The Tort of Negligence – Establishing a Duty of Care

April 22, 2016

There are four component parts which a Plaintiff must prove to establish negligence.  The burden of proving each falls upon the Plaintiff.  The four components are:-
The Plaintiff was owed a duty of care;
There was a breach of that duty of care;
The Plaintiff suffered damage as a result of that breach;
The damage suffered was not too remote.

A seminal case in establishing whether or not a duty of case exists is the case of Donoghue v Stevenson [1932] AC 562.  The facts were that Mrs Donoghue and a friend visited a café wherein the Plaintiff’s friend bought her a bottle of ginger beer.  The bottle was made of opaque glass and when filling the Plaintiff’s glass the remains of a decomposed snail, which had somehow found its way into the bottle at the factory, floated out.  The Plaintiff developed gastroenteritis as a result.  Since the Plaintiff had not bought the bottle of ginger beer herself she could not make a claim in contract.  She therefore brought an action against the manufacturer of the ginger beer.  The House of Lords had to decide whether a duty of care existed as a matter of law.  It held that the manufacturer owed the Plaintiff a duty to take care that the bottle did not contain foreign bodies which would cause her personal harm.  This case first established that a manufacturer of goods owes a duty of care to their ultimate consumer.  Lord Atkin stated:-
“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 in 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 my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question in”.
The legal duty of care concerns the relationship between the Defendant and the Plaintiff.  A professional person owes to his or her client a duty to exercise reasonable care and skill in the performance of the task required of him or her.  There are a number of situations in which the Courts recognise the existence of a duty of care, for example, employer to employee, doctor to patient, solicitor to client and manufacturer to consumer.
The duty described above arises not only as an implied (if not expressed) term of the contract of engagement between the professional and his or her client, but also concurrently in tort.  In some circumstances, the professional may owe a duty of care in tort to third parties.  Breach of the tortious duty gives rise to liability in the tort of negligence.
In Caparo Industries Plc v Dickman [1990] 2 AC 605 the Court considered the circumstances in which a duty care may arise.  The Court set out three issues which a Court must consider to establish whether or not a duty of care exists.  These issues are:-
There must be a reasonable foresight of harm;
There must be sufficient proximity of relationship between the Plaintiff and Defendant;
It must be fair, just and reasonable to impose a duty of care.

In order to satisfy the requirement for proximity, the Plaintiff must show that the Defendant had a measure of control over and responsibility for the impugned act.
Generally speaking, the law of negligence has developed through case law which means that when considering whether a duty care exists in any given situation, the Courts have flexibility to take public policy considerations into account and steer the evolution of the tort of negligence accordingly.
This is a general guide and it is not intended nor should it be taken as legal advice.
Should you have queries about the content of this article, please do not hesitate to contact Fergal Maguire, Associate.
E: f.maguire@cfrlaw.co.uk

T: 02890 243 141