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It is clear that the law of negligence cannot make every individual responsible for harm that befalls any other individual, even where there is some causal relationship between the acts of one person and the injury or loss to another. If, for example, I book the last seat on a flight from A to B, with the effect that you cannot get to B to close a lucrative business deal, then in a very real sense I am the cause of your losses. Without my actions, perhaps, you would have secured the deal and made a mint. It is unlikely, I think, that many people would hold me responsible for your misfortunes, even if I foresaw that they were likely. There is, after all, only a limited number of seats on an aeroplane, and why should you get one, and not me? On the other hand, supose I take the last seat on a flight that you need to get urgent medical treatment only available in another country; and suppose that I ought to have known that you are in this position, and are likely to suffer personal injury as a result. In such a case I suspect that many more would be willing to hold me responsible for your misfortunes. However, it is unlikely that I will be liable in law. Somewhere the law has to distinguish between acceptable careless acts that cause loss or injury to another, and unacceptable careless acts. The notion of `duty of care' is used in English law to fulfil the purpose of making such a distinction. In general, I can be as careless as I like, providing I am under no duty to take care.
There is a huge volume of case law on duty of care, starting most conspicuously with DonoghueVStevenson1932 and going up to the present day. Although lawyers since Donoghue have agreed in principle that there is such a thing as `duty of care', it is not easy to define. Only recently have legal writers started to acknowledge what should have been obvious from the very beginning: there is really no such thing as a duty of care. To say that person A owes person B a duty of care is to say no more than that the courts, for whatever reason, are willing to hold A liable for harm to B that results from something that A did. There are many reasons why the courts decide the duty of care question one way or another. Most obviously, some wrongs cry out for redress. If I run you down in my car because I am reading a book when I should have been watching the road, clearly I should be held liable. To say that one road user has a `duty of care' to another is merely to put this ethical statement into legal terms. On the other hand, the courts may be aware that some wrongs can only be righted at the expense of creating more wrongs later. This thinking is clearly at work in decisions like MurphyVBrentwoodDC1990. In that case, if the inadequate discharge of the local authority's inspection duties had led to an actual injury, rather than `merely' an economic loss, the authority would almost certainly have been held liable. There is no reason in logic to distinguish a case in which careless exercise of my professional duties leads to your house falling down, from one where my carelessness leads to your spending money to prevent the house falling down. That the local authority in Murphy was not held liable by the HouseOfLords does not reflect that court's believe that the Authority acted properly; it merely reflects the inadvisability of making it a general rule that one person can be held liable for the economic misfortunes of another, simply on the grounds that such misfortunes are foreseeable.Whether there is, in an absolute sense, a real meaning to `duty of care', or it simply encompasses a mixed bag of ethical and policy considerations, the fact remains that the languge of duty of care is widely used. If you wish to succeed in a claim for negligence, your first step has to be to show that you were owed a duty of care. Since the term is more-or-less incapable of clear definition, the only way to do that is to show that your situation is similar to one where a duty of care already existed, or show that a principle accepted in another case can be extended to meet your situation. You may also have to show that your case does not fall into a category where a duty of care is not normally found.
At present, the most authorative guide to establishing a duty of care is probably the HouseOfLords ruling in CaparoVDickman1990. Essentially, to establish that a duty of care is owed, the claimant must show that:
`Proximity' in this case means legal, not physical, proximity. The claimant and the defendant are in proximity if there is some sort of relationship, interaction, or dependency between them. Many writers have pointed out that the criteria in Caparo do overlap somewhat.
Of course there are many situations where a duty of care may be assumed to exist, and it won't be necessary to invoke the Caparo test. For example, no-one would dispute that road users owe a duty of care to other road users. Moreover, there are situations where the duty of care is imposed by statute; see, for example, the OccupiersLiabilityAct1957. At the same time, there are situations where the courts have been extremely reluctant to impose a duty of care. These situations include those where
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