TORT 031 Duty of Care in the Established Relationships — Law of Torts Notes for Judiciary

The Duty of Care in the Established Relationships: Manufacturers, Occupiers, Employers, Transport Operators, Schools and Public Authorities

Where a duty of care is settled, the Caparo questions are not reopened. The threefold test exists for novel situations; in the established categories the duty is taken as given and the argument moves straight to breach. This note collects the categories in which a duty is settled, and states what each one requires. Running through all of them is a single idea: the duty is shaped by the relationship and by the control the defendant has over the source of the danger. The more control he has, and the more the plaintiff depends on him, the higher the duty the law imposes.

The six settled categories, and the thread that runs through them

1. Manufacturers and Consumers

Donoghue v. Stevenson [1932] AC 562 established the duty: a manufacturer who sells products in a form showing that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, owes a duty to that consumer to take reasonable care.
The two conditions are the absence of intermediate examination and the product reaching the consumer in the same form. Where an intermediate inspection is likely, the chain of responsibility may be broken.
Grant v. Australian Knitting Mills [1936] AC 85 applied it beyond food: woollen underwear containing an excess of a sulphite left in the manufacturing process caused dermatitis, and the manufacturer was liable.
The duty extends to design, manufacture, packaging, labelling and warning. A product safe in itself may be dangerous without adequate instructions for its use.
In India the Consumer Protection Act, 2019 now supplies a statutory route, with a product liability regime in which a manufacturer may be liable without proof of negligence. The tort action survives alongside it.

2. Occupiers

The entrant	The duty owed
Contractual entrant	The duty fixed by the contract, and in the absence of express terms, that the premises are as safe as reasonable care and skill can make them
Invitee	A person entering on business of interest to both. The occupier must use reasonable care to prevent damage from an unusual danger he knows or ought to know of
Licensee	A person entering with permission but for his own purposes. The occupier must warn of concealed dangers he actually knows of
Trespasser	Since British Railways Board v. Herrington [1972] AC 877, a duty of common humanity, measured by what the occupier knows of the danger and of the likelihood of trespass
Children	A higher duty, because a child cannot appreciate danger, and the allurement doctrine may apply

The English statutory reform in the Occupiers' Liability Acts, 1957 and 1984 replaced the common law categories with a common duty of care to all lawful visitors. India has no corresponding statute, so the common law classification still matters here.
Klaus Mittelbachert v. East India Hotels Ltd., AIR 1997 Del 201 is the leading Indian illustration: a guest at a five star hotel dived into a swimming pool whose design and depth were defective, was paralysed and later died. The hotel was held liable, the court observing that a five star hotel holding itself out as such owes a high degree of care.
The occupier is the person in control of the premises, not necessarily the owner, and more than one person may be an occupier at the same time.

3. Employers

The duty is personal and non delegable. The employer cannot discharge it by entrusting the task to an apparently competent contractor; if the duty is not performed, he remains liable.
It has four settled limbs: competent staff; adequate material and plant; a proper system of work and effective supervision of it; and a safe place of work.
The duty is owed to each employee individually, which is why Paris v. Stepney Borough Council required more care towards a man already blind in one eye.
Providing equipment is not enough where its use must also be enforced. A system that exists on paper and is not supervised is not a proper system.
Volenti is rarely available, since Smith v. Baker, and never answers a breach of a statutory duty imposed for the workman's protection.
It runs alongside the statutory schemes, principally the Employee's Compensation Act, 1923 and the Factories Act, 1948.

4. Drivers and Transport Operators

A driver owes a duty to every other road user: other drivers, passengers, cyclists and pedestrians alike.
A higher degree of care is required where children, the elderly or the infirm may be present, because their behaviour is less predictable and their ability to avoid danger is less.
A carrier owes passengers a duty of care both in the driving and in the condition of the vehicle, and a public carrier may owe a higher duty still.
The pedestrian's own carelessness goes to contributory negligence, and not to the existence of the duty.
Section 166 of the Motor Vehicles Act, 1988 is the fault based claim, and Section 164 the no fault one, giving Rs. 5,00,000 for death and Rs. 2,50,000 for grievous hurt since 1 April 2022.

5. Educational Institutions

A school stands in loco parentis to its pupils, and the standard is that of a careful parent.
The standard is adjusted for the circumstances: the number of children in the teacher's charge, their age, and the nature of the activity.
The duties include supervision, particularly during breaks, games and practical work; maintenance of the premises and equipment; and care in transport and on excursions.
A greater duty attaches to inherently dangerous activities, such as laboratory work, sport and swimming.
The duty does not make the school an insurer. A school is not liable for every injury a child suffers, but for those a careful parent would have prevented.

6. Public Authorities

They are liable on ordinary principles for the negligent performance of their functions, and the retreat of sovereign immunity is traced in TORT 015.
The courts distinguish policy from operation. Decisions about how to allocate resources between competing demands are ordinarily not justiciable in a negligence action; the manner in which a decision once taken is carried out is.
The duties most often litigated are the maintenance of roads, drains, buildings and public spaces, and the inspection of structures.
Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750 is the standing illustration, where a clock tower under the Corporation's exclusive control collapsed for want of periodical inspection.
Section 80 of the Code of Civil Procedure, 1908 requires notice before suing the Government or a public officer in respect of an act done in his official capacity, subject to the leave the section permits in urgent cases.

7. The Thread Running Through Them

⚠ Relationship and control shape the duty

The categories are not an arbitrary list. In every one of them the duty is shaped by two things: the relationship between the parties, and the control the defendant has over the source of the danger. That is why an employer's duty is personal and non delegable, since he alone controls the workplace and the system of work. It is why a school's duty is measured by the careful parent, since it has assumed the parent's position. It is why a manufacturer's duty arises only where intermediate examination is unlikely, since his control over the product ends when somebody else can inspect it. And it is why the occupier of premises, and not their owner, is the person who owes the duty. When a novel situation arises, that is the question worth asking first: who controlled the danger, and who was depending on whom?

8. The Position Stated Shortly

1. Where a duty is settled, the Caparo questions are not reopened, and the argument moves straight to breach.

2. A manufacturer owes a duty to the ultimate consumer where the product reaches him in the form it left the manufacturer and no intermediate examination is likely.

3. That duty extends to design, manufacture, packaging, labelling and warning, and in India the Consumer Protection Act, 2019 supplies a statutory route alongside it.

4. An occupier owes different duties to a contractual entrant, an invitee, a licensee and a trespasser, and India has no statute replacing the common law categories.

5. Since British Railways Board v. Herrington a trespasser is owed a duty of common humanity.

6. An employer owes a personal and non delegable duty as to competent staff, adequate plant, a proper system of work with supervision, and a safe place of work.

7. A driver owes a duty to every other road user, with a higher degree of care where children or the infirm may be present.

8. A school stands in loco parentis and is judged by the standard of a careful parent, adjusted for numbers, age and activity.

9. Public authorities are liable on ordinary principles, subject to the distinction between policy and operation and to notice under Section 80 of the Code.

10. Throughout, the duty is shaped by the relationship between the parties and by the defendant's control over the source of the danger.