Law of Torts
Duty of Care and Standard of Care: Whether He Owed Anything, and How Much Care It Took
The duty question asks whether the law recognises an obligation between these two parties at all. The standard question asks what that obligation required in these circumstances. The first is about the relationship and is decided without reference to what the defendant actually did; the second is about the conduct and is decided on the evidence. Duty is a question of law for the judge and a control device by which liability is confined; standard is a question of fact and is where almost every negligence trial is actually fought.
1. The Comparison
Duty of care | Standard of care | |
The question | Did he owe this plaintiff anything at all | How much care did that duty require of him |
What it concerns | The relationship between the parties | The defendant's conduct |
Its nature | A question of law | A question of fact |
Who decides it | The judge | The court on the evidence |
What settles it | Foreseeability of harm to this plaintiff, proximity, and whether it is fair, just and reasonable to impose a duty | What the reasonable man would have done, weighing the magnitude of the risk, the seriousness of the harm, the cost of precautions and the utility of the conduct |
If it is absent | The claim fails entirely, however careless the defendant was | There is no breach, and the claim fails on that ingredient |
Varies with | The category of case and the relationship | The circumstances, the danger, and any special skill professed |
The leading case | Donoghue v. Stevenson, [1932] AC 562 | Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781 |
Precedent | Largely settled by category. Novel duties are rare | Never settled. Each case turns on its own facts |
2. The Duty of Care
- Donoghue v. Stevenson supplies the general conception: a person must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure his neighbour, meaning persons so closely and directly affected by his act that he ought reasonably to have them in contemplation.
- The modern approach is threefold: foreseeability of damage to this plaintiff; a relationship of proximity or neighbourhood; and whether it is fair, just and reasonable for the law to impose a duty of the scope contended for.
- In the vast majority of cases the question does not arise. A driver owes a duty to other road users, an occupier to his visitors, a doctor to his patient, a manufacturer to the ultimate consumer. These are settled categories and no argument is required.
- It arises where the case is novel or where a category has been kept narrow: pure economic loss, psychiatric injury to a secondary victim, an omission to act, the liability of a public authority for failing to exercise a power, and liability for the deliberate act of a third party.
- Duty is a control device. It is the point at which the law decides how far liability should extend, and its function is to keep negligence from becoming a general remedy for every foreseeable harm: TORT 022.
3. The Standard of Care
Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781 Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. |
- The standard is objective. It is not what this defendant thought reasonable but what a reasonable person in his position would have done, and a defendant's inexperience, nervousness or limited intelligence is no answer.
- It is a single standard applied to varying circumstances, and not a sliding set of standards. What varies is what reasonable care requires, not how much care the law demands.
- Four factors are weighed: the magnitude of the risk, meaning the likelihood that harm will occur; the seriousness of the harm if it does; the cost and difficulty of the precautions; and the utility of the defendant's conduct.
- The greater the danger, the greater the care required, so a person handling explosives or electricity is held to a standard that in practice approaches a guarantee.
- The standard is that of the reasonable person in the defendant's position, so where he professes a special skill it becomes the standard of a reasonably competent member of that calling: TORT 129.
- Special rules apply to children, who are judged by the standard of a child of that age and understanding, and to persons acting in an emergency, who are not held to a fine judgment made in the agony of the moment: TORT 023.
4. Why the Order Cannot Be Reversed
- Duty is logically prior, because the standard is the content of a duty and there can be no content without an obligation to fill.
- Duty is decided without reference to the defendant's conduct. It asks only about the relationship, so however shocking the behaviour, a defendant who owed the plaintiff nothing is not liable to him in negligence.
- A plaintiff who begins with how badly the defendant behaved and works backwards to a duty has inverted the analysis, and will be met by the answer that negligence in the air will not do: there must be a duty owed to this plaintiff.
- Palsgraf v. Long Island Railroad Co., 248 NY 339 (1928) is the classical illustration. Guards pushing a passenger onto a train dislodged a package of fireworks; the explosion upset scales at the far end of the platform which struck the plaintiff. Cardozo C.J. held that the guards owed no duty to a person in her position, whatever the quality of their conduct towards the passenger.
- The practical consequence for a plaint is that the duty must be pleaded first and as a relationship, identifying why this defendant owed this plaintiff an obligation, before any allegation of carelessness is made.
5. Where the Two Are Confused
The confusion | Why it matters |
Arguing that a duty exists because the defendant behaved badly | The existence of the duty is independent of the conduct. Bad behaviour towards somebody else creates no duty towards the plaintiff |
Arguing that no duty existed because reasonable care was taken | That is a denial of breach, not of duty. The distinction matters because a finding of no duty disposes of the whole category of case and a finding of no breach does not |
Treating a higher standard as a different duty | The duty is always to take reasonable care. A dangerous activity does not create a special duty; it means that reasonable care requires more |
Treating a professional's obligation as a higher duty | It is the same duty measured against a different reasonable person, namely a competent member of that profession |
Pleading breach without pleading the relationship | The plaint is demurrable, since negligence in the air is not a cause of action |
6. The Sequence in an Action
The stage | What is decided | Law or fact |
Duty | Whether an obligation existed between these parties | Law |
Standard | What that obligation required in these circumstances | Fact |
Breach | Whether the defendant fell below it | Fact |
Causation | Whether the breach produced the harm | Fact, then law |
Remoteness | Which consequences he answers for | Law |
Damage | What loss the plaintiff has suffered | Fact |
⚠ Why duty survives as a separate question when foreseeability appears in both Foreseeability does the work at two stages, and it is a fair question why the duty enquiry is needed at all when almost everything foreseeable enough to be a breach will also be foreseeable enough to found a duty. The answer is that duty is not really about foreseeability; it is about whether this is a kind of case in which the law wishes to impose liability, and foreseeability is only the first of its three limbs. The other two, proximity and whether the imposition is fair, just and reasonable, are where the work is done, and they are doing something a breach enquiry cannot do: they decide questions about whole classes of case rather than about one defendant's conduct. Whether an auditor owes a duty to an investor who reads his report, whether a police force owes a duty to a potential victim of a crime it failed to prevent, whether a parent owes a duty to a child for a lifestyle choice during pregnancy: these cannot sensibly be answered by asking whether a particular defendant was careful enough, because the answer must be the same for everyone in that position, and it must be known in advance. That is what the duty enquiry supplies, and it is why a finding of no duty is worth far more to a defendant than a finding of no breach. |
7. The Position Stated Shortly
1. The duty question asks whether an obligation existed between these parties; the standard question asks what it required.
2. Duty is a question of law for the judge; the standard and the breach are questions of fact.
3. Donoghue v. Stevenson supplies the neighbour principle, and the modern approach adds proximity and whether the imposition is fair, just and reasonable.
4. In most cases duty is settled by category, and it is argued only in novel situations or in the categories deliberately kept narrow.
5. Blyth v. Birmingham Waterworks states the standard: the omission to do what a reasonable man would do, or the doing of what a prudent man would not.
6. The standard is objective and single, and what varies is what reasonable care requires in the circumstances.
7. Four factors are weighed: the magnitude of the risk, the seriousness of the harm, the cost of precautions, and the utility of the conduct.
8. Duty is logically prior and is decided without reference to the defendant's conduct, which is why the analysis cannot be reversed.
9. Palsgraf illustrates the point: conduct careless towards one person creates no duty towards another outside the foreseeable range.
10. A finding of no duty disposes of a whole class of case, which is why it is worth more to a defendant than a finding of no breach.