCA 163 at para 50.
  28. ↑ Rankin’s Garage & Sales v. JJ, 2018 SCC 19 (§13.4.2.3) at paras 19–20.
  29. ↑ See e.g. cases discussed in Negligence Categories.
  30. ↑ Linden, Allen (2016). "Toward Tort Liability for Bad Samaritans". Alberta Law Review. 53: 838.
  31. ↑ 31.0 31.1 Childs v. Desormeaux, Courrier & Zimmerman, 2006 SCC 18 (§13.4.2.1) at para 31.
  32. ↑ Childs v. Desormeaux, Courrier & Zimmerman, 2006 SCC 18 (§13.4.2.1) at para 35–37.
  33. ↑ Childs v. Desormeaux, Courrier & Zimmerman, 2006 SCC 18 (§13.4.2.1) at para 31.
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