In English tort law, an individual may owe a duty of care to another, in order to ensure that they do not suffer any unreasonable harm or loss.
The doctrine was significantly developed in the case of Donoghue v Stevenson,[1] where a woman succeeded in establishing a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced.
Generally, a duty of care arises where one individual or group undertakes an activity which could reasonably harm another (or themselves), either physically, mentally, or economically.
[3]Lord Atkin's speech established a neighbour principle,[4] or a general duty that individuals must take reasonable care in their actions or omissions, so as not to cause harm to others proximate to them.
[7] Some thirty years after Donoghue was decided, in Home Office v Dorset Yacht Co Ltd,[8] Lord Reid stated judicially that: "the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.
The lessees of the maisonettes sued the council in negligence, alleging a duty of care existed for the building to be properly constructed and in a usable state.
The resultant test for a duty of care - which remains good law today - can be found in the judgments of Caparo Industries plc v Dickman.
[16] Whereas Lord Atkin's neighbour principle emphasised a need for both a proximate relationship, as well as a foreseeability of harm, the Anns test did not make such a clear distinction.
Richard Kidner has stated that this led the courts to sometimes ignore relevant policy considerations,[17] and to encourage "lazy thinking and woolly analysis".
[25] It has been established at common law that those who attempt rescue are owed a duty of care by those who create dangerous situations, in which it is foreseeable rescuers may intervene.
An education authority was found to owe a duty of care to motorists to protect against the risk of a young children in a public road; a driver was injured when forced to swerve, after a four-year-old child escaped and ran into the path of oncoming traffic.
[43] Whilst a prima facie duty of care is imposed for physical harm where the criteria of proximity, foreseeability, and policy are fulfilled, liability for psychiatric harm rests upon an individual's connection to a traumatising event; those not physically endangered may not be owed a duty of care unless they can fulfil several relational criteria.
[48] Additionally, the cause of the harm must be close and proximate to the shocking event in question, and it must be witnessed by the means of the victim's senses, and not via some form of communication.
The idea that a duty of care may be owed to protect against the economic loss of others has been seen as problematic,[50] as the bounds of such liability are potentially unforeseeable, and difficult to establish.
[54] When subsequently Easipower Ltd was declared bankrupt, Hedley Byrne took legal action against Heller & Partners, alleging they had been owed a duty of care when consulting for a credit reference.
Whilst Hedley Byrne did not succeed in their claim,[c] the House of Lords recognised that such a duty may be owed, where a relationship of reliance exists between two parties.
[55] Generally, it is where the type of harm involved is not of a physical kind, or a negligent omission is committed, that the formulation of a duty of care differs.
[56][57] In 2018, the Supreme Court of the United Kingdom found that the failure to properly investigate allegations of sexual assault against two women by John Worboys amounted to a breach of Article 3 of the European Convention of Human Rights, and that conspicuous or substantial errors in investigating serious crimes would give rise to similar breaches of human rights law.